House Bill 0853

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    Florida House of Representatives - 1999                 HB 853

        By Representative Kilmer






  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 or the assistive technology device

  9         dealer to make repairs necessary to conform the

10         device to the warranty; providing notice of the

11         dealer's and manufacturer's address and

12         telephone number; providing procedures for

13         filing claims; amending s. 427.804, F.S.;

14         allowing consumers to submit disputes to the

15         Department of Agriculture and Consumer

16         Services; authorizing the department to

17         investigate complaints; creating s. 427.8041,

18         F.S.; providing for registration of dealers and

19         for fees and application procedures; providing

20         grounds for refusal or denial of registration;

21         authorizing the department to impose penalties;

22         authorizing the department or the state

23         attorney to bring civil actions for violations

24         of the act; providing for fees and fines

25         collected to be deposited into the General

26         Inspection Trust Fund; authorizing dealers to

27         collect a fee from the consumer at the time of

28         sale or lease of a device; allowing consumers

29         to bring a civil action for violation of the

30         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, personal transfer systems, and specialty beds,

13  including a demonstrator, that a consumer purchases or accepts

14  transfer of in this state for use by a person with a

15  disability.

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

17  has one or more permanent physical or mental limitations that

18  restrict his or her ability to perform the normal activities

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

20  independently.

21         (3)  "Assistive technology device dealer" means a

22  person who is in the business of selling assistive technology

23  devices.

24         (4)  "Assistive technology device lessor" means a

25  person who leases an assistive technology device to a

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

27         (5)  "Collateral costs" means expenses incurred by a

28  consumer in connection with the repair of a nonconformity,

29  including the costs of obtaining an alternative assistive

30  technology device.

31         (6)  "Consumer" means any of the following:

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

  2  if the assistive technology device was purchased from an

  3  assistive technology device dealer or manufacturer for

  4  purposes other than resale.

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

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

  7  occurs before the expiration of an express warranty applicable

  8  to the assistive technology device.

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

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

11  from an assistive technology device lessor under a written

12  lease.

13         (7)  "Demonstrator" means an assistive technology

14  device used primarily for the purpose of demonstration to the

15  public.

16         (8)  "Department" means the Department of Agriculture

17  and Consumer Services.

18         (9)(8)  "Early termination cost" means any expense or

19  obligation that an assistive technology device lessor incurs

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

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

22  an assistive technology device to a manufacturer pursuant to

23  this section.  The term includes a penalty for prepayment

24  under a financial arrangement.

25         (10)(9)  "Early termination saving" means any expense

26  or obligation that an assistive technology device lessor

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

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

29  return of an assistive technology device to a manufacturer

30  pursuant to this section.  The term includes an interest

31  charge that the assistive technology device lessor would have

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

  2  assistive technology device lessor does not finance the

  3  assistive technology device, the difference between the total

  4  amount for which the lease obligates the consumer during the

  5  period of the lease term remaining after the early termination

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

  7  termination.

  8         (11)(10)  "Manufacturer" means a business entity that

  9  manufactures or produces assistive technology devices for sale

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

11  distributor, a factory branch, a distributor branch, and any

12  warrantors of the manufacturer's assistive technology device,

13  but not including an assistive technology device dealer who is

14  authorized by the manufacturer to service the assistive

15  technology device.

16         (12)(11)  "Nonconformity" means a condition or defect

17  of an assistive technology device as determined by the

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

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

20  applicable to the assistive technology device, but does not

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

22  neglect, or unauthorized modification or alteration of the

23  assistive technology device by a consumer.

24         (13)(12)  "Reasonable attempt to repair" means, within

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

26  technology device:

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

28  the assistive technology device lessor, or any of the

29  manufacturer's authorized assistive technology device dealers

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

31  warranty; or

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

  2  which the assistive technology device is out of service

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

  4         Section 2.  Section 427.803, Florida Statutes, is

  5  amended to read:

  6         427.803  Duty of manufacturer and an assistive

  7  technology device dealer to conform an assistive technology

  8  device to the warranty Express warranty.--

  9         (1)  A manufacturer who sells a new assistive

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

11  assistive technology device dealer, shall furnish the consumer

12  with an express warranty for the assistive technology device.

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

14  after first delivery of the assistive technology device to the

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

16  manufacturer, the manufacturer is considered to have expressly

17  warranted to the consumer of an assistive technology device

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

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

20  from any condition or defect as determined by the consumer

21  which that substantially impairs the value of the assistive

22  technology device to the consumer.

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

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

25  the manufacturer or the assistive technology device dealer

26  during the Assistive Technology Device Warranty Act rights

27  period, the manufacturer or the assistive technology device

28  dealer shall make such repairs as are necessary to conform the

29  device to the warranty, irrespective of whether such repairs

30  are made after the expiration of the Assistive Technology

31  Device Warranty Act rights period. Such repairs shall be at no

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  1  cost to the consumer if made during the term of the

  2  manufacturer's written express warranty. Nothing in this

  3  paragraph shall be construed to grant an extension of the

  4  Assistive Technology Device Warranty Act rights period or to

  5  expand the time within which a consumer must file a claim

  6  under this chapter.

  7         (3)  Each manufacturer or assistive technology device

  8  dealer shall provide to its consumers conspicuous notice of

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

10  regional office for this state in the written warranty or

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

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

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

14  technology device that it sells in this state.

15         (4)  At the time of acquisition, the manufacturer or

16  assistive technology device dealer shall inform the consumer

17  clearly and conspicuously in writing how and where to file a

18  claim with a certified procedure if such procedure has been

19  established by the manufacturer pursuant to s. 427.8041.  The

20  manufacturer shall provide to the dealer and, at the time of

21  acquisition, the dealer shall provide to the consumer a

22  written statement that explains the consumer's rights under

23  this chapter.  The written statement shall be prepared by the

24  department and shall contain a toll-free number for the

25  division that the consumer can contact to obtain information

26  regarding the consumer's rights and obligations under this

27  chapter or to commence arbitration. The consumer's signed

28  acknowledgment of receipt of materials required under this

29  subsection shall constitute prima facie evidence of compliance

30  by the manufacturer and dealer. The form of the

31  acknowledgments shall be approved by the department, and the

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  1  dealer shall maintain the consumer's signed acknowledgment for

  2  3 years.

  3         (5)  A manufacturer or an assistive technology device

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

  5  assistive technology device is returned after being examined

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

  7  statement of any diagnosis made, and all work performed on the

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

  9  general description of the problem reported by the consumer or

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

11  the date on which the assistive technology device was

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

13  repair or examination was completed.

14         Section 3.  Section 427.804, Florida Statutes, is

15  amended to read:

16         427.804  Repair of nonconforming assistive technology

17  devices; refund or replacement of devices after attempt to

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

19  investigation; limitation of rights.--

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

21  conform to an applicable express warranty and the consumer

22  reports the nonconformity to the manufacturer, the assistive

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

24  authorized assistive technology device dealers and makes the

25  assistive technology device available for repair within 1 year

26  after first delivery or return of the assistive technology

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

28  no charge to the consumer.

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

30  nonconformity is not repaired, the manufacturer, at the

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

  2  must do one of the following:

  3         (a)  Accept return of the assistive technology device

  4  and replace the assistive technology device with a comparable

  5  new assistive technology device and refund any collateral

  6  costs.

  7         (b)  Accept return of the assistive technology device

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

  9  security interest in the consumer's assistive technology

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

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

12  point of sale, and collateral costs.

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

14  427.802(6)(d), accept return of the assistive technology

15  device, refund to the assistive technology device lessor and

16  to any holder of a perfected security interest in the

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

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

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

20  any collateral costs.

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

22  total amount for which the lease obligates the consumer during

23  the period of the lease remaining after its early termination

24  plus the assistive technology device dealer's early

25  termination costs and the value of the assistive technology

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

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

28  termination savings.

29         (4)  To receive a comparable new assistive technology

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

31  offer to the manufacturer of the assistive technology device

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  1  having the nonconformity to transfer possession of the

  2  assistive technology device to the manufacturer.  No later

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

  4  the consumer with the comparable assistive technology device

  5  or refund.  When the manufacturer provides the comparable

  6  assistive technology device or refund, the consumer shall

  7  return the assistive technology device having the

  8  nonconformity to the manufacturer, along with any endorsements

  9  necessary to transfer real possession to the manufacturer.

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

11  consumer must offer to return the assistive technology device

12  having the nonconformity to its manufacturer.  No later than

13  30 days after the offer, the manufacturer shall provide the

14  refund to the consumer.  When the manufacturer provides the

15  refund, the consumer shall return to the manufacturer the

16  assistive technology device having the nonconformity.

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

18  assistive technology device lessor must offer to transfer

19  possession of the assistive technology device having the

20  nonconformity to its manufacturer.  No later than 30 days

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

22  the assistive technology device lessor.  When the manufacturer

23  provides the refund, the assistive technology device lessor

24  shall provide to the manufacturer any endorsements necessary

25  to transfer legal possession to the manufacturer.

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

27  consumer after the consumer receives a refund due under

28  paragraph (2)(c).

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

30  a consumer or assistive technology device lessor in this

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

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

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

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

  4  lessee.

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

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

  7  The department may investigate the complaint on behalf of the

  8  consumer if reasonable evidence warrants such an action.

  9         (10)  The department shall process consumer complaints

10  pursuant to s. 570.544.

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

12  under this part to an alternative arbitration mechanism

13  established pursuant to chapter 682. Upon notice by the

14  consumer, all manufacturers must submit to such alternative

15  arbitration.

16         (12)(10)  Such alternative arbitration must be

17  conducted by a professional arbitrator or arbitration firm

18  appointed under chapter 682 and any applicable rules.  These

19  procedures must provide for the personal objectivity of the

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

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

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

23         (13)(11)  This part does not limit rights or remedies

24  available to a consumer under any other law.

25         Section 4.  Section 427.8041, Florida Statutes, is

26  created to read:

27         427.8041  Assistive technology device dealers

28  registration; application; exemption; penalties; adoption of

29  fees and fines; purchase fees.--

30         (1)  Each technology device dealer engaged or

31  attempting to engage in the business of selling assistive

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  1  technology devices must register with the department prior to

  2  doing business in this state. The application for registration

  3  must be on a form provided by the department and must include

  4  at least the following information:

  5         (a)  The name of the applicant.

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

  7  business.

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

  9  assistive technology devices or in the case of a mobile

10  assistive technology device business, the home address of the

11  owner, if different from the business address.

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

13  certifications obtained by the applicant or employees of the

14  applicant.

15         (e)  Number of employees which the applicant intends to

16  employ or which are currently employed.

17         (2)  Any assistive technology device dealer maintaining

18  more than one place of business may file a single application

19  annually, which, along with the other information required by

20  this part, clearly indicates the location of and the

21  individual in charge of each facility or in the case of a

22  mobile assistive technology device business, the home address

23  of the owner, if different from the business address.  In such

24  case, fees shall be paid for each place of business.

25         (3)  Each application for registration must be

26  accompanied by a registration fee set forth as follows:

27         (a)  If the place of business is not in the business of

28  primarily selling assistive technology devices: $100.

29         (b)  If the place of business is in the business of

30  primarily selling assistive technology devices: $150.

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  1         (4)  No annual registration fee is required for any

  2  assistive technology device dealer which has a local municipal

  3  or county license issued pursuant to an ordinance containing

  4  standards which the department determines are at least equal

  5  to the requirements of this part.

  6         (5)  The department shall issue to each applicant a

  7  registration certificate in the form and size as prescribed by

  8  the department in accordance with s. 120.60.  In the case of

  9  an applicant with more than one place of business, the

10  department shall issue a registration certificate for each

11  place of business. The certificate must show at least the name

12  and address of the assistive technology device dealer and the

13  registration number for that place of business. In the case of

14  a mobile assistive technology device dealer, the certificate

15  must show the home address of the owner, if different from the

16  business address.

17         (6)  Any affidavit of exemption proof of filing

18  certificate, issued by the department prior to July 1, 1999,

19  to an assistive technology device dealer who is not primarily

20  in business to sell assistive technology devices shall be

21  valid until its expiration.

22         (7)  Any person applying for or renewing a local

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

24  selling assistive technology devices must exhibit an active

25  registration certificate or active affidavit of exemption

26  proof of filing certificate from the department before the

27  local occupational license may be issued or renewed.

28         (8)  Each registration must be renewed annually on or

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

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

31  or any other penalty, for any registration renewal application

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  1  that is received by the department after the expiration date

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

  3  registration until all fees are paid.

  4         (9)  No annual registration application or fee is

  5  required for an individual with no employees and no

  6  established place of business. In the case of a mobile

  7  assistive technology device business, the established place of

  8  business shall be considered the home address of the owner, if

  9  different than the business address.

10         (10)  The department may deny or refuse to renew the

11  registration of the assistive technology device business based

12  upon a determination that the business, or any of its

13  directors, officers, owners, or general partners:

14         (a)  Have failed to meet the requirements for

15  registration as provided in this part;

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

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

18  enforcement action brought by any governmental agency based

19  upon conduct involving fraud, dishonest dealing, or any

20  violation of this part;

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

22  administrative adjudication in any jurisdiction, based upon

23  conduct involving fraud, dishonest dealing, or any violation

24  of this part; or

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

26  action brought by the department or the state attorney.

27         (11)  All assistive technology device dealers shall

28  allow department personnel to enter their place of business to

29  ascertain whether the registration certificate is current.  If

30  department personnel are refused entry or access to the

31

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  1  premises, the department may seek injunctive relief in circuit

  2  court in order to obtain compliance with this subsection.

  3         (12)  The department may enter an order imposing one or

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

  5  department finds that an assistive technology device dealer:

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

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

  8  issued thereunder;

  9         (b)  Made a material false statement in any

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

11  retained under this part;

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

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

14  document or record or disclose any information required to be

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

16  department;

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

18  request or investigation by the department, the Department of

19  Legal Affairs, or the state attorney; or

20         (e)  Has intentionally defrauded the public through

21  dishonest or deceptive means.

22         (13)  Upon a finding as set forth in subsection (12),

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

24  following:

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

26  120.695.

27         (b)  Imposing an administrative fine not to exceed

28  $1,000 per violation for each act which constitutes a

29  violation of this part or a rule or order.

30         (c)  Directing that the assistive technology device

31  dealer cease and desist specified activities.

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

  2  registration.

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

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

  5  specify.

  6         (14)  The administrative proceedings which could result

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

  8  specified in subsection (13) shall be conducted in accordance

  9  with chapter 120.

10         (15)  The department or the state attorney, if a

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

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

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

14  permanent injunctive relief and may seek other appropriate

15  civil relief, including a civil penalty not to exceed $1,000

16  for each violation, restitution and damages for injured

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

18         (16)  The enforcing authority may terminate any

19  investigation or action upon agreement by the offender to pay

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

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

22  and requested by the department.

23         (17)  The remedies provided for in this section shall

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

25         (18)  Fees and fines collected under this part by the

26  Department of Agriculture and Consumer Services shall be

27  deposited in the General Inspection Trust Fund.

28         (19)  A $2 fee shall be collected by an assistive

29  technology device dealer or by a person engaged in the

30  business of leasing assistive technology devices from the

31  consumer at the consummation of the sale of an assistive

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  1  technology device or at the time of entry into a lease

  2  agreement for an assistive technology device.  Such fees shall

  3  be remitted to the department to carry out the provisions of

  4  s. 427.8041. The department may use an amount it determines

  5  necessary to purchase expert consultation services to assist

  6  investigators to carry out the provisions of s. 427.8041.

  7         (20)  In addition to pursuing any other remedy, a

  8  consumer may bring an action to recover damages for any injury

  9  caused by a violation of this part. The court shall award a

10  consumer who prevails in such an action twice the amount of

11  any pecuniary loss, together with costs, disbursements, and

12  reasonable attorney's fees, and any equitable relief that the

13  court determines is appropriate.

14         Section 5.  This act shall take effect July 1, 1999.

15

16            *****************************************

17                          SENATE SUMMARY

18    Provides that the consumer determines whether an
      assistive technology device is defective for purposes of
19    an express warranty. Requires the manufacturer or the
      assistive technology device dealer to make repairs
20    necessary to conform the device to the warranty. Provides
      for notice of the dealer's and manufacturer's address and
21    telephone number. Provides definitions. Provides
      procedures for filing claims. Authorizes consumers to
22    submit disputes to the Department of Agriculture and
      Consumer Services. Authorizes the department to
23    investigate complaints. Provides for registration of
      dealers and for fees and application procedures. Provides
24    grounds for refusal or denial of registration. Authorizes
      the department to impose penalties. Authorizes the
25    department or the state attorney to bring civil actions
      for violations of the act. Provides for fees and fines
26    collected to be deposited into the General Inspection
      Trust Fund. Authorizes dealers to collect a fee from the
27    consumer at the time of sale or lease of a device. Allows
      consumers to bring a civil action for violation of the
28    act.

29

30

31

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