Senate Bill sb0750c3

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    Florida Senate - 2005              CS for CS for CS for SB 750

    By the Committees on Criminal Justice; Judiciary; Regulated
    Industries; and Senator Baker




    591-2323-05

  1                      A bill to be entitled

  2         An act relating to talent agencies and

  3         advance-fee talent services; repealing part VII

  4         of ch. 468, F.S., relating to the regulation of

  5         talent agencies; prescribing authority of local

  6         governments with respect to regulation of

  7         talent agencies; providing definitions;

  8         requiring each talent agency and advance-fee

  9         talent service to obtain a surety bond for a

10         specified amount; requiring each talent agency

11         and advance-fee talent service to give each

12         artist a copy of the bond; providing criminal

13         penalties for failing to comply with the

14         bonding requirements; requiring each talent

15         agency and advance-fee talent service to

16         maintain a permanent office during certain

17         specified hours; directing that certain

18         records, with specified information in them, be

19         kept for each artist; requiring that records be

20         maintained for a specified period; directing

21         that all records of a talent agency and

22         advance-fee talent service be open to the

23         inspection of a state attorney; requiring that

24         the talent agency or advance-fee talent service

25         give the state attorney a copy of the records

26         when so requested; providing criminal penalties

27         if the talent agency or advance-fee talent

28         service fails or refuses to disclose

29         information to a state attorney; providing

30         criminal penalties for failing to properly

31         maintain an office or failing to comply with

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 1         the requirements pertaining to records;

 2         directing a talent agency or advance-fee talent

 3         service to post an itemized schedule of maximum

 4         fees, charges, or commissions that it intends

 5         to charge and collect for its services;

 6         providing for the location for posting of the

 7         schedule; providing criminal penalties for

 8         failing to include or post the fee schedule;

 9         requiring that an artist and a talent agency or

10         advance-fee talent service enter into a written

11         contract when such entity agrees to perform

12         services for the artist; providing an exception

13         under specified circumstances; providing for

14         the content of the written contract; requiring

15         that a talent agency or advance-fee talent

16         service provide each artist with a copy of the

17         contract; directing that all money collected by

18         a talent agency from an employer or buyer be

19         paid to the artist within a specified period;

20         providing that a contract is voidable under

21         certain circumstances; permitting an artist to

22         cancel a contract by giving written notice of

23         the cancellation to the talent agency or

24         advance-fee talent service within a specified

25         period; prohibiting an artist from waiving the

26         right to cancel a contract; providing the way

27         in which a talent agency or advance-fee talent

28         service must refund money to an artist;

29         providing criminal penalties for violating

30         provisions relating to contracting; requiring

31         any person who holds himself or herself out as

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 1         an employee or agent of a talent agency or

 2         advance-fee talent service to submit

 3         fingerprints for background screening

 4         requirements; directing that a talent agency or

 5         advance-fee talent service provide each artist

 6         with a copy of the screening results; providing

 7         criminal penalties for not complying with

 8         fingerprint screening procedures; specifying

 9         certain prohibited acts by a talent agency or

10         advance-fee talent service; providing criminal

11         penalties for failure to comply; providing for

12         certain specified civil remedies for violations

13         of the act; removing the authority of the

14         Department of Business and Professional

15         Regulation to regulate talent agencies;

16         providing for the use of certain funds after

17         the effective date of the act; requiring the

18         department to rebate talent agency license

19         fees; authorizing the department to continue to

20         prosecute any legal proceedings and related

21         administrative cases that are pending on the

22         effective date of the act; providing an

23         effective date.

24  

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

26  

27         Section 1.  Part VII of chapter 468, Florida Statutes,

28  consisting of sections 468.401, 468.402, 468.403, 468.404,

29  468.405, 468.406, 468.407, 468.408, 468.409, 468.410, 468.411,

30  468.412, 468.413, 468.414, and 468.415, is repealed.

31  

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 1         Section 2.  No preemption of local government authority

 2  to regulate.--Regulation of talent agencies is no longer

 3  preempted by the state as of July 1, 2005. As such, any county

 4  or municipality may adopt or enforce any ordinance that

 5  regulates the licensure or operation of talent agencies or

 6  advanced-fee talent services; however, such regulation must be

 7  consistent with the provisions of this act.

 8         Section 3.  Definitions.--As used in sections 2 through

 9  9 of this act, the term:

10         (1)  "Advance-fee talent service" means a service

11  practiced by a person or business entity, or the person's or

12  business entity's employees or authorized agents, which

13  charges, attempts to charge, or receives an advance fee from

14  an artist for the purpose of promoting, but not procuring, the

15  employment or engagement of the artist. Promoting the

16  employment or engagement of an artist includes, but is not

17  limited to, the following activities:

18         (a)  Promoting or advertising an artist to a casting

19  director, talent agency, talent manager, or any other person

20  represented to be in a position to offer assistance in

21  procuring engagements or employment for the artist.

22         (b)  Promoting or advertising an artist by using the

23  Internet, trade publications, or other media.

24         (c)  Registering or listing an artist for employment in

25  the entertainment industry or as a customer of the advance-fee

26  talent service.

27         (d)  Managing, directing, developing, or advancing the

28  artist's career.

29         (e)  Preparing the artist for employment through career

30  counseling or consulting, vocational guidance, aptitude

31  testing, or evaluation.

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 1         (2)  "Advance fee" means a fee that is due from or paid

 2  by an artist before the artist obtains employment as an artist

 3  or before the artist receives earnings as an artist. An

 4  advance fee also includes money paid by the artist which

 5  exceeds the earnings received by the artist.

 6         (a)  An advance fee does not include reimbursement for

 7  out-of-pocket costs actually incurred by an advance-fee talent

 8  service on behalf of the artist when paying for services

 9  rendered or goods provided to the artist by an independent

10  third party if all of the following conditions are met:

11         1.  The advance-fee talent service does not have a

12  direct or an indirect financial interest in the third party.

13         2.  The advance-fee talent service does not accept a

14  referral fee or other consideration from the third party.

15         3.  The services rendered or goods provided for the

16  out-of-pocket costs are not represented to be, and are not, a

17  condition for the advance-fee talent service to register or

18  list the artist with the advance-fee talent service.

19         4.  The advance-fee talent service maintains adequate

20  records documenting that any amount to be reimbursed to the

21  advance-fee talent service was actually advanced or owed to a

22  third party, that the third party is not a person in which the

23  advance-fee talent service has a direct or indirect financial

24  interest, and that the advance-fee talent service did not

25  receive any consideration for referring the artist.

26         (b)  The burden of producing evidence to support a

27  defense based upon an exemption or an exception provided in

28  paragraph (a) is on the advance-fee talent service claiming

29  the exemption or exception.

30         (3)  "Artist" means a person who seeks to become or is

31  an actor, actress, director, writer, cinematographer,

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 1  composer, lyricist, arranger, model, extra, or other person

 2  rendering professional services on the legitimate stage or in

 3  the production of motion pictures, radio productions,

 4  musicals, television productions, print advertisements, or

 5  other entertainment enterprises.

 6         (4)  "Buyer" or "employer" means a person, company,

 7  partnership, corporation, or other business entity that uses

 8  the services of a talent agency or advance-fee talent service.

 9         (5)  "Compensation" means any one or more of the

10  following:

11         (a)  Money or other valuable consideration paid or

12  promised to be paid for services rendered by an individual

13  conducting the business of a talent agency or an advance-fee

14  talent service;

15         (b)  Money received by a person in excess of that which

16  has been paid by the person for transportation, transfer of

17  baggage, or board and lodging for an applicant for employment;

18  or

19         (c)  The difference between the amount of money

20  received by a person who furnishes employees, performers, or

21  entertainers for circus, vaudeville, theatrical, or other

22  entertainments, exhibitions, engagements, or performances and

23  the amount paid by the person to an employee, performer, or

24  entertainer.

25         (6)  "Divided fee" means the process by which, without

26  written contractual approval of the artist, any two or more

27  persons receive compensation for performing services for an

28  artist and the total compensation paid to these persons

29  exceeds the compensation that would have been paid to only one

30  person acting on behalf of the artist.

31  

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 1         (7)  "Engagement" means any employment or placement of

 2  an artist during which the artist performs in his or her

 3  artistic capacity. The term does not apply to procuring opera,

 4  music, theater, or dance engagements for any nonprofit

 5  organization defined in s. 501(c)(3) of the Internal Revenue

 6  Code or any nonprofit arts organization in this state which

 7  has received a grant from the Division of Cultural Affairs of

 8  the Department of State or has participated in the state

 9  touring program of the Division of Cultural Affairs.

10         (8)  "Operator" means the person who is or who will be

11  in actual charge of a talent agency or an advance-fee talent

12  service.

13         (9)  "Owner" means a partner in a partnership, member

14  of a firm, or one or more principal officers of a corporation

15  whose partnership, firm, or corporation owns a talent agency

16  or an advance-fee talent service, or an individual who is the

17  sole owner of a talent agency or an advance-fee talent

18  service.

19         (10)  "Talent agency" or "agency" means a business

20  entity or person who, for compensation, engages in the

21  occupation or business of procuring or attempting to procure

22  engagements for an artist and includes the agency's employees

23  and authorized agents.

24         Section 4.  Bond required.--

25         (1)  Each talent agency or advance-fee talent service

26  shall obtain a bond in the form of a surety by a reputable

27  company engaged in the bonding business which is authorized to

28  do business in this state. The bond must be for the penal sum

29  of not less than $10,000 and be conditioned on the talent

30  agency or advance-fee talent service conforming to and not

31  

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 1  violating any duty, term, condition, provision, or requirement

 2  of this act.

 3         (2)  A talent agency or advance-fee talent service must

 4  provide the artist with a copy of the bond.

 5         (3)  If a person fails to obtain or maintain a bond

 6  according to this section, the person commits:

 7         (a)  A misdemeanor of the second degree for a first

 8  violation, punishable as provided in section 775.082 or

 9  section 775.083, Florida Statutes.

10         (b)  A misdemeanor of the first degree for a second or

11  subsequent violation, punishable as provided in section

12  775.082 or section 775.083, Florida Statutes.

13         Section 5.  Office and records.--

14         (1)  A talent agency or advance-fee talent service must

15  maintain a permanent office and must maintain regular

16  operating hours at that office. The office shall not be

17  located on or within any property where intoxicating liquor is

18  sold, where gambling is permitted, or where acts of

19  prostitution are committed.

20         (2)  A talent agency or advance-fee talent service must

21  keep on file the application, registration, and fully executed

22  contract of each artist that the talent agency or advance-fee

23  talent service represents. The artist file of a talent agency

24  must also include the total amount of compensation received by

25  the artist, the amount of compensation received by the artist

26  for each performance, and documentation of all attempts made

27  by the talent agency to procure engagements for the artist.

28  The artist file of an advance-fee talent service must also

29  include documentation of all attempts to promote or advertise

30  the artist.

31  

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 1         (3)  A talent agency or advance-fee talent service

 2  shall not knowingly make a false entry in an applicant's file

 3  or receipt file.

 4         (4)  Each document in the file must be preserved for a

 5  period of not less than 5 years after the date of the last

 6  entry entered into the file.

 7         (5)(a)  All books, records, and other papers kept under

 8  this act by a talent agency or advance-fee talent service must

 9  be open to the inspection of a state attorney, or the state

10  attorney's authorized agent, at any reasonable hour. The

11  talent agency or advance-fee talent service must give the

12  state attorney a true copy of the books, records, and papers,

13  or any portion thereof, when so requested.

14         (b)  A person may not refuse to disclose any

15  information within his or her knowledge as required by this

16  subsection, or fail or refuse to produce any document, book,

17  or record for inspection which is in his or her possession, to

18  a state attorney or the state attorney's authorized agent.

19         (c)  If a person fails or refuses to disclose

20  information to a state attorney as required by this

21  subsection, the person commits a misdemeanor of the second

22  degree, punishable as provided in section 775.082 or section

23  775.083, Florida Statutes.

24         (6)  A talent agency must maintain records that contain

25  all of the following information or documents:

26         (a)  The name and current address of each artist

27  employing the talent agency.

28         (b)  The amount of commissions the talent agency has

29  received from each artist.

30         (c)  A record sheet for each engagement obtained by the

31  talent agency. The record sheet is the only record required to

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 1  show engagements. The record sheet must be kept in the

 2  artist's file for a period of not less than 5 years after the

 3  date of the last record sheet that was posted in the artist's

 4  file.

 5         (d)  The engagement the artist was performing in at the

 6  time the artist was retained by the talent agency. The

 7  documents must include the amount of compensation received by

 8  the artist from this engagement.

 9         (e)  The engagements the talent agency procured for the

10  artist after the artist and talent agency entered into a

11  contract. The documents must include the amount of

12  compensation received by the artist from the engagements

13  obtained for the artist during the life of the contract.

14         (7)  An advance-fee talent service must maintain

15  records that contain all of the following information or

16  documents:

17         (a)  The name and current address of each artist

18  employing the advance-fee talent service.

19         (b)  The amount of the advance fees paid by or for the

20  artist during the term of the contract with the advance-fee

21  talent service.

22         (c)  A record of all efforts made in promoting the

23  artist. A record of each effort to promote the artist must be

24  maintained in the artist's file for a period of not less than

25  5 years after the effort to promote the artist was made.

26         (8)(a)  If a person fails to maintain a permanent

27  office and keep regular hours at that office, fails to

28  maintain records and files as required by this section, or

29  knowingly makes false entries in an artist's files, the person

30  commits:

31  

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 1         1.  A misdemeanor of the second degree for a first

 2  violation, punishable as provided in section 775.082 or

 3  section 775.083, Florida Statutes.

 4         2.  A misdemeanor of the first degree for a second or

 5  subsequent violation, punishable as provided in section

 6  775.082 or section 775.083, Florida Statutes.

 7         (b)  If a person establishes or keeps an office where

 8  intoxicating liquor is sold, where gambling is permitted, or

 9  where acts of prostitution are committed, the person commits a

10  felony of the third degree, punishable as provided in section

11  775.082, section 775.083, or section 775.084, Florida

12  Statutes.

13         Section 6.  Contracts and fees.--

14         (1)(a)  A talent agency or advance-fee talent service

15  shall post an itemized schedule of maximum fees, charges, or

16  commissions that it intends to charge and collect for its

17  services. The schedule must be posted in a conspicuous place

18  in each place of business. The schedule must be printed in not

19  less than 30-point boldfaced type.

20         (b)  A talent agency that uses a written contract

21  containing a schedule of its maximum fees, charges, and

22  commissions is not required to post the schedule.

23         (c)  If a person fails to include a schedule containing

24  the maximum fees, charges, and commissions of the person in a

25  written contract or fails to post in a conspicuous place a

26  schedule of the maximum fees, charges, and commissions, if

27  required to do so, the person commits:

28         1.  A misdemeanor of the second degree for a first

29  violation, punishable as provided in section 775.082 or

30  section 775.083, Florida Statutes.

31  

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 1         2.  A misdemeanor of the first degree for a second or

 2  subsequent violation, punishable as provided in section

 3  775.082 or section 775.083, Florida Statutes.

 4         (2)  An artist and a talent agency or advance-fee

 5  talent service must enter into a written contract when the

 6  parties agree that a talent agency or advance-fee talent

 7  service shall perform services for the artist. If the

 8  circumstances of the arrangement between the artist and the

 9  talent agency or advance-fee talent service prevent the

10  execution of a contract before the artist performs, the artist

11  and the talent agency or advance-fee talent service must

12  execute the contract no later than 7 days after the first

13  performance.

14         (3)  The contract must incorporate the full agreement

15  between the artist and the talent agency or advance-fee talent

16  service, be contained in a single document, and include the

17  elements set forth in this section.

18         (4)  Each contract between an artist and an advance-fee

19  talent service must contain all of the following provisions:

20         (a)  A description of the specific services to be

21  performed by the advance-fee talent service, the duration of

22  the contract, and the refund provisions if the services are

23  not provided according to the contract.

24         (b)  A statement of the fees that the advance-fee

25  talent service will charge to or collect from the artist

26  receiving the services and the date or dates when the artist

27  must pay the fees.

28         (c)  The following statement, in type no smaller than

29  10-point boldfaced type and in close proximity to the artist's

30  signature, must be included in each advance-fee talent service

31  contract:

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 1  

 2                         RIGHT TO REFUND

 3  

 4         If you pay in advance all or any portion of a

 5         fee charged to you by (name of advance-fee

 6         talent service) and you fail to receive the

 7         services promised to you or that you were led

 8         to believe would be performed, (name of

 9         advance-fee talent service) shall, upon your

10         request, return the full amount paid by you

11         within 48 hours after your request for a

12         refund. If the refund is not made within 48

13         hours, (name of advance-fee talent service)

14         shall also pay to you, in addition to the

15         refund due to you, a sum equal to the amount of

16         the refund.

17  

18                   YOUR RIGHT TO CANCEL

19               (enter date of transaction)

20  

21         You may cancel this contract for advance-fee

22         talent services without any penalty or

23         obligation if you give notice of the

24         cancellation, in writing, no later than 14 days

25         after the date of the transaction stated above.

26         If you wish to cancel the contract, you must

27         mail or deliver a signed and dated copy of the

28         following cancellation notice, another written

29         document notifying the advance-fee talent

30         service that you intend to cancel the contract,

31         or send a telegram, fax, or e-mail notifying

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 1         the advance-fee talent service that you intend

 2         to cancel the contract, to (name of advance-fee

 3         talent service) at (address of its place of

 4         business) NOT LATER THAN MIDNIGHT AFTER (enter

 5         the date).

 6  

 7         ONLY A TALENT AGENCY MAY ENGAGE IN THE

 8         OCCUPATION OF PROCURING, OFFERING, PROMISING,

 9         OR ATTEMPTING TO PROCURE EMPLOYMENT OR

10         ENGAGEMENTS FOR AN ARTIST.

11  

12                   CANCELLATION NOTICE

13  

14  I hereby cancel this contract.

15  

16  Dated:

17  

18  ________________________________________

19  Artist Signature.

20  

21         (5)  A talent agency or advance-fee talent service must

22  give each artist a copy of the signed or authenticated

23  contract listing the services to be provided and the fees,

24  charges, or commissions to be charged at the time the contract

25  is signed.

26         (6)  A talent agency or advance-fee talent service must

27  give each artist a copy of this act at the time the contract

28  is signed.

29         (7)(a)  All money collected by a talent agency from an

30  employer or buyer for the benefit of an artist must be paid to

31  the artist within 7 business days after receiving the money

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 1  from the employer. The talent agency may reduce the amount

 2  paid to the artist by the talent agency's commission.

 3         (b)  A talent agency is not required to pay money to an

 4  artist until the talent agency receives payment from the

 5  employer or buyer.

 6         (8)  A contract entered into by a talent agency or

 7  advance-fee talent service which does not conform to this act

 8  is voidable by the artist. If an artist voids a contract with

 9  a talent agency or advance-fee talent service, the artist is

10  not required to pay or return any consideration received from

11  the talent agency or advance-fee talent service to induce the

12  artist to enter into the contract.

13         (9)  An artist may cancel a contract with a talent

14  agency or advance-fee talent service by giving written notice

15  of the cancellation to the talent agency or advance-fee talent

16  service no later than 14 days after the date of transaction.

17  If an artist cancels a contract, the artist is not required to

18  pay or return any consideration received from the talent

19  agency or advance-fee talent service to induce the artist to

20  enter into the contract.

21         (10)  An artist shall not waive the right to cancel a

22  contract with a talent agency or advance-fee talent service as

23  provided in this act. Any attempt by a talent agency or

24  advance-fee talent service to induce an artist to waive the

25  artist's right to cancel the contract is a violation of this

26  act.

27         (11)(a)  If an artist gives consideration to a talent

28  agency to be used for expenses to obtain a specific engagement

29  or employment and the talent agency fails to procure the

30  specific engagement or employment for the artist, the talent

31  

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 1  agency shall, upon the artist's demand, repay all

 2  consideration paid by the artist.

 3         (b)  The talent agency must refund the consideration to

 4  the artist no later than 48 hours after receiving the demand

 5  from the artist. If the talent agency does not refund the

 6  artist within the prescribed time period, the talent agency

 7  must pay the artist a penalty that is equal to the amount of

 8  all consideration paid to the talent agency.

 9         (12)  An advance-fee talent service must refund fees as

10  follows:

11         (a)  If the artist does not receive the services

12  promised or the services the artist was led to believe would

13  be performed, the advance-fee talent service must, upon the

14  artist's demand, refund the artist any fees collected by the

15  advance-fee talent service for those services. The advance-fee

16  talent service must make the refund to the artist no later

17  than 48 hours after the artist demands the refund. If the

18  advance-fee talent service does not refund the artist within

19  the prescribed time period, the advance-fee talent service

20  must pay the artist a penalty that is equal to the amount of

21  all fees paid to the advance-fee talent service.

22         (b)  If an artist cancels the contract, the advance-fee

23  talent service must refund in full all fees paid by the

24  artist. The advance-fee talent service must refund the fees no

25  later than 14 days after the artist cancels the contract. If

26  the advance-fee talent service does not refund the artist

27  within the prescribed time period, the advance-fee talent

28  service must pay the artist a penalty that is equal to the

29  amount of all fees paid to the advance-fee talent service.

30         (13)  A talent agency or advance-fee talent service

31  that violates subsections (2)-(6) commits:

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 1         (a)  A misdemeanor of the second degree for a first

 2  violation, punishable as provided in section 775.082 or

 3  section 775.083, Florida Statutes.

 4         (b)  A misdemeanor of the first degree for a second or

 5  subsequent violation, punishable as provided in section

 6  775.082 or section 775.083, Florida Statutes.

 7         Section 7.  Fingerprinting requirements.--

 8         (1)  Before owning, operating, soliciting business for,

 9  or otherwise engaging in or carrying on the business of a

10  talent agency or advance-fee talent service in this state,

11  each agent, owner, operator, or other person who is acting as

12  or has a financial interest in a talent agency or advance-fee

13  talent service must submit a full set of fingerprints as

14  required by subsection (2) and must obtain and maintain a

15  letter, as provided in paragraph (5)(a), from the Department

16  of Business and Professional Regulation documenting that the

17  results of the criminal history check do not disqualify the

18  agent, owner, operator, or other person who is acting as or

19  has a financial interest in a talent agency or advance-fee

20  talent service.

21         (2)  Each owner of a talent agency or advance-fee

22  talent service shall submit to the Department of Business and

23  Professional Regulation a full set of fingerprints, along with

24  all applicable fees for processing and maintenance, of each

25  agent, owner, operator, or other person having a financial

26  interest in the talent agency or advance-fee talent service.

27         (3)  The fingerprint card or electronic fingerprints

28  must be forwarded to the Department of Law Enforcement for

29  purposes of processing the fingerprints to determine if the

30  individual has a state criminal history record. The

31  fingerprints must also be forwarded to the Federal Bureau of

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 1  Investigation for purposes of processing the fingerprints to

 2  determine if the individual has a national criminal history

 3  record. The information obtained by the processing of the

 4  fingerprints by the Department of Law Enforcement and the

 5  Federal Bureau of Investigation shall be sent to the

 6  Department of Business and Professional Regulation for the

 7  purpose of determining if any agent, owner, operator, or other

 8  person having a financial interest in the talent agency or

 9  advance-fee talent service has been found guilty of,

10  regardless of adjudication, or entered a plea of nolo

11  contendere or guilty to sexual battery, lewd acts, or other

12  sexual misconduct proscribed in chapter 800, Florida Statutes,

13  or in section 794.011, section 827.071, section 847.012,

14  section 847.0125, section 847.013, section 847.0133, or

15  section 847.0145, Florida Statutes.

16         (4)  The cost for the fingerprint processing shall be

17  borne by the person subject to the criminal history record

18  check. The fingerprint processing and maintenance fee shall be

19  collected by the Department of Business and Professional

20  Regulation through a process established by rule in an amount

21  not to exceed $100. The Department of Law Enforcement shall

22  render a bill to the Department of Business and Professional

23  Regulation for the fingerprints submitted by the Department of

24  Business and Professional Regulation each month.

25         (5)  Upon receipt and review of each criminal history

26  record, the Department of Business and Professional Regulation

27  shall, within 30 days, issue a letter to the talent agency or

28  advance-fee talent service notifying the talent agency or

29  advance-fee talent service:

30         (a)  That the results of the criminal history check do

31  not disqualify the agent, owner, operator, or other person who

                                  18

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 1  is acting as or has a financial interest in a talent agency or

 2  advance-fee talent service; or

 3         (b)  That the results of the criminal history check

 4  disqualify the agent, owner, operator, or other person who is

 5  acting as or has a financial interest in a talent agency or

 6  advance-fee talent service.

 7         (6)  Each talent agency and advance-fee talent service

 8  must give the artist a copy of the letter issued by the

 9  Department of Business and Professional Regulation documenting

10  that the results of the criminal history check do not

11  disqualify the agent, owner, operator, or other person who is

12  acting as or has a financial interest in a talent agency or

13  advance-fee talent service, as provided under paragraph

14  (5)(a), before executing a contract with an artist. The letter

15  must have been issued within the previous 36 months.

16         (7)  A person, talent agency, or advance-fee talent

17  service that fails to provide a copy of the letter from the

18  Department of Business and Professional Regulation indicating

19  the results of the criminal history record as required in

20  subsection (6) commits:

21         (a)  A misdemeanor of the second degree for a first

22  offense, punishable as provided in section 775.082 or section

23  775.083, Florida Statutes.

24         (b)  A misdemeanor of the first degree for a second or

25  subsequent violation, punishable as provided in section

26  775.082 or section 775.083, Florida Statutes.

27         (8)  If any talent agency or advance-fee talent service

28  agent, owner, or operator, or any other person who is acting

29  as or has a financial interest in a talent agency or

30  advance-fee talent service, fails to submit fingerprints for

31  the background check as required by this subsection, the

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 1  person commits a felony of the second degree, punishable as

 2  provided in section 775.082, section 775.083, or section

 3  775.084, Florida Statutes.

 4         Section 8.  Prohibitions and penalties.--

 5         (1)(a)  A person, business entity, talent agency, or

 6  advance-fee talent service shall not accept an advance fee for

 7  procuring, offering, promising, or attempting to procure

 8  employment or engagements for an artist.

 9         (b)  A person, business entity, talent agency, or

10  advance-fee talent service that violates this subsection

11  commits a felony of the third degree, punishable as provided

12  in section 775.082, section 775.083, or section 775.084,

13  Florida Statutes.

14         (2)(a)  An advance-fee talent service shall not make

15  any false statement, representation, promise, or implication

16  by its choice of name that it is a talent agency. An

17  advance-fee talent service shall not state, promise, or

18  represent that it will procure, or attempt to procure,

19  employment or engagements for the artist.

20         (b)  A person or advance-fee talent service that

21  violates this subsection commits a felony of the third degree,

22  punishable as provided in section 775.082, section 775.083, or

23  section 775.084, Florida Statutes.

24         (3)(a)  A person, talent agency, or advance-fee talent

25  service, or an owner, operator, employee, or agent of a talent

26  agency or advance-fee talent service, shall not:

27         1.  Give an artist false information, make a false

28  promise or misrepresentation concerning any engagement or

29  employment, or make a false or misleading verbal or written

30  promise or guarantee of any engagement as an artist.

31  

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 1         2.  Print, publish, distribute, or cause, authorize, or

 2  knowingly permit the making, printing, publication, or

 3  distribution of any false statement, description, or promise

 4  that would reasonably induce a person to act to his or her

 5  damage or injury.

 6         3.  Knowingly commit, or be a party to, any material

 7  fraud, misrepresentation, concealment, conspiracy, collusion,

 8  trick, scheme, or device whereby any other person lawfully

 9  relying upon the work, representation, or conduct of the

10  talent agency or advance-fee talent service acts or has acted

11  to his or her injury or damage.

12         4.  Commit fraud or deceit in the operation of a talent

13  agency or advance-fee talent service.

14         5.  Conspire with another talent agency or advance-fee

15  talent service or with another person to commit an act that

16  coerces, intimidates, or precludes another talent agency or

17  advance-fee talent service from advertising its services.

18         6.  Solicit business, either personally or through any

19  other person, using fraud, deception, or misleading statements

20  or through the exercise of intimidation or undue influence.

21         7.  Exercise undue influence on the artist in order to

22  exploit the artist for the financial gain of the talent

23  agency, advance-fee talent service, or a third party.

24         8.  Commit sexual misconduct with an artist. An owner,

25  operator, employee, or agent of the talent agency or

26  advance-fee talent service shall not use the artist-agent

27  relationship to induce or attempt to induce the artist to

28  engage or attempt to engage in sexual activity.

29         9.  Employ an employee, agent, owner, operator, or

30  other person with a financial interest who has been convicted

31  of sexual battery, lewd acts, or other sexual misconduct

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 1  proscribed in chapter 800, Florida Statutes, or in section

 2  794.011, section 827.071, section 847.012, section 847.0125,

 3  section 847.013, section 847.0133, or section 847.0145,

 4  Florida Statutes.

 5         10.  Send, or cause to send, an artist to a house of

 6  ill fame, a house or place of amusement for immoral purposes,

 7  a place where prostitution is performed, or a place for the

 8  modeling or photographing of a minor in the nude, the

 9  character of which could have been ascertained upon reasonable

10  inquiry by the talent agency or advance-fee talent service.

11  For the purposes of this paragraph, the term "modeling or

12  photographing of a minor in the nude" means the visual display

13  of the buttocks, genitals, or female breast, areolae, or

14  nipples of a person younger than 18 years of age.

15         (b)  A person, talent agency, or advance-fee talent

16  service that violates this subsection commits a felony of the

17  third degree, punishable as provided in section 775.082,

18  section 775.083, or section 775.084, Florida Statutes.

19         (4)(a)  A person, talent agency, or advance-fee talent

20  service shall not:

21         1.  Make, or cause to be made, any false, misleading,

22  or deceptive advertisement or representation concerning the

23  services the artist will receive or the costs the artist will

24  incur.

25         2.  Publish or cause to be published any false,

26  fraudulent, or misleading information, representation, notice,

27  or advertisement.

28         3.  Charge, collect, or receive compensation for any

29  service performed by the talent agency or advance-fee talent

30  service greater than the charge, fee, or compensation

31  

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 1  specified in its schedule of maximum fees, charges, and

 2  commissions.

 3         4.  Advertise goods or services in a manner that is

 4  fraudulent, false, deceptive, or misleading in form or

 5  content.

 6         5.  Permit, aid, assist, procure, or advise a person to

 7  operate a talent agency or advance-fee talent service contrary

 8  to this act.

 9         6.  Fail to perform any statutory or legal obligation

10  required by law for a talent agency or advance-fee talent

11  service.

12         7.  Require the applicant or artist to subscribe to or

13  purchase any publication, postcard service, advertisement,

14  resume service, photography service, website service, or video

15  or audiotapes, or attend any school, acting school, workshop,

16  or acting class as a condition to performing services for an

17  applicant or artist.

18         8.  Charge or attempt to charge, directly or

19  indirectly, an artist for creating or providing photographs,

20  filmstrips, videotapes, audition tapes, demonstration reels,

21  talent brochures, or other reproductions of the artist, or for

22  providing costumes, lessons, coaching, or similar training for

23  the artist.

24         9.  Refer an artist to a person who charges the artist

25  a fee for the services described in this act in which the

26  talent agency or advance-fee talent service has a direct or

27  indirect financial interest.

28         10.  Accept any compensation for referring an artist to

29  a person charging the artist a fee for the services described

30  in this act.

31  

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 1         11.  Knowingly issue a contract containing any term or

 2  condition that, if complied with, would be in violation of

 3  law.

 4         12.  Knowingly send or influence an artist to go to a

 5  prospective employer or place of business the character or

 6  operation of which the talent agency or advance-fee talent

 7  service knows to be in violation of the laws of the United

 8  States or this state.

 9         13.  Divide fees with anyone, including, but not

10  limited to, an agent or other employee of an employer, buyer,

11  casting director, producer, or director.

12         14.  Charge a registration fee, except as permitted for

13  advance-fee talent services.

14         15.  Fail to notify an artist that there is a strike,

15  lockout, or other labor dispute in active progress before

16  sending the artist to an engagement.

17         (b)  A person, talent agency, or advance-fee talent

18  service that violates this subsection commits:

19         1.  A misdemeanor of the second degree for a first

20  violation, punishable as provided in section 775.082 or

21  section 775.083, Florida Statutes.

22         2.  A misdemeanor of the first degree for a second or

23  subsequent violation, punishable as provided in section

24  775.082 or section 775.083, Florida Statutes.

25         Section 9.  Remedies.--

26         (1)(a)  If a state attorney believes there is probable

27  cause that a talent agency, advanced-fee talent service, or

28  other person has violated subsection (1), subsection (2), or

29  subsection (3) of section 8, the state attorney may file a

30  civil action in the circuit court to enjoin the talent agency,

31  advanced-fee talent service, or other person from continuing

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 1  the violation or doing any act in furtherance thereof, and for

 2  such other relief as the court deems appropriate.

 3         (b)  A state attorney may file a civil action in

 4  circuit court upon the sworn affidavit of a person alleging a

 5  violation of this act. The court may grant a temporary or

 6  permanent injunction restraining any talent agency,

 7  advanced-fee talent service, or other person from violating

 8  this act and the injunction shall issue without bond.

 9         (2)(a)  If an artist or other person is injured by the

10  misconduct of a talent agency or advance-fee talent service,

11  the artist may file a civil action in his or her own name upon

12  the bond of the talent agency or advance-fee talent service in

13  any court having jurisdiction of the amount claimed.

14         (b)  The artist or other person filing the complaint

15  may bring the action for temporary or permanent injunctive

16  relief and may seek other relief, including, but not limited

17  to, restitution for damages, court costs, a civil penalty not

18  to exceed $5,000 for each violation, treble damages for

19  injured parties, and reasonable attorney's fees.

20         (c)  Any claim made by an artist or other person is

21  assignable, and the assignee is entitled to the same remedies

22  upon the bond of the talent agency or advance-fee talent

23  service or otherwise as the artist or other person aggrieved

24  would be entitled to if the claim had not been assigned. A

25  claim so assigned may be enforced in the name of the assignee.

26         (3)  The remedies provided in this section are

27  cumulative and not exclusive of any other remedy provided by

28  law.

29         Section 10.  The regulation of talent agencies by the

30  Department of Business and Professional Regulation is

31  abolished. Any funds and balances associated with the

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 1  regulation of talent agencies remaining in the Professional

 2  Regulation Trust Fund after July 1, 2005, shall be used to pay

 3  any remaining expenses associated with this regulation. The

 4  department shall rebate talent agency license fees, on a pro

 5  rata basis, for the period beginning July 1, 2005, through the

 6  period for which license fees have been paid. If the account

 7  is in a deficit balance, the funds may be provided from the

 8  General Revenue Fund. Another profession regulated by the

 9  Department of Business and Professional Regulation shall not

10  be assessed the cost of any refund. Any funds or balances

11  remaining in the trust fund after January 1, 2006, shall be

12  transferred to the General Revenue Fund.

13         Section 11.  The Department of Business and

14  Professional Regulation may continue to prosecute any legal

15  proceedings and related administrative cases that are pending

16  on July 1, 2005.

17         Section 12.  This act shall take effect July 1, 2005.

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                           CS/CS/SB 750

 3                                 

 4  -    Clarifies that the definitions apply to terms used in
         sections 2 through 9 of the bill, not sections 2 through
 5       7.

 6  -    Specifies that a person who fails to post a schedule
         containing the appropriate fees, charges, and commissions
 7       in a written contract is guilty of a second degree
         misdemeanor for a first offense and a first degree
 8       misdemeanor for a second or subsequent offense.

 9  -    Clarifies that the penalties for failing to provide a
         copy of the letter from the Department of Business and
10       Professional Regulation indicating the results from the
         criminal history and background check are second degree
11       misdemeanors for a first offense and a first degree
         misdemeanor for second or subsequent offenses.
12  
    -    Removes duplicative language in section 8 of the bill
13       that appears in earlier sections of the bill.

14  -    Removes the fiscal impact of $59,331 from the bill that
         was to fund rebates to licensees.
15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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