Senate Bill sb0784e1
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1 A bill to be entitled
2 An act relating to consumer protection;
3 amending s. 400.925, F.S.; revising
4 definitions; amending s. 400.93, F.S.;
5 exempting providers of home medical equipment
6 operated by the Department of Health from
7 certain licensure requirements; amending s.
8 427.802, F.S.; revising definitions; amending
9 s. 427.803, F.S.; revising warranty
10 requirements; amending s. 427.804, F.S.;
11 conforming references; deleting investigation
12 and complaint processing requirements of the
13 Department of Agriculture and Consumer
14 Services; repealing s. 427.8041, F.S., relating
15 to the registration of assistive technology
16 device dealers; amending s. 496.411, F.S.;
17 requiring charitable organizations or sponsors
18 to display certain information on certain
19 solicitation materials; amending s. 501.017,
20 F.S.; requiring certain health studio contract
21 refunds to be issued within a time certain;
22 amending s. 501.019, F.S.; expanding
23 application of felony penalties for knowingly
24 making false representations for certain
25 purposes; amending s. 539.001, F.S.; redefining
26 the term "agency"; prohibiting pawnbrokers from
27 knowingly accepting stolen property; correcting
28 terminology; amending s. 559.801, F.S.;
29 revising a definition; amending s. 559.803,
30 F.S.; revising statements that must be placed
31 in disclosure documents; specifying additional
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1 information required in certain business
2 opportunity contract disclosure statements;
3 amending s. 559.807, F.S.; revising application
4 of requirements for certain securities relating
5 to selling business opportunities; amending s.
6 559.809, F.S.; specifying an additional
7 prohibited act by business opportunity sellers;
8 reenacting s. 559.815, F.S., relating to
9 penalties for violations of s. 559.809, F.S.;
10 amending s. 559.902, F.S.; providing an
11 additional exception for certain schools to
12 application of certain motor vehicle repair
13 shop provisions; amending s. 559.904, F.S.;
14 revising certain requirements for motor vehicle
15 repair shop registrations; amending s. 559.905,
16 F.S.; providing additional estimated cost of
17 repair requirements for written repair
18 estimates; amending s. 559.9221, F.S.; revising
19 Motor Vehicle Repair Advisory Council
20 membership requirements; repealing s.
21 559.903(5), F.S., relating to a definition of
22 minor repair service; providing for
23 severability; creating s. 501.144, F.S., the
24 Florida Infant Crib Safety Act; providing
25 definitions; prohibiting commercial users from
26 manufacturing, remanufacturing, retrofitting,
27 selling, contracting to sell or resell,
28 leasing, or subletting specified cribs
29 determined to be unsafe for use by infants;
30 prohibiting transient public lodging
31 establishments from offering or providing for
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1 use specified cribs determined to be unsafe for
2 use by infants; providing criteria for
3 determining safety of infant cribs; providing
4 exemptions; providing specified immunity from
5 civil liability; providing penalties; providing
6 that violation of the act constitutes an unfair
7 and deceptive trade practice; authorizing the
8 Department of Agriculture and Consumer
9 Services, the Department of Business and
10 Professional Regulation, and the Department of
11 Children and Family Services to collaborate
12 with public agencies and private sector
13 entities to prepare specified public education
14 materials and programs; authorizing the
15 Department of Agriculture and Consumer Services
16 to adopt rules and prescribe forms; amending s.
17 509.221, F.S.; prohibiting the use of certain
18 cribs in public lodging establishments;
19 reenacting s. 509.032, F.S.; providing for
20 regulation and rulemaking by the Division of
21 Hotels and Restaurants of the Department of
22 Business and Professional Regulation; creating
23 s. 402.3031, F.S.; prohibiting unsafe cribs in
24 certain facilities; providing for enforcement
25 and rulemaking powers of the Department of
26 Children and Family Services; amending s.
27 501.203, F.S.; including business or commercial
28 entity within the definition of the term
29 "consumer" for purposes of ch. 501, F.S.;
30 incorporating revisions to applicable
31 regulations; amending s. 501.204, F.S.;
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1 incorporating interpretations relating to the
2 Federal Trade Commission Act; amending s.
3 501.207, F.S.; authorizing an action on behalf
4 of a governmental entity for damages caused by
5 a violation of part II of ch. 501, F.S.;
6 amending s. 501.2075, F.S.; providing for
7 waiver of civil penalties if restitution is
8 made for actual damages to a governmental
9 entity; repealing s. 501.2091, F.S., relating
10 to an authorization for a stay of proceedings
11 pending trial by a party to an action under
12 part II of ch. 501, F.S.; amending s. 501.211,
13 F.S.; providing for the recovery of actual
14 damages on the part of a person who suffers a
15 loss as a result of a violation of part II of
16 ch. 501, F.S.; amending s. 501.212, F.S.;
17 providing that an exemption from regulation
18 under part II of ch. 501, F.S., applies to
19 activities regulated under laws administered by
20 the Public Service Commission; providing
21 effective dates.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. Subsection (8) of section 400.925, Florida
26 Statutes, is amended to read:
27 400.925 Definitions.--As used in this part, the term:
28 (8) "Home medical equipment" includes any product as
29 defined by the Federal Drug Administration's Drugs, Devices
30 and Cosmetics Act, any products reimbursed under the Medicare
31 Part B Durable Medical Equipment benefits, or any products
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1 reimbursed under the Florida Medicaid durable medical
2 equipment program. Home medical equipment includes, but is not
3 limited to, oxygen and related respiratory equipment. Home
4 medical equipment includes customized wheelchairs and related
5 seating and positioning, but does not include prosthetics or
6 orthotics or any splints, braces, or aids custom fabricated by
7 a licensed health care practitioner. Home medical equipment
8 includes assistive technology devices, including: manual
9 wheelchairs, motorized wheelchairs, motorized scooters,
10 voice-synthesized computer modules, optical scanners, talking
11 software, braille printers, environmental control devices for
12 use by person with quadriplegia, motor vehicle adaptive
13 transportation aids, devices that enable persons with severe
14 speech disabilities to in effect speak, personal transfer
15 systems and specialty beds, including demonstrator, for use by
16 a person with a medical need.
17 Section 2. Paragraph (a) of subsection (5) of section
18 400.93, Florida Statutes, is amended to read:
19 400.93 Home medical equipment providers to be
20 licensed; expiration of license; exemptions; unlawful acts;
21 penalties.--
22 (5) The following are exempt from home medical
23 equipment provider licensure, unless they have a separate
24 company, corporation, or division that is in the business of
25 providing home medical equipment and services for sale or rent
26 to consumers at their regular or temporary place of residence
27 pursuant to the provisions of this part:
28 (a) Providers operated by the Department of Health or
29 Federal Government.
30 Section 3. Section 427.802, Florida Statutes, is
31 amended to read:
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1 427.802 Definitions.--As used in this part:
2 (1) "Assistive technology devices" means manual
3 wheelchairs, motorized wheelchairs, motorized scooters,
4 voice-synthesized computer modules, optical scanners, talking
5 software, braille printers, environmental control devices for
6 use by a person with quadriplegia, motor vehicle adaptive
7 transportation aids, devices that enable persons with severe
8 speech disabilities to in effect speak, personal transfer
9 systems, and specialty beds, including a demonstrator, that a
10 consumer purchases or accepts transfer of in this state for
11 use by a person with a disability.
12 (2) "Assistive Technology Device Warranty Act rights
13 period" means the period ending 1 year after first delivery of
14 the assistive technology device to the consumer or the
15 manufacturer's express written warranty, whichever is longer.
16 (2)(3) "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)(4) "Assistive technology device dealer" means a
22 person who is business entity that is primarily engaged in the
23 business of selling or leasing of assistive technology
24 devices. As used in this subsection, the term "primarily"
25 means no less than 30 percent of the business entity's gross
26 sales in the previous fiscal year.
27 (4)(5) "Assistive technology device lessor" means a
28 person who leases an assistive technology device to a
29 consumer, or holds the lessor's rights, under a written lease.
30 (5)(6) "Collateral costs" means expenses incurred by a
31 consumer in connection with the repair of a nonconformity,
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1 including the costs of obtaining an alternative assistive
2 technology device.
3 (6)(7) "Consumer" means any of the following:
4 (a) The purchaser of an assistive technology device,
5 if the assistive technology device was purchased from an
6 assistive technology device dealer or manufacturer for
7 purposes other than resale.
8 (b) A person to whom the assistive technology device
9 is transferred for purposes other than resale, if the transfer
10 occurs before the expiration of an express warranty applicable
11 to the assistive technology device.
12 (c) A person who may enforce the warranty.
13 (d) A person who leases an assistive technology device
14 from an assistive technology device lessor under a written
15 lease.
16 (7)(8) "Demonstrator" means an assistive technology
17 device used primarily for the purpose of demonstration to the
18 public.
19 (9) "Department" means the Department of Agriculture
20 and Consumer Services.
21 (8)(10) "Early termination cost" means any expense or
22 obligation that an assistive technology device lessor incurs
23 as a result of both the termination of a written lease before
24 the termination date set forth in that lease and the return of
25 an assistive technology device to a manufacturer pursuant to
26 this section. The term includes a penalty for prepayment
27 under a financial arrangement.
28 (9)(11) "Early termination saving" means any expense
29 or obligation that an assistive technology device lessor
30 avoids as a result of both the termination of a written lease
31 before the termination date set forth in the lease and the
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1 return of an assistive technology device to a manufacturer
2 pursuant to this section. The term includes an interest
3 charge that the assistive technology device lessor would have
4 paid to finance the assistive technology device or, if the
5 assistive technology device lessor does not finance the
6 assistive technology device, the difference between the total
7 amount for which the lease obligates the consumer during the
8 period of the lease term remaining after the early termination
9 and the present value of that amount at the date of the early
10 termination.
11 (10)(12) "Manufacturer" means a business entity that
12 manufactures or produces assistive technology devices for sale
13 and agents of that business entity, including an importer, a
14 distributor, a factory branch, a distributor branch, and any
15 warrantors of the manufacturer's assistive technology device,
16 but not including an assistive technology device dealer.
17 (11)(13) "Nonconformity" means a condition or defect
18 of an assistive technology device which substantially impairs
19 the use, value, or safety of the device and which is covered
20 by an express warranty applicable to the assistive technology
21 device, but does not include a condition or defect that is the
22 result of abuse, neglect, excessive wear, or unauthorized
23 modification or alteration of the assistive technology device
24 by a consumer.
25 (12)(14) "Reasonable attempt to repair" means, within
26 the terms of an express warranty applicable to a new assistive
27 technology device:
28 (a) A maximum of three efforts by the manufacturer,
29 the assistive technology device lessor, or any of the
30 manufacturer's authorized assistive technology device dealers
31
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1 to repair a nonconformity that is subject to repair under the
2 warranty; or
3 (b) The passage of at least 30 cumulative days during
4 which the assistive technology device is out of service
5 because of a nonconformity that is covered by the warranty.
6 Section 4. Section 427.803, Florida Statutes, is
7 amended to read:
8 427.803 Express Duty of manufacturer and an assistive
9 technology device dealer to conform an assistive technology
10 device to the warranty.--
11 (1) A manufacturer who sells a new assistive
12 technology device to a consumer, either directly or through an
13 assistive technology device dealer, shall furnish the consumer
14 with an express warranty for the assistive technology device.
15 The duration of the express warranty must be at least 1 year
16 after first delivery of the assistive technology device to the
17 consumer. In the absence of an express warranty from the
18 manufacturer, the manufacturer is considered to have expressly
19 warranted to the consumer of an assistive technology device
20 that, for a period of 1 year after the date of first delivery
21 to the consumer, the assistive technology device will be free
22 from any condition or defect that substantially impairs the
23 value of the assistive technology device to the consumer.
24 (2) If an assistive technology device does not conform
25 to the warranty and the consumer first reports the problem to
26 the manufacturer during the Assistive Technology Device
27 Warranty Act rights period, the manufacturer shall make such
28 repairs as are necessary to conform the device to the
29 warranty, irrespective of whether such repairs are made after
30 the expiration of the Assistive Technology Device Warranty Act
31 rights period. Such repairs shall be at no cost to the
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1 consumer if reported to the manufacturer or assistive
2 technology device dealer during the Assistive Technology
3 Device Warranty Act rights period. Nothing in this subsection
4 shall be construed to grant an extension of the Assistive
5 Technology Device Warranty Act rights period or to expand the
6 time within which a consumer must file a complaint under this
7 chapter.
8 (3) Each manufacturer or assistive technology device
9 dealer shall provide to its consumers conspicuous notice of
10 the address and phone number for its zone, district, or
11 regional office for this state in the written warranty or
12 owner's manual. Within 10 days after the department's written
13 request, a manufacturer shall forward to the department a copy
14 of the owner's manual and any written warranty for each make
15 and model of assistive technology device that it sells in this
16 state.
17 (4) The manufacturer shall provide to the assistive
18 technology device dealer and, at the time of acquisition, the
19 assistive technology device dealer shall provide to the
20 consumer a written statement that explains the consumer's
21 rights under this chapter. The written statement shall be
22 prepared by the department and shall contain a toll-free
23 number for the department that the consumer can contact to
24 obtain information regarding the consumer's rights and
25 obligations under this chapter or to commence arbitration. The
26 consumer's signed acknowledgment of receipt of materials
27 required under this subsection shall constitute prima facie
28 evidence of compliance by the manufacturer and assistive
29 technology device dealer. The form of the acknowledgments
30 shall be approved by the department, and the assistive
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1 technology device dealer shall maintain the consumer's signed
2 acknowledgment for 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 5. 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
31
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1 direction of a consumer as defined in s. 427.802(6)(7)(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)(7)(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 who paid for or the provider who billed
15 a third party payor source for the assistive technology
16 device. The provider shall return the manufacturer's refund
17 to the third party payor source, unless the provider was not
18 reimbursed by the third party payor. When the manufacturer
19 provides the refund, the consumer shall return to the
20 manufacturer the assistive technology device having the
21 nonconformity.
22 (6) To receive a refund due under paragraph (2)(c), an
23 assistive technology device lessor must offer to transfer
24 possession of the assistive technology device having the
25 nonconformity to its manufacturer. No later than 30 days
26 after the offer, the manufacturer shall provide the refund to
27 the assistive technology device lessor. When the manufacturer
28 provides the refund, the assistive technology device lessor
29 shall provide to the manufacturer any endorsements necessary
30 to transfer legal possession to the manufacturer.
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1 (7) A person may not enforce the lease against the
2 consumer after the consumer receives a refund due under
3 paragraph (2)(c).
4 (8) An assistive technology device that is returned by
5 a consumer or assistive technology device lessor in this
6 state, or by a consumer or assistive technology device lessor
7 in another state under a similar law of that state, may not be
8 sold or leased again in this state, unless full disclosure of
9 the reasons for return is made to any prospective buyer or
10 lessee.
11 (9) Each consumer may submit any dispute arising under
12 this part to the department by completing a complaint form.
13 The department may investigate the complaint on behalf of the
14 consumer if reasonable evidence warrants such an action.
15 (10) The department shall process consumer complaints
16 pursuant to s. 570.544.
17 (9)(11) Each consumer may submit any dispute arising
18 under this part to an alternative arbitration mechanism
19 established pursuant to chapter 682. Upon notice by the
20 consumer, all manufacturers must submit to such alternative
21 arbitration.
22 (10)(12) Such alternative arbitration must be
23 conducted by a professional arbitrator or arbitration firm
24 appointed under chapter 682 and any applicable rules. These
25 procedures must provide for the personal objectivity of the
26 arbitrators and for the right of each party to present its
27 case, to be in attendance during any presentation made by the
28 other party, and to rebut or refute such a presentation.
29 (11)(13) This part does not limit rights or remedies
30 available to a consumer under any other law.
31
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1 Section 6. Section 427.8041, Florida Statutes, is
2 repealed.
3 Section 7. Subsection (6) is added to section 496.411,
4 Florida Statutes, to read:
5 496.411 Disclosure requirements and duties of
6 charitable organizations and sponsors.--
7 (6) Each charitable organization or sponsor that is
8 required to register under s. 496.405 shall conspicuously
9 display the following information on every printed
10 solicitation, written confirmation, receipt, or reminder of a
11 contribution:
12 (a) The organization's or sponsor's registration
13 number issued by the department under this chapter.
14 (b) The percentage, if any, of each contribution that
15 is retained by any professional solicitor that has contracted
16 with the organization or sponsor.
17 (c) The percentage of each contribution that is
18 received by the organization or sponsor.
19
20 If the solicitation consists of more than a single item, the
21 statement shall be displayed prominently in the solicitation
22 materials.
23 Section 8. Paragraphs (b) and (d) of subsection (1) of
24 section 501.017, Florida Statutes, are amended to read:
25 501.017 Health studios; contracts.--
26 (1) Every contract for the sale of future health
27 studio services which is paid for in advance or which the
28 buyer agrees to pay for in future installment payments shall
29 be in writing and shall contain, contractual provisions to the
30 contrary notwithstanding, in immediate proximity to the space
31 reserved in the contract for the signature of the buyer, and
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1 in 10-point boldfaced type, language substantially equivalent
2 to the following:
3 (b)1. A provision for the cancellation and refund of
4 the contract if the contracting business location of the
5 health studio goes out of business, or moves its facilities
6 more than 5 driving miles from the business location
7 designated in such contract and fails to provide, within 30
8 days, a facility of equal quality located within 5 driving
9 miles of the business location designated in such contract at
10 no additional cost to the buyer.
11 2. A provision that notice of intent to cancel by the
12 buyer shall be given in writing to the health studio. Such a
13 notice of cancellation from the consumer shall also terminate
14 automatically the consumer's obligation to any entity to whom
15 the health studio has subrogated or assigned the consumer's
16 contract. If the health studio wishes to enforce such contract
17 after receipt of such showing, it may request the department
18 to determine the sufficiency of the showing.
19 3. A provision that if the department determines that
20 a refund is due the buyer, the refund shall be an amount
21 computed by dividing the contract price by the number of weeks
22 in the contract term and multiplying the result by the number
23 of weeks remaining in the contract term. The business
24 location of a health studio shall not be deemed out of
25 business when temporarily closed for repair and renovation of
26 the premises:
27 a. Upon sale, for not more than 14 consecutive days;
28 or
29 b. During ownership, for not more than 7 consecutive
30 days and not more than two periods of 7 consecutive days in
31 any calendar year.
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1
2 A refund shall be issued within 30 days after receipt of the
3 notice of cancellation made pursuant to this paragraph.
4 (d) A provision for the cancellation of the contract
5 if the buyer dies or becomes physically unable to avail
6 himself or herself of a substantial portion of those services
7 which he or she used from the commencement of the contract
8 until the time of disability, with refund of funds paid or
9 accepted in payment of the contract in an amount computed by
10 dividing the contract price by the number of weeks in the
11 contract term and multiplying the result by the number of
12 weeks remaining in the contract term. The contract may
13 require a buyer or the buyer's estate seeking relief under
14 this paragraph to provide proof of disability or death. A
15 physical disability sufficient to warrant cancellation of the
16 contract by the buyer shall be established if the buyer
17 furnishes to the health studio a certification of such
18 disability by a physician licensed under chapter 458, chapter
19 459, chapter 460, or chapter 461 to the extent the diagnosis
20 or treatment of the disability is within the physician's scope
21 of practice. A refund shall be issued within 30 days after
22 receipt of the notice of cancellation made pursuant to this
23 paragraph.
24 Section 9. Subsection (2) of section 501.019, Florida
25 Statutes, is amended to read:
26 501.019 Health studios; penalties.--
27 (2) Any person health studio owner or, in the case of
28 corporate ownership, any officer of the corporation, or any
29 manager of a health studio or health studio's business
30 location, who knowingly makes a false representation to the
31 department with the intent to obtain an exemption of any kind
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1 from the requirements of s. 501.016 commits a felony of the
2 third degree, punishable as provided in s. 775.082, s.
3 775.083, or s. 775.084.
4 Section 10. Paragraph (a) of subsection (2), paragraph
5 (b) of subsection (4), and paragraph (c) of subsection (5) of
6 section 539.001, Florida Statutes, are amended, paragraph (n)
7 is added to subsection (12) of that section, and subsection
8 (21) of that section is amended, to read:
9 539.001 The Florida Pawnbroking Act.--
10 (2) DEFINITIONS.--As used in this section, the term:
11 (a) "Agency" means the Division of Consumer Services
12 of the Department of Agriculture and Consumer Services.
13 (4) ELIGIBILITY FOR LICENSE.--
14 (b) Any applicant claiming to have a net worth of
15 $50,000 or more shall file with the agency department, at the
16 time of applying for a license, the following documentation:
17 1. A current financial statement prepared by a Florida
18 certified public accountant; or
19 2. An affidavit stating the applicant's net worth is
20 at least $50,000, accompanied by supporting documentation; or
21 3. If the applicant is a corporation, a copy of the
22 applicant's most recently filed federal tax return.
23
24 If the agency cannot verify that the applicant meets the net
25 worth requirement for a license, the agency may require a
26 finding, including the presentation of a current balance
27 sheet, by an accounting firm or individual holding a permit to
28 practice public accounting in this state, that the accountant
29 has reviewed the books and records of the applicant and that
30 the applicant meets the net worth requirement.
31 (5) APPLICATION FOR LICENSE.--
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1 (c) Each initial application for a license must be
2 accompanied by a complete set of fingerprints taken by an
3 authorized law enforcement officer, $300 for the first year's
4 license fee, and the actual cost to the agency department for
5 fingerprint analysis for each person subject to the
6 eligibility requirements. The agency shall submit the
7 fingerprints to the Department of Law Enforcement for state
8 processing, and the Department of Law Enforcement shall
9 forward the fingerprints to the Federal Bureau of
10 Investigation for a national criminal history check. These
11 fees and costs are not refundable.
12 (12) PROHIBITED ACTS.--A pawnbroker, or an employee or
13 agent of a pawnbroker, may not:
14 (n) Knowingly accept or receive misappropriated
15 property from a conveying customer in a pawn or purchase
16 transaction.
17 (21) RULEMAKING AUTHORITY.--The agency department has
18 authority to adopt rules pursuant to chapter 120 to implement
19 the provisions of this section.
20 Section 11. Paragraph (a) of subsection (1) of section
21 559.801, Florida Statutes, is amended to read:
22 559.801 Definitions.--For the purpose of ss.
23 559.80-559.815, the term:
24 (1)(a) "Business opportunity" means the sale or lease
25 of any products, equipment, supplies, or services which are
26 sold or leased to a purchaser to enable the purchaser to start
27 a business for which the purchaser is required to pay an
28 initial fee or sum of money which exceeds $500 to the seller,
29 and in which the seller represents:
30 1. That the seller or person or entity affiliated with
31 or referred by the seller will provide locations or assist the
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1 purchaser in finding locations for the use or operation of
2 vending machines, racks, display cases, currency or card
3 operated equipment, or other similar devices or
4 currency-operated amusement machines or devices on premises
5 neither owned nor leased by the purchaser or seller;
6 2. That the seller will purchase any or all products
7 made, produced, fabricated, grown, bred, or modified by the
8 purchaser using in whole or in part the supplies, services, or
9 chattels sold to the purchaser;
10 3. That the seller guarantees in writing that the
11 purchaser will derive income from the business opportunity
12 which exceeds the price paid or rent charged for the business
13 opportunity or that the seller will refund all or part of the
14 price paid or rent charged for the business opportunity, or
15 will repurchase any of the products, equipment, supplies, or
16 chattels supplied by the seller, if the purchaser is
17 unsatisfied with the business opportunity; or
18 4. That the seller will provide a sales program or
19 marketing program that will enable the purchaser to derive
20 income from the business opportunity, except that this
21 paragraph does not apply to the sale of a sales program or
22 marketing program made in conjunction with the licensing of a
23 trademark or service mark that is registered under the laws of
24 any state or of the United States if the seller requires use
25 of the trademark or service mark in the sales agreement.
26
27 For the purpose of subparagraph 1., the term "assist the
28 purchaser in finding locations" means, but is not limited to,
29 supplying the purchaser with names of locator companies,
30 contracting with the purchaser to provide assistance or supply
31
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1 names, or collecting a fee on behalf of or for a locator
2 company.
3 Section 12. Subsection (8) of section 559.803, Florida
4 Statutes, is amended, present subsections (11), (12), and (13)
5 of that section are renumbered as subsections (12), (13), and
6 (14), respectively, and a new subsection (11) is added to that
7 section, to read:
8 559.803 Disclosure statement.--At least 3 working days
9 prior to the time the purchaser signs a business opportunity
10 contract, or at least 3 working days prior to the receipt of
11 any consideration by the seller, whichever occurs first, the
12 seller must provide the prospective purchaser a written
13 document, the cover sheet of which is entitled in at least
14 12-point boldfaced capital letters "DISCLOSURES REQUIRED BY
15 FLORIDA LAW." Under this title shall appear the following
16 statement in at least 10-point type: "The State of Florida
17 has not reviewed and does not approve, recommend, endorse, or
18 sponsor any business opportunity. The information contained
19 in this disclosure has not been verified by the state. If you
20 have any questions about this investment, see an attorney
21 before you sign a contract or agreement." Nothing except the
22 title and required statement shall appear on the cover sheet.
23 Immediately following the cover sheet, the seller must provide
24 an index page that briefly lists the contents of the
25 disclosure document as required in this section and any pages
26 on which the prospective purchaser can find each required
27 disclosure. At the top of the index page, the following
28 statement must appear in at least 10-point type: "The State of
29 Florida requires sellers of business opportunities to disclose
30 certain information to prospective purchasers. This index is
31 provided to help you locate this information." If the index
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1 contains other information not required by this section, the
2 seller shall place a designation beside each of the
3 disclosures required by this section and provide an
4 explanation of the designation at the end of the statement at
5 the top of the index page. The disclosure document shall
6 contain the following information:
7 (8) If the business opportunity seller is required to
8 secure a bond, guaranteed letter of credit, or certificate of
9 deposit or establish a trust deposit pursuant to s. 559.807,
10 either of the following statements:
11 (a) "As required by Florida law, the seller has
12 secured a bond issued by ...., a surety company authorized to
13 do business in this state. Before signing a contract to
14 purchase this business opportunity, you should confirm the
15 bond's status with the surety company."; or
16 (b) "As required by Florida law, the seller has
17 established a trust account or guaranteed letter of credit or
18 certificate of deposit ...(number of account)... with ...(name
19 and address of bank or savings institution).... Before
20 signing a contract to purchase this business opportunity, you
21 should confirm with the bank or savings institution the
22 current status of the trust account or guaranteed letter of
23 credit or certificate of deposit."
24 (11)(a) The total number of persons who purchased the
25 business opportunity being offered by the seller within the
26 past 3 years.
27 (b) The names, addresses, and telephone numbers of the
28 10 persons who previously purchased the business opportunity
29 from the seller and who are geographically closest to the
30 potential purchaser.
31
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1 Should any seller of business opportunities prepare a
2 disclosure statement pursuant to 16 C.F.R. ss. 436.1 et seq.,
3 a Trade Regulation Rule of the Federal Trade Commission
4 regarding Disclosure Requirements and Prohibitions Concerning
5 Franchising and Business Opportunity Ventures, the seller may
6 file that disclosure statement in lieu of the document
7 required pursuant to this section. Should the seller be
8 required pursuant to 16 C.F.R. to prepare any other documents
9 to be presented to the prospective purchaser, those documents
10 shall also be filed with the department.
11 Section 13. Section 559.807, Florida Statutes, is
12 amended to read:
13 559.807 Bond or other security trust account
14 required.--
15 (1) If the business opportunity seller makes any
16 representations set forth in s. 559.801(1)(a)3., the seller
17 must either have obtained a surety bond issued by a surety
18 company authorized to do business in this state or have
19 established a certificate of deposit trust account or a
20 guaranteed letter of credit with a licensed and insured bank
21 or savings institution located in the state. The amount of
22 the bond, certificate of deposit trust account, or guaranteed
23 letter of credit shall be an amount not less than $50,000.
24 (2) The bond, certificate of deposit, or guaranteed
25 letter of credit trust account shall be in the favor of the
26 department for the use and benefit of. any person who is
27 injured by the fraud, misrepresentation, damaged by any
28 violation of ss. 559.80-559.815, or by the seller's breach of
29 the contract, financial failure, or violation of any provision
30 of this part by the seller. Such liability may be enforced by
31 filing an action at law in a court of competent jurisdiction
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1 without precluding enforcement in an administrative action
2 pursuant to chapter 120. However, the bond, certificate of
3 deposit, or guaranteed letter of credit shall be amenable and
4 enforceable only by and through administrative proceedings
5 before the department. A money judgment resulting from an
6 action at law, less any award for costs and attorney's fees,
7 shall be prima facie evidence sufficient to establish the
8 value of the claim in an administrative action. It is the
9 intent of the Legislature that such bond, certificate of
10 deposit, or guaranteed letter of credit shall be applicable
11 and liable only for payment of claims duly adjudicated by
12 order of the department. The bond, certificate of deposit, or
13 guaranteed letter of credit shall be open to successive claims
14 but for the business opportunity sale or of any obligation
15 arising therefrom, may bring an action against the bond, trust
16 account, or guaranteed letter of credit to recover damages
17 suffered; however, the aggregate amount may not liability of
18 the surety or trustee shall be only for actual damages and in
19 no event shall exceed the amount of the bond, certificate of
20 deposit trust account, or guaranteed letter of credit.
21 Section 14. Subsection (14) is added to section
22 559.809, Florida Statutes, to read:
23 559.809 Prohibited acts.--Business opportunity sellers
24 shall not:
25 (14) Fail to provide or deliver the products,
26 equipment, supplies, or services as specified in the written
27 contract required under s. 559.811.
28 Section 15. For the purpose of incorporating the
29 amendment to section 559.809, Florida Statutes, in a reference
30 thereto, section 559.815, Florida Statutes, is reenacted to
31 read:
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1 559.815 Penalties.--Any person who fails to file with
2 the department as required by s. 559.805 or who commits an act
3 described in s. 559.809 is guilty of a felony of the third
4 degree, punishable as provided in s. 775.082, s. 775.083, or
5 s. 775.084.
6 Section 16. Subsection (5) is added to section
7 559.902, Florida Statutes, to read:
8 559.902 Scope and application.--This act shall apply
9 to all motor vehicle repair shops in Florida, except:
10 (5) Those located in public schools as defined in s.
11 228.041 or charter technical career centers as defined in s.
12 228.505.
13
14 However, such person may voluntarily register under this act.
15 Section 17. Subsections (3), (4), (5), (6), and (10)
16 of section 559.904, Florida Statutes, are amended to read:
17 559.904 Motor vehicle repair shop registration;
18 application; exemption.--
19 (3) Each application for registration must be
20 accompanied by a registration fee set forth as follows:
21 (a) If the place of business only performed "minor
22 repair service": $25.
23 (a)(b) If the place of business has 1 to 5 employees:
24 $50.
25 (b)(c) If the place of business has 6 to 10 employees:
26 $150.
27 (c)(d) If the place of business has 11 or more
28 employees: $300.
29 (4) Each initial and renewal application for
30 registration must be accompanied by copies of the applicant's
31 estimate and invoice forms. Such forms must comply with the
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1 applicable provisions of this act before a registration may be
2 issued.
3 (5)(4) No annual registration fee is required for any
4 motor vehicle repair shop which has a local municipal or
5 county license issued pursuant to an ordinance containing
6 standards which the department determines are at least equal
7 to the requirements of this part, or for any motor vehicle
8 dealer licensed pursuant to chapter 320.
9 (6)(5) The department shall issue to each applicant a
10 registration certificate in the form and size as prescribed by
11 the department in accordance with s. 120.60. In the case of
12 an applicant with more than one place of business, the
13 department shall issue a registration certificate for each
14 place of business. The certificate must show at least the name
15 and address of the motor vehicle repair shop and the
16 registration number for that place of business. In the case of
17 a mobile motor vehicle repair shop, the certificate must show
18 the home address of the owner, if different from the business
19 address.
20 (6) Any affidavit of exemption proof of filing
21 certificate, issued by the department prior to July 1, 1997,
22 to a motor vehicle repair shop conducting only minor repair
23 services shall be valid until its expiration.
24 (10) The department may deny, revoke, or refuse to
25 renew the registration of a motor vehicle repair shop based
26 upon a determination that the motor vehicle repair shop, or
27 any of its directors, officers, owners, or general partners:
28 (a) Have failed to meet the requirements for
29 registration as provided in this part;
30 (b) Have not satisfied a civil fine, administrative
31 fine, or other penalty arising out of any administrative or
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1 enforcement action brought by any governmental agency based
2 upon conduct involving fraud, dishonest dealing, or any
3 violation of this part;
4 (c) Have had against them any civil, criminal, or
5 administrative adjudication in any jurisdiction, based upon
6 conduct involving fraud, dishonest dealing, or any violation
7 of this part; or
8 (d) Have had a judgment entered against them in any
9 action brought by the department or the state attorney
10 pursuant to ss. 501.201-501.213 or this part.
11 Section 18. Paragraph (h) of subsection (1) of section
12 559.905, Florida Statutes, is amended to read:
13 559.905 Written motor vehicle repair estimate and
14 disclosure statement required.--
15 (1) When any customer requests a motor vehicle repair
16 shop to perform repair work on a motor vehicle, the cost of
17 which repair work will exceed $100 to the customer, the shop
18 shall prepare a written repair estimate, which is a form
19 setting forth the estimated cost of repair work, including
20 diagnostic work, before effecting any diagnostic work or
21 repair. The written repair estimate shall also include the
22 following items:
23 (h) The estimated cost of repair which shall include
24 any charge for shop supplies or for hazardous or other waste
25 removal and, if a charge is included, the estimate shall
26 include the following statement:
27 "This charge represents costs and profits to
28 the motor vehicle repair facility for
29 miscellaneous shop supplies or waste disposal."
30
31
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1 If a charge is mandated by state or federal law, the estimate
2 shall contain a statement identifying the law and the specific
3 amount charged under the law.
4 Section 19. Subsection (1) of section 559.9221,
5 Florida Statutes, is amended to read:
6 559.9221 Motor Vehicle Repair Advisory Council.--The
7 Motor Vehicle Repair Advisory Council is created to advise and
8 assist the department in carrying out this part.
9 (1) The membership of the council may not exceed 11
10 members appointed by the Commissioner of Agriculture.
11 (a) Eight industry members of the council must be
12 chosen from individuals already engaged in the motor vehicle
13 repair business who are eligible to be registered under this
14 part. Such members must become registered by October 1, 1993.
15 Thereafter, The professional members of this council must be
16 licensed under this part. The commissioner shall select one
17 industry member from each of the following categories:
18 1. Independent automotive mechanics shops.
19 2. Franchise or company-owned automotive mechanics
20 shops.
21 3. Independent automotive collision shops.
22 4. Franchise or company-owned automotive collision
23 shops.
24 5. Independent tire dealer.
25 6. Franchise or company-owned tire dealer.
26 7. Independent motor vehicle dealer licensed under s.
27 320.27.
28 8. Franchise motor vehicle dealer licensed under s.
29 320.27.
30
31
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1 (b) One member of the council may must be chosen from
2 persons already engaged solely in motor vehicle minor repair
3 service.
4 (c) Two consumer members of the council must be
5 residents of this state and must not be connected with the
6 motor vehicle repair business.
7 (d) Within 30 days after July 1, 1993, the
8 commissioner shall appoint one consumer member and four
9 industry members for terms of 2 years and one consumer member,
10 one minor repair shop member, and four industry members for
11 terms of 4 years. As terms of the members expire, the
12 commissioner shall appoint successors for terms of 4 years.
13 Members shall serve from the time of their appointment until
14 their successors are appointed.
15 Section 20. Subsection (5) of section 559.903, Florida
16 Statutes, is repealed.
17 Section 21. If any clause, section, or provision of
18 this act shall be declared unconstitutional or invalid for any
19 reason, it shall be eliminated from this act, and the
20 remaining portion of the act shall be in full force and effect
21 and be as valid as if such invalid portion thereof had not
22 been incorporated therein.
23 Section 22. Section 501.144, Florida Statutes, is
24 created to read:
25 501.144 Florida Infant Crib Safety Act.--
26 (1) SHORT TITLE.--This section may be cited as the
27 "Florida Infant Crib Safety Act."
28 (2) DEFINITIONS.--As used in this section, the term:
29 (a) "Commercial user" means a dealer pursuant to s.
30 212.06(2), or any person who is in the business of
31 manufacturing, remanufacturing, retrofitting, selling,
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1 leasing, or subletting full-size or non-full-size cribs. The
2 term includes a child care facility, family day care home,
3 large family child care home, and specialized child care
4 facility for the care of mildly ill children, licensed by the
5 Department of Children and Family Services or local licensing
6 agencies.
7 (b) "Crib" means a bed or containment designed to
8 accommodate an infant.
9 (c) "Department" means the Department of Agriculture
10 and Consumer Services.
11 (d) "Full-size crib" means a full-size baby crib as
12 defined in 16 C.F.R. part 1508, relating to requirements for
13 full-size baby cribs.
14 (e) "Infant" means a person less than 35 inches tall
15 and less than 3 years of age.
16 (f) "Non-full-size crib" means a non-full-size baby
17 crib as defined in 16 C.F.R. part 1509, relating to
18 requirements for non-full-size baby cribs.
19 (g) "Transient public lodging establishment" means any
20 hotel, motel, resort condominium, transient apartment,
21 roominghouse, bed and breakfast inn, or resort dwelling, as
22 defined in s. 509.242.
23 (3) PROHIBITED PRACTICES.--
24 (a) A commercial user may not manufacture,
25 remanufacture, retrofit, sell, contract to sell or resell,
26 lease, or sublet a full-size or non-full-size crib that is
27 unsafe for any infant using the crib because the crib does not
28 conform to the standards set forth in paragraph (4)(a) or
29 because the crib has any of the dangerous features or
30 characteristics set forth in paragraph (4)(b).
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1 (b) No transient public lodging establishment shall
2 offer or provide for use a full-size or non-full-size crib
3 that is unsafe for any infant using the crib because the crib
4 does not conform to the standards set forth in paragraph
5 (4)(a) or because the crib has any of the dangerous features
6 or characteristics set forth in paragraph (4)(b). Further,
7 violation of this section by a transient public lodging
8 establishment is a violation of chapter 509 and is subject to
9 the penalties set forth in s. 509.261.
10 (c) A violation of this section is a deceptive and
11 unfair trade practice and constitutes a violation of part II
12 of chapter 501, the Florida Deceptive and Unfair Trade
13 Practices Act.
14 (4) PRESUMPTION AS UNSAFE; CRITERIA.--
15 (a) A crib is presumed to be unsafe under this section
16 if it does not conform to all of the following:
17 1. 16 C.F.R. part 1303, relating to ban of
18 lead-containing paint and certain consumer products bearing
19 lead-containing paint; 16 C.F.R. part 1508, relating to
20 requirements for full-size baby cribs; and 16 C.F.R. part
21 1509, relating to requirements for non-full-size baby cribs.
22 2. American Society for Testing and Materials
23 Voluntary Standards F966-96, F1169-99, and F1822-97.
24 3. Rules adopted by the department which implement the
25 provisions of this subsection.
26 (b) Cribs are unsafe which have any of the following
27 dangerous features or characteristics:
28 1. Corner posts that extend more than 1/16 of an inch.
29 2. Spaces between side slats more than 2 3/8 inches.
30 3. A mattress support that can be easily dislodged
31 from any point of the crib. A mattress segment can be easily
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1 dislodged if it cannot withstand at least a 25-pound upward
2 force from underneath the crib. For portable folding cribs,
3 this subparagraph shall not apply to mattress supports or
4 mattress segments that are designed to allow the crib to be
5 folded, provided that the crib is equipped with latches that
6 work automatically to prevent the unintentional collapse of
7 the crib.
8 4. Cutout designs on the end panels.
9 5. Rail-height dimensions that do not conform to the
10 following:
11 a. The height of the rail and end panel as measured
12 from the top of the rail or panel in its lowest position to
13 the top of the mattress support in its highest position is at
14 least 9 inches.
15 b. The height of the rail and end panel as measured
16 from the top of the rail or panel in its highest position to
17 the top of the mattress support in its lowest position is at
18 least 26 inches.
19 6. Upon completion of assembly, any screw, bolt, or
20 hardware that is loose and not secured.
21 7. Any sharp edge, point, or rough surface or any wood
22 surface that is not smooth and free from splinters, splits, or
23 cracks.
24 8. A tear in mesh or fabric sides for a non-full-size
25 crib.
26 9. With respect to portable folding cribs, latches
27 that do not work automatically to prevent the unintentional
28 collapse of the crib.
29 10. Crib sheets used on mattresses must be sized to
30 match the mattress size.
31 (5) EXEMPTIONS; CIVIL IMMUNITY.--
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1 (a) A crib that is clearly not intended for use by an
2 infant, including, but not limited to, a toy or display item,
3 is exempt from this section if the crib is accompanied, at the
4 time of manufacturing, remanufacturing, retrofitting, selling,
5 leasing, or subletting by a notice to be furnished by the
6 commercial user on forms prescribed by the department
7 declaring that the crib is not intended to be used for an
8 infant and is dangerous to use for an infant.
9 (b) A commercial user, other than a child care
10 facility, family day care home, large family child care home,
11 or specialized child care facility for the care of mildly ill
12 children, that has complied with the notice requirements set
13 forth under paragraph (a) is immune from civil liability
14 resulting from the use of a crib, notwithstanding the
15 provisions of this section.
16 (6) PENALTY.--
17 (a) A commercial user, other than a commercial user
18 subject to the penalties provided in paragraph (b) or
19 paragraph (c), that willfully and knowingly violates
20 subsection (3) commits a misdemeanor of the first degree,
21 punishable by a fine of not more than $10,000 and imprisonment
22 for a term of not more than 1 year.
23 (b) A transient public lodging establishment that
24 violates subsection (3) shall be subject to the penalties set
25 forth in s. 509.261.
26 (c) A child care facility, family day care home, large
27 family child care home, or specialized child care facility for
28 the care of mildly ill children that violates subsection (3)
29 shall be subject to the penalties set forth in ss.
30 402.301-402.319.
31
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1 (7) PUBLIC EDUCATION MATERIALS AND PROGRAMS.--The
2 Department of Agriculture and Consumer Services, the
3 Department of Business and Professional Regulation, and the
4 Department of Children and Family Services may collaborate
5 with any public agency or private sector entity to prepare
6 public education materials or programs designed to inform
7 parents, child care providers, commercial users, and any other
8 person or entity that is likely to place unsafe cribs in the
9 stream of commerce of the dangers posed by secondhand,
10 hand-me-down, or heirloom cribs that do not conform to the
11 standards set forth in this section or that have any of the
12 dangerous features or characteristics set forth in this
13 section.
14 (8) RULEMAKING AUTHORITY.--The department may adopt
15 rules pursuant to ss. 120.536(1) and 120.54 to administer this
16 section.
17 Section 23. Subsection (10) is added to section
18 509.221, Florida Statutes, to read:
19 509.221 Sanitary regulations.--
20 (10) No transient public lodging establishment shall
21 offer or provide for use a full-size or non-full-size crib
22 that is unsafe for any infant using the crib because it is not
23 in conformity with the requirements of s. 501.144.
24 Section 24. Section 509.032, Florida Statutes, is
25 reenacted to read:
26 509.032 Duties.--
27 (1) GENERAL.--The division shall carry out all of the
28 provisions of this chapter and all other applicable laws and
29 rules relating to the inspection or regulation of public
30 lodging establishments and public food service establishments
31 for the purpose of safeguarding the public health, safety, and
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1 welfare. The division shall be responsible for ascertaining
2 that an operator licensed under this chapter does not engage
3 in any misleading advertising or unethical practices.
4 (2) INSPECTION OF PREMISES.--
5 (a) The division has responsibility and jurisdiction
6 for all inspections required by this chapter. The division
7 has responsibility for quality assurance. Each licensed
8 establishment shall be inspected at least biannually and at
9 such other times as the division determines is necessary to
10 ensure the public's health, safety, and welfare. The division
11 shall establish a system to determine inspection frequency.
12 Public lodging units classified as resort condominiums or
13 resort dwellings are not subject to this requirement, but
14 shall be made available to the division upon request. If,
15 during the inspection of a public lodging establishment
16 classified for renting to transient or nontransient tenants,
17 an inspector identifies vulnerable adults who appear to be
18 victims of neglect, as defined in s. 415.102, or, in the case
19 of a building that is not equipped with automatic sprinkler
20 systems, tenants or clients who may be unable to self-preserve
21 in an emergency, the division shall convene meetings with the
22 following agencies as appropriate to the individual situation:
23 the Department of Health, the Department of Elderly Affairs,
24 the area agency on aging, the local fire marshal, the landlord
25 and affected tenants and clients, and other relevant
26 organizations, to develop a plan which improves the prospects
27 for safety of affected residents and, if necessary, identifies
28 alternative living arrangements such as facilities licensed
29 under part II or part III of chapter 400.
30 (b) For purposes of performing required inspections
31 and the enforcement of this chapter, the division has the
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1 right of entry and access to public lodging establishments and
2 public food service establishments at any reasonable time.
3 (c) Public food service establishment inspections
4 shall be conducted to enforce provisions of this part and to
5 educate, inform, and promote cooperation between the division
6 and the establishment.
7 (d) The division shall adopt and enforce sanitation
8 rules consistent with law to ensure the protection of the
9 public from food-borne illness in those establishments
10 licensed under this chapter. These rules shall provide the
11 standards and requirements for obtaining, storing, preparing,
12 processing, serving, or displaying food in public food service
13 establishments, approving public food service establishment
14 facility plans, conducting necessary public food service
15 establishment inspections for compliance with sanitation
16 regulations, cooperating and coordinating with the Department
17 of Health in epidemiological investigations, and initiating
18 enforcement actions, and for other such responsibilities
19 deemed necessary by the division. The division may not
20 establish by rule any regulation governing the design,
21 construction, erection, alteration, modification, repair, or
22 demolition of any public lodging or public food service
23 establishment. It is the intent of the Legislature to preempt
24 that function to the Florida Building Commission and the State
25 Fire Marshal through adoption and maintenance of the Florida
26 Building Code and the Florida Fire Prevention Code. The
27 division shall provide technical assistance to the commission
28 and the State Fire Marshal in updating the construction
29 standards of the Florida Building Code and the Florida Fire
30 Prevention Code which govern public lodging and public food
31 service establishments. Further, the division shall enforce
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1 the provisions of the Florida Building Code and the Florida
2 Fire Prevention Code which apply to public lodging and public
3 food service establishments in conducting any inspections
4 authorized by this part.
5 (e)1. Relating to facility plan approvals, the
6 division may establish, by rule, fees for conducting plan
7 reviews and may grant variances from construction standards in
8 hardship cases, which variances may be less restrictive than
9 the provisions specified in this section or the rules adopted
10 under this section. A variance may not be granted pursuant to
11 this section until the division is satisfied that:
12 a. The variance shall not adversely affect the health
13 of the public.
14 b. No reasonable alternative to the required
15 construction exists.
16 c. The hardship was not caused intentionally by the
17 action of the applicant.
18 2. The division's advisory council shall review
19 applications for variances and recommend agency action. The
20 division shall make arrangements to expedite emergency
21 requests for variances, to ensure that such requests are acted
22 upon within 30 days of receipt.
23 3. The division shall establish, by rule, a fee for
24 the cost of the variance process. Such fee shall not exceed
25 $150 for routine variance requests and $300 for emergency
26 variance requests.
27 (f) In conducting inspections of establishments
28 licensed under this chapter, the division shall determine if
29 each coin-operated amusement machine that is operated on the
30 premises of a licensed establishment is properly registered
31 with the Department of Revenue. Each month the division shall
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1 report to the Department of Revenue the sales tax registration
2 number of the operator of any licensed establishment that has
3 on location a coin-operated amusement machine and that does
4 not have an identifying certificate conspicuously displayed as
5 required by s. 212.05(1)(i).
6 (g) In inspecting public food service establishments,
7 the department shall provide each inspected establishment with
8 the food-recovery brochure developed under s. 570.0725.
9 (3) SANITARY STANDARDS; EMERGENCIES; TEMPORARY FOOD
10 SERVICE EVENTS.--The division shall:
11 (a) Prescribe sanitary standards which shall be
12 enforced in public food service establishments.
13 (b) Inspect public lodging establishments and public
14 food service establishments whenever necessary to respond to
15 an emergency or epidemiological condition.
16 (c) Administer a public notification process for
17 temporary food service events and distribute educational
18 materials that address safe food storage, preparation, and
19 service procedures.
20 1. Sponsors of temporary food service events shall
21 notify the division not less than 3 days prior to the
22 scheduled event of the type of food service proposed, the time
23 and location of the event, a complete list of food service
24 vendor owners and operators participating in each event, and
25 the current license numbers of all public food service
26 establishments participating in each event. Notification may
27 be completed orally, by telephone, in person, or in writing.
28 A public food service establishment or food service vendor may
29 not use this notification process to circumvent the license
30 requirements of this chapter.
31
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1 2. The division shall keep a record of all
2 notifications received for proposed temporary food service
3 events and shall provide appropriate educational materials to
4 the event sponsors, including the food-recovery brochure
5 developed under s. 570.0725.
6 3.a. A public food service establishment or other food
7 vendor must obtain a license from the division for each
8 temporary food service event in which it participates.
9 b. Public food service establishments holding current
10 licenses from the division may operate under the regulations
11 of such a license at temporary food service events of 3 days
12 or less in duration.
13 (4) STOP-SALE ORDERS.--The division may stop the sale,
14 and supervise the proper destruction, of any food or food
15 product when the director or the director's designee
16 determines that such food or food product represents a threat
17 to the public safety or welfare. If the operator of a public
18 food service establishment licensed under this chapter has
19 received official notification from a health authority that a
20 food or food product from that establishment has potentially
21 contributed to any instance or outbreak of food-borne illness,
22 the food or food product must be maintained in safe storage in
23 the establishment until the responsible health authority has
24 examined, sampled, seized, or requested destruction of the
25 food or food product.
26 (5) REPORTS REQUIRED.--The division shall send the
27 Governor a written report, which shall state, but not be
28 limited to, the total number of inspections conducted by the
29 division to ensure the enforcement of sanitary standards, the
30 total number of inspections conducted in response to emergency
31 or epidemiological conditions, the number of violations of
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1 each sanitary standard, and any recommendations for improved
2 inspection procedures. The division shall also keep accurate
3 account of all expenses arising out of the performance of its
4 duties and all fees collected under this chapter. The report
5 shall be submitted by September 30 following the end of the
6 fiscal year.
7 (6) RULEMAKING AUTHORITY.--The division shall adopt
8 such rules as are necessary to carry out the provisions of
9 this chapter.
10 (7) PREEMPTION AUTHORITY.--The regulation of public
11 lodging establishments and public food service establishments,
12 the inspection of public lodging establishments and public
13 food service establishments for compliance with the sanitation
14 standards adopted under this section, and the regulation of
15 food safety protection standards for required training and
16 testing of food service establishment personnel are preempted
17 to the state. This subsection does not preempt the authority
18 of a local government or local enforcement district to conduct
19 inspections of public lodging and public food service
20 establishments for compliance with the Florida Building Code
21 and the Florida Fire Prevention Code, pursuant to ss. 553.80
22 and 633.022.
23 Section 25. Section 402.3031, Florida Statutes, is
24 created to read:
25 402.3031 Infant crib safety.--No child care facility,
26 family day care home, large family child care home, or
27 specialized child care facility for the care of mildly ill
28 children shall offer or provide for use a full-size or
29 non-full-size crib that is not in conformity with the
30 requirements of s. 501.144. The department shall enforce the
31
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1 provisions of this section and may adopt rules pursuant to ss.
2 120.536(1) and 120.54 to administer this section.
3 Section 26. Effective July 1, 2001, section 501.203,
4 Florida Statutes, is amended to read:
5 501.203 Definitions.--As used in this chapter, unless
6 the context otherwise requires, the term:
7 (1) "Final judgment" means a judgment, including any
8 supporting opinion, that determines the rights of the parties
9 and concerning which appellate remedies have been exhausted or
10 the time for appeal has expired.
11 (2) "Enforcing authority" means the office of the
12 state attorney if a violation of this part occurs in or
13 affects the judicial circuit under the office's jurisdiction.
14 "Enforcing authority" means the Department of Legal Affairs if
15 the violation occurs in or affects more than one judicial
16 circuit or if the office of the state attorney defers to the
17 department in writing, or fails to act upon a violation within
18 90 days after a written complaint has been filed with the
19 state attorney.
20 (3) "Violation of this part" means any violation of
21 this act or the rules adopted under this act and may be based
22 upon any of the following as of July 1, 2001:
23 (a) Any rules promulgated pursuant to the Federal
24 Trade Commission Act, 15 U.S.C. ss. 41 et seq. or this act;
25 (b) The standards of unfairness and deception set
26 forth and interpreted by the Federal Trade Commission or the
27 federal courts;
28 (c) Any law, statute, rule, regulation, or ordinance
29 which proscribes unfair methods of competition, or unfair,
30 deceptive, or unconscionable acts or practices.
31
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1 (4) "Department" means the Department of Legal
2 Affairs.
3 (5) "Order" means a cease and desist order issued by
4 the enforcing authority as set forth in s. 501.208.
5 (6) "Interested party or person" means any person
6 affected by a violation of this part or any person affected by
7 an order of the enforcing authority.
8 (7) "Consumer" means an individual; child, by and
9 through its parent or legal guardian; business; firm;
10 association; joint venture; partnership; estate; trust;
11 business trust; syndicate; fiduciary; corporation; any
12 commercial entity, however denominated; or any other group or
13 combination.
14 (8) "Trade or commerce" means the advertising,
15 soliciting, providing, offering, or distributing, whether by
16 sale, rental, or otherwise, of any good or service, or any
17 property, whether tangible or intangible, or any other
18 article, commodity, or thing of value, wherever situated.
19 "Trade or commerce" shall include the conduct of any trade or
20 commerce, however denominated, including any nonprofit or
21 not-for-profit person or activity.
22 (9) "Thing of value" may include, without limitation,
23 any moneys, donation, membership, credential, certificate,
24 prize, award, benefit, license, interest, professional
25 opportunity, or chance of winning.
26 Section 27. Effective July 1, 2001, section 501.204,
27 Florida Statutes, is amended to read:
28 501.204 Unlawful acts and practices.--
29 (1) Unfair methods of competition, unconscionable acts
30 or practices, and unfair or deceptive acts or practices in the
31 conduct of any trade or commerce are hereby declared unlawful.
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1 (2) It is the intent of the Legislature that, in
2 construing subsection (1), due consideration and great weight
3 shall be given to the interpretations of the Federal Trade
4 Commission and the federal courts relating to s. 5(a)(1) of
5 the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of
6 July 1, 2001.
7 Section 28. Effective July 1, 2001, subsections (1),
8 (3), and (6) of section 501.207, Florida Statutes, are amended
9 to read:
10 501.207 Remedies of enforcing authority.--
11 (1) The enforcing authority may bring:
12 (a) An action to obtain a declaratory judgment that an
13 act or practice violates this part.
14 (b) An action to enjoin any person who has violated,
15 is violating, or is otherwise likely to violate, this part.
16 (c) An action on behalf of one or more consumers or
17 governmental entities for the actual damages caused by an act
18 or practice in violation of this part. However, no damages
19 are not shall be recoverable under this section against a
20 retailer who has in good faith engaged in the dissemination of
21 claims of a manufacturer or wholesaler without actual
22 knowledge that it violated this part.
23 (3) Upon motion of the enforcing authority or any
24 interested party in any action brought under subsection (1),
25 the court may make appropriate orders, including, but not
26 limited to, appointment of a master or receiver or
27 sequestration or freezing of assets, to reimburse consumers or
28 governmental entities found to have been damaged; to carry out
29 a transaction in accordance with the consumers' reasonable
30 expectations of consumers or governmental entities; to strike
31 or limit the application of clauses of contracts to avoid an
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1 unconscionable result; to order any defendant to divest
2 herself or himself of any interest in any enterprise,
3 including real estate; to impose reasonable restrictions upon
4 the future activities of any defendant to impede her or him
5 from engaging in or establishing the same type of endeavor; to
6 order the dissolution or reorganization of any enterprise; or
7 to grant legal, equitable, or other appropriate relief. The
8 court may assess the expenses of a master or receiver against
9 a person who has violated, is violating, or is otherwise
10 likely to violate this part. Any injunctive order, whether
11 temporary or permanent, issued by the court shall be effective
12 throughout the state unless otherwise provided in the order.
13 (6) The enforcing authority may terminate an
14 investigation or an action upon acceptance of a person's
15 written assurance of voluntary compliance with this part.
16 Acceptance of an assurance may be conditioned on a commitment
17 to reimburse consumers or governmental entities, make
18 contributions, pay civil penalties, pay attorney's fees and
19 costs, or take other appropriate corrective action. An
20 assurance is not evidence of a prior violation of this part.
21 However, unless an assurance has been rescinded by agreement
22 of the parties or voided by a court for good cause, subsequent
23 failure to comply with the terms of an assurance is prima
24 facie evidence of a violation of this part. No Such assurance
25 is not shall act as a limitation upon any action or remedy
26 available to a person aggrieved by a violation of this part.
27 Section 29. Effective July 1, 2001, section 501.2075,
28 Florida Statutes, is amended to read:
29 501.2075 Civil penalty.--Except as provided in s.
30 501.2077, any person, firm, corporation, association, or
31 entity, or any agent or employee of the foregoing, who is
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1 willfully using, or has willfully used, a method, act, or
2 practice declared unlawful under s. 501.204, or who is
3 willfully violating any of the rules of the department adopted
4 promulgated under this part, is liable for a civil penalty of
5 not more than $10,000 for each such violation. Willful
6 violations occur when the person knew or should have known
7 that his or her conduct was unfair or deceptive or prohibited
8 by rule. This civil penalty may be recovered in any action
9 brought under this part by the enforcing authority; or the
10 enforcing authority may terminate any investigation or action
11 upon agreement by the person, firm, corporation, association,
12 or entity, or the agent or employee of the foregoing, to pay a
13 stipulated civil penalty. The department or the court may
14 waive any such civil penalty if the person, firm, corporation,
15 association, or entity, or the agent or employee of the
16 foregoing, has previously made full restitution or
17 reimbursement or has paid actual damages to the consumers or
18 governmental entities who have been injured by the unlawful
19 act or practice or rule violation. If civil penalties are
20 assessed in any litigation, the enforcing authority is
21 entitled to reasonable attorney's fees and costs. A civil
22 penalty so collected shall accrue to the state and shall be
23 deposited as received into the General Revenue Fund
24 unallocated.
25 Section 30. Effective July 1, 2001, section 501.2091,
26 Florida Statutes, is repealed.
27 Section 31. Effective July 1, 2001, subsection (2) of
28 section 501.211, Florida Statutes, is amended to read:
29 501.211 Other individual remedies.--
30 (2) In any individual action brought by a person
31 consumer who has suffered a loss as a result of a violation of
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1 this part, such person consumer may recover actual damages,
2 plus attorney's fees and court costs as provided in s.
3 501.2105.; However, no damages, fees, or costs are not shall
4 be recoverable under this section against a retailer who has,
5 in good faith, engaged in the dissemination of claims of a
6 manufacturer or wholesaler without actual knowledge that it
7 violated this part.
8 Section 32. Effective July 1, 2001, section 501.212,
9 Florida Statutes, is amended to read:
10 501.212 Application.--This part does not apply to:
11 (1) An act or practice required or specifically
12 permitted by federal or state law.
13 (2) A publisher, broadcaster, printer, or other person
14 engaged in the dissemination of information or the
15 reproduction of printed or pictorial matter, insofar as the
16 information or matter has been disseminated or reproduced on
17 behalf of others without actual knowledge that it violated
18 this part.
19 (3) A claim for personal injury or death or a claim
20 for damage to property other than the property that is the
21 subject of the consumer transaction.
22 (4) Any person or activity regulated under laws
23 administered by the Department of Insurance or the Florida
24 Public Service Commission or banks and savings and loan
25 associations regulated by the Department of Banking and
26 Finance or banks or savings and loan associations regulated by
27 federal agencies.
28 (5) Any activity regulated under laws administered by
29 the Florida Public Service Commission.
30 (6)(5) An act or practice involving the sale, lease,
31 rental, or appraisal of real estate by a person licensed,
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1 certified, or registered pursuant to chapter 475, which act or
2 practice violates s. 475.42 or s. 475.626.
3 Section 33. Except as otherwise expressly provided in
4 this act, this act shall take effect October 1, 2001.
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