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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