CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

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10                                                                

11  The Committee on Business Regulation & Consumer Affairs

12  offered the following:

13

14         Substitute Amendment for Amendment (445367) (with title

15  amendment) 

16  remove from the bill:  Everything after the enacting clause

17

18  and insert in lieu thereof:

19         Section 1.  Section 501.602, Florida Statutes, is

20  amended to read:

21         501.602  Purpose.--The provisions of this part shall be

22  construed liberally to promote the general welfare of the

23  public and the integrity of the telemarketing industry. It is

24  the intent of the Legislature in enacting the provisions of

25  this part to protect consumers from unwanted telephone

26  solicitations and afford consumers as much possible

27  information regarding the identity of any commercial telephone

28  seller or salesperson who places a call to that consumer.

29         Section 2.  The introductory paragraph of section

30  501.604, Florida Statutes, is amended to read:

31         501.604  Exemptions.--The provisions of this part,

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                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)





 1  except ss. s. 501.608 and 501.616(6), do not apply to:

 2         (1)  A person engaging in commercial telephone

 3  solicitation where the solicitation is an isolated transaction

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

 5  transactions of like nature.

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

 7  political, or educational purposes.  A person soliciting for

 8  other noncommercial purposes is exempt only if that person is

 9  soliciting for a nonprofit corporation and if that corporation

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

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

12  Internal Revenue Code.

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

14  presentation during the telephone solicitation and who does

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

16  provisional acceptance of a sale during the telephone

17  solicitation, but who makes the major sales presentation and

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

19  seller and the prospective purchaser in accordance with the

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

21  seller, directly following a telephone solicitation, causes an

22  individual whose primary purpose it is to go to the

23  prospective purchaser to collect the payment or deliver any

24  item purchased, this exemption does not apply.

25         (4)  Any licensed securities, commodities, or

26  investment broker, dealer, or investment adviser, when

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

28  licensed associated person of a securities, commodities, or

29  investment broker, dealer, or investment adviser, when

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

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

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                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)





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

 2  to license or registration as such by the Securities and

 3  Exchange Commission, by the National Association of Securities

 4  Dealers or other self-regulatory organization as defined by

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

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

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

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

 9  dealer, or investment adviser" means any associated person

10  registered or licensed by the National Association of

11  Securities Dealers or other self-regulatory organization as

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

13  78l, or by an official or agency of this state or of any state

14  of the United States.

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

16  newspaper of general circulation.

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

18  or arrangement:

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

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

21  to ship the offered merchandise.

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

23  trade regulation concerning "use of negative option plans by

24  sellers in commerce."

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

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

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

28  standing order arrangements, supplements, and series

29  arrangements under which the seller periodically ships

30  merchandise to a consumer who has consented in advance to

31  receive such merchandise on a periodic basis.

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                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)





 1         (7)  Any supervised financial institution or parent,

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

 3  "supervised financial institution" means any commercial bank,

 4  trust company, savings and loan association, mutual savings

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

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

 7  the institution is subject to supervision by an official or

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

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

10  who directly, or indirectly through one or more

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

12  common control with, a supervised financial institution.

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

14  representative, or solicitor when soliciting within the scope

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

16  insurance broker, agent, customer representative, or

17  solicitor" means any insurance broker, agent, customer

18  representative, or solicitor licensed by an official or agency

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

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

21  by a cable television system operating under authority of a

22  franchise or permit.

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

24         (a)  The commercial telephone seller has been operating

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

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

27  repeat sales to existing businesses;

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

29  for purposes of advertisement or as a promotional item the

30  property or goods purchased; or

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

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                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)





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

 2  manufacturing process.

 3         (11)  A person who solicits sales by periodically

 4  publishing and delivering a catalog of the seller's

 5  merchandise to prospective purchasers, if the catalog:

 6         (a)  Contains a written description or illustration of

 7  each item offered for sale.

 8         (b)  Includes the business address or home office

 9  address of the seller.

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

11  illustrations and is distributed in more than one state.

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

13  than 150,000.

14         (12)  A person who solicits contracts for the

15  maintenance or repair of goods previously purchased from the

16  person making the solicitation or on whose behalf the

17  solicitation is made.

18         (13)  A commercial telephone seller licensed pursuant

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

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

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

22  completed transaction must be subject to the provisions of

23  chapter 516 or part II of chapter 520.

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

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

26  which is regulated by the Florida Public Service Commission,

27  or a Federal Communications Commission licensed cellular

28  telephone company or other bona fide radio telecommunication

29  services provider. For the purposes of this exemption,

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

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

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                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)





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

 2  the provisions of chapter 364.

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

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

 5  license.

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

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

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

 9  is either registered or exempt from registration under

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

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

12  (g)(2) of that section.

13         (17)  A business soliciting exclusively the sale of

14  telephone answering services provided that the telephone

15  answering services will be supplied by the solicitor.

16         (18)  A person soliciting a transaction regulated by

17  the Commodity Futures Trading Commission if the person is

18  registered or temporarily licensed for this activity with the

19  Commodity Futures Trading Commission under the Commodity

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

21  license has not expired or been suspended or revoked.

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

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

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

25  which costs the purchaser in excess of $500.

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

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

28  registration.

29         (21)  A person soliciting business from prospective

30  consumers who have an existing business relationship with or

31  who have previously purchased from the business enterprise for

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                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)





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

 2  under the same exact business name.

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

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

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

 6  following occur on a continuing basis:

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

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

 9  establishment.

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

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

12  location.

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

14  exchange company pursuant to chapter 721 and who is soliciting

15  within the scope of the chapter.

16         (24)  Any person which has been providing telemarketing

17  sales services continuously for at least 5 years under the

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

19  gross telemarketing sales revenues from contracts with persons

20  exempted in this section.

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

22  salesperson or broker pursuant to chapter 475 and who is

23  soliciting within the scope of the chapter.

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

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

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

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

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

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

30  publisher by written agreement.

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

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                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)





 1  identification cardholder as defined in chapter 482, and who

 2  is soliciting within the scope of the chapter.

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

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

 5  foreign currency exchange services.

 6         Section 3.  Subsection (6) is added to section 501.616,

 7  Florida Statutes, to read:

 8         501.616  Unlawful acts and practices.--

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

10  seller or salesperson making telephonic solicitations to:

11         (a)  Take any intentional action to prevent

12  transmission of the telephone solicitor's name or telephone

13  number to the party called when the equipment or service used

14  by the telephone solicitor is capable of creating and

15  transmitting the telephone solicitor's name or telephone

16  number; or

17         (b)  Knowingly provide a false or fictitious telephone

18  number to the called party.

19         Section 4.  This act shall take effect October 1, 1999.

20

21

22  ================ T I T L E   A M E N D M E N T ===============

23  And the title is amended as follows:

24  remove from the title of the bill:  the entire title

25

26  and insert in lieu thereof:

27                      A bill to be entitled

28         An act relating to telephone solicitation;

29         amending s. 501.602, F.S.; providing

30         legislative intent; amending s. 501.604, F.S.;

31         providing additional exclusions from the

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                                                   HOUSE AMENDMENT

    721-110AX-27                                  Bill No. HB 1655

    Amendment No. 1 (for drafter's use only)





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

 2         Florida Telemarketing Act; amending s. 501.616,

 3         F.S.; prohibiting specified intentional actions

 4         by commercial telephone sellers or

 5         salespersons; providing an effective date.

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