House Bill 1061er

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    1999 Legislature                     HB 1061, Second Engrossed



  1

  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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  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         501.604, F.S.; providing additional exclusions

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

  6         the Florida Telemarketing Act; amending s.

  7         501.616, F.S.; providing additional unlawful

  8         practices with respect to telephone

  9         solicitation; amending s. 539.001, F.S.;

10         revising license requirements under the Florida

11         Pawnbroking Act; revising conditions of

12         eligibility for license; requiring specified

13         persons to file certain documentation upon

14         application for license; requiring the

15         submission of fingerprints with each initial

16         application for licensure; requiring the

17         Division of Consumer Services to submit

18         fingerprints of each applicant for licensure to

19         the Florida Department of Law Enforcement;

20         requiring the Florida Department of Law

21         Enforcement to forward the fingerprints to the

22         Federal Bureau of Investigation; providing an

23         additional condition under which a pawnbroker

24         license may be suspended or revoked; providing

25         that specified unintentional errors in required

26         applications, documents, or records are not

27         subject to criminal penalties; amending s.

28         559.803, F.S.; revising provisions relating to

29         required information contained in disclosure

30         statements with respect to the sale or lease of

31         business opportunities; amending s. 559.805,


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  1         F.S.; requiring a seller of business

  2         opportunities to file additional information

  3         with the department; reenacting s. 559.815,

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

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

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

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

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

  9         department to post a specified sign at any

10         motor vehicle repair shop that has had its

11         registration suspended or revoked or that has

12         been determined to be operating without a

13         registration; providing a second degree

14         misdemeanor penalty for defacing or removing

15         such a sign, for operating without a

16         registration, or operating with a revoked or

17         suspended registration; authorizing the

18         department to impose administrative sanctions;

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

20         conditions under which a subunit of an

21         organized domestic or foreign nonstock

22         corporation or an unincorporated charitable

23         trust may enter into annuity agreements;

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

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

26         providing definitions; amending s. 427.803,

27         F.S.; requiring the manufacturer to make

28         repairs necessary to conform the device to the

29         warranty; providing notice of the dealer's and

30         manufacturer's address and telephone number;

31         providing procedures for filing claims;


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    1999 Legislature                     HB 1061, Second Engrossed



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

  2         to submit disputes to the Department of

  3         Agriculture and Consumer Services; authorizing

  4         the department to investigate complaints;

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

  6         registration of dealers, for fees, and for

  7         application procedures; providing grounds for

  8         refusal or denial of registration; requiring

  9         dealers to allow department personnel to enter

10         their places of business; authorizing the

11         department to impose penalties; authorizing the

12         department or the state attorney to bring civil

13         actions for violations of the act; providing

14         for fees and fines collected to be deposited

15         into the General Inspection Trust Fund;

16         authorizing dealers to collect a fee from the

17         consumer at the time of sale or lease of a

18         device; allowing consumers to bring a civil

19         action for violation of the act; requiring

20         recordkeeping and retention of records;

21         providing for rulemaking; providing an

22         appropriation; providing effective dates.

23

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

25

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

27  Florida Statutes, 1998 Supplement, are amended, present

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

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

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

31         496.404  Definitions.--As used in ss. 496.401-496.424:


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    1999 Legislature                     HB 1061, Second Engrossed



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

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

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

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

  5  offering goods and services to the public, the difference

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

  7  charitable organization or sponsor and the price at which the

  8  charitable organization or sponsor or any person acting on

  9  behalf of the charitable organization or sponsor resells those

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

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

12  provided that membership is not conferred solely as

13  consideration for making a contribution in response to a

14  solicitation. "Contribution" also does not include funds

15  obtained by a charitable organization or sponsor pursuant to

16  government grants or contracts, or obtained as an allocation

17  from a United Way organization that is duly registered with

18  the department or received from an organization that is exempt

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

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

21  Revenue Code that is duly registered with the department.

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

23  resulting from plea or trial, regardless of whether

24  adjudication was withheld or imposition of sentence was

25  suspended.

26         (20)(21)  "Solicitation" means a request, directly or

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

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

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

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

31  purpose or will benefit a charitable organization or sponsor.


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

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

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

  4  thing of value:

  5         (a)  Any oral or written request;

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

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

  8  communication device concerning an appeal or campaign by or

  9  for any charitable organization or sponsor or for any

10  charitable or sponsor purpose;

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

12  any handbill, written advertisement, or other publication that

13  directly or by implication seeks to obtain any contribution;

14  or

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

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

17  device, magazine, membership, merchandise, subscription,

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

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

20  description in connection with which any appeal is made for

21  any charitable organization or sponsor or charitable or

22  sponsor purpose, or when the name of any charitable

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

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

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

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

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

28  will benefit any charitable organization or sponsor.

29

30  A solicitation is considered as having taken place whether or

31  not the person making the solicitation receives any


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  1  contribution. A solicitation does not occur when a person

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

  3  organization that is exempt from federal income taxation under

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

  5  501(c) of the Internal Revenue Code and is duly registered

  6  with the department.

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

  8  496.405, Florida Statutes, 1998 Supplement, is amended, and a

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

10         496.405  Registration statements by charitable

11  organizations and sponsors.--

12         (2)  The initial registration statement must be

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

14  oath by the treasurer or chief fiscal officer of the

15  charitable organization or sponsor, and include the following

16  information or material:

17         (d)  A statement of whether:

18         1.  The charitable organization or sponsor is

19  authorized by any other state to solicit contributions;

20         2.  The charitable organization or sponsor or any of

21  its officers, directors, trustees, or principal salaried

22  executive personnel have been enjoined in any jurisdiction

23  from soliciting contributions or have been found to have

24  engaged in unlawful practices in the solicitation of

25  contributions or administration of charitable assets;

26         3.  The charitable organization or sponsor has had its

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

28  governmental agency, together with the reasons for such

29  denial, suspension, or revocation; and

30         4.  The charitable organization or sponsor has

31  voluntarily entered into an assurance of voluntary compliance


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

  2  with a copy of that agreement.

  3         5.  The charitable organization or sponsor or any of

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

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

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

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

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

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

10  larceny, embezzlement, fraudulent conversion, misappropriation

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

12  solicitation for a charitable organization or sponsor within

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

14  nature of the offense, the date of the offense, the court

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

16  other disposition, and the disposition of the offense.

17         6.  The charitable organization or sponsor or any of

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

19  enjoined from violating any law relating to a charitable

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

21  the injunction, and the court issuing the injunction.

22         (8)  No charitable organization or sponsor shall

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

24  employees to solicit contributions on behalf of such

25  charitable organization or sponsor if such officer, director,

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

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

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

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

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

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


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  1  10 years involving fraud, theft, larceny, embezzlement,

  2  fraudulent conversion, misappropriation of property, or any

  3  crime arising from the conduct of a solicitation for a

  4  charitable organization or sponsor, or has been enjoined from

  5  violating any law relating to a charitable solicitation.

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

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

  8  said section, to read:

  9         496.409  Registration and duties of professional

10  fundraising consultant.--

11         (2)  Applications for registration or renewal of

12  registration must be submitted on a form prescribed by the

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

14  information:

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

16  principal place of business of the applicant and any Florida

17  street addresses if the principal place of business is located

18  outside this state.

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

20         (c)  The names and residence addresses of all

21  principals of the applicant, including all officers,

22  directors, and owners.

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

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

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

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

27  trustee, or employee of any charitable organization or sponsor

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

29  providing goods or services to any charitable organization or

30  sponsor under contract to the applicant.

31


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

  2  directors, trustees, or principal salaried employees have,

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

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

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

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

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

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

  9  offense, the date of the offense, the court having

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

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

12  or of any misdemeanor arising from the conduct of a

13  solicitation for a charitable organization or sponsor or

14  charitable or sponsor purpose, or been enjoined from violating

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

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

17  directors, trustees, or employees have, regardless of

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

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

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

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

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

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

24  misappropriation of property, or any crime arising from the

25  conduct of a solicitation for a charitable organization or

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

27  offense, the date of the offense, the court having

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

29  disposition, and the disposition of the offense.

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

31  directors, trustees, or employees have been enjoined from


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  1  violating any law relating to a charitable solicitation and,

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

  3  and the court issuing the injunction.

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

  5  consultant, and no professional fundraising consultant shall

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

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

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

  9  or has 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, any crime within the last

12  10 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, or has been enjoined from

16  violating any law relating to a charitable solicitation.

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

18  496.410, Florida Statutes, are amended to read:

19         496.410  Registration and duties of professional

20  solicitors.--

21         (2)  Applications for registration or renewal of

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

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

24  following information:

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

26  principal place of business of the applicant and any Florida

27  street addresses if the principal place of business is located

28  outside this state.

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

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

31  than an individual, was legally established.


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  1         (d)  The names and residence addresses of all

  2  principals of the applicant, including all officers,

  3  directors, and owners.

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

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

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

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

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

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

10  any supplier or vendor providing goods or services to any

11  charitable organization or sponsor under contract to the

12  applicant.

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

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

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

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

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

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

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

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

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

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

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

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

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

26  conduct of a solicitation for any charitable organization or

27  sponsor or charitable or sponsor purpose, or been enjoined

28  from violating a charitable solicitation law in this or any

29  other state.

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

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


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

  2  solicitation have, regardless of adjudication, been convicted

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

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

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

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

  7  years involving fraud, theft, larceny, embezzlement,

  8  fraudulent conversion, or misappropriation of property, or any

  9  crime arising from the conduct of a solicitation for a

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

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

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

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

14  offense.

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

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

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

18  solicitation have been enjoined from violating any law

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

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

21  the injunction.

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

23  solicitation activity.

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

25  and no professional solicitor shall, to solicit for

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

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

28  controlling interest therein, who or any person the

29  professional solicitor employs, engages, or procures to

30  solicit for compensation, has, regardless of adjudication,

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


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  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, a

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

  5  larceny, embezzlement, fraudulent conversion, or

  6  misappropriation of property, or any crime arising from the

  7  conduct of a solicitation for a charitable organization or

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

  9  to a charitable solicitation been convicted in the last 5

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

11  arising from the conduct of a solicitation for a charitable

12  organization or sponsor or a charitable purpose or sponsor

13  purpose.

14         Section 5.  Section 496.420, Florida Statutes, is

15  amended to read:

16         496.420  Civil remedies and enforcement.--

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

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

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

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

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

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

23  permanent injunction, a declaratory judgment, the appointment

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

25  reimbursement of persons from whom contributions have been

26  unlawfully solicited, the distribution of contributions in

27  accordance with the charitable or sponsor purpose expressed in

28  the registration statement or in accordance with the

29  representations made to the person solicited, the

30  reimbursement of the department for investigative costs, and

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


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  1  costs, including investigative costs, and any other equitable

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

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

  4  496.426 with actual knowledge or knowledge fairly implied on

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

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

  7  $10,000 per violation.

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

  9  investigation necessary to bring a civil action under this

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

11  affirmations, subpoenaing witnesses or material, and

12  collecting evidence.

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

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

15  written assurance of voluntary compliance with ss.

16  496.401-496.424 or s. 496.426. Acceptance of an assurance may

17  be conditioned on commitment to reimburse donors or to take

18  other appropriate corrective action. An assurance is not

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

20  However, unless an assurance has been rescinded by agreement

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

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

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

24  sections.

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

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

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

28  Inspection Consumer Frauds Trust Fund.

29         Section 6.  Section 501.025, Florida Statutes, is

30  amended to read:

31


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  1         501.025  Home solicitation sale; buyer's right to

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

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

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

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

  6  Cancellation is evidenced by the buyer giving written notice

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

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

  9  purchase.  The written notice of cancellation given by mail

10  shall be effective upon postmarking. The notice of

11  cancellation need not take a particular form and is sufficient

12  if it indicates by any form of written expression the

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

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

15  appear on every note or other evidence of indebtedness given

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

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

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

19  indebtedness.

20         Section 7.  The introductory paragraph of section

21  501.604, Florida Statutes, is amended to read:

22         501.604  Exemptions.--The provisions of this part,

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

24         (1)  A person engaging in commercial telephone

25  solicitation where the solicitation is an isolated transaction

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

27  transactions of like nature.

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

29  political, or educational purposes.  A person soliciting for

30  other noncommercial purposes is exempt only if that person is

31  soliciting for a nonprofit corporation and if that corporation


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

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

  3  Internal Revenue Code.

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

  5  presentation during the telephone solicitation and who does

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

  7  provisional acceptance of a sale during the telephone

  8  solicitation, but who makes the major sales presentation and

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

10  seller and the prospective purchaser in accordance with the

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

12  seller, directly following a telephone solicitation, causes an

13  individual whose primary purpose it is to go to the

14  prospective purchaser to collect the payment or deliver any

15  item purchased, this exemption does not apply.

16         (4)  Any licensed securities, commodities, or

17  investment broker, dealer, or investment adviser, when

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

19  licensed associated person of a securities, commodities, or

20  investment broker, dealer, or investment adviser, when

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

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

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

24  to license or registration as such by the Securities and

25  Exchange Commission, by the National Association of Securities

26  Dealers or other self-regulatory organization as defined by

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

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

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

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

31  dealer, or investment adviser" means any associated person


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  1  registered or licensed by the National Association of

  2  Securities Dealers or other self-regulatory organization as

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

  4  78l, or by an official or agency of this state or of any state

  5  of the United States.

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

  7  newspaper of general circulation.

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

  9  or arrangement:

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

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

12  to ship the offered merchandise.

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

14  trade regulation concerning "use of negative option plans by

15  sellers in commerce."

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

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

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

19  standing order arrangements, supplements, and series

20  arrangements under which the seller periodically ships

21  merchandise to a consumer who has consented in advance to

22  receive such merchandise on a periodic basis.

23         (7)  Any supervised financial institution or parent,

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

25  "supervised financial institution" means any commercial bank,

26  trust company, savings and loan association, mutual savings

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

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

29  the institution is subject to supervision by an official or

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

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


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  1  who directly, or indirectly through one or more

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

  3  common control with, a supervised financial institution.

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

  5  representative, or solicitor when soliciting within the scope

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

  7  insurance broker, agent, customer representative, or

  8  solicitor" means any insurance broker, agent, customer

  9  representative, or solicitor licensed by an official or agency

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

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

12  by a cable television system operating under authority of a

13  franchise or permit.

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

15         (a)  The commercial telephone seller has been operating

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

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

18  repeat sales to existing businesses;

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

20  for purposes of advertisement or as a promotional item the

21  property or goods purchased; or

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

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

24  manufacturing process.

25         (11)  A person who solicits sales by periodically

26  publishing and delivering a catalog of the seller's

27  merchandise to prospective purchasers, if the catalog:

28         (a)  Contains a written description or illustration of

29  each item offered for sale.

30         (b)  Includes the business address or home office

31  address of the seller.


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

  2  illustrations and is distributed in more than one state.

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

  4  than 150,000.

  5         (12)  A person who solicits contracts for the

  6  maintenance or repair of goods previously purchased from the

  7  person making the solicitation or on whose behalf the

  8  solicitation is made.

  9         (13)  A commercial telephone seller licensed pursuant

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

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

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

13  completed transaction must be subject to the provisions of

14  chapter 516 or part II of chapter 520.

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

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

17  which is regulated by the Florida Public Service Commission,

18  or a Federal Communications Commission licensed cellular

19  telephone company or other bona fide radio telecommunication

20  services provider. For the purposes of this exemption,

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

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

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

24  the provisions of chapter 364.

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

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

27  license.

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

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

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

31  is either registered or exempt from registration under


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

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

  3  (g)(2) of that section.

  4         (17)  A business soliciting exclusively the sale of

  5  telephone answering services provided that the telephone

  6  answering services will be supplied by the solicitor.

  7         (18)  A person soliciting a transaction regulated by

  8  the Commodity Futures Trading Commission if the person is

  9  registered or temporarily licensed for this activity with the

10  Commodity Futures Trading Commission under the Commodity

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

12  license has not expired or been suspended or revoked.

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

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

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

16  which costs the purchaser in excess of $500.

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

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

19  registration.

20         (21)  A person soliciting business from prospective

21  consumers who have an existing business relationship with or

22  who have previously purchased from the business enterprise for

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

24  under the same exact business name.

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

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

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

28  following occur on a continuing basis:

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

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

31  establishment.


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

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

  3  location.

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

  5  exchange company pursuant to chapter 721 and who is soliciting

  6  within the scope of the chapter.

  7         (24)  Any person which has been providing telemarketing

  8  sales services continuously for at least 5 years under the

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

10  gross telemarketing sales revenues from contracts with persons

11  exempted in this section.

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

13  salesperson or broker pursuant to chapter 475 and who is

14  soliciting within the scope of the chapter.

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

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

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

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

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

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

21  publisher by written agreement.

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

23  identification cardholder as defined in chapter 482, and who

24  is soliciting within the scope of the chapter.

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

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

27  foreign currency exchange services.

28         Section 8.  Subsections (6) and (7) are added to

29  section 501.616, Florida Statutes, to read:

30         501.616  Unlawful acts and practices.--

31


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

  2  seller or salesperson to make a commercial telephone

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

  4  local time at the called person's location.

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

  6  seller or salesperson making telephonic solicitations to take

  7  any intentional action to prevent transmission of the

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

  9  called when the equipment or service used by the telephone

10  solicitor is capable of creating and transmitting the

11  telephone solicitor's name or telephone number.

12         Section 9.  Paragraph (c) of subsection (3), paragraph

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

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

15  amended to read:

16         539.001  The Florida Pawnbroking Act.--

17         (3)  LICENSE REQUIRED.--

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

19  unless remains in effect until it is earlier relinquished,

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

21  renewed annually, and each licensee shall, initially and

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

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

24  remains unpaid 30 days after written notice of delinquency has

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

26  thereupon expire on the expiration date specified in the

27  registration certificate.

28         (4)  ELIGIBILITY FOR LICENSE.--

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

30  applicant must:

31         1.  Be of good moral character;


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

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

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

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

  5  applicant may establish a certificate of deposit or an

  6  irrevocable letter of credit in a Florida banking institution

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

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

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

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

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

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

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

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

15  either by proceeding in an administrative action or by filing

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

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

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

19  amenable or subject to any judgment or other legal process

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

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

22  credit shall be amenable to and enforceable only by and

23  through administrative proceedings before the agency. It is

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

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

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

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

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

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

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

31


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  1         3.  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 plead

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

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

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

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

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

10  and

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

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

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

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

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

16  crime that involves theft, larceny, dealing in stolen

17  property, receiving stolen property, burglary, embezzlement,

18  obtaining property by false pretenses, possession of altered

19  property, or any other fraudulent or dishonest dealing the

20  agency finds directly relates to the duties and

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

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

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

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

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

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

27  regardless of adjudication, a crime that involves theft,

28  larceny, dealing in stolen property, receiving stolen

29  property, burglary, embezzlement, obtaining property by false

30  pretenses, possession of altered property, or any other

31  fraudulent or dishonest dealing the agency finds directly


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  1  relates to the duties and responsibilities of a pawnbroker

  2  within the last 10 years.

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

  4  $50,000 or more shall file with the department, at the time of

  5  applying for a license, the following documentation:

  6         1.  A current financial statement prepared by a Florida

  7  certified public accountant; or

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

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

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

11  applicant's most recently filed federal tax return.

12

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

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

15  finding, including the presentation of a current balance

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

17  practice public accounting in this state, that the accountant

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

19  the applicant meets the net worth requirement.

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

21  an individual, the eligibility requirements of this

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

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

24  beneficial owner of at least 10 percent of the outstanding

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

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

27         (5)  APPLICATION FOR LICENSE.--

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

29  accompanied by a complete set of fingerprints taken by an

30  authorized law enforcement officer, an application fee set by

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


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

  2  plus the actual cost to the department for fingerprint

  3  analysis for each person subject to the eligibility

  4  requirements. The agency shall submit the fingerprints to the

  5  Department of Law Enforcement for state processing and the

  6  Department of Law Enforcement shall forward the fingerprints

  7  to the Federal Bureau of Investigation for a national criminal

  8  history check owner application, to cover the costs of

  9  investigating the applicant. These fees and costs are not

10  refundable.

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

12  NET WORTH REQUIREMENT.--

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

14  suspend or revoke any license upon a finding that:

15         1.  The licensee, either knowingly or without the

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

17  or conspired with another person to violate this section;

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

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

20  refusal to issue a license; or

21         3.  The licensee or its applicable agents or employees

22  who are subject to the eligibility requirements no longer meet

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

24  or

25         4.3.  The licensee has through gross negligence or

26  willful noncompliance failed to comply with a written hold

27  order.

28         (17)  CRIMINAL PENALTIES.--

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

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

31


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

  2  s. 775.084.

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

  4  willfully violates this section or who willfully makes a false

  5  entry in any record specifically required by this section

  6  commits a misdemeanor of the first degree, punishable as

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

  8  recordkeeping errors such as typographical errors, scrivener's

  9  errors, regarding any document or record required by this

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

11  and are not subject to criminal penalties.  Clerical or

12  recordkeeping errors are subject to the administrative

13  remedies, as provided in this Act.

14         Section 10.  Paragraph (a) of subsection (11) of

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

16         559.803  Disclosure statement.--At least 3 working days

17  prior to the time the purchaser signs a business opportunity

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

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

20  seller must provide the prospective purchaser a written

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

22  12-point boldfaced capital letters "DISCLOSURES REQUIRED BY

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

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

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

26  sponsor any business opportunity.  The information contained

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

28  have any questions about this investment, see an attorney

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

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

31  Immediately following the cover sheet, the seller must provide


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  1  an index page that briefly lists the contents of the

  2  disclosure document as required in this section and any pages

  3  on which the prospective purchaser can find each required

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

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

  6  Florida requires sellers of business opportunities to disclose

  7  certain information to prospective purchasers.  This index is

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

  9  contains other information not required by this section, the

10  seller shall place a designation beside each of the

11  disclosures required by this section and provide an

12  explanation of the designation at the end of the statement at

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

14  contain the following information:

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

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

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

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

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

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

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

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

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

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

25  any franchise or business opportunity law or unfair or

26  deceptive practices law), embezzlement, fraudulent conversion,

27  misappropriation of property, or restraint of trade.

28         Section 11.  Subsections (2), (3), and (4) of section

29  559.805, Florida Statutes, 1998 Supplement, are renumbered as

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

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


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  1         559.805  Filings with the department; disclosure of

  2  advertisement identification number.--

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

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

  5  directors, trustees, general partners, general managers,

  6  principal executives, and any other persons charged with the

  7  responsibility for the seller's business activities relating

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

  9  current and shall include the following information:  name,

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

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

12  birth date.

13         Section 12.  Section 559.815, Florida Statutes, is

14  reenacted to read:

15         559.815  Penalties.--Any person who fails to file with

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

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

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

19  s. 775.084.

20         Section 13.  Subsection (6) of section 559.903, Florida

21  Statutes, is amended to read:

22         559.903  Definitions.--As used in this act:

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

24  recreational vehicle, motorcycle, motor scooter, or other

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

26  homes, travel trailers, or trailer coaches without independent

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

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

29         Section 14.  Subsection (11) is added to section

30  559.904, Florida Statutes, 1998 Supplement, to read:

31


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  1         559.904  Motor vehicle repair shop registration;

  2  application; exemption.--

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

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

  5  that has had its registration suspended or revoked. The

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

  7  shop that has been judicially or administratively determined

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

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

10  775.083, for any person to deface such sign or remove such

11  sign without written authorization by the department or for

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

13  registration or to open for operation as a motor vehicle

14  repair shop while its registration is suspended or revoked.

15  The department may impose administrative sanctions provided

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

17         Section 15.  Subsection (1) of section 627.481, Florida

18  Statutes, is amended to read:

19         627.481  Requirements for certain annuity agreements.--

20         (1)  Any duly organized domestic or foreign nonstock

21  corporation, or any unincorporated charitable trust, if such

22  corporation or trust

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

24  prior thereto and has qualified as an exempt organization

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

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

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

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

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

30  authorized under this section in at least three other states

31  without complaint,


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  1

  2  may enter into annuity agreements with donors in accordance

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

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

  5  annuity to the donor or other designated beneficiary or

  6  beneficiaries and to make and carry out such annuity

  7  agreement. Annuity benefits under any such annuity agreement

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

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

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

11  annuity.

12         Section 16.  Paragraph (a) of subsection (3) of section

13  741.0305, Florida Statutes, is amended to read:

14         741.0305  Marriage fee reduction for completion of

15  premarital preparation course.--

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

17  premarital preparation course shall choose from the following

18  list of qualified instructors:

19         1.  A psychologist licensed under chapter 490.

20         2.  A clinical social worker licensed under chapter

21  491.

22         3.  A marriage and family therapist licensed under

23  chapter 491.

24         4.  A mental health counselor licensed under chapter

25  491.

26         5.  An official representative of a religious

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

28  the representative has relevant training.

29         6.  Any other provider designated by a judicial

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

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


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  1  establish a roster of area course providers, including those

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

  3         (b)  The costs of such premarital preparation course

  4  shall be paid by the applicant.

  5         Section 17.  Effective July 1, 1999, section 427.802,

  6  Florida Statutes, is amended to read:

  7         427.802  Definitions.--As used in this part:

  8         (1)  "Assistive technology devices" means manual

  9  wheelchairs, motorized wheelchairs, motorized scooters,

10  voice-synthesized computer modules, optical scanners, talking

11  software, braille printers, environmental control devices for

12  use by a person with quadriplegia, motor vehicle adaptive

13  transportation aids, devices that enable persons with severe

14  speech disabilities to in effect speak, personal transfer

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

16  consumer purchases or accepts transfer of in this state for

17  use by a person with a disability.

18         (2)  "Assistive Technology Device Warranty Act rights

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

20  the assistive technology device to the consumer or the

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

22         (3)(2)  "Person with a disability" means any person who

23  has one or more permanent physical or mental limitations that

24  restrict his or her ability to perform the normal activities

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

26  independently.

27         (4)(3)  "Assistive technology device dealer" means a

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

29  business of selling or leasing of assistive technology

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

31


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

  2  sales in the previous fiscal year.

  3         (5)(4)  "Assistive technology device lessor" means a

  4  person who leases an assistive technology device to a

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

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

  7  consumer in connection with the repair of a nonconformity,

  8  including the costs of obtaining an alternative assistive

  9  technology device.

10         (7)(6)  "Consumer" means any of the following:

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

12  if the assistive technology device was purchased from an

13  assistive technology device dealer or manufacturer for

14  purposes other than resale.

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

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

17  occurs before the expiration of an express warranty applicable

18  to the assistive technology device.

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

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

21  from an assistive technology device lessor under a written

22  lease.

23         (8)(7)  "Demonstrator" means an assistive technology

24  device used primarily for the purpose of demonstration to the

25  public.

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

27  and Consumer Services.

28         (10)(8)  "Early termination cost" means any expense or

29  obligation that an assistive technology device lessor incurs

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

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


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  1  an assistive technology device to a manufacturer pursuant to

  2  this section.  The term includes a penalty for prepayment

  3  under a financial arrangement.

  4         (11)(9)  "Early termination saving" means any expense

  5  or obligation that an assistive technology device lessor

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

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

  8  return of an assistive technology device to a manufacturer

  9  pursuant to this section.  The term includes an interest

10  charge that the assistive technology device lessor would have

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

12  assistive technology device lessor does not finance the

13  assistive technology device, the difference between the total

14  amount for which the lease obligates the consumer during the

15  period of the lease term remaining after the early termination

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

17  termination.

18         (12)(10)  "Manufacturer" means a business entity that

19  manufactures or produces assistive technology devices for sale

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

21  distributor, a factory branch, a distributor branch, and any

22  warrantors of the manufacturer's assistive technology device,

23  but not including an assistive technology device dealer.

24         (13)(11)  "Nonconformity" means a condition or defect

25  of an assistive technology device which substantially impairs

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

27  by an express warranty applicable to the assistive technology

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

29  result of abuse, neglect, or unauthorized modification or

30  alteration of the assistive technology device by a consumer.

31


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  1         (14)(12)  "Reasonable attempt to repair" means, within

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

  3  technology device:

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

  5  the assistive technology device lessor, or any of the

  6  manufacturer's authorized assistive technology device dealers

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

  8  warranty; or

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

10  which the assistive technology device is out of service

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

12         Section 18.  Effective July 1, 1999, section 427.803,

13  Florida Statutes, is amended to read:

14         427.803  Duty of manufacturer and an assistive

15  technology device dealer to conform an assistive technology

16  device to the warranty Express warranty.--

17         (1)  A manufacturer who sells a new assistive

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

19  assistive technology device dealer, shall furnish the consumer

20  with an express warranty for the assistive technology device.

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

22  after first delivery of the assistive technology device to the

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

24  manufacturer, the manufacturer is considered to have expressly

25  warranted to the consumer of an assistive technology device

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

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

28  from any condition or defect that substantially impairs the

29  value of the assistive technology device to the consumer.

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

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


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  1  the manufacturer during the Assistive Technology Device

  2  Warranty Act rights period, the manufacturer shall make such

  3  repairs as are necessary to conform the device to the

  4  warranty, irrespective of whether such repairs are made after

  5  the expiration of the Assistive Technology Device Warranty Act

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

  7  consumer if reported to the manufacturer or assistive

  8  technology device dealer during the Assistive Technology

  9  Device Warranty Act rights period. Nothing in this paragraph

10  shall be construed to grant an extension of the Assistive

11  Technology Device Warranty Act rights period or to expand the

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

13  chapter.

14         (3)  Each manufacturer or assistive technology device

15  dealer shall provide to its consumers conspicuous notice of

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

17  regional office for this state in the written warranty or

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

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

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

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

22  state.

23         (4)  The manufacturer shall provide to the assistive

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

25  assistive technology device dealer shall provide to the

26  consumer a written statement that explains the consumer's

27  rights under this chapter.  The written statement shall be

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

29  number for the department that the consumer can contact to

30  obtain information regarding the consumer's rights and

31  obligations under this chapter or to commence arbitration. The


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  1  consumer's signed acknowledgment of receipt of materials

  2  required under this subsection shall constitute prima facie

  3  evidence of compliance by the manufacturer and assistive

  4  technology device dealer. The form of the acknowledgments

  5  shall be approved by the department, and the assistive

  6  technology device dealer shall maintain the consumer's signed

  7  acknowledgment for 3 years.

  8         (5)  A manufacturer or an assistive technology device

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

10  assistive technology device is returned after being examined

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

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

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

14  general description of the problem reported by the consumer or

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

16  the date on which the assistive technology device was

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

18  repair or examination was completed.

19         Section 19.  Effective July 1, 1999, section 427.804,

20  Florida Statutes, is amended to read:

21         427.804  Repair of nonconforming assistive technology

22  devices; refund or replacement of devices after attempt to

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

24  investigation; limitation of rights.--

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

26  conform to an applicable express warranty and the consumer

27  reports the nonconformity to the manufacturer, the assistive

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

29  authorized assistive technology device dealers and makes the

30  assistive technology device available for repair within 1 year

31  after first delivery or return of the assistive technology


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

  2  no charge to the consumer.

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

  4  nonconformity is not repaired, the manufacturer, at the

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

  6  must do one of the following:

  7         (a)  Accept return of the assistive technology device

  8  and replace the assistive technology device with a comparable

  9  new assistive technology device and refund any collateral

10  costs.

11         (b)  Accept return of the assistive technology device

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

13  security interest in the consumer's assistive technology

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

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

16  point of sale, and collateral costs.

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

18  427.802(7)(6)(d), accept return of the assistive technology

19  device, refund to the assistive technology device lessor and

20  to any holder of a perfected security interest in the

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

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

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

24  any collateral costs.

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

26  total amount for which the lease obligates the consumer during

27  the period of the lease remaining after its early termination

28  plus the assistive technology device dealer's early

29  termination costs and the value of the assistive technology

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

31


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

  2  termination savings.

  3         (4)  To receive a comparable new assistive technology

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

  5  offer to the manufacturer of the assistive technology device

  6  having the nonconformity to transfer possession of the

  7  assistive technology device to the manufacturer.  No later

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

  9  the consumer with the comparable assistive technology device

10  or refund.  When the manufacturer provides the comparable

11  assistive technology device or refund, the consumer shall

12  return the assistive technology device having the

13  nonconformity to the manufacturer, along with any endorsements

14  necessary to transfer real possession to the manufacturer.

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

16  consumer must offer to return the assistive technology device

17  having the nonconformity to its manufacturer.  No later than

18  30 days after the offer, the manufacturer shall provide the

19  refund to the consumer.  When the manufacturer provides the

20  refund, the consumer shall return to the manufacturer the

21  assistive technology device having the nonconformity.

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

23  assistive technology device lessor must offer to transfer

24  possession of the assistive technology device having the

25  nonconformity to its manufacturer.  No later than 30 days

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

27  the assistive technology device lessor.  When the manufacturer

28  provides the refund, the assistive technology device lessor

29  shall provide to the manufacturer any endorsements necessary

30  to transfer legal possession to the manufacturer.

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

  2  consumer after the consumer receives a refund due under

  3  paragraph (2)(c).

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

  5  a consumer or assistive technology device lessor in this

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

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

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

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

10  lessee.

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

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

13  The department may investigate the complaint on behalf of the

14  consumer if reasonable evidence warrants such an action.

15         (10)  The department shall process consumer complaints

16  pursuant to s. 570.544.

17         (11)(9)  Each consumer may submit any dispute arising

18  under this part to an alternative arbitration mechanism

19  established pursuant to chapter 682. Upon notice by the

20  consumer, all manufacturers must submit to such alternative

21  arbitration.

22         (12)(10)  Such alternative arbitration must be

23  conducted by a professional arbitrator or arbitration firm

24  appointed under chapter 682 and any applicable rules.  These

25  procedures must provide for the personal objectivity of the

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

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

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

29         (13)(11)  This part does not limit rights or remedies

30  available to a consumer under any other law.

31


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  1         Section 20.  Effective July 1, 1999, section 427.8041,

  2  Florida Statutes, is created to read:

  3         427.8041  Assistive technology device dealers

  4  registration; application; exemption; penalties; adoption of

  5  fees and fines; purchase fees.--

  6         (1)  Each assistive technology device dealer must

  7  register with the department prior to doing business in this

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

  9  adopted by the department and must include at least the

10  following information:

11         (a)  The name of the applicant.

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

13  business.

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

15  assistive technology devices or in the case of a mobile

16  assistive technology device business, the home address of the

17  owner, if different from the business address.

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

19  certifications obtained by the applicant or employees of the

20  applicant.

21         (2)  Any assistive technology device dealer maintaining

22  more than one place of business must register each separate

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

24  business.

25         (3)  Each initial application and renewal application

26  for registration must be accompanied by a registration fee of

27  $300.

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

29  registration certificate.  In the case of an applicant with

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

31  registration certificate for each place of business. The


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

  2  assistive technology device dealer and the registration number

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

  4  technology device dealer, the certificate must show the home

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

  6  The registration certificate must be posted in a conspicuous

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

  8  business.

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

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

11  selling assistive technology devices must exhibit an active

12  registration certificate from the department before the local

13  occupational license may be issued or renewed.

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

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

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

17  or any other penalty, for any registration renewal application

18  that is received by the department after the expiration date

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

20  registration until all fees are paid.

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

22  registration of the assistive technology device dealer based

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

24  officers, owners, or general partners:

25         (a)  Have failed to meet the requirements for

26  registration as provided in this part;

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

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

29  enforcement action brought by any governmental agency based

30  upon conduct involving fraud, dishonest dealing, or any

31  violation of this part;


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

  2  administrative adjudication in any jurisdiction, based upon

  3  conduct involving fraud, dishonest dealing, or any violation

  4  of this part; or

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

  6  action brought by the department or the state attorney.

  7         (8)  All assistive technology device dealers shall

  8  allow department personnel to enter their place of business to

  9  ascertain whether the registration certificate is current.  If

10  department personnel are refused entry or access to the

11  premises, the department may seek injunctive relief in circuit

12  court in order to obtain compliance with this subsection.

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

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

15  department finds that an assistive technology device dealer:

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

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

18  issued thereunder;

19         (b)  Made a material false statement in any

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

21  retained under this part;

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

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

24  document or record or disclose any information required to be

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

26  department;

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

28  request or investigation by the department, the Department of

29  Legal Affairs, or the state attorney; or

30         (e)  Has intentionally defrauded the public through

31  dishonest or deceptive means.


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

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

  3  following:

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

  5  120.695.

  6         (b)  Imposing an administrative fine not to exceed

  7  $5,000 per violation for each act which constitutes a

  8  violation of this part or a rule or order.

  9         (c)  Directing that the assistive technology device

10  dealer cease and desist specified activities.

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

12  registration.

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

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

15  specify.

16         (11)  The administrative proceedings which could result

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

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

19  with chapter 120.

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

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

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

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

24  permanent injunctive relief and may seek other appropriate

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

26  for each violation, restitution and damages for injured

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

28         (13)  The enforcing authority may terminate any

29  investigation or action upon agreement by the offender to pay

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

31


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

  2  and requested by the department.

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

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

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

  6  Department of Agriculture and Consumer Services shall be

  7  deposited in the General Inspection Trust Fund.

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

  9  technology device dealer or assistive technology device lessor

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

11  an assistive technology device. Such fees must be remitted

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

13  of administration, must be transferred monthly to the

14  Department of Agriculture and Consumer Services for deposit

15  into the General Inspection Trust Fund to carry out the

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

17  Consumer Services may use an amount it determines necessary to

18  purchase expert consultation services to assist in carrying

19  out the provisions of this act.

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

21  Agriculture and Consumer Services may use 5 percent of the

22  fees collected and remitted in that fiscal year by the

23  assistive technology device dealers or lessors under

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

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

26  that fiscal year, towards the development of an Assistive

27  Technology Device Warranty Act Education Program or to

28  purchase expert consultation services from an entity having

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

30  for assistive technology devices and services to:

31


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    ENROLLED

    1999 Legislature                     HB 1061, Second Engrossed



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

  2  427.806.

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

  4  staff as it relates to assistive technology to ensure

  5  effective recording of complaints relating to assistive

  6  technology.

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

  8  education program to educate consumers of assistive technology

  9  devices and assistive technology device dealers on this act as

10  amended.

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

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

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

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

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

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

17  court determines is appropriate.

18         (19)  An assistive technology device dealer that is

19  required to be registered under this act must keep and

20  maintain records relating to each sale or lease of assistive

21  technology devices for a period of 2 years.

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

23  hours, enter any business location of an assistive technology

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

25  and examine the books and records of the assistive technology

26  device dealer.

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

28  chapter 120 to implement this part.

29         Section 21.  (1)  There is appropriated from the

30  General Inspection Trust Fund of the Department of Agriculture

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


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  1  $450,000 for six full-time equivalent positions to administer

  2  this act.

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

  4         Section 22.  Except as otherwise provided herein, this

  5  act shall take effect upon becoming a law.

  6

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