| 1 | The Civil Justice Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 |
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| 6 | A bill to be entitled |
| 7 | An act relating to consumer protection; creating ss. |
| 8 | 501.165 and 501.166, F.S.; prohibiting the use of |
| 9 | deception to obtain certain personal information for |
| 10 | commercial solicitation purposes; defining "personal |
| 11 | information"; prohibiting the sale or other transfer to a |
| 12 | third party of personal customer information that is |
| 13 | protected from disclosure; providing exceptions; |
| 14 | precluding limitation of the right to transfer personal |
| 15 | customer information to specified third parties; requiring |
| 16 | third parties to maintain the confidentiality of such |
| 17 | information; providing limitations on the use thereof; |
| 18 | providing applicability; providing that transferring such |
| 19 | protected information is an unfair or deceptive act or |
| 20 | practice or unfair method of competition; providing |
| 21 | nonapplicability with respect to personal customer |
| 22 | information produced pursuant to court order, subpoena, a |
| 23 | request from a law enforcement agency, or other legal |
| 24 | process; providing penalties; amending s. 501.2075, F.S.; |
| 25 | providing an exception to a civil penalty; creating s. |
| 26 | 501.2076, F.S.; prohibiting falsely representing oneself |
| 27 | as being affiliated with a law enforcement or firefighting |
| 28 | agency or public utility; providing a penalty; providing |
| 29 | that a violation of s. 817.568, F.S., relating to the |
| 30 | criminal use of personal identification information, is an |
| 31 | unfair or deceptive act or practice or unfair method of |
| 32 | competition in violation of part II of ch. 501, F.S.; |
| 33 | providing penalties; amending ss. 501.203 and 501.204, |
| 34 | F.S.; changing obsolete dates; reenacting and amending s. |
| 35 | 501.207, F.S., relating to remedies of the enforcing |
| 36 | authority under the Florida Deceptive and Unfair Trade |
| 37 | Practices Act; providing that the court may order actions |
| 38 | brought under that act on behalf of an enterprise; |
| 39 | providing for severability; providing an effective date. |
| 40 |
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| 41 | Be It Enacted by the Legislature of the State of Florida: |
| 42 |
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| 43 | Section 1. Section 501.165, Florida Statutes, is created |
| 44 | to read: |
| 45 | 501.165 Obtaining personal information for commercial |
| 46 | solicitation.--Any person who intentionally uses deceptive |
| 47 | practices or means to obtain another person's address, telephone |
| 48 | number, or social security number and uses it to engage in |
| 49 | commercial solicitation, or provides it to another person for |
| 50 | purposes of commercial solicitation, commits an unfair or |
| 51 | deceptive act or practice or unfair method of competition in |
| 52 | violation of part II of this chapter, and is subject to the |
| 53 | penalties and remedies provided for such violation, in addition |
| 54 | to remedies otherwise available for such conduct. |
| 55 | Section 2. Section 501.166, Florida Statutes, is created |
| 56 | to read: |
| 57 | 501.166 Sale or transfer of personal customer |
| 58 | information.-- |
| 59 | (1) "Personal information" is defined as a person's |
| 60 | address, telephone number, or social security number. |
| 61 | (2) A person or an entity may not sell or otherwise |
| 62 | transfer to a third party personal customer information that is |
| 63 | protected from disclosure by law, contract, or a published |
| 64 | privacy policy unless the purchaser or transferee agrees to |
| 65 | abide by the contract or by the seller's or transferor's then- |
| 66 | existing privacy policy, except in accordance with the terms of |
| 67 | such law or contract or policy; provided, however, nothing |
| 68 | contained in this section shall limit the right of a person or |
| 69 | entity to transfer such personal customer information to a third |
| 70 | party that is acting on behalf of the transferring person or |
| 71 | entity for purposes of the commercial solicitation of such |
| 72 | transferring person's or entity's products or services, or |
| 73 | bundles or packages of products or services that include the |
| 74 | products and services of the transferring person or entity; and |
| 75 | provided further that such third party is required to maintain |
| 76 | the confidentiality of such information and to use such |
| 77 | information solely for the limited purpose of making such |
| 78 | commercial solicitation. |
| 79 | (3) The prohibition in subsection (2) applies to any |
| 80 | customer who resides in this state at the time the personal |
| 81 | customer information is sold, transferred, or otherwise |
| 82 | obtained. |
| 83 | (4) A person who violates or fails to comply with |
| 84 | subsection (2) commits an unfair or deceptive act or practice or |
| 85 | unfair method of competition in violation of part II of this |
| 86 | chapter and is subject to the penalties and remedies provided |
| 87 | for such violation, in addition to remedies otherwise available |
| 88 | by law for such conduct. |
| 89 | (5) This section does not apply to personal customer |
| 90 | information produced pursuant to court order, subpoena, a |
| 91 | request from a law enforcement agency, or other legal process. |
| 92 | Section 3. Section 501.2075, Florida Statutes, is amended |
| 93 | to read: |
| 94 | 501.2075 Civil penalty.--Except as provided in s. 501.2076 |
| 95 | or s. 501.2077, any person, firm, corporation, association, or |
| 96 | entity, or any agent or employee of the foregoing, who is |
| 97 | willfully using, or has willfully used, a method, act, or |
| 98 | practice declared unlawful under s. 501.204, or who is willfully |
| 99 | violating any of the rules of the department adopted under this |
| 100 | part, is liable for a civil penalty of not more than $10,000 for |
| 101 | each such violation. Willful violations occur when the person |
| 102 | knew or should have known that his or her conduct was unfair or |
| 103 | deceptive or prohibited by rule. This civil penalty may be |
| 104 | recovered in any action brought under this part by the enforcing |
| 105 | authority; or the enforcing authority may terminate any |
| 106 | investigation or action upon agreement by the person, firm, |
| 107 | corporation, association, or entity, or the agent or employee of |
| 108 | the foregoing, to pay a stipulated civil penalty. The |
| 109 | department or the court may waive any such civil penalty if the |
| 110 | person, firm, corporation, association, or entity, or the agent |
| 111 | or employee of the foregoing, has previously made full |
| 112 | restitution or reimbursement or has paid actual damages to the |
| 113 | consumers or governmental entities who have been injured by the |
| 114 | unlawful act or practice or rule violation. If civil penalties |
| 115 | are assessed in any litigation, the enforcing authority is |
| 116 | entitled to reasonable attorney's fees and costs. A civil |
| 117 | penalty so collected shall accrue to the state and shall be |
| 118 | deposited as received into the General Revenue Fund unallocated. |
| 119 | Section 4. Section 501.2076, Florida Statutes, is created |
| 120 | to read: |
| 121 | 501.2076 Misrepresentations; law enforcement, |
| 122 | firefighters, or public utilities.--Any person who engages in a |
| 123 | deceptive and unfair trade practice with the intent to deceive |
| 124 | another person into believing that he or she is affiliated with |
| 125 | a law enforcement agency, firefighting agency, or public utility |
| 126 | is subject to a civil penalty not to exceed $15,000 for each |
| 127 | violation. |
| 128 | Section 5. A person who violates or fails to comply with |
| 129 | any provision of section 817.568, Florida Statutes, commits an |
| 130 | unfair or deceptive act or practice or unfair method of |
| 131 | competition in violation of part II of chapter 501, Florida |
| 132 | Statutes, and is subject to the penalties and remedies provided |
| 133 | for such violation, in addition to remedies otherwise available |
| 134 | for such conduct. |
| 135 | Section 6. Subsection (3) of section 501.203, Florida |
| 136 | Statutes, is amended to read: |
| 137 | 501.203 Definitions.--As used in this chapter, unless the |
| 138 | context otherwise requires, the term: |
| 139 | (3) "Violation of this part" means any violation of this |
| 140 | act or the rules adopted under this act and may be based upon |
| 141 | any of the following as of July 1, 2005 2001: |
| 142 | (a) Any rules promulgated pursuant to the Federal Trade |
| 143 | Commission Act, 15 U.S.C. ss. 41 et seq.; |
| 144 | (b) The standards of unfairness and deception set forth |
| 145 | and interpreted by the Federal Trade Commission or the federal |
| 146 | courts; or |
| 147 | (c) Any law, statute, rule, regulation, or ordinance which |
| 148 | proscribes unfair methods of competition, or unfair, deceptive, |
| 149 | or unconscionable acts or practices. |
| 150 | Section 7. Subsection (2) of section 501.204, Florida |
| 151 | Statutes, is amended to read: |
| 152 | 501.204 Unlawful acts and practices.-- |
| 153 | (2) It is the intent of the Legislature that, in |
| 154 | construing subsection (1), due consideration and great weight |
| 155 | shall be given to the interpretations of the Federal Trade |
| 156 | Commission and the federal courts relating to s. 5(a)(1) of the |
| 157 | Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July |
| 158 | 1, 2005 2001. |
| 159 | Section 8. Subsection (1) of section 501.207, Florida |
| 160 | Statutes, is reenacted, and subsection (3) of that section is |
| 161 | amended to read: |
| 162 | 501.207 Remedies of enforcing authority.-- |
| 163 | (1) The enforcing authority may bring: |
| 164 | (a) An action to obtain a declaratory judgment that an act |
| 165 | or practice violates this part. |
| 166 | (b) An action to enjoin any person who has violated, is |
| 167 | violating, or is otherwise likely to violate, this part. |
| 168 | (c) An action on behalf of one or more consumers or |
| 169 | governmental entities for the actual damages caused by an act or |
| 170 | practice in violation of this part. However, damages are not |
| 171 | recoverable under this section against a retailer who has in |
| 172 | good faith engaged in the dissemination of claims of a |
| 173 | manufacturer or wholesaler without actual knowledge that it |
| 174 | violated this part. |
| 175 | (3) Upon motion of the enforcing authority or any |
| 176 | interested party in any action brought under subsection (1), the |
| 177 | court may make appropriate orders, including, but not limited |
| 178 | to, appointment of a general or special magistrate or receiver |
| 179 | or sequestration or freezing of assets, to reimburse consumers |
| 180 | or governmental entities found to have been damaged; to carry |
| 181 | out a transaction in accordance with the reasonable expectations |
| 182 | of consumers or governmental entities; to strike or limit the |
| 183 | application of clauses of contracts to avoid an unconscionable |
| 184 | result; to bring actions in the name of and on behalf of the |
| 185 | defendant enterprise; to order any defendant to divest herself |
| 186 | or himself of any interest in any enterprise, including real |
| 187 | estate; to impose reasonable restrictions upon the future |
| 188 | activities of any defendant to impede her or him from engaging |
| 189 | in or establishing the same type of endeavor; to order the |
| 190 | dissolution or reorganization of any enterprise; or to grant |
| 191 | legal, equitable, or other appropriate relief. The court may |
| 192 | assess the expenses of a general or special magistrate or |
| 193 | receiver against a person who has violated, is violating, or is |
| 194 | otherwise likely to violate this part. Any injunctive order, |
| 195 | whether temporary or permanent, issued by the court shall be |
| 196 | effective throughout the state unless otherwise provided in the |
| 197 | order. |
| 198 | Section 9. If any provision of this act or its application |
| 199 | to any person or circumstance is held invalid, the invalidity |
| 200 | does not affect other provisions or applications of the act |
| 201 | which can be given effect without the invalid provision or |
| 202 | application, and to this end the provisions of this act are |
| 203 | severable. |
| 204 | Section 10. This act shall take effect July 1, 2005. |