Senate Bill 2292c1

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    Florida Senate - 1999                           CS for SB 2292

    By the Committee on Agriculture and Consumer Services; and
    Senator Forman




    303-2042A-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         requiring the manufacturer to make repairs

  6         necessary to conform the device to the

  7         warranty; providing notice of the dealer's and

  8         manufacturer's address and telephone number;

  9         providing procedures for filing claims;

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

11         to submit disputes to the Department of

12         Agriculture and Consumer Services; authorizing

13         the department to investigate complaints;

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

15         registration of dealers, for fees, and for

16         application procedures; providing grounds for

17         refusal or denial of registration; requiring

18         dealers to allow department personnel to enter

19         their places of business; authorizing the

20         department to impose penalties; authorizing the

21         department or the state attorney to bring civil

22         actions for violations of the act; providing

23         for fees and fines collected to be deposited

24         into the General Inspection Trust Fund;

25         authorizing dealers to collect a fee from the

26         consumer at the time of sale or lease of a

27         device; allowing consumers to bring a civil

28         action for violation of the act; requiring

29         recordkeeping and retention of records;

30         providing for rulemaking; providing an

31         appropriation; providing an effective date.

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    Florida Senate - 1999                           CS for SB 2292
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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, devices that enable persons with severe

12  speech disabilities to in effect speak, personal transfer

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

14  consumer purchases or accepts transfer of in this state for

15  use by a person with a disability.

16         (2)  "Assistive Technology Device Warranty Act rights

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

18  the assistive technology device to the consumer or the

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

20         (3)(2)  "Person with a disability" means any person who

21  has one or more permanent physical or mental limitations that

22  restrict his or her ability to perform the normal activities

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

24  independently.

25         (4)(3)  "Assistive technology device dealer" means a

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

27  business of selling or leasing of assistive technology

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

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

30  sales in the previous fiscal year.

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    Florida Senate - 1999                           CS for SB 2292
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  1         (5)(4)  "Assistive technology device lessor" means a

  2  person who leases an assistive technology device to a

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

  4         (6)(5)  "Collateral costs" means expenses incurred by a

  5  consumer in connection with the repair of a nonconformity,

  6  including the costs of obtaining an alternative assistive

  7  technology device.

  8         (7)(6)  "Consumer" means any of the following:

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

10  if the assistive technology device was purchased from an

11  assistive technology device dealer or manufacturer for

12  purposes other than resale.

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

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

15  occurs before the expiration of an express warranty applicable

16  to the assistive technology device.

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

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

19  from an assistive technology device lessor under a written

20  lease.

21         (8)(7)  "Demonstrator" means an assistive technology

22  device used primarily for the purpose of demonstration to the

23  public.

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

25  and Consumer Services.

26         (10)(8)  "Early termination cost" means any expense or

27  obligation that an assistive technology device lessor incurs

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

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

30  an assistive technology device to a manufacturer pursuant to

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    Florida Senate - 1999                           CS for SB 2292
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  1  this section.  The term includes a penalty for prepayment

  2  under a financial arrangement.

  3         (11)(9)  "Early termination saving" means any expense

  4  or obligation that an assistive technology device lessor

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

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

  7  return of an assistive technology device to a manufacturer

  8  pursuant to this section.  The term includes an interest

  9  charge that the assistive technology device lessor would have

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

11  assistive technology device lessor does not finance the

12  assistive technology device, the difference between the total

13  amount for which the lease obligates the consumer during the

14  period of the lease term remaining after the early termination

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

16  termination.

17         (12)(10)  "Manufacturer" means a business entity that

18  manufactures or produces assistive technology devices for sale

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

20  distributor, a factory branch, a distributor branch, and any

21  warrantors of the manufacturer's assistive technology device,

22  but not including an assistive technology device dealer.

23         (13)(11)  "Nonconformity" means a condition or defect

24  of an assistive technology device which substantially impairs

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

26  by an express warranty applicable to the assistive technology

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

28  result of abuse, neglect, or unauthorized modification or

29  alteration of the assistive technology device by a consumer.

30

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    Florida Senate - 1999                           CS for SB 2292
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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 2.  Section 427.803, Florida Statutes, is

13  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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    Florida Senate - 1999                           CS for SB 2292
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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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    Florida Senate - 1999                           CS for SB 2292
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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 3.  Section 427.804, Florida Statutes, is

20  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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    Florida Senate - 1999                           CS for SB 2292
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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(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(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

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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.

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  1         Section 4.  Section 427.8041, Florida Statutes, is

  2  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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    Florida Senate - 1999                           CS for SB 2292
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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

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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:

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  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 5.  There is appropriated from the General

30  Inspection Trust Fund of the Department of Agriculture and

31  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         Section 6.  This act shall take effect July 1, 1999.

  4

  5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  6                         Senate Bill 2292

  7

  8  Committee Substitute for Senate Bill 2292 is different from
    Senate Bill 2292 in that it:
  9
    -     Replaces "adaptive augmentative communication" with
10        devices that enable individuals with severe speech
          impairment to in effect speak.
11
    -     Clarifies the definition of an assistive technology
12        device dealer.

13  -     Deletes "as determined by the consumer" language from
          the act.
14
    -     Requires a manufacturer to forward a copy of the owner's
15        manual and warranty information only within ten days of
          a request made by the department rather than by January
16        1 of each year.

17  -     Increases the registration fee from $125 to $300 to make
          the program self sufficient.
18
    -     Provides guidelines to the department for the spending
19        of the moneys to increase consumer awareness.

20  -     Provides the department with rule-making authority.

21  -     Appropriates $450,000 from the General Inspection Trust
          Fund of the department to provide for six FTE positions
22        to administer this act.

23

24

25

26

27

28

29

30

31

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