House Bill 1655e1

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                                          HB 1655, First Engrossed



  1                      A bill to be entitled

  2         An act relating to telephone solicitation;

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

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

  5         providing additional exclusions from the

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

  7         Florida Telemarketing Act; amending s. 501.616,

  8         F.S.; prohibiting specified intentional actions

  9         by commercial telephone sellers or

10         salespersons; providing an effective date.

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

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14         Section 1.  Section 501.602, Florida Statutes, is

15  amended to read:

16         501.602  Purpose.--The provisions of this part shall be

17  construed liberally to promote the general welfare of the

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

19  the intent of the Legislature in enacting the provisions of

20  this part to protect consumers from unwanted telephone

21  solicitations and afford consumers as much possible

22  information regarding the identity of any commercial telephone

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

24         Section 2.  The introductory paragraph of section

25  501.604, Florida Statutes, is amended to read:

26         501.604  Exemptions.--The provisions of this part,

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

28         (1)  A person engaging in commercial telephone

29  solicitation where the solicitation is an isolated transaction

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

31  transactions of like nature.


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                                          HB 1655, First Engrossed



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

  2  political, or educational purposes.  A person soliciting for

  3  other noncommercial purposes is exempt only if that person is

  4  soliciting for a nonprofit corporation and if that corporation

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

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

  7  Internal Revenue Code.

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

  9  presentation during the telephone solicitation and who does

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

11  provisional acceptance of a sale during the telephone

12  solicitation, but who makes the major sales presentation and

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

14  seller and the prospective purchaser in accordance with the

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

16  seller, directly following a telephone solicitation, causes an

17  individual whose primary purpose it is to go to the

18  prospective purchaser to collect the payment or deliver any

19  item purchased, this exemption does not apply.

20         (4)  Any licensed securities, commodities, or

21  investment broker, dealer, or investment adviser, when

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

23  licensed associated person of a securities, commodities, or

24  investment broker, dealer, or investment adviser, when

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

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

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

28  to license or registration as such by the Securities and

29  Exchange Commission, by the National Association of Securities

30  Dealers or other self-regulatory organization as defined by

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


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                                          HB 1655, First Engrossed



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

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

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

  4  dealer, or investment adviser" means any associated person

  5  registered or licensed by the National Association of

  6  Securities Dealers or other self-regulatory organization as

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

  8  78l, or by an official or agency of this state or of any state

  9  of the United States.

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

11  newspaper of general circulation.

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

13  or arrangement:

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

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

16  to ship the offered merchandise.

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

18  trade regulation concerning "use of negative option plans by

19  sellers in commerce."

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

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

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

23  standing order arrangements, supplements, and series

24  arrangements under which the seller periodically ships

25  merchandise to a consumer who has consented in advance to

26  receive such merchandise on a periodic basis.

27         (7)  Any supervised financial institution or parent,

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

29  "supervised financial institution" means any commercial bank,

30  trust company, savings and loan association, mutual savings

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


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                                          HB 1655, First Engrossed



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

  2  the institution is subject to supervision by an official or

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

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

  5  who directly, or indirectly through one or more

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

  7  common control with, a supervised financial institution.

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

  9  representative, or solicitor when soliciting within the scope

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

11  insurance broker, agent, customer representative, or

12  solicitor" means any insurance broker, agent, customer

13  representative, or solicitor licensed by an official or agency

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

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

16  by a cable television system operating under authority of a

17  franchise or permit.

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

19         (a)  The commercial telephone seller has been operating

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

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

22  repeat sales to existing businesses;

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

24  for purposes of advertisement or as a promotional item the

25  property or goods purchased; or

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

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

28  manufacturing process.

29         (11)  A person who solicits sales by periodically

30  publishing and delivering a catalog of the seller's

31  merchandise to prospective purchasers, if the catalog:


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                                          HB 1655, First Engrossed



  1         (a)  Contains a written description or illustration of

  2  each item offered for sale.

  3         (b)  Includes the business address or home office

  4  address of the seller.

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

  6  illustrations and is distributed in more than one state.

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

  8  than 150,000.

  9         (12)  A person who solicits contracts for the

10  maintenance or repair of goods previously purchased from the

11  person making the solicitation or on whose behalf the

12  solicitation is made.

13         (13)  A commercial telephone seller licensed pursuant

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

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

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

17  completed transaction must be subject to the provisions of

18  chapter 516 or part II of chapter 520.

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

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

21  which is regulated by the Florida Public Service Commission,

22  or a Federal Communications Commission licensed cellular

23  telephone company or other bona fide radio telecommunication

24  services provider. For the purposes of this exemption,

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

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

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

28  the provisions of chapter 364.

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

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

31  license.


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                                          HB 1655, First Engrossed



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

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

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

  4  is either registered or exempt from registration under

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

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

  7  (g)(2) of that section.

  8         (17)  A business soliciting exclusively the sale of

  9  telephone answering services provided that the telephone

10  answering services will be supplied by the solicitor.

11         (18)  A person soliciting a transaction regulated by

12  the Commodity Futures Trading Commission if the person is

13  registered or temporarily licensed for this activity with the

14  Commodity Futures Trading Commission under the Commodity

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

16  license has not expired or been suspended or revoked.

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

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

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

20  which costs the purchaser in excess of $500.

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

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

23  registration.

24         (21)  A person soliciting business from prospective

25  consumers who have an existing business relationship with or

26  who have previously purchased from the business enterprise for

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

28  under the same exact business name.

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

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

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                                          HB 1655, First Engrossed



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

  2  following occur on a continuing basis:

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

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

  5  establishment.

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

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

  8  location.

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

10  exchange company pursuant to chapter 721 and who is soliciting

11  within the scope of the chapter.

12         (24)  Any person which has been providing telemarketing

13  sales services continuously for at least 5 years under the

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

15  gross telemarketing sales revenues from contracts with persons

16  exempted in this section.

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

18  salesperson or broker pursuant to chapter 475 and who is

19  soliciting within the scope of the chapter.

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

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

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

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

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

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

26  publisher by written agreement.

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

28  identification cardholder as defined in chapter 482, and who

29  is soliciting within the scope of the chapter.

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                                          HB 1655, First Engrossed



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

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

  3  foreign currency exchange services.

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

  5  Florida Statutes, to read:

  6         501.616  Unlawful acts and practices.--

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

  8  seller or salesperson making telephonic solicitations to:

  9         (a)  Take any intentional action to prevent

10  transmission of the telephone solicitor's name or telephone

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

12  by the telephone solicitor is capable of creating and

13  transmitting the telephone solicitor's name or telephone

14  number; or

15         (b)  Knowingly provide a false or fictitious telephone

16  number to the called party.

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

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