House Bill hb0685

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    Florida House of Representatives - 2001                 HB 685

        By Representatives Romeo, Gannon, Sobel, Weissman and
    Peterman





  1                      A bill to be entitled

  2         An act relating to consumer protection;

  3         amending s. 501.203, F.S.; including business

  4         or commercial entity within the definition of

  5         the term "consumer" for purposes of ch. 501,

  6         F.S.; amending s. 501.207, F.S.; authorizing an

  7         action on behalf of a governmental entity for

  8         damages caused by a violation of part II of ch.

  9         501, F.S.; amending s. 501.2075, F.S.;

10         providing for waiver of civil penalties if

11         restitution is made for actual damages to a

12         governmental entity; repealing s. 501.2091,

13         F.S., relating to an authorization for a stay

14         of proceedings pending trial by a party to an

15         action under part II of ch. 501, F.S.; amending

16         s. 501.211, F.S.; providing for the recovery of

17         actual damages on the part of a person who

18         suffers a loss as a result of a violation of

19         part II of ch. 501, F.S.; amending s. 501.212,

20         F.S.; eliminating an exemption from regulation

21         under part II of ch. 50l, F.S., for persons

22         regulated under laws administered by other

23         agencies; providing an effective date.

24

25         WHEREAS, the Florida Information Service Technology

26  Development Task Force determined and the Legislature finds

27  that, although the Internet offers enormous positive

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

29  many opportunities for criminal activity and victimization,

30  and

31

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  1         WHEREAS, computer and Internet-related crime continues

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

  3  world, and

  4         WHEREAS, the task force determined and the Legislature

  5  finds that it is important to ensure that the statutory

  6  protections provided for businesses and individuals against

  7  fraud and other crimes continue into the new world of

  8  electronic commerce over the Internet, NOW, THEREFORE,

  9

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

11

12         Section 1.  Subsection (7) of section 501.203, Florida

13  Statutes, is amended to read:

14         501.203  Definitions.--As used in this chapter, unless

15  the context otherwise requires, the term:

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

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

18  association; joint venture; partnership; estate; trust;

19  business trust; syndicate; fiduciary; corporation; any

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

21  combination.

22         Section 2.  Subsections (1), (3), and (6) of section

23  501.207, Florida Statutes, are amended to read:

24         501.207  Remedies of enforcing authority.--

25         (1)  The enforcing authority may bring:

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

27  act or practice violates this part.

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

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

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

31  governmental entities for the actual damages caused by an act

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

  2  are not shall be recoverable under this section against a

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

  4  claims of a manufacturer or wholesaler without actual

  5  knowledge that it violated this part.

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

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

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

  9  limited to, appointment of a master or receiver or

10  sequestration or freezing of assets, to reimburse consumers or

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

12  a transaction in accordance with the consumers' reasonable

13  expectations of consumers or governmental entities; to strike

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

15  unconscionable result; to order any defendant to divest

16  herself or himself of any interest in any enterprise,

17  including real estate; to impose reasonable restrictions upon

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

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

20  order the dissolution or reorganization of any enterprise; or

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

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

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

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

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

26  throughout the state unless otherwise provided in the order.

27         (6)  The enforcing authority may terminate an

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

29  written assurance of voluntary compliance with this part.

30  Acceptance of an assurance may be conditioned on a commitment

31  to reimburse consumers or governmental entities, make

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

  2  costs, or take other appropriate corrective action.  An

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

  4  However, unless an assurance has been rescinded by agreement

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

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

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

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

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

10         Section 3.  Section 501.2075, Florida Statutes, is

11  amended to read:

12         501.2075  Civil penalty.--Except as provided in s.

13  501.2077, any person, firm, corporation, association, or

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

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

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

17  willfully violating any of the rules of the department adopted

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

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

20  violations occur when the person knew or should have known

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

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

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

24  enforcing authority may terminate any investigation or action

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

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

27  stipulated civil penalty.  The department or the court may

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

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

30  foregoing, has previously made full restitution or

31  reimbursement or has paid actual damages to the consumers or

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  1  governmental entities who have been injured by the unlawful

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

  3  assessed in any litigation, the enforcing authority is

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

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

  6  deposited as received into the General Revenue Fund

  7  unallocated.

  8         Section 4.  Section 501.2091, Florida Statutes, is

  9  repealed.

10         Section 5.  Subsection (2) of section 501.211, Florida

11  Statutes, is amended to read:

12         501.211  Other individual remedies.--

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

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

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

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

17  501.2105.; However, no damages, fees, or costs are not shall

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

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

20  manufacturer or wholesaler without actual knowledge that it

21  violated this part.

22         Section 6.  Subsection (4) of section 501.212, Florida

23  Statutes, is amended to read:

24         501.212  Application.--This part does not apply to:

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.

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

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  2                          SENATE SUMMARY

  3    Includes businesses and commercial entities within the
      definition of the term "consumer" for purposes of ch.
  4    501, F.S., relating to consumer protection. Provides for
      actions under ch. 501, F.S., on behalf of a governmental
  5    entity. Deletes an exemption from regulation under part
      II of ch. 50l, F.S., for persons regulated under laws
  6    administered by certain other state or federal agencies.
      (See bill for details.)
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