| 1 | A bill to be entitled |
| 2 | An act relating to consumer protection; creating ss. |
| 3 | 501.165 and 501.166, F.S.; prohibiting the use of deception |
| 4 | to obtain certain personal information for commercial |
| 5 | solicitation purposes; prohibiting the sale or other |
| 6 | transfer to a third party of personal customer information |
| 7 | that is protected from disclosure; providing exceptions; |
| 8 | providing applicability; providing that transferring such |
| 9 | protected information is an unfair or deceptive act or |
| 10 | practice or unfair method of competition; providing |
| 11 | penalties; amending s. 501.2075, F.S.; providing an |
| 12 | exception to a civil penalty; creating s. 501.2076, F.S.; |
| 13 | prohibiting falsely representing oneself as being |
| 14 | affiliated with a law enforcement or firefighting agency or |
| 15 | public utility; providing a penalty; providing that a |
| 16 | violation of s. 817.568, F.S., relating to the criminal use |
| 17 | of personal identification information, is an unfair or |
| 18 | deceptive act or practice or unfair method of competition |
| 19 | in violation of part II of ch. 501, F.S.; providing |
| 20 | penalties; amending ss. 501.203 and 501.204, F.S.; changing |
| 21 | obsolete dates; reenacting and amending s. 501.207, F.S., |
| 22 | relating to remedies of the enforcing authority under the |
| 23 | Florida Deceptive and Unfair Trade Practices Act; providing |
| 24 | that the court may order actions brought under that act on |
| 25 | behalf of an enterprise; providing for severability; |
| 26 | providing an effective date. |
| 27 |
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| 28 | Be It Enacted by the Legislature of the State of Florida: |
| 29 |
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| 30 | Section 1. Section 501.165, Florida Statutes, is created |
| 31 | to read: |
| 32 | 501.165 Obtaining personal information for commercial |
| 33 | solicitation.--Any person who intentionally uses deceptive |
| 34 | practices or means to obtain another person's address, telephone |
| 35 | number, or social security number and uses it to engage in |
| 36 | commercial solicitation, or provides it to another person for |
| 37 | purposes of commercial solicitation, commits an unfair or |
| 38 | deceptive act or practice or unfair method of competition in |
| 39 | violation of part II of this chapter, and is subject to the |
| 40 | penalties and remedies provided for such violation, in addition |
| 41 | to remedies otherwise available for such conduct. |
| 42 | Section 2. Section 501.166, Florida Statutes, is created |
| 43 | to read: |
| 44 | 501.166 Sale or transfer of personal customer |
| 45 | information.-- |
| 46 | (1) A person or an entity may not sell or otherwise |
| 47 | transfer to a third party personal customer information that is |
| 48 | protected from disclosure by law, contract, or a published |
| 49 | privacy policy unless the purchaser or transferee agrees to |
| 50 | abide by the contract or by the seller's or transferor's then- |
| 51 | existing privacy policy, if applicable. |
| 52 | (2) The prohibition in subsection (1) applies to any |
| 53 | customer who resides in this state at the time the personal |
| 54 | customer information is sold, transferred, or otherwise |
| 55 | obtained. |
| 56 | (3) A person who violates or fails to comply with |
| 57 | subsection (1) commits an unfair or deceptive act or practice or |
| 58 | unfair method of competition in violation of part II of this |
| 59 | chapter and is subject to the penalties and remedies provided |
| 60 | for such violation, in addition to remedies otherwise available |
| 61 | by law for such conduct. |
| 62 | Section 3. Section 501.2075, Florida Statutes, is amended |
| 63 | to read: |
| 64 | 501.2075 Civil penalty.--Except as provided in s. 501.2076 |
| 65 | or s. 501.2077, any person, firm, corporation, association, or |
| 66 | entity, or any agent or employee of the foregoing, who is |
| 67 | willfully using, or has willfully used, a method, act, or |
| 68 | practice declared unlawful under s. 501.204, or who is willfully |
| 69 | violating any of the rules of the department adopted under this |
| 70 | part, is liable for a civil penalty of not more than $10,000 for |
| 71 | each such violation. Willful violations occur when the person |
| 72 | knew or should have known that his or her conduct was unfair or |
| 73 | deceptive or prohibited by rule. This civil penalty may be |
| 74 | recovered in any action brought under this part by the enforcing |
| 75 | authority; or the enforcing authority may terminate any |
| 76 | investigation or action upon agreement by the person, firm, |
| 77 | corporation, association, or entity, or the agent or employee of |
| 78 | the foregoing, to pay a stipulated civil penalty. The |
| 79 | department or the court may waive any such civil penalty if the |
| 80 | person, firm, corporation, association, or entity, or the agent |
| 81 | or employee of the foregoing, has previously made full |
| 82 | restitution or reimbursement or has paid actual damages to the |
| 83 | consumers or governmental entities who have been injured by the |
| 84 | unlawful act or practice or rule violation. If civil penalties |
| 85 | are assessed in any litigation, the enforcing authority is |
| 86 | entitled to reasonable attorney's fees and costs. A civil |
| 87 | penalty so collected shall accrue to the state and shall be |
| 88 | deposited as received into the General Revenue Fund unallocated. |
| 89 | Section 4. Section 501.2076, Florida Statutes, is created |
| 90 | to read: |
| 91 | 501.2076 Misrepresentations; law enforcement, |
| 92 | firefighters, or public utilities.--Any person who engages in a |
| 93 | deceptive and unfair trade practice with the intent to deceive |
| 94 | another person into believing that he or she is affiliated with |
| 95 | a law enforcement agency, firefighting agency, or public utility |
| 96 | is subject to a civil penalty not to exceed $15,000 for each |
| 97 | violation. |
| 98 | Section 5. A person who violates or fails to comply with |
| 99 | any provision of section 817.568, Florida Statutes, commits an |
| 100 | unfair or deceptive act or practice or unfair method of |
| 101 | competition in violation of part II of chapter 501, Florida |
| 102 | Statutes, and is subject to the penalties and remedies provided |
| 103 | for such violation, in addition to remedies otherwise available |
| 104 | for such conduct. |
| 105 | Section 6. Subsection (3) of section 501.203, Florida |
| 106 | Statutes, is amended to read: |
| 107 | 501.203 Definitions.--As used in this chapter, unless the |
| 108 | context otherwise requires, the term: |
| 109 | (3) "Violation of this part" means any violation of this |
| 110 | act or the rules adopted under this act and may be based upon |
| 111 | any of the following as of July 1, 2005 2001: |
| 112 | (a) Any rules promulgated pursuant to the Federal Trade |
| 113 | Commission Act, 15 U.S.C. ss. 41 et seq.; |
| 114 | (b) The standards of unfairness and deception set forth |
| 115 | and interpreted by the Federal Trade Commission or the federal |
| 116 | courts; or |
| 117 | (c) Any law, statute, rule, regulation, or ordinance which |
| 118 | proscribes unfair methods of competition, or unfair, deceptive, |
| 119 | or unconscionable acts or practices. |
| 120 | Section 7. Subsection (2) of section 501.204, Florida |
| 121 | Statutes, is amended to read: |
| 122 | 501.204 Unlawful acts and practices.-- |
| 123 | (2) It is the intent of the Legislature that, in |
| 124 | construing subsection (1), due consideration and great weight |
| 125 | shall be given to the interpretations of the Federal Trade |
| 126 | Commission and the federal courts relating to s. 5(a)(1) of the |
| 127 | Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July |
| 128 | 1, 2005 2001. |
| 129 | Section 8. Subsection (1) of section 501.207, Florida |
| 130 | Statutes, is reenacted, and subsection (3) of that section is |
| 131 | amended to read: |
| 132 | 501.207 Remedies of enforcing authority.-- |
| 133 | (1) The enforcing authority may bring: |
| 134 | (a) An action to obtain a declaratory judgment that an act |
| 135 | or practice violates this part. |
| 136 | (b) An action to enjoin any person who has violated, is |
| 137 | violating, or is otherwise likely to violate, this part. |
| 138 | (c) An action on behalf of one or more consumers or |
| 139 | governmental entities for the actual damages caused by an act or |
| 140 | practice in violation of this part. However, damages are not |
| 141 | recoverable under this section against a retailer who has in |
| 142 | good faith engaged in the dissemination of claims of a |
| 143 | manufacturer or wholesaler without actual knowledge that it |
| 144 | violated this part. |
| 145 | (3) Upon motion of the enforcing authority or any |
| 146 | interested party in any action brought under subsection (1), the |
| 147 | court may make appropriate orders, including, but not limited |
| 148 | to, appointment of a general or special magistrate or receiver |
| 149 | or sequestration or freezing of assets, to reimburse consumers |
| 150 | or governmental entities found to have been damaged; to carry |
| 151 | out a transaction in accordance with the reasonable expectations |
| 152 | of consumers or governmental entities; to strike or limit the |
| 153 | application of clauses of contracts to avoid an unconscionable |
| 154 | result; to bring actions in the name of and on behalf of the |
| 155 | defendant enterprise; to order any defendant to divest herself |
| 156 | or himself of any interest in any enterprise, including real |
| 157 | estate; to impose reasonable restrictions upon the future |
| 158 | activities of any defendant to impede her or him from engaging |
| 159 | in or establishing the same type of endeavor; to order the |
| 160 | dissolution or reorganization of any enterprise; or to grant |
| 161 | legal, equitable, or other appropriate relief. The court may |
| 162 | assess the expenses of a general or special magistrate or |
| 163 | receiver against a person who has violated, is violating, or is |
| 164 | otherwise likely to violate this part. Any injunctive order, |
| 165 | whether temporary or permanent, issued by the court shall be |
| 166 | effective throughout the state unless otherwise provided in the |
| 167 | order. |
| 168 | Section 9. If any provision of this act or its application |
| 169 | to any person or circumstance is held invalid, the invalidity |
| 170 | does not affect other provisions or applications of the act |
| 171 | which can be given effect without the invalid provision or |
| 172 | application, and to this end the provisions of this act are |
| 173 | severable. |
| 174 | Section 10. This act shall take effect July 1, 2005. |