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.

27

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,

11

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

13

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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