HB 0129

1
A bill to be entitled
2An act relating to consumer protection; creating ss.
3501.165 and 501.166, F.S.; prohibiting the use of deception
4to obtain certain personal information for commercial
5solicitation purposes; prohibiting the sale or other
6transfer to a third party of personal customer information
7that is protected from disclosure; providing exceptions;
8providing applicability; providing that transferring such
9protected information is an unfair or deceptive act or
10practice or unfair method of competition; providing
11penalties; amending s. 501.2075, F.S.; providing an
12exception to a civil penalty; creating s. 501.2076, F.S.;
13prohibiting falsely representing oneself as being
14affiliated with a law enforcement or firefighting agency or
15public utility; providing a penalty; providing that a
16violation of s. 817.568, F.S., relating to the criminal use
17of personal identification information, is an unfair or
18deceptive act or practice or unfair method of competition
19in violation of part II of ch. 501, F.S.; providing
20penalties; amending ss. 501.203 and 501.204, F.S.; changing
21obsolete dates; reenacting and amending s. 501.207, F.S.,
22relating to remedies of the enforcing authority under the
23Florida Deceptive and Unfair Trade Practices Act; providing
24that the court may order actions brought under that act on
25behalf of an enterprise; providing for severability;
26providing an effective date.
27
28Be It Enacted by the Legislature of the State of Florida:
29
30     Section 1.  Section 501.165, Florida Statutes, is created
31to read:
32     501.165  Obtaining personal information for commercial
33solicitation.--Any person who intentionally uses deceptive
34practices or means to obtain another person's address, telephone
35number, or social security number and uses it to engage in
36commercial solicitation, or provides it to another person for
37purposes of commercial solicitation, commits an unfair or
38deceptive act or practice or unfair method of competition in
39violation of part II of this chapter, and is subject to the
40penalties and remedies provided for such violation, in addition
41to remedies otherwise available for such conduct.
42     Section 2.  Section 501.166, Florida Statutes, is created
43to read:
44     501.166  Sale or transfer of personal customer
45information.--
46     (1)  A person or an entity may not sell or otherwise
47transfer to a third party personal customer information that is
48protected from disclosure by law, contract, or a published
49privacy policy unless the purchaser or transferee agrees to
50abide by the contract or by the seller's or transferor's then-
51existing privacy policy, if applicable.
52     (2)  The prohibition in subsection (1) applies to any
53customer who resides in this state at the time the personal
54customer information is sold, transferred, or otherwise
55obtained.
56     (3)  A person who violates or fails to comply with
57subsection (1) commits an unfair or deceptive act or practice or
58unfair method of competition in violation of part II of this
59chapter and is subject to the penalties and remedies provided
60for such violation, in addition to remedies otherwise available
61by law for such conduct.
62     Section 3.  Section 501.2075, Florida Statutes, is amended
63to read:
64     501.2075  Civil penalty.--Except as provided in s. 501.2076
65or s. 501.2077, any person, firm, corporation, association, or
66entity, or any agent or employee of the foregoing, who is
67willfully using, or has willfully used, a method, act, or
68practice declared unlawful under s. 501.204, or who is willfully
69violating any of the rules of the department adopted under this
70part, is liable for a civil penalty of not more than $10,000 for
71each such violation.  Willful violations occur when the person
72knew or should have known that his or her conduct was unfair or
73deceptive or prohibited by rule.  This civil penalty may be
74recovered in any action brought under this part by the enforcing
75authority; or the enforcing authority may terminate any
76investigation or action upon agreement by the person, firm,
77corporation, association, or entity, or the agent or employee of
78the foregoing, to pay a stipulated civil penalty.  The
79department or the court may waive any such civil penalty if the
80person, firm, corporation, association, or entity, or the agent
81or employee of the foregoing, has previously made full
82restitution or reimbursement or has paid actual damages to the
83consumers or governmental entities who have been injured by the
84unlawful act or practice or rule violation.  If civil penalties
85are assessed in any litigation, the enforcing authority is
86entitled to reasonable attorney's fees and costs.  A civil
87penalty so collected shall accrue to the state and shall be
88deposited as received into the General Revenue Fund unallocated.
89     Section 4.  Section 501.2076, Florida Statutes, is created
90to read:
91     501.2076  Misrepresentations; law enforcement,
92firefighters, or public utilities.--Any person who engages in a
93deceptive and unfair trade practice with the intent to deceive
94another person into believing that he or she is affiliated with
95a law enforcement agency, firefighting agency, or public utility
96is subject to a civil penalty not to exceed $15,000 for each
97violation.
98     Section 5.  A person who violates or fails to comply with
99any provision of section 817.568, Florida Statutes, commits an
100unfair or deceptive act or practice or unfair method of
101competition in violation of part II of chapter 501, Florida
102Statutes, and is subject to the penalties and remedies provided
103for such violation, in addition to remedies otherwise available
104for such conduct.
105     Section 6.  Subsection (3) of section 501.203, Florida
106Statutes, is amended to read:
107     501.203  Definitions.--As used in this chapter, unless the
108context otherwise requires, the term:
109     (3)  "Violation of this part" means any violation of this
110act or the rules adopted under this act and may be based upon
111any of the following as of July 1, 2005 2001:
112     (a)  Any rules promulgated pursuant to the Federal Trade
113Commission Act, 15 U.S.C. ss. 41 et seq.;
114     (b)  The standards of unfairness and deception set forth
115and interpreted by the Federal Trade Commission or the federal
116courts; or
117     (c)  Any law, statute, rule, regulation, or ordinance which
118proscribes unfair methods of competition, or unfair, deceptive,
119or unconscionable acts or practices.
120     Section 7.  Subsection (2) of section 501.204, Florida
121Statutes, is amended to read:
122     501.204  Unlawful acts and practices.--
123     (2)  It is the intent of the Legislature that, in
124construing subsection (1), due consideration and great weight
125shall be given to the interpretations of the Federal Trade
126Commission and the federal courts relating to s. 5(a)(1) of the
127Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July
1281, 2005 2001.
129     Section 8.  Subsection (1) of section 501.207, Florida
130Statutes, is reenacted, and subsection (3) of that section is
131amended 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
135or practice violates this part.
136     (b)  An action to enjoin any person who has violated, is
137violating, or is otherwise likely to violate, this part.
138     (c)  An action on behalf of one or more consumers or
139governmental entities for the actual damages caused by an act or
140practice in violation of this part. However, damages are not
141recoverable under this section against a retailer who has in
142good faith engaged in the dissemination of claims of a
143manufacturer or wholesaler without actual knowledge that it
144violated this part.
145     (3)  Upon motion of the enforcing authority or any
146interested party in any action brought under subsection (1), the
147court may make appropriate orders, including, but not limited
148to, appointment of a general or special magistrate or receiver
149or sequestration or freezing of assets, to reimburse consumers
150or governmental entities found to have been damaged; to carry
151out a transaction in accordance with the reasonable expectations
152of consumers or governmental entities; to strike or limit the
153application of clauses of contracts to avoid an unconscionable
154result; to bring actions in the name of and on behalf of the
155defendant enterprise; to order any defendant to divest herself
156or himself of any interest in any enterprise, including real
157estate; to impose reasonable restrictions upon the future
158activities of any defendant to impede her or him from engaging
159in or establishing the same type of endeavor; to order the
160dissolution or reorganization of any enterprise; or to grant
161legal, equitable, or other appropriate relief. The court may
162assess the expenses of a general or special magistrate or
163receiver against a person who has violated, is violating, or is
164otherwise likely to violate this part. Any injunctive order,
165whether temporary or permanent, issued by the court shall be
166effective throughout the state unless otherwise provided in the
167order.
168     Section 9.  If any provision of this act or its application
169to any person or circumstance is held invalid, the invalidity
170does not affect other provisions or applications of the act
171which can be given effect without the invalid provision or
172application, and to this end the provisions of this act are
173severable.
174     Section 10.  This act shall take effect July 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.