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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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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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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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.
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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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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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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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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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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.
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