Senate Bill sb0784er

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  1                                 

  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; amending s. 501.203, F.S.;

24         including business or commercial entity within

25         the definition of the term "consumer" for

26         purposes of ch. 501, F.S.; incorporating

27         revisions to applicable regulations; amending

28         s. 501.204, F.S.; incorporating interpretations

29         relating to the Federal Trade Commission Act;

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

31         action on behalf of a governmental entity for


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

  2         501, F.S.; amending s. 501.2075, F.S.;

  3         providing for waiver of civil penalties if

  4         restitution is made for actual damages to a

  5         governmental entity; repealing s. 501.2091,

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

  7         of proceedings pending trial by a party to an

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

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

10         actual damages on the part of a person who

11         suffers a loss as a result of a violation of

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

13         F.S.; providing that an exemption from

14         regulation under part II of ch. 501, F.S.,

15         applies to activities regulated under laws

16         administered by the Public Service Commission;

17         providing effective dates.

18  

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

20  

21         Section 1.  Subsection (8) of section 400.925, Florida

22  Statutes, is amended to read:

23         400.925  Definitions.--As used in this part, the term:

24         (8)  "Home medical equipment" includes any product as

25  defined by the Federal Drug Administration's Drugs, Devices

26  and Cosmetics Act, any products reimbursed under the Medicare

27  Part B Durable Medical Equipment benefits, or any products

28  reimbursed under the Florida Medicaid durable medical

29  equipment program. Home medical equipment includes, but is not

30  limited to, oxygen and related respiratory equipment. Home

31  medical equipment includes customized wheelchairs and related


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  1  seating and positioning, but does not include prosthetics or

  2  orthotics or any splints, braces, or aids custom fabricated by

  3  a licensed health care practitioner. Home medical equipment

  4  includes assistive technology devices, including: manual

  5  wheelchairs, motorized wheelchairs, motorized scooters,

  6  voice-synthesized computer modules, optical scanners, talking

  7  software, braille printers, environmental control devices for

  8  use by person with quadriplegia, motor vehicle adaptive

  9  transportation aids, devices that enable persons with severe

10  speech disabilities to in effect speak, personal transfer

11  systems and specialty beds, including demonstrator, for use by

12  a person with a medical need.

13         Section 2.  Paragraph (a) of subsection (5) of section

14  400.93, Florida Statutes, is amended to read:

15         400.93  Home medical equipment providers to be

16  licensed; expiration of license; exemptions; unlawful acts;

17  penalties.--

18         (5)  The following are exempt from home medical

19  equipment provider licensure, unless they have a separate

20  company, corporation, or division that is in the business of

21  providing home medical equipment and services for sale or rent

22  to consumers at their regular or temporary place of residence

23  pursuant to the provisions of this part:

24         (a)  Providers operated by the Department of Health or

25  Federal Government.

26         Section 3.  Section 427.802, Florida Statutes, is

27  amended to read:

28         427.802  Definitions.--As used in this part:

29         (1)  "Assistive technology devices" means manual

30  wheelchairs, motorized wheelchairs, motorized scooters,

31  voice-synthesized computer modules, optical scanners, talking


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  1  software, braille printers, environmental control devices for

  2  use by a person with quadriplegia, motor vehicle adaptive

  3  transportation aids, devices that enable persons with severe

  4  speech disabilities to in effect speak, personal transfer

  5  systems, and specialty beds, including a demonstrator, that a

  6  consumer purchases or accepts transfer of in this state for

  7  use by a person with a disability.

  8         (2)  "Assistive Technology Device Warranty Act rights

  9  period" means the period ending 1 year after first delivery of

10  the assistive technology device to the consumer or the

11  manufacturer's express written warranty, whichever is longer.

12         (2)(3)  "Person with a disability" means any person who

13  has one or more permanent physical or mental limitations that

14  restrict his or her ability to perform the normal activities

15  of daily living and impede his or her capacity to live

16  independently.

17         (3)(4)  "Assistive technology device dealer" means a

18  person who is business entity that is primarily engaged in the

19  business of selling or leasing of assistive technology

20  devices. As used in this subsection, the term "primarily"

21  means no less than 30 percent of the business entity's gross

22  sales in the previous fiscal year.

23         (4)(5)  "Assistive technology device lessor" means a

24  person who leases an assistive technology device to a

25  consumer, or holds the lessor's rights, under a written lease.

26         (5)(6)  "Collateral costs" means expenses incurred by a

27  consumer in connection with the repair of a nonconformity,

28  including the costs of obtaining an alternative assistive

29  technology device.

30         (6)(7)  "Consumer" means any of the following:

31  


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  1         (a)  The purchaser of an assistive technology device,

  2  if the assistive technology device was purchased from an

  3  assistive technology device dealer or manufacturer for

  4  purposes other than resale.

  5         (b)  A person to whom the assistive technology device

  6  is transferred for purposes other than resale, if the transfer

  7  occurs before the expiration of an express warranty applicable

  8  to the assistive technology device.

  9         (c)  A person who may enforce the warranty.

10         (d)  A person who leases an assistive technology device

11  from an assistive technology device lessor under a written

12  lease.

13         (7)(8)  "Demonstrator" means an assistive technology

14  device used primarily for the purpose of demonstration to the

15  public.

16         (9)  "Department" means the Department of Agriculture

17  and Consumer Services.

18         (8)(10)  "Early termination cost" means any expense or

19  obligation that an assistive technology device lessor incurs

20  as a result of both the termination of a written lease before

21  the termination date set forth in that lease and the return of

22  an assistive technology device to a manufacturer pursuant to

23  this section.  The term includes a penalty for prepayment

24  under a financial arrangement.

25         (9)(11)  "Early termination saving" means any expense

26  or obligation that an assistive technology device lessor

27  avoids as a result of both the termination of a written lease

28  before the termination date set forth in the lease and the

29  return of an assistive technology device to a manufacturer

30  pursuant to this section.  The term includes an interest

31  charge that the assistive technology device lessor would have


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  1  paid to finance the assistive technology device or, if the

  2  assistive technology device lessor does not finance the

  3  assistive technology device, the difference between the total

  4  amount for which the lease obligates the consumer during the

  5  period of the lease term remaining after the early termination

  6  and the present value of that amount at the date of the early

  7  termination.

  8         (10)(12)  "Manufacturer" means a business entity that

  9  manufactures or produces assistive technology devices for sale

10  and agents of that business entity, including an importer, a

11  distributor, a factory branch, a distributor branch, and any

12  warrantors of the manufacturer's assistive technology device,

13  but not including an assistive technology device dealer.

14         (11)(13)  "Nonconformity" means a condition or defect

15  of an assistive technology device which substantially impairs

16  the use, value, or safety of the device and which is covered

17  by an express warranty applicable to the assistive technology

18  device, but does not include a condition or defect that is the

19  result of abuse, neglect, excessive wear, or unauthorized

20  modification or alteration of the assistive technology device

21  by a consumer.

22         (12)(14)  "Reasonable attempt to repair" means, within

23  the terms of an express warranty applicable to a new assistive

24  technology device:

25         (a)  A maximum of three efforts by the manufacturer,

26  the assistive technology device lessor, or any of the

27  manufacturer's authorized assistive technology device dealers

28  to repair a nonconformity that is subject to repair under the

29  warranty; or

30  

31  


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  1         (b)  The passage of at least 30 cumulative days during

  2  which the assistive technology device is out of service

  3  because of a nonconformity that is covered by the warranty.

  4         Section 4.  Section 427.803, Florida Statutes, is

  5  amended to read:

  6         427.803  Express Duty of manufacturer and an assistive

  7  technology device dealer to conform an assistive technology

  8  device to the warranty.--

  9         (1)  A manufacturer who sells a new assistive

10  technology device to a consumer, either directly or through an

11  assistive technology device dealer, shall furnish the consumer

12  with an express warranty for the assistive technology device.

13  The duration of the express warranty must be at least 1 year

14  after first delivery of the assistive technology device to the

15  consumer. In the absence of an express warranty from the

16  manufacturer, the manufacturer is considered to have expressly

17  warranted to the consumer of an assistive technology device

18  that, for a period of 1 year after the date of first delivery

19  to the consumer, the assistive technology device will be free

20  from any condition or defect that substantially impairs the

21  value of the assistive technology device to the consumer.

22         (2)  If an assistive technology device does not conform

23  to the warranty and the consumer first reports the problem to

24  the manufacturer during the Assistive Technology Device

25  Warranty Act rights period, the manufacturer shall make such

26  repairs as are necessary to conform the device to the

27  warranty, irrespective of whether such repairs are made after

28  the expiration of the Assistive Technology Device Warranty Act

29  rights period. Such repairs shall be at no cost to the

30  consumer if reported to the manufacturer or assistive

31  technology device dealer during the Assistive Technology


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  1  Device Warranty Act rights period. Nothing in this subsection

  2  shall be construed to grant an extension of the Assistive

  3  Technology Device Warranty Act rights period or to expand the

  4  time within which a consumer must file a complaint under this

  5  chapter.

  6         (3)  Each manufacturer or assistive technology device

  7  dealer shall provide to its consumers conspicuous notice of

  8  the address and phone number for its zone, district, or

  9  regional office for this state in the written warranty or

10  owner's manual.  Within 10 days after the department's written

11  request, a manufacturer shall forward to the department a copy

12  of the owner's manual and any written warranty for each make

13  and model of assistive technology device that it sells in this

14  state.

15         (4)  The manufacturer shall provide to the assistive

16  technology device dealer and, at the time of acquisition, the

17  assistive technology device dealer shall provide to the

18  consumer a written statement that explains the consumer's

19  rights under this chapter.  The written statement shall be

20  prepared by the department and shall contain a toll-free

21  number for the department that the consumer can contact to

22  obtain information regarding the consumer's rights and

23  obligations under this chapter or to commence arbitration. The

24  consumer's signed acknowledgment of receipt of materials

25  required under this subsection shall constitute prima facie

26  evidence of compliance by the manufacturer and assistive

27  technology device dealer. The form of the acknowledgments

28  shall be approved by the department, and the assistive

29  technology device dealer shall maintain the consumer's signed

30  acknowledgment for 3 years.

31  


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  1         (5)  A manufacturer or an assistive technology device

  2  dealer shall provide to the consumer, each time the consumer's

  3  assistive technology device is returned after being examined

  4  or repaired under the warranty, a fully itemized, legible

  5  statement of any diagnosis made and all work performed on the

  6  assistive technology device, including, but not limited to, a

  7  general description of the problem reported by the consumer or

  8  an identification of the defect or condition, parts and labor,

  9  the date on which the assistive technology device was

10  submitted for examination or repair, and the date when the

11  repair or examination was completed.

12         Section 5.  Section 427.804, Florida Statutes, is

13  amended to read:

14         427.804  Repair of nonconforming assistive technology

15  devices; refund or replacement of devices after attempt to

16  repair; sale or lease of returned device; arbitration;

17  investigation; limitation of rights.--

18         (1)  If a new assistive technology device does not

19  conform to an applicable express warranty and the consumer

20  reports the nonconformity to the manufacturer, the assistive

21  technology device lessor, or any of the manufacturer's

22  authorized assistive technology device dealers and makes the

23  assistive technology device available for repair within 1 year

24  after first delivery or return of the assistive technology

25  device to the consumer, the nonconformity must be repaired at

26  no charge to the consumer.

27         (2)  If, after a reasonable attempt to repair, the

28  nonconformity is not repaired, the manufacturer, at the

29  direction of a consumer as defined in s. 427.802(6)(7)(a)-(c),

30  must do one of the following:

31  


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  1         (a)  Accept return of the assistive technology device

  2  and replace the assistive technology device with a comparable

  3  new assistive technology device and refund any collateral

  4  costs.

  5         (b)  Accept return of the assistive technology device

  6  and refund to the consumer and to any holder of a perfected

  7  security interest in the consumer's assistive technology

  8  device, as the interest may appear, the full purchase price

  9  plus any finance charge amount paid by the consumer at the

10  point of sale, and collateral costs.

11         (c)  With respect to a consumer as defined in s.

12  427.802(6)(7)(d), accept return of the assistive technology

13  device, refund to the assistive technology device lessor and

14  to any holder of a perfected security interest in the

15  assistive technology device, as the interest may appear, the

16  current value of the written lease, and refund to the consumer

17  the amount that the consumer paid under the written lease plus

18  any collateral costs.

19         (3)  The current value of the written lease equals the

20  total amount for which the lease obligates the consumer during

21  the period of the lease remaining after its early termination

22  plus the assistive technology device dealer's early

23  termination costs and the value of the assistive technology

24  device at the lease expiration date if the lease sets forth

25  the value, less the assistive technology device lessor's early

26  termination savings.

27         (4)  To receive a comparable new assistive technology

28  device or a refund due under paragraph (2)(a), a consumer must

29  offer to the manufacturer of the assistive technology device

30  having the nonconformity to transfer possession of the

31  assistive technology device to the manufacturer.  No later


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  1  than 30 days after the offer, the manufacturer shall provide

  2  the consumer with the comparable assistive technology device

  3  or refund.  When the manufacturer provides the comparable

  4  assistive technology device or refund, the consumer shall

  5  return the assistive technology device having the

  6  nonconformity to the manufacturer, along with any endorsements

  7  necessary to transfer real possession to the manufacturer.

  8         (5)  To receive a refund due under paragraph (2)(b), a

  9  consumer must offer to return the assistive technology device

10  having the nonconformity to its manufacturer.  No later than

11  30 days after the offer, the manufacturer shall provide the

12  refund to the consumer who paid for or the provider who billed

13  a third party payor source for the assistive technology

14  device.  The provider shall return the manufacturer's refund

15  to the third party payor source, unless the provider was not

16  reimbursed by the third party payor. When the manufacturer

17  provides the refund, the consumer shall return to the

18  manufacturer the assistive technology device having the

19  nonconformity.

20         (6)  To receive a refund due under paragraph (2)(c), an

21  assistive technology device lessor must offer to transfer

22  possession of the assistive technology device having the

23  nonconformity to its manufacturer.  No later than 30 days

24  after the offer, the manufacturer shall provide the refund to

25  the assistive technology device lessor.  When the manufacturer

26  provides the refund, the assistive technology device lessor

27  shall provide to the manufacturer any endorsements necessary

28  to transfer legal possession to the manufacturer.

29         (7)  A person may not enforce the lease against the

30  consumer after the consumer receives a refund due under

31  paragraph (2)(c).


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  1         (8)  An assistive technology device that is returned by

  2  a consumer or assistive technology device lessor in this

  3  state, or by a consumer or assistive technology device lessor

  4  in another state under a similar law of that state, may not be

  5  sold or leased again in this state, unless full disclosure of

  6  the reasons for return is made to any prospective buyer or

  7  lessee.

  8         (9)  Each consumer may submit any dispute arising under

  9  this part to the department by completing a complaint form.

10  The department may investigate the complaint on behalf of the

11  consumer if reasonable evidence warrants such an action.

12         (10)  The department shall process consumer complaints

13  pursuant to s. 570.544.

14         (9)(11)  Each consumer may submit any dispute arising

15  under this part to an alternative arbitration mechanism

16  established pursuant to chapter 682. Upon notice by the

17  consumer, all manufacturers must submit to such alternative

18  arbitration.

19         (10)(12)  Such alternative arbitration must be

20  conducted by a professional arbitrator or arbitration firm

21  appointed under chapter 682 and any applicable rules.  These

22  procedures must provide for the personal objectivity of the

23  arbitrators and for the right of each party to present its

24  case, to be in attendance during any presentation made by the

25  other party, and to rebut or refute such a presentation.

26         (11)(13)  This part does not limit rights or remedies

27  available to a consumer under any other law.

28         Section 6.  Section 427.8041, Florida Statutes, is

29  repealed.

30         Section 7.  Subsection (6) is added to section 496.411,

31  Florida Statutes, to read:


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  1         496.411  Disclosure requirements and duties of

  2  charitable organizations and sponsors.--

  3         (6)  Each charitable organization or sponsor that is

  4  required to register under s. 496.405 shall conspicuously

  5  display the following information on every printed

  6  solicitation, written confirmation, receipt, or reminder of a

  7  contribution:

  8         (a)  The organization's or sponsor's registration

  9  number issued by the department under this chapter.

10         (b)  The percentage, if any, of each contribution that

11  is retained by any professional solicitor that has contracted

12  with the organization or sponsor.

13         (c)  The percentage of each contribution that is

14  received by the organization or sponsor.

15  

16  If the solicitation consists of more than a single item, the

17  statement shall be displayed prominently in the solicitation

18  materials.

19         Section 8.  Paragraphs (b) and (d) of subsection (1) of

20  section 501.017, Florida Statutes, are amended to read:

21         501.017  Health studios; contracts.--

22         (1)  Every contract for the sale of future health

23  studio services which is paid for in advance or which the

24  buyer agrees to pay for in future installment payments shall

25  be in writing and shall contain, contractual provisions to the

26  contrary notwithstanding, in immediate proximity to the space

27  reserved in the contract for the signature of the buyer, and

28  in 10-point boldfaced type, language substantially equivalent

29  to the following:

30         (b)1.  A provision for the cancellation and refund of

31  the contract if the contracting business location of the


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  1  health studio goes out of business, or moves its facilities

  2  more than 5 driving miles from the business location

  3  designated in such contract and fails to provide, within 30

  4  days, a facility of equal quality located within 5 driving

  5  miles of the business location designated in such contract at

  6  no additional cost to the buyer.

  7         2.  A provision that notice of intent to cancel by the

  8  buyer shall be given in writing to the health studio.  Such a

  9  notice of cancellation from the consumer shall also terminate

10  automatically the consumer's obligation to any entity to whom

11  the health studio has subrogated or assigned the consumer's

12  contract. If the health studio wishes to enforce such contract

13  after receipt of such showing, it may request the department

14  to determine the sufficiency of the showing.

15         3.  A provision that if the department determines that

16  a refund is due the buyer, the refund shall be an amount

17  computed by dividing the contract price by the number of weeks

18  in the contract term and multiplying the result by the number

19  of weeks remaining in the contract term.  The business

20  location of a health studio shall not be deemed out of

21  business when temporarily closed for repair and renovation of

22  the premises:

23         a.  Upon sale, for not more than 14 consecutive days;

24  or

25         b.  During ownership, for not more than 7 consecutive

26  days and not more than two periods of 7 consecutive days in

27  any calendar year.

28  

29  A refund shall be issued within 30 days after receipt of the

30  notice of cancellation made pursuant to this paragraph.

31  


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  1         (d)  A provision for the cancellation of the contract

  2  if the buyer dies or becomes physically unable to avail

  3  himself or herself of a substantial portion of those services

  4  which he or she used from the commencement of the contract

  5  until the time of disability, with refund of funds paid or

  6  accepted in payment of the contract in an amount computed by

  7  dividing the contract price by the number of weeks in the

  8  contract term and multiplying the result by the number of

  9  weeks remaining in the contract term.  The contract may

10  require a buyer or the buyer's estate seeking relief under

11  this paragraph to provide proof of disability or death.  A

12  physical disability sufficient to warrant cancellation of the

13  contract by the buyer shall be established if the buyer

14  furnishes to the health studio a certification of such

15  disability by a physician licensed under chapter 458, chapter

16  459, chapter 460, or chapter 461 to the extent the diagnosis

17  or treatment of the disability is within the physician's scope

18  of practice. A refund shall be issued within 30 days after

19  receipt of the notice of cancellation made pursuant to this

20  paragraph.

21         Section 9.  Subsection (2) of section 501.019, Florida

22  Statutes, is amended to read:

23         501.019  Health studios; penalties.--

24         (2)  Any person health studio owner or, in the case of

25  corporate ownership, any officer of the corporation, or any

26  manager of a health studio or health studio's business

27  location, who knowingly makes a false representation to the

28  department with the intent to obtain an exemption of any kind

29  from the requirements of s. 501.016 commits a felony of the

30  third degree, punishable as provided in s. 775.082, s.

31  775.083, or s. 775.084.


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  1         Section 10.  Paragraph (a) of subsection (2), paragraph

  2  (b) of subsection (4), and paragraph (c) of subsection (5) of

  3  section 539.001, Florida Statutes, are amended, paragraph (n)

  4  is added to subsection (12) of that section, and subsection

  5  (21) of that section is amended, to read:

  6         539.001  The Florida Pawnbroking Act.--

  7         (2)  DEFINITIONS.--As used in this section, the term:

  8         (a)  "Agency" means the Division of Consumer Services

  9  of the Department of Agriculture and Consumer Services.

10         (4)  ELIGIBILITY FOR LICENSE.--

11         (b)  Any applicant claiming to have a net worth of

12  $50,000 or more shall file with the agency department, at the

13  time of applying for a license, the following documentation:

14         1.  A current financial statement prepared by a Florida

15  certified public accountant; or

16         2.  An affidavit stating the applicant's net worth is

17  at least $50,000, accompanied by supporting documentation; or

18         3.  If the applicant is a corporation, a copy of the

19  applicant's most recently filed federal tax return.

20  

21  If the agency cannot verify that the applicant meets the net

22  worth requirement for a license, the agency may require a

23  finding, including the presentation of a current balance

24  sheet, by an accounting firm or individual holding a permit to

25  practice public accounting in this state, that the accountant

26  has reviewed the books and records of the applicant and that

27  the applicant meets the net worth requirement.

28         (5)  APPLICATION FOR LICENSE.--

29         (c)  Each initial application for a license must be

30  accompanied by a complete set of fingerprints taken by an

31  authorized law enforcement officer, $300 for the first year's


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  1  license fee, and the actual cost to the agency department for

  2  fingerprint analysis for each person subject to the

  3  eligibility requirements. The agency shall submit the

  4  fingerprints to the Department of Law Enforcement for state

  5  processing, and the Department of Law Enforcement shall

  6  forward the fingerprints to the Federal Bureau of

  7  Investigation for a national criminal history check. These

  8  fees and costs are not refundable.

  9         (12)  PROHIBITED ACTS.--A pawnbroker, or an employee or

10  agent of a pawnbroker, may not:

11         (n)  Knowingly accept or receive misappropriated

12  property from a conveying customer in a pawn or purchase

13  transaction.

14         (21)  RULEMAKING AUTHORITY.--The agency department has

15  authority to adopt rules pursuant to chapter 120 to implement

16  the provisions of this section.

17         Section 11.  Paragraph (a) of subsection (1) of section

18  559.801, Florida Statutes, is amended to read:

19         559.801  Definitions.--For the purpose of ss.

20  559.80-559.815, the term:

21         (1)(a)  "Business opportunity" means the sale or lease

22  of any products, equipment, supplies, or services which are

23  sold or leased to a purchaser to enable the purchaser to start

24  a business for which the purchaser is required to pay an

25  initial fee or sum of money which exceeds $500 to the seller,

26  and in which the seller represents:

27         1.  That the seller or person or entity affiliated with

28  or referred by the seller will provide locations or assist the

29  purchaser in finding locations for the use or operation of

30  vending machines, racks, display cases, currency or card

31  operated equipment, or other similar devices or


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  1  currency-operated amusement machines or devices on premises

  2  neither owned nor leased by the purchaser or seller;

  3         2.  That the seller will purchase any or all products

  4  made, produced, fabricated, grown, bred, or modified by the

  5  purchaser using in whole or in part the supplies, services, or

  6  chattels sold to the purchaser;

  7         3.  That the seller guarantees in writing that the

  8  purchaser will derive income from the business opportunity

  9  which exceeds the price paid or rent charged for the business

10  opportunity or that the seller will refund all or part of the

11  price paid or rent charged for the business opportunity, or

12  will repurchase any of the products, equipment, supplies, or

13  chattels supplied by the seller, if the purchaser is

14  unsatisfied with the business opportunity; or

15         4.  That the seller will provide a sales program or

16  marketing program that will enable the purchaser to derive

17  income from the business opportunity, except that this

18  paragraph does not apply to the sale of a sales program or

19  marketing program made in conjunction with the licensing of a

20  trademark or service mark that is registered under the laws of

21  any state or of the United States if the seller requires use

22  of the trademark or service mark in the sales agreement.

23  

24  For the purpose of subparagraph 1., the term "assist the

25  purchaser in finding locations" means, but is not limited to,

26  supplying the purchaser with names of locator companies,

27  contracting with the purchaser to provide assistance or supply

28  names, or collecting a fee on behalf of or for a locator

29  company.

30         Section 12.  Subsection (8) of section 559.803, Florida

31  Statutes, is amended, present subsections (11), (12), and (13)


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  1  of that section are renumbered as subsections (12), (13), and

  2  (14), respectively, and a new subsection (11) is added to that

  3  section, to read:

  4         559.803  Disclosure statement.--At least 3 working days

  5  prior to the time the purchaser signs a business opportunity

  6  contract, or at least 3 working days prior to the receipt of

  7  any consideration by the seller, whichever occurs first, the

  8  seller must provide the prospective purchaser a written

  9  document, the cover sheet of which is entitled in at least

10  12-point boldfaced capital letters "DISCLOSURES REQUIRED BY

11  FLORIDA LAW."  Under this title shall appear the following

12  statement in at least 10-point type:  "The State of Florida

13  has not reviewed and does not approve, recommend, endorse, or

14  sponsor any business opportunity.  The information contained

15  in this disclosure has not been verified by the state.  If you

16  have any questions about this investment, see an attorney

17  before you sign a contract or agreement."  Nothing except the

18  title and required statement shall appear on the cover sheet.

19  Immediately following the cover sheet, the seller must provide

20  an index page that briefly lists the contents of the

21  disclosure document as required in this section and any pages

22  on which the prospective purchaser can find each required

23  disclosure.  At the top of the index page, the following

24  statement must appear in at least 10-point type: "The State of

25  Florida requires sellers of business opportunities to disclose

26  certain information to prospective purchasers.  This index is

27  provided to help you locate this information."  If the index

28  contains other information not required by this section, the

29  seller shall place a designation beside each of the

30  disclosures required by this section and provide an

31  explanation of the designation at the end of the statement at


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  1  the top of the index page.  The disclosure document shall

  2  contain the following information:

  3         (8)  If the business opportunity seller is required to

  4  secure a bond, guaranteed letter of credit, or certificate of

  5  deposit or establish a trust deposit pursuant to s. 559.807,

  6  either of the following statements:

  7         (a)  "As required by Florida law, the seller has

  8  secured a bond issued by ...., a surety company authorized to

  9  do business in this state. Before signing a contract to

10  purchase this business opportunity, you should confirm the

11  bond's status with the surety company."; or

12         (b)  "As required by Florida law, the seller has

13  established a trust account or guaranteed letter of credit or

14  certificate of deposit ...(number of account)... with ...(name

15  and address of bank or savings institution)....  Before

16  signing a contract to purchase this business opportunity, you

17  should confirm with the bank or savings institution the

18  current status of the trust account or guaranteed letter of

19  credit or certificate of deposit."

20         (11)(a)  The total number of persons who purchased the

21  business opportunity being offered by the seller within the

22  past 3 years.

23         (b)  The names, addresses, and telephone numbers of the

24  10 persons who previously purchased the business opportunity

25  from the seller and who are geographically closest to the

26  potential purchaser.

27  

28  Should any seller of business opportunities prepare a

29  disclosure statement pursuant to 16 C.F.R. ss. 436.1 et seq.,

30  a Trade Regulation Rule of the Federal Trade Commission

31  regarding Disclosure Requirements and Prohibitions Concerning


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  1  Franchising and Business Opportunity Ventures, the seller may

  2  file that disclosure statement in lieu of the document

  3  required pursuant to this section.  Should the seller be

  4  required pursuant to 16 C.F.R. to prepare any other documents

  5  to be presented to the prospective purchaser, those documents

  6  shall also be filed with the department.

  7         Section 13.  Section 559.807, Florida Statutes, is

  8  amended to read:

  9         559.807  Bond or other security trust account

10  required.--

11         (1)  If the business opportunity seller makes any

12  representations set forth in s. 559.801(1)(a)3., the seller

13  must either have obtained a surety bond issued by a surety

14  company authorized to do business in this state or have

15  established a certificate of deposit trust account or a

16  guaranteed letter of credit with a licensed and insured bank

17  or savings institution located in the state.  The amount of

18  the bond, certificate of deposit trust account, or guaranteed

19  letter of credit shall be an amount not less than $50,000.

20         (2)  The bond, certificate of deposit, or guaranteed

21  letter of credit trust account shall be in the favor of the

22  department for the use and benefit of. any person who is

23  injured by the fraud, misrepresentation, damaged by any

24  violation of ss. 559.80-559.815, or by the seller's breach of

25  the contract, financial failure, or violation of any provision

26  of this part by the seller.  Such liability may be enforced by

27  filing an action at law in a court of competent jurisdiction

28  without precluding enforcement in an administrative action

29  pursuant to chapter 120.  However, the bond, certificate of

30  deposit, or guaranteed letter of credit shall be amenable and

31  enforceable only by and through administrative proceedings


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  1  before the department.  A money judgment resulting from an

  2  action at law, less any award for costs and attorney's fees,

  3  shall be prima facie evidence sufficient to establish the

  4  value of the claim in an administrative action.  It is the

  5  intent of the Legislature that such bond, certificate of

  6  deposit, or guaranteed letter of credit shall be applicable

  7  and liable only for payment of claims duly adjudicated by

  8  order of the department.  The bond, certificate of deposit, or

  9  guaranteed letter of credit shall be open to successive claims

10  but for the business opportunity sale or of any obligation

11  arising therefrom, may bring an action against the bond, trust

12  account, or guaranteed letter of credit to recover damages

13  suffered; however, the aggregate amount may not liability of

14  the surety or trustee shall be only for actual damages and in

15  no event shall exceed the amount of the bond, certificate of

16  deposit trust account, or guaranteed letter of credit.

17         Section 14.  Subsection (14) is added to section

18  559.809, Florida Statutes, to read:

19         559.809  Prohibited acts.--Business opportunity sellers

20  shall not:

21         (14)  Fail to provide or deliver the products,

22  equipment, supplies, or services as specified in the written

23  contract required under s. 559.811.

24         Section 15.  For the purpose of incorporating the

25  amendment to section 559.809, Florida Statutes, in a reference

26  thereto, section 559.815, Florida Statutes, is reenacted to

27  read:

28         559.815  Penalties.--Any person who fails to file with

29  the department as required by s. 559.805 or who commits an act

30  described in s. 559.809 is guilty of a felony of the third

31  


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  1  degree, punishable as provided in s. 775.082, s. 775.083, or

  2  s. 775.084.

  3         Section 16.  Subsection (5) is added to section

  4  559.902, Florida Statutes, to read:

  5         559.902  Scope and application.--This act shall apply

  6  to all motor vehicle repair shops in Florida, except:

  7         (5)  Those located in public schools as defined in s.

  8  228.041 or charter technical career centers as defined in s.

  9  228.505.

10  

11  However, such person may voluntarily register under this act.

12         Section 17.  Subsections (3), (4), (5), (6), and (10)

13  of section 559.904, Florida Statutes, are amended to read:

14         559.904  Motor vehicle repair shop registration;

15  application; exemption.--

16         (3)  Each application for registration must be

17  accompanied by a registration fee set forth as follows:

18         (a)  If the place of business only performed "minor

19  repair service": $25.

20         (a)(b)  If the place of business has 1 to 5 employees:

21  $50.

22         (b)(c)  If the place of business has 6 to 10 employees:

23  $150.

24         (c)(d)  If the place of business has 11 or more

25  employees: $300.

26         (4)  Each initial and renewal application for

27  registration must be accompanied by copies of the applicant's

28  estimate and invoice forms. Such forms must comply with the

29  applicable provisions of this act before a registration may be

30  issued.

31  


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  1         (5)(4)  No annual registration fee is required for any

  2  motor vehicle repair shop which has a local municipal or

  3  county license issued pursuant to an ordinance containing

  4  standards which the department determines are at least equal

  5  to the requirements of this part, or for any motor vehicle

  6  dealer licensed pursuant to chapter 320.

  7         (6)(5)  The department shall issue to each applicant a

  8  registration certificate in the form and size as prescribed by

  9  the department in accordance with s. 120.60.  In the case of

10  an applicant with more than one place of business, the

11  department shall issue a registration certificate for each

12  place of business. The certificate must show at least the name

13  and address of the motor vehicle repair shop and the

14  registration number for that place of business. In the case of

15  a mobile motor vehicle repair shop, the certificate must show

16  the home address of the owner, if different from the business

17  address.

18         (6)  Any affidavit of exemption proof of filing

19  certificate, issued by the department prior to July 1, 1997,

20  to a motor vehicle repair shop conducting only minor repair

21  services shall be valid until its expiration.

22         (10)  The department may deny, revoke, or refuse to

23  renew the registration of a motor vehicle repair shop based

24  upon a determination that the motor vehicle repair shop, or

25  any of its directors, officers, owners, or general partners:

26         (a)  Have failed to meet the requirements for

27  registration as provided in this part;

28         (b)  Have not satisfied a civil fine, administrative

29  fine, or other penalty arising out of any administrative or

30  enforcement action brought by any governmental agency based

31  


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  1  upon conduct involving fraud, dishonest dealing, or any

  2  violation of this part;

  3         (c)  Have had against them any civil, criminal, or

  4  administrative adjudication in any jurisdiction, based upon

  5  conduct involving fraud, dishonest dealing, or any violation

  6  of this part; or

  7         (d)  Have had a judgment entered against them in any

  8  action brought by the department or the state attorney

  9  pursuant to ss. 501.201-501.213 or this part.

10         Section 18.  Paragraph (h) of subsection (1) of section

11  559.905, Florida Statutes, is amended to read:

12         559.905  Written motor vehicle repair estimate and

13  disclosure statement required.--

14         (1)  When any customer requests a motor vehicle repair

15  shop to perform repair work on a motor vehicle, the cost of

16  which repair work will exceed $100 to the customer, the shop

17  shall prepare a written repair estimate, which is a form

18  setting forth the estimated cost of repair work, including

19  diagnostic work, before effecting any diagnostic work or

20  repair.  The written repair estimate shall also include the

21  following items:

22         (h)  The estimated cost of repair which shall include

23  any charge for shop supplies or for hazardous or other waste

24  removal and, if a charge is included, the estimate shall

25  include the following statement:

26         "This charge represents costs and profits to

27         the motor vehicle repair facility for

28         miscellaneous shop supplies or waste disposal."

29  If a charge is mandated by state or federal law, the estimate

30  shall contain a statement identifying the law and the specific

31  amount charged under the law.


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  1         Section 19.  Subsection (1) of section 559.9221,

  2  Florida Statutes, is amended to read:

  3         559.9221  Motor Vehicle Repair Advisory Council.--The

  4  Motor Vehicle Repair Advisory Council is created to advise and

  5  assist the department in carrying out this part.

  6         (1)  The membership of the council may not exceed 11

  7  members appointed by the Commissioner of Agriculture.

  8         (a)  Eight industry members of the council must be

  9  chosen from individuals already engaged in the motor vehicle

10  repair business who are eligible to be registered under this

11  part.  Such members must become registered by October 1, 1993.

12  Thereafter, The professional members of this council must be

13  licensed under this part.  The commissioner shall select one

14  industry member from each of the following categories:

15         1.  Independent automotive mechanics shops.

16         2.  Franchise or company-owned automotive mechanics

17  shops.

18         3.  Independent automotive collision shops.

19         4.  Franchise or company-owned automotive collision

20  shops.

21         5.  Independent tire dealer.

22         6.  Franchise or company-owned tire dealer.

23         7.  Independent motor vehicle dealer licensed under s.

24  320.27.

25         8.  Franchise motor vehicle dealer licensed under s.

26  320.27.

27         (b)  One member of the council may must be chosen from

28  persons already engaged solely in motor vehicle minor repair

29  service.

30  

31  


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  1         (c)  Two consumer members of the council must be

  2  residents of this state and must not be connected with the

  3  motor vehicle repair business.

  4         (d)  Within 30 days after July 1, 1993, the

  5  commissioner shall appoint one consumer member and four

  6  industry members for terms of 2 years and one consumer member,

  7  one minor repair shop member, and four industry members for

  8  terms of 4 years.  As terms of the members expire, the

  9  commissioner shall appoint successors for terms of 4 years.

10  Members shall serve from the time of their appointment until

11  their successors are appointed.

12         Section 20.  Subsection (5) of section 559.903, Florida

13  Statutes, is repealed.

14         Section 21.  If any clause, section, or provision of

15  this act shall be declared unconstitutional or invalid for any

16  reason, it shall be eliminated from this act, and the

17  remaining portion of the act shall be in full force and effect

18  and be as valid as if such invalid portion thereof had not

19  been incorporated therein.

20         Section 22.  Effective July 1, 2001, section 501.203,

21  Florida Statutes, is amended to read:

22         501.203  Definitions.--As used in this chapter, unless

23  the context otherwise requires, the term:

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

25  supporting opinion, that determines the rights of the parties

26  and concerning which appellate remedies have been exhausted or

27  the time for appeal has expired.

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

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

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

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


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  1  the violation occurs in or affects more than one judicial

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

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

  4  90 days after a written complaint has been filed with the

  5  state attorney.

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

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

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

  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; business; firm;

26  association; joint venture; partnership; estate; trust;

27  business trust; syndicate; fiduciary; corporation; any

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

29  combination.

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

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


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

  2  property, whether tangible or intangible, or any other

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

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

  5  commerce, however denominated, including any nonprofit or

  6  not-for-profit person or activity.

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

  8  any moneys, donation, membership, credential, certificate,

  9  prize, award, benefit, license, interest, professional

10  opportunity, or chance of winning.

11         Section 23.  Effective July 1, 2001, section 501.204,

12  Florida Statutes, is amended to read:

13         501.204  Unlawful acts and practices.--

14         (1)  Unfair methods of competition, unconscionable acts

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

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

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

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

19  shall be given to the interpretations of the Federal Trade

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

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

22  July 1, 2001.

23         Section 24.  Effective July 1, 2001, subsections (1),

24  (3), and (6) of section 501.207, Florida Statutes, are amended

25  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 25.  Effective July 1, 2001, section 501.2075,

13  Florida Statutes, is 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 26.  Effective July 1, 2001, section 501.2091,

11  Florida Statutes, is repealed.

12         Section 27.  Effective July 1, 2001, subsection (2) of

13  section 501.211, Florida 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 28.  Effective July 1, 2001, section 501.212,

25  Florida Statutes, is 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 Florida Public Service Commission.

15         (6)(5)  An act or practice involving the sale, lease,

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

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

18  practice violates s. 475.42 or s. 475.626.

19         Section 29.  Except as otherwise expressly provided in

20  this act, this act shall take effect October 1, 2001.

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


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