Senate Bill sb0208c1

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    Florida Senate - 2001                            CS for SB 208

    By the Committee on Commerce and Economic Opportunities; and
    Senator Geller




    310-1577-01

  1                      A bill to be entitled

  2         An act relating to consumer protection;

  3         amending s. 501.202, F.S.; revising rules of

  4         construction to provide date of applicability

  5         for conforming state consumer protection and

  6         enforcement with federal law; amending s.

  7         501.203, F.S.; including business or commercial

  8         entity within the definition of the term

  9         "consumer" for purposes of ch. 501, F.S.;

10         incorporating revisions to applicable

11         regulations; amending s. 501.204, F.S.;

12         incorporating interpretations relating to the

13         Federal Trade Commission Act; amending s.

14         501.207, F.S.; authorizing an action on behalf

15         of a governmental entity for damages caused by

16         a violation of part II of ch. 501, F.S.;

17         amending s. 501.2075, F.S.; providing for

18         waiver of civil penalties if restitution is

19         made for actual damages to a governmental

20         entity; repealing s. 501.2091, F.S., relating

21         to an authorization for a stay of proceedings

22         pending trial by a party to an action under

23         part II of ch. 501, F.S.; amending s. 501.211,

24         F.S.; providing for the recovery of actual

25         damages on the part of a person who suffers a

26         loss as a result of a violation of part II of

27         ch. 501, F.S.; amending s. 501.212, F.S.;

28         providing that an exemption from regulation

29         under part II of ch. 501, F.S., applies to

30         activities regulated under laws administered by

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    Florida Senate - 2001                            CS for SB 208
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  1         the Public Service Commission; providing an

  2         effective date.

  3

  4         WHEREAS, the Florida Information Service Technology

  5  Development Task Force determined and the Legislature finds

  6  that, although the Internet offers enormous positive

  7  opportunities for the citizens of this state, it also offers

  8  many opportunities for criminal activity and victimization,

  9  and

10         WHEREAS, computer and Internet-related crime continues

11  to escalate rapidly throughout our state, the nation, and the

12  world, and

13         WHEREAS, the task force determined and the Legislature

14  finds that it is important to ensure that the statutory

15  protections provided for businesses and individuals against

16  fraud and other crimes continue into the new world of

17  electronic commerce over the Internet, NOW, THEREFORE,

18

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

20

21         Section 1.  Section 501.202, Florida Statutes, is

22  amended to read:

23         501.202  Purposes; rules of construction.--The

24  provisions of this part shall be construed liberally to

25  promote the following policies:

26         (1)  To simplify, clarify, and modernize the law

27  governing consumer protection, unfair methods of competition,

28  and unconscionable, deceptive, and unfair trade practices.

29         (2)  To protect the consuming public and legitimate

30  business enterprises from those who engage in unfair methods

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    Florida Senate - 2001                            CS for SB 208
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  1  of competition, or unconscionable, deceptive, or unfair acts

  2  or practices in the conduct of any trade or commerce.

  3         (3)  To make state consumer protection and enforcement

  4  consistent with established policies of federal law relating

  5  to consumer protection as of July 1, 2001.

  6         Section 2.  Section 501.203, Florida Statutes, is

  7  amended to read:

  8         501.203  Definitions.--As used in this chapter, unless

  9  the context otherwise requires, the term:

10         (1)  "Final judgment" means a judgment, including any

11  supporting opinion, that determines the rights of the parties

12  and concerning which appellate remedies have been exhausted or

13  the time for appeal has expired.

14         (2)  "Enforcing authority" means the office of the

15  state attorney if a violation of this part occurs in or

16  affects the judicial circuit under the office's jurisdiction.

17  "Enforcing authority" means the Department of Legal Affairs if

18  the violation occurs in or affects more than one judicial

19  circuit or if the office of the state attorney defers to the

20  department in writing, or fails to act upon a violation within

21  90 days after a written complaint has been filed with the

22  state attorney.

23         (3)  "Violation of this part" means any violation of

24  this act or the rules adopted under this act and may be based

25  upon any of the following as of July 1, 2001:

26         (a)  Any rules promulgated pursuant to the Federal

27  Trade Commission Act, 15 U.S.C. ss. 41 et seq. or this act;

28         (b)  The standards of unfairness and deception set

29  forth and interpreted by the Federal Trade Commission or the

30  federal courts;

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  1         (c)  Any law, statute, rule, regulation, or ordinance

  2  which proscribes unfair methods of competition, or unfair,

  3  deceptive, or unconscionable acts or practices.

  4         (4)  "Department" means the Department of Legal

  5  Affairs.

  6         (5)  "Order" means a cease and desist order issued by

  7  the enforcing authority as set forth in s. 501.208.

  8         (6)  "Interested party or person" means any person

  9  affected by a violation of this part or any person affected by

10  an order of the enforcing authority.

11         (7)  "Consumer" means an individual; child, by and

12  through its parent or legal guardian; business; firm;

13  association; joint venture; partnership; estate; trust;

14  business trust; syndicate; fiduciary; corporation; any

15  commercial entity, however denominated; or any other group or

16  combination.

17         (8)  "Trade or commerce" means the advertising,

18  soliciting, providing, offering, or distributing, whether by

19  sale, rental, or otherwise, of any good or service, or any

20  property, whether tangible or intangible, or any other

21  article, commodity, or thing of value, wherever situated.

22  "Trade or commerce" shall include the conduct of any trade or

23  commerce, however denominated, including any nonprofit or

24  not-for-profit person or activity.

25         (9)  "Thing of value" may include, without limitation,

26  any moneys, donation, membership, credential, certificate,

27  prize, award, benefit, license, interest, professional

28  opportunity, or chance of winning.

29         Section 3.  Section 501.204, Florida Statutes, is

30  amended to read:

31         501.204  Unlawful acts and practices.--

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    Florida Senate - 2001                            CS for SB 208
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  1         (1)  Unfair methods of competition, unconscionable acts

  2  or practices, and unfair or deceptive acts or practices in the

  3  conduct of any trade or commerce are hereby declared unlawful.

  4         (2)  It is the intent of the Legislature that, in

  5  construing subsection (1), due consideration and great weight

  6  shall be given to the interpretations of the Federal Trade

  7  Commission and the federal courts relating to s. 5(a)(1) of

  8  the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of

  9  July 1, 2001.

10         Section 4.  Subsections (1), (3), and (6) of section

11  501.207, Florida Statutes, are amended to read:

12         501.207  Remedies of enforcing authority.--

13         (1)  The enforcing authority may bring:

14         (a)  An action to obtain a declaratory judgment that an

15  act or practice violates this part.

16         (b)  An action to enjoin any person who has violated,

17  is violating, or is otherwise likely to violate, this part.

18         (c)  An action on behalf of one or more consumers or

19  governmental entities for the actual damages caused by an act

20  or practice in violation of this part.  However, no damages

21  are not shall be recoverable under this section against a

22  retailer who has in good faith engaged in the dissemination of

23  claims of a manufacturer or wholesaler without actual

24  knowledge that it violated this part.

25         (3)  Upon motion of the enforcing authority or any

26  interested party in any action brought under subsection (1),

27  the court may make appropriate orders, including, but not

28  limited to, appointment of a master or receiver or

29  sequestration or freezing of assets, to reimburse consumers or

30  governmental entities found to have been damaged; to carry out

31  a transaction in accordance with the consumers' reasonable

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    Florida Senate - 2001                            CS for SB 208
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  1  expectations of consumers or governmental entities; to strike

  2  or limit the application of clauses of contracts to avoid an

  3  unconscionable result; to order any defendant to divest

  4  herself or himself of any interest in any enterprise,

  5  including real estate; to impose reasonable restrictions upon

  6  the future activities of any defendant to impede her or him

  7  from engaging in or establishing the same type of endeavor; to

  8  order the dissolution or reorganization of any enterprise; or

  9  to grant legal, equitable, or other appropriate relief.  The

10  court may assess the expenses of a master or receiver against

11  a person who has violated, is violating, or is otherwise

12  likely to violate this part.  Any injunctive order, whether

13  temporary or permanent, issued by the court shall be effective

14  throughout the state unless otherwise provided in the order.

15         (6)  The enforcing authority may terminate an

16  investigation or an action upon acceptance of a person's

17  written assurance of voluntary compliance with this part.

18  Acceptance of an assurance may be conditioned on a commitment

19  to reimburse consumers or governmental entities, make

20  contributions, pay civil penalties, pay attorney's fees and

21  costs, or take other appropriate corrective action.  An

22  assurance is not evidence of a prior violation of this part.

23  However, unless an assurance has been rescinded by agreement

24  of the parties or voided by a court for good cause, subsequent

25  failure to comply with the terms of an assurance is prima

26  facie evidence of a violation of this part.  No Such assurance

27  is not shall act as a limitation upon any action or remedy

28  available to a person aggrieved by a violation of this part.

29         Section 5.  Section 501.2075, Florida Statutes, is

30  amended to read:

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    Florida Senate - 2001                            CS for SB 208
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  1         501.2075  Civil penalty.--Except as provided in s.

  2  501.2077, any person, firm, corporation, association, or

  3  entity, or any agent or employee of the foregoing, who is

  4  willfully using, or has willfully used, a method, act, or

  5  practice declared unlawful under s. 501.204, or who is

  6  willfully violating any of the rules of the department adopted

  7  promulgated under this part, is liable for a civil penalty of

  8  not more than $10,000 for each such violation.  Willful

  9  violations occur when the person knew or should have known

10  that his or her conduct was unfair or deceptive or prohibited

11  by rule.  This civil penalty may be recovered in any action

12  brought under this part by the enforcing authority; or the

13  enforcing authority may terminate any investigation or action

14  upon agreement by the person, firm, corporation, association,

15  or entity, or the agent or employee of the foregoing, to pay a

16  stipulated civil penalty.  The department or the court may

17  waive any such civil penalty if the person, firm, corporation,

18  association, or entity, or the agent or employee of the

19  foregoing, has previously made full restitution or

20  reimbursement or has paid actual damages to the consumers or

21  governmental entities who have been injured by the unlawful

22  act or practice or rule violation.  If civil penalties are

23  assessed in any litigation, the enforcing authority is

24  entitled to reasonable attorney's fees and costs.  A civil

25  penalty so collected shall accrue to the state and shall be

26  deposited as received into the General Revenue Fund

27  unallocated.

28         Section 6.  Section 501.2091, Florida Statutes, is

29  repealed.

30         Section 7.  Subsection (2) of section 501.211, Florida

31  Statutes, is amended to read:

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    Florida Senate - 2001                            CS for SB 208
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  1         501.211  Other individual remedies.--

  2         (2)  In any individual action brought by a person

  3  consumer who has suffered a loss as a result of a violation of

  4  this part, such person consumer may recover actual damages,

  5  plus attorney's fees and court costs as provided in s.

  6  501.2105.; However, no damages, fees, or costs are not shall

  7  be recoverable under this section against a retailer who has,

  8  in good faith, engaged in the dissemination of claims of a

  9  manufacturer or wholesaler without actual knowledge that it

10  violated this part.

11         Section 8.  Section 501.212, Florida Statutes, is

12  amended to read:

13         501.212  Application.--This part does not apply to:

14         (1)  An act or practice required or specifically

15  permitted by federal or state law.

16         (2)  A publisher, broadcaster, printer, or other person

17  engaged in the dissemination of information or the

18  reproduction of printed or pictorial matter, insofar as the

19  information or matter has been disseminated or reproduced on

20  behalf of others without actual knowledge that it violated

21  this part.

22         (3)  A claim for personal injury or death or a claim

23  for damage to property other than the property that is the

24  subject of the consumer transaction.

25         (4)  Any person or activity regulated under laws

26  administered by the Department of Insurance or the Florida

27  Public Service Commission or banks and savings and loan

28  associations regulated by the Department of Banking and

29  Finance or banks or savings and loan associations regulated by

30  federal agencies.

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    Florida Senate - 2001                            CS for SB 208
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  1         (5)  Any activity regulated under laws administered by

  2  the Florida Public Service Commission.

  3         (6)(5)  An act or practice involving the sale, lease,

  4  rental, or appraisal of real estate by a person licensed,

  5  certified, or registered pursuant to chapter 475, which act or

  6  practice violates s. 475.42 or s. 475.626.

  7         Section 9.  This act shall take effect July 1, 2001.

  8

  9          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
10                              SB 208

11

12  The committee substitute makes the following changes to SB
    208:
13
    1.    Restores language to s. 501.212, F.S., specifying that
14        the Florida Deceptive and Unfair Trade Practices Act
          (ch. 501, part II, F.S.) does not apply to a person
15        regulated under laws administered by the Department of
          Insurance and adds a specific exemption to the act for
16        "[a]ny activity regulated under laws administered by the
          Florida Public Service Commission."
17
    2.    Amends ss. 501.202, 501.203, and 501.204, F.S., in order
18        to capture changes to applicable federal law that may
          have occurred subsequent to the sections' most recent
19        publications.

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