Senate Bill 2292

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    Florida Senate - 1999                                  SB 2292

    By Senator Forman





    32-328B-99

  1                      A bill to be entitled

  2         An act relating to assistive technology;

  3         amending s. 427.802, F.S.; providing

  4         definitions; amending s. 427.803, F.S.;

  5         providing that the consumer determines whether

  6         an assistive technology device is defective for

  7         purposes of the express warranty; requiring the

  8         manufacturer to make repairs necessary to

  9         conform the device to the warranty; providing

10         notice of the dealer's and manufacturer's

11         address and telephone number; providing

12         procedures for filing claims; amending s.

13         427.804, F.S.; allowing consumers to submit

14         disputes to the Department of Agriculture and

15         Consumer Services; authorizing the department

16         to investigate complaints; creating s.

17         427.8041, F.S.; providing for registration of

18         dealers, for fees, and for application

19         procedures; providing grounds for refusal or

20         denial of registration; requiring dealers to

21         allow department personnel to enter their

22         places of business; authorizing the department

23         to impose penalties; authorizing the department

24         or the state attorney to bring civil actions

25         for violations of the act; providing for fees

26         and fines collected to be deposited into the

27         General Inspection Trust Fund; authorizing

28         dealers to collect a fee from the consumer at

29         the time of sale or lease of a device; allowing

30         consumers to bring a civil action for violation

31         of the act; providing an effective date.

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

  2

  3         Section 1.  Section 427.802, Florida Statutes, is

  4  amended to read:

  5         427.802  Definitions.--As used in this part:

  6         (1)  "Assistive technology devices" means manual

  7  wheelchairs, motorized wheelchairs, motorized scooters,

  8  voice-synthesized computer modules, optical scanners, talking

  9  software, braille printers, environmental control devices for

10  use by a person with quadriplegia, motor vehicle adaptive

11  transportation aids, adaptive augmentative communication

12  devices that enable persons with severe speech disabilities

13  to, in effect, speak, personal transfer systems, and specialty

14  beds, including a demonstrator, that a consumer purchases or

15  accepts transfer of in this state for use by a person with a

16  disability.

17         (2)  "Assistive Technology Device Warranty Act rights

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

19  the assistive technology device to the consumer or the

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

21         (3)(2)  "Person with a disability" means any person who

22  has one or more permanent physical or mental limitations that

23  restrict his or her ability to perform the normal activities

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

25  independently.

26         (4)(3)  "Assistive technology device dealer" means a

27  person who is in the business of selling assistive technology

28  devices.

29         (5)(4)  "Assistive technology device lessor" means a

30  person who leases an assistive technology device to a

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

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  1         (6)(5)  "Collateral costs" means expenses incurred by a

  2  consumer in connection with the repair of a nonconformity,

  3  including the costs of obtaining an alternative assistive

  4  technology device.

  5         (7)(6)  "Consumer" means any of the following:

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

  7  if the assistive technology device was purchased from an

  8  assistive technology device dealer or manufacturer for

  9  purposes other than resale.

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

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

12  occurs before the expiration of an express warranty applicable

13  to the assistive technology device.

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

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

16  from an assistive technology device lessor under a written

17  lease.

18         (8)(7)  "Demonstrator" means an assistive technology

19  device used primarily for the purpose of demonstration to the

20  public.

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

22  and Consumer Services.

23         (10)(8)  "Early termination cost" means any expense or

24  obligation that an assistive technology device lessor incurs

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

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

27  an assistive technology device to a manufacturer pursuant to

28  this section.  The term includes a penalty for prepayment

29  under a financial arrangement.

30         (11)(9)  "Early termination saving" means any expense

31  or obligation that an assistive technology device lessor

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

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

  3  return of an assistive technology device to a manufacturer

  4  pursuant to this section.  The term includes an interest

  5  charge that the assistive technology device lessor would have

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

  7  assistive technology device lessor does not finance the

  8  assistive technology device, the difference between the total

  9  amount for which the lease obligates the consumer during the

10  period of the lease term remaining after the early termination

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

12  termination.

13         (12)(10)  "Manufacturer" means a business entity that

14  manufactures or produces assistive technology devices for sale

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

16  distributor, a factory branch, a distributor branch, and any

17  warrantors of the manufacturer's assistive technology device,

18  but not including an assistive technology device dealer.

19         (13)(11)  "Nonconformity" means a condition or defect

20  of an assistive technology device as determined by the

21  consumer which substantially impairs the use, value, or safety

22  of the device and which is covered by an express warranty

23  applicable to the assistive technology device, but does not

24  include a condition or defect that is the result of abuse,

25  neglect, or unauthorized modification or alteration of the

26  assistive technology device by a consumer.

27         (14)(12)  "Reasonable attempt to repair" means, within

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

29  technology device:

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

31  the assistive technology device lessor, or any of the

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  1  manufacturer's authorized assistive technology device dealers

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

  3  warranty; or

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

  5  which the assistive technology device is out of service

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

  7         Section 2.  Section 427.803, Florida Statutes, is

  8  amended to read:

  9         427.803  Duty of manufacturer and an assistive

10  technology device dealer to conform an assistive technology

11  device to the warranty Express warranty.--

12         (1)  A manufacturer who sells a new assistive

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

14  assistive technology device dealer, shall furnish the consumer

15  with an express warranty for the assistive technology device.

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

17  after first delivery of the assistive technology device to the

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

19  manufacturer, the manufacturer is considered to have expressly

20  warranted to the consumer of an assistive technology device

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

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

23  from any condition or defect as determined by the consumer

24  which that substantially impairs the value of the assistive

25  technology device to the consumer.

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

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

28  the manufacturer during the Assistive Technology Device

29  Warranty Act rights period, the manufacturer shall make such

30  repairs as are necessary to conform the device to the

31  warranty, irrespective of whether such repairs are made after

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  1  the expiration of the Assistive Technology Device Warranty Act

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

  3  consumer if reported to the manufacturer or assistive

  4  technology device dealer during the Assistive Technology

  5  Device Warranty Act rights period. Nothing in this paragraph

  6  shall be construed to grant an extension of the Assistive

  7  Technology Device Warranty Act rights period or to expand the

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

  9  chapter.

10         (3)  Each manufacturer or assistive technology device

11  dealer shall provide to its consumers conspicuous notice of

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

13  regional office for this state in the written warranty or

14  owner's manual.  By January 1 of each year, each manufacturer

15  shall forward to the department a copy of the owner's manual

16  and any written warranty for each make and model of assistive

17  technology device that it sells in this state.

18         (4)  The manufacturer shall provide to the dealer and,

19  at the time of acquisition, the dealer shall provide to the

20  consumer a written statement that explains the consumer's

21  rights under this chapter.  The written statement shall be

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

23  number for the department that the consumer can contact to

24  obtain information regarding the consumer's rights and

25  obligations under this chapter or to commence arbitration. The

26  consumer's signed acknowledgment of receipt of materials

27  required under this subsection shall constitute prima facie

28  evidence of compliance by the manufacturer and dealer. The

29  form of the acknowledgments shall be approved by the

30  department, and the dealer shall maintain the consumer's

31  signed acknowledgment for 3 years.

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  1         (5)  A manufacturer or an assistive technology device

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

  3  assistive technology device is returned after being examined

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

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

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

  7  general description of the problem reported by the consumer or

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

  9  the date on which the assistive technology device was

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

11  repair or examination was completed.

12         Section 3.  Section 427.804, Florida Statutes, is

13  amended to read:

14         427.804  Repair of nonconforming assistive technology

15  devices; refund or replacement of devices after attempt to

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

17  investigation; limitation of rights.--

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

19  conform to an applicable express warranty and the consumer

20  reports the nonconformity to the manufacturer, the assistive

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

22  authorized assistive technology device dealers and makes the

23  assistive technology device available for repair within 1 year

24  after first delivery or return of the assistive technology

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

26  no charge to the consumer.

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

28  nonconformity is not repaired, the manufacturer, at the

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

30  must do one of the following:

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  1         (a)  Accept return of the assistive technology device

  2  and replace the assistive technology device with a comparable

  3  new assistive technology device and refund any collateral

  4  costs.

  5         (b)  Accept return of the assistive technology device

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

  7  security interest in the consumer's assistive technology

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

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

10  point of sale, and collateral costs.

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

12  427.802(6)(d), accept return of the assistive technology

13  device, refund to the assistive technology device lessor and

14  to any holder of a perfected security interest in the

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

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

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

18  any collateral costs.

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

20  total amount for which the lease obligates the consumer during

21  the period of the lease remaining after its early termination

22  plus the assistive technology device dealer's early

23  termination costs and the value of the assistive technology

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

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

26  termination savings.

27         (4)  To receive a comparable new assistive technology

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

29  offer to the manufacturer of the assistive technology device

30  having the nonconformity to transfer possession of the

31  assistive technology device to the manufacturer.  No later

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

  2  the consumer with the comparable assistive technology device

  3  or refund.  When the manufacturer provides the comparable

  4  assistive technology device or refund, the consumer shall

  5  return the assistive technology device having the

  6  nonconformity to the manufacturer, along with any endorsements

  7  necessary to transfer real possession to the manufacturer.

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

  9  consumer must offer to return the assistive technology device

10  having the nonconformity to its manufacturer.  No later than

11  30 days after the offer, the manufacturer shall provide the

12  refund to the consumer.  When the manufacturer provides the

13  refund, the consumer shall return to the manufacturer the

14  assistive technology device having the nonconformity.

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

16  assistive technology device lessor must offer to transfer

17  possession of the assistive technology device having the

18  nonconformity to its manufacturer.  No later than 30 days

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

20  the assistive technology device lessor.  When the manufacturer

21  provides the refund, the assistive technology device lessor

22  shall provide to the manufacturer any endorsements necessary

23  to transfer legal possession to the manufacturer.

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

25  consumer after the consumer receives a refund due under

26  paragraph (2)(c).

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

28  a consumer or assistive technology device lessor in this

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

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

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

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

  2  lessee.

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

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

  5  The department may investigate the complaint on behalf of the

  6  consumer if reasonable evidence warrants such an action.

  7         (10)  The department shall process consumer complaints

  8  pursuant to s. 570.544.

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

10  under this part to an alternative arbitration mechanism

11  established pursuant to chapter 682. Upon notice by the

12  consumer, all manufacturers must submit to such alternative

13  arbitration.

14         (12)(10)  Such alternative arbitration must be

15  conducted by a professional arbitrator or arbitration firm

16  appointed under chapter 682 and any applicable rules.  These

17  procedures must provide for the personal objectivity of the

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

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

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

21         (13)(11)  This part does not limit rights or remedies

22  available to a consumer under any other law.

23         Section 4.  Section 427.8041, Florida Statutes, is

24  created to read:

25         427.8041  Assistive technology device dealers

26  registration; application; exemption; penalties; adoption of

27  fees and fines; purchase fees.--

28         (1)  Each technology device dealer engaged or

29  attempting to engage in the business of selling assistive

30  technology devices must register with the department prior to

31  doing business in this state. The application for registration

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  1  must be on a form adopted by the department and must include

  2  at least the following information:

  3         (a)  The name of the applicant.

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

  5  business.

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

  7  assistive technology devices or in the case of a mobile

  8  assistive technology device business, the home address of the

  9  owner, if different from the business address.

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

11  certifications obtained by the applicant or employees of the

12  applicant.

13         (2)  Any assistive technology device dealer maintaining

14  more than one place of business must register each separate

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

16  business.

17         (3)  Each initial application and renewal application

18  for registration must be accompanied by a registration fee of

19  $125.

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

21  registration certificate.  In the case of an applicant with

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

23  registration certificate for each place of business. The

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

25  assistive technology device dealer and the registration number

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

27  technology device dealer, the certificate must show the home

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

29  The registration certificate must be posted in a conspicuous

30  manner in the assistive technology device dealer's primary

31  place of business.

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

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

  3  selling assistive technology devices must exhibit an active

  4  registration certificate from the department before the local

  5  occupational license may be issued or renewed.

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

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

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

  9  or any other penalty, for any registration renewal application

10  that is received by the department after the expiration date

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

12  registration until all fees are paid.

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

14  registration of the assistive technology device dealer based

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

16  officers, owners, or general partners:

17         (a)  Have failed to meet the requirements for

18  registration as provided in this part;

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

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

21  enforcement action brought by any governmental agency based

22  upon conduct involving fraud, dishonest dealing, or any

23  violation of this part;

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

25  administrative adjudication in any jurisdiction, based upon

26  conduct involving fraud, dishonest dealing, or any violation

27  of this part; or

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

29  action brought by the department or the state attorney.

30         (8)  All assistive technology device dealers shall

31  allow department personnel to enter their place of business to

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  1  ascertain whether the registration certificate is current.  If

  2  department personnel are refused entry or access to the

  3  premises, the department may seek injunctive relief in circuit

  4  court in order to obtain compliance with this subsection.

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

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

  7  department finds that an assistive technology device dealer:

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

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

10  issued thereunder;

11         (b)  Made a material false statement in any

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

13  retained under this part;

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

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

16  document or record or disclose any information required to be

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

18  department;

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

20  request or investigation by the department, the Department of

21  Legal Affairs, or the state attorney; or

22         (e)  Has intentionally defrauded the public through

23  dishonest or deceptive means.

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

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

26  following:

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

28  120.695.

29         (b)  Imposing an administrative fine not to exceed

30  $5,000 per violation for each act which constitutes a

31  violation of this part or a rule or order.

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  1         (c)  Directing that the assistive technology device

  2  dealer cease and desist specified activities.

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

  4  registration.

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

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

  7  specify.

  8         (11)  The administrative proceedings which could result

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

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

11  with chapter 120.

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

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

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

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

16  permanent injunctive relief and may seek other appropriate

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

18  for each violation, restitution and damages for injured

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

20         (13)  The enforcing authority may terminate any

21  investigation or action upon agreement by the offender to pay

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

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

24  and requested by the department.

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

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

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

28  Department of Agriculture and Consumer Services shall be

29  deposited in the General Inspection Trust Fund.

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

31  technology device dealer or assistive technology device lessor

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

  2  an assistive technology device. Such fees must be remitted

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

  4  of administration, must be transferred monthly to the

  5  Department of Agriculture and Consumer Services for deposit

  6  into the General Inspection Trust Fund to carry out the

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

  8  Consumer Services may use an amount it determines necessary to

  9  purchase expert consultation services to assist in carrying

10  out the provisions of s. 427.8041.

11         (17)  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         Section 5.  This act shall take effect July 1, 1999.

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  2                          SENATE SUMMARY

  3    Provides that the consumer determines whether an
      assistive technology device is defective for purposes of
  4    an express warranty. Requires the manufacturer to make
      repairs necessary to conform the device to the warranty.
  5    Provides for notice of the dealer's and manufacturer's
      address and telephone number. Provides definitions.
  6    Provides procedures for filing claims. Authorizes
      consumers to submit disputes to the Department of
  7    Agriculture and Consumer Services. Authorizes the
      department to investigate complaints. Provides for
  8    registration of dealers and for fees and application
      procedures. Provides grounds for refusal or denial of
  9    registration. Requires dealers to allow department
      personnel to enter their place of business. Authorizes
10    the department to impose penalties. Authorizes the
      department or the state attorney to bring civil actions
11    for violations of the act. Provides for fees and fines
      collected to be deposited into the General Inspection
12    Trust Fund. Authorizes dealers to collect a fee from the
      consumer at the time of sale or lease of a device. Allows
13    consumers to bring a civil action for violation of the
      act.
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