House Bill hb0685c1
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Florida House of Representatives - 2001 CS/HB 685
By the Committee on Agriculture & Consumer Affairs and
Representatives Romeo, Gannon, Sobel, Weissman, Peterman,
Kendrick, Gibson, Bowen, Stansel, Lerner and Kottkamp
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.; providing exemptions from regulation
21 under part II of ch. 50l, F.S., for certain
22 activities regulated by the Public Service
23 Commission; reenacting ss. 501.203 and 501.204,
24 F.S., to incorporate amendments to federal law
25 in references thereto; providing an effective
26 date.
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28 WHEREAS, the Florida Information Service Technology
29 Development Task Force determined and the Legislature finds
30 that, although the Internet offers enormous positive
31 opportunities for the citizens of this state, it also offers
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1 many opportunities for criminal activity and victimization,
2 and
3 WHEREAS, computer and Internet-related crime continues
4 to escalate rapidly throughout our state, the nation, and the
5 world, and
6 WHEREAS, the task force determined and the Legislature
7 finds that it is important to ensure that the statutory
8 protections provided for businesses and individuals against
9 fraud and other crimes continue into the new world of
10 electronic commerce over the Internet, NOW, THEREFORE,
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12 Be It Enacted by the Legislature of the State of Florida:
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14 Section 1. Subsection (7) of section 501.203, Florida
15 Statutes, is amended to read:
16 501.203 Definitions.--As used in this chapter, unless
17 the context otherwise requires, the term:
18 (7) "Consumer" means an individual; child, by and
19 through its parent or legal guardian; business; firm;
20 association; joint venture; partnership; estate; trust;
21 business trust; syndicate; fiduciary; corporation; any
22 commercial entity, however denominated; or any other group or
23 combination.
24 Section 2. Subsections (1), (3), and (6) of section
25 501.207, Florida Statutes, are amended to read:
26 501.207 Remedies of enforcing authority.--
27 (1) The enforcing authority may bring:
28 (a) An action to obtain a declaratory judgment that an
29 act or practice violates this part.
30 (b) An action to enjoin any person who has violated,
31 is violating, or is otherwise likely to violate, this part.
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1 (c) An action on behalf of one or more consumers or
2 governmental entities for the actual damages caused by an act
3 or practice in violation of this part. However, no damages
4 are not shall be recoverable under this section against a
5 retailer who has in good faith engaged in the dissemination of
6 claims of a manufacturer or wholesaler without actual
7 knowledge that it violated this part.
8 (3) Upon motion of the enforcing authority or any
9 interested party in any action brought under subsection (1),
10 the court may make appropriate orders, including, but not
11 limited to, appointment of a master or receiver or
12 sequestration or freezing of assets, to reimburse consumers or
13 governmental entities found to have been damaged; to carry out
14 a transaction in accordance with the consumers' reasonable
15 expectations of consumers or governmental entities; to strike
16 or limit the application of clauses of contracts to avoid an
17 unconscionable result; to order any defendant to divest
18 herself or himself of any interest in any enterprise,
19 including real estate; to impose reasonable restrictions upon
20 the future activities of any defendant to impede her or him
21 from engaging in or establishing the same type of endeavor; to
22 order the dissolution or reorganization of any enterprise; or
23 to grant legal, equitable, or other appropriate relief. The
24 court may assess the expenses of a master or receiver against
25 a person who has violated, is violating, or is otherwise
26 likely to violate this part. Any injunctive order, whether
27 temporary or permanent, issued by the court shall be effective
28 throughout the state unless otherwise provided in the order.
29 (6) The enforcing authority may terminate an
30 investigation or an action upon acceptance of a person's
31 written assurance of voluntary compliance with this part.
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1 Acceptance of an assurance may be conditioned on a commitment
2 to reimburse consumers or governmental entities, make
3 contributions, pay civil penalties, pay attorney's fees and
4 costs, or take other appropriate corrective action. An
5 assurance is not evidence of a prior violation of this part.
6 However, unless an assurance has been rescinded by agreement
7 of the parties or voided by a court for good cause, subsequent
8 failure to comply with the terms of an assurance is prima
9 facie evidence of a violation of this part. No Such assurance
10 is not shall act as a limitation upon any action or remedy
11 available to a person aggrieved by a violation of this part.
12 Section 3. Section 501.2075, Florida Statutes, is
13 amended to read:
14 501.2075 Civil penalty.--Except as provided in s.
15 501.2077, any person, firm, corporation, association, or
16 entity, or any agent or employee of the foregoing, who is
17 willfully using, or has willfully used, a method, act, or
18 practice declared unlawful under s. 501.204, or who is
19 willfully violating any of the rules of the department adopted
20 promulgated under this part, is liable for a civil penalty of
21 not more than $10,000 for each such violation. Willful
22 violations occur when the person knew or should have known
23 that his or her conduct was unfair or deceptive or prohibited
24 by rule. This civil penalty may be recovered in any action
25 brought under this part by the enforcing authority; or the
26 enforcing authority may terminate any investigation or action
27 upon agreement by the person, firm, corporation, association,
28 or entity, or the agent or employee of the foregoing, to pay a
29 stipulated civil penalty. The department or the court may
30 waive any such civil penalty if the person, firm, corporation,
31 association, or entity, or the agent or employee of the
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1 foregoing, has previously made full restitution or
2 reimbursement or has paid actual damages to the consumers or
3 governmental entities who have been injured by the unlawful
4 act or practice or rule violation. If civil penalties are
5 assessed in any litigation, the enforcing authority is
6 entitled to reasonable attorney's fees and costs. A civil
7 penalty so collected shall accrue to the state and shall be
8 deposited as received into the General Revenue Fund
9 unallocated.
10 Section 4. Section 501.2091, Florida Statutes, is
11 repealed.
12 Section 5. Subsection (2) of section 501.211, Florida
13 Statutes, is amended to read:
14 501.211 Other individual remedies.--
15 (2) In any individual action brought by a person
16 consumer who has suffered a loss as a result of a violation of
17 this part, such person consumer may recover actual damages,
18 plus attorney's fees and court costs as provided in s.
19 501.2105.; However, no damages, fees, or costs are not shall
20 be recoverable under this section against a retailer who has,
21 in good faith, engaged in the dissemination of claims of a
22 manufacturer or wholesaler without actual knowledge that it
23 violated this part.
24 Section 6. Section 501.212, Florida Statutes, is
25 amended to read:
26 501.212 Application.--This part does not apply to:
27 (1) An act or practice required or specifically
28 permitted by federal or state law.
29 (2) A publisher, broadcaster, printer, or other person
30 engaged in the dissemination of information or the
31 reproduction of printed or pictorial matter, insofar as the
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1 information or matter has been disseminated or reproduced on
2 behalf of others without actual knowledge that it violated
3 this part.
4 (3) A claim for personal injury or death or a claim
5 for damage to property other than the property that is the
6 subject of the consumer transaction.
7 (4) Any person or activity regulated under laws
8 administered by the Department of Insurance or the Florida
9 Public Service Commission or banks and savings and loan
10 associations regulated by the Department of Banking and
11 Finance or banks or savings and loan associations regulated by
12 federal agencies.
13 (5) Any activity regulated under laws administered by
14 the Public Service Commission as determined in writing by the
15 Public Service Commission.
16 (6)(5) An act or practice involving the sale, lease,
17 rental, or appraisal of real estate by a person licensed,
18 certified, or registered pursuant to chapter 475, which act or
19 practice violates s. 475.42 or s. 475.626.
20 Section 7. For the purpose of incorporating amendments
21 to federal law in references thereto, sections 501.203 and
22 501.204, Florida Statutes, are reenacted to read:
23 501.203 Definitions.--As used in this chapter, unless
24 the context otherwise requires, the term:
25 (1) "Final judgment" means a judgment, including any
26 supporting opinion, that determines the rights of the parties
27 and concerning which appellate remedies have been exhausted or
28 the time for appeal has expired.
29 (2) "Enforcing authority" means the office of the
30 state attorney if a violation of this part occurs in or
31 affects the judicial circuit under the office's jurisdiction.
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1 "Enforcing authority" means the Department of Legal Affairs if
2 the violation occurs in or affects more than one judicial
3 circuit or if the office of the state attorney defers to the
4 department in writing, or fails to act upon a violation within
5 90 days after a written complaint has been filed with the
6 state attorney.
7 (3) "Violation of this part" means any violation of
8 this act and may be based upon any of the following:
9 (a) Any rules promulgated pursuant to the Federal
10 Trade Commission Act, 15 U.S.C. ss. 41 et seq. or this act;
11 (b) The standards of unfairness and deception set
12 forth and interpreted by the Federal Trade Commission or the
13 federal courts;
14 (c) Any law, statute, rule, regulation, or ordinance
15 which proscribes unfair methods of competition, or unfair,
16 deceptive, or unconscionable acts or practices.
17 (4) "Department" means the Department of Legal
18 Affairs.
19 (5) "Order" means a cease and desist order issued by
20 the enforcing authority as set forth in s. 501.208.
21 (6) "Interested party or person" means any person
22 affected by a violation of this part or any person affected by
23 an order of the enforcing authority.
24 (7) "Consumer" means an individual; child, by and
25 through its parent or legal guardian; firm; association; joint
26 venture; partnership; estate; trust; business trust;
27 syndicate; fiduciary; corporation; or any other group or
28 combination.
29 (8) "Trade or commerce" means the advertising,
30 soliciting, providing, offering, or distributing, whether by
31 sale, rental, or otherwise, of any good or service, or any
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1 property, whether tangible or intangible, or any other
2 article, commodity, or thing of value, wherever situated.
3 "Trade or commerce" shall include the conduct of any trade or
4 commerce, however denominated, including any nonprofit or
5 not-for-profit person or activity.
6 (9) "Thing of value" may include, without limitation,
7 any moneys, donation, membership, credential, certificate,
8 prize, award, benefit, license, interest, professional
9 opportunity, or chance of winning.
10 501.204 Unlawful acts and practices.--
11 (1) Unfair methods of competition, unconscionable acts
12 or practices, and unfair or deceptive acts or practices in the
13 conduct of any trade or commerce are hereby declared unlawful.
14 (2) It is the intent of the Legislature that, in
15 construing subsection (1), due consideration and great weight
16 shall be given to the interpretations of the Federal Trade
17 Commission and the federal courts relating to s. 5(a)(1) of
18 the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1).
19 Section 8. This act shall take effect July 1, 2001.
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