HB 0833

CS

CHAMBER ACTION

1	The Agriculture Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5
6	A bill to be entitled
7	An act relating to consumer protection; amending s.
8	493.6303, F.S.; revising training requirements for
9	obtaining a Class "D" license; requiring a minimum number
10	of hours of training in terrorism awareness or other
11	training prescribed by the Department of Agriculture and
12	Consumer Services; providing a timeframe for submitting
13	proof of having completed the training; revising the
14	number of training hours required; amending s. 501.059,
15	F.S.; prohibiting the transmission of facsimile documents
16	under certain circumstances; providing for attorney's fees
17	and for the recovery of certain litigation expenses by the
18	department and the Department of Legal Affairs; repealing
19	ss. 546.001, 546.002, 546.003, 546.004, 546.006, and
20	546.008, F.S., relating to the "Amusement Ride and
21	Attraction Insurance Act"; amending s. 559.801, F.S.;
22	redefining the term "business opportunity" for purposes of
23	the "Sale of Business Opportunities Act"; amending s.
24	559.920, F.S.; revising actions by motor vehicle repair
25	shops or employees which are unlawful; amending s.
26	559.927, F.S.; providing a definition of "travel club";
27	amending s. 559.928, F.S.; revising information to be
28	submitted for registration as a seller of travel and
29	information submitted by independent agents; requiring the
30	payment of an annual fee by independent agents; amending
31	s. 616.242, F.S.; deleting provisions authorizing the
32	owner of an amusement ride to maintain liability
33	protection in the form of a surety bond; exempting certain
34	governmental entities from a requirement to maintain
35	liability protection covering amusement rides; amending s.
36	849.094, F.S.; redefining the term "operator" for purposes
37	of the regulation of game promotions in connection with
38	the sale of consumer products or services; providing that
39	the operator of certain game promotions need only include
40	the material terms of the rules and regulations of the
41	game in advertising copy used in connection therewith
42	under specified conditions; reenacting s. 501.603(1)(a),
43	F.S., which defines "commercial telephone solicitation";
44	reenacting s. 559.809(12), F.S., which specifies
45	prohibited acts under the "Sale of Business Opportunities
46	Act"; providing an effective date.
47
48	Be It Enacted by the Legislature of the State of Florida:
49
50	Section 1.  Section 493.6303, Florida Statutes, is amended
51	to read:
52	493.6303  License requirements.--In addition to the license
53	requirements set forth elsewhere in this chapter, each
54	individual or agency shall comply with the following additional
55	requirements:
56	(1)  Each agency or branch office shall designate a minimum
57	of one appropriately licensed individual to act as manager,
58	directing the activities of the Class "D" employees.
59	(2)  An applicant for a Class "MB" license shall have 2
60	years of lawfully gained, verifiable, full-time experience, or
61	training in:
62	(a)  Security work or related fields of work that provided
63	equivalent experience or training;
64	(b)  Experience described in paragraph (a) for 1 year and
65	experience described in paragraph (c) for 1 year;
66	(c)  No more than 1 year using:
67	1.  Either college coursework related to criminal justice,
68	criminology, or law enforcement administration; or
69	2.  Successfully completed law enforcement-related training
70	received from any federal, state, county, or municipal agency;
71	or
72	(d)  Experience described in paragraph (a) for 1 year and
73	work in a managerial or supervisory capacity for 1 year.
74	(3)  An applicant for a Class "M" license shall qualify for
75	licensure as a Class "MA" manager as outlined under s.
76	493.6203(2) and as a Class "MB" manager as outlined under
77	subsection (2).
78	(4)(a)  Effective January 1, 2006 October 1, 1994, an
79	applicant for a Class "D" license must complete have completed a
80	minimum of 44 40 hours of professional training administered by
81	at a school or training facility licensed by the department. The
82	department shall by rule establish the general content and
83	number of hours of all the training. Such training must include
84	at least 8 hours of instruction in terrorism awareness or other
85	special training prescribed by the department.
86	(b)  An applicant may fulfill the training requirement
87	prescribed in paragraph (a) by submitting proof of:
88	1.  Successful completion of the total number of required
89	40 hours of training before initial application for a Class "D"
90	license; or
91	2.  Successful completion of 24 hours of training before
92	initial application for, and the remaining 16 hours of training
93	within 180 days after the date upon the first application is
94	submitted for renewal of, a Class "D" license. If documentation
95	of completion of the required training is not submitted within
96	the specified timeframe, the individual's license is
97	automatically suspended until such time as proof of the required
98	training is provided to the department. However, Individuals
99	licensed before October 1, 1994, or individuals who have
100	successfully completed 40 hours of professional training before
101	January 1, 2006, at a school or training facility licensed by
102	the department are exempt from the training requirements of
103	paragraph (a) need not complete additional training hours in
104	order to renew their licenses.
105
106	However, any person whose license has been revoked or whose
107	license has been expired for 1 year or longer is considered,
108	upon reapplication for a license, an initial applicant and must
109	submit proof of successful completion of the total number of
110	required 40 hours of professional training at a school or
111	training facility licensed by the department.
112	(5)  An applicant for a Class "G" license shall satisfy the
113	firearms training outlined in s. 493.6115.
114	Section 2.  Subsections (7), (8), and (9) of section
115	501.059, Florida Statutes, are amended to read:
116	501.059  Telephone solicitation.--
117	(7)(a)  A No person may not shall make or knowingly allow a
118	telephonic sales call to be made if the such call involves an
119	automated system for the selection or dialing of telephone
120	numbers or the playing of a recorded message when a connection
121	is completed to a number called.
122	(b)  Nothing herein prohibits the use of an automated
123	telephone dialing system with live messages if the calls are
124	made or messages given solely in response to calls initiated by
125	the persons to whom the automatic calls or live messages are
126	directed or if the telephone numbers selected for automatic
127	dialing have been screened to exclude any telephone subscriber
128	who is included on the department's then-current "no sales
129	solicitation calls" listing or any unlisted telephone number, or
130	if the calls made concern goods or services that have been
131	previously ordered or purchased.
132	(c)  A person may not transmit or knowingly allow the
133	transmission of a facsimile of documents through connection with
134	a telephone network if the facsimile transmission involves
135	unsolicited advertising material for the sale of any real
136	property, goods, or services.
137	(8)  The department shall investigate any complaints
138	received concerning violations of this section.  If, after
139	investigating any complaint, the department finds that there has
140	been a violation of this section, the department or the
141	Department of Legal Affairs may bring an action to impose a
142	civil penalty and to seek other relief, including injunctive
143	relief, as the court deems appropriate against the telephone
144	solicitor.  The civil penalty shall not exceed $10,000 per
145	violation and shall be deposited in the General Inspection Trust
146	Fund if the action or proceeding was brought by the department,
147	or the Legal Affairs Revolving Trust Fund if the action or
148	proceeding was brought by the Department of Legal Affairs. This
149	civil penalty may be recovered in any action brought under this
150	part by the department, or the department may terminate any
151	investigation or action upon agreement by the person to pay an
152	agreed-upon a stipulated civil penalty.  The department or the
153	court may waive any civil penalty if the person has previously
154	made full restitution or reimbursement or has paid actual
155	damages to the consumers who have been injured by the violation.
156	(9)(a)  In any civil litigation resulting from a
157	transaction involving a violation of this section, the
158	prevailing party, after judgment in the trial court and
159	exhaustion of all appeals, if any, shall receive his or her
160	reasonable attorney's fees and costs from the nonprevailing
161	party.
162	(b)  The attorney for the prevailing party shall submit a
163	sworn affidavit of his or her time spent on the case and his or
164	her costs incurred for all the motions, hearings, and appeals to
165	the trial judge who presided over the civil case.
166	(c)  The trial judge shall award the prevailing party the
167	sum of reasonable costs incurred in the action plus a reasonable
168	legal fee for the hours actually spent on the case as sworn to
169	in an affidavit.
170	(d)  Any award of attorney's fees or costs shall become a
171	part of the judgment and subject to execution as the law allows.
172	(e)  In any civil litigation initiated by the department or
173	the Department of Legal Affairs, the court shall may award to
174	the prevailing party reasonable attorney's fees and costs if the
175	court finds that there was a complete absence of a justiciable
176	issue of either law or fact raised by the losing party or if the
177	court finds bad faith on the part of the losing party. Travel
178	and per diem expenses incurred by the department or the
179	Department of Legal Affairs for its attorneys and witnesses
180	shall be recoverable costs by the department or the Department
181	of Legal Affairs if either party prevails in civil litigation.
182	Section 3.  Sections 546.001, 546.002, 546.003, 546.004,
183	546.006, and 546.008, Florida Statutes, are repealed.
184	Section 4.  Paragraph (a) of subsection (1) of section
185	559.801, Florida Statutes, is amended to read:
186	559.801  Definitions.--For the purpose of ss. 559.80-
187	559.80-559.815, the term:
188	(1)(a)  "Business opportunity" means the sale or lease of
189	any products, equipment, supplies, or services which are sold or
190	leased to a purchaser to enable the purchaser to start a
191	business for which the purchaser is required to pay an initial
192	fee or sum of money which exceeds $500 to the seller, and in
193	which the seller represents:
194	1.  That the seller or person or entity affiliated with or
195	referred by the seller will provide locations, either
196	contemporaneously at the time of the sale or lease or at a
197	future time, or assist the purchaser in finding locations for
198	the use or operation of vending machines, racks, display cases,
199	currency or card operated equipment, or other similar devices or
200	currency-operated amusement machines or devices on premises
201	neither owned nor leased by the purchaser or seller;
202	2.  That the seller will purchase, either contemporaneously
203	at the time of the sale or lease or at a future time, any or all
204	products made, produced, fabricated, grown, bred, or modified by
205	the purchaser using in whole or in part the supplies, services,
206	or chattels sold to the purchaser;
207	3.  That the seller guarantees that the purchaser will
208	derive income from the business opportunity which exceeds the
209	price paid or rent charged for the business opportunity or that
210	the seller will refund all or part of the price paid or rent
211	charged for the business opportunity, or will repurchase any of
212	the products, equipment, supplies, or chattels supplied by the
213	seller, if the purchaser is unsatisfied with the business
214	opportunity; or
215	4.  That the seller will provide, either contemporaneously
216	at the time of the sale or lease or at a future time, a sales
217	program or marketing program that will enable the purchaser to
218	derive income from the business opportunity, except that this
219	paragraph does not apply to the sale of a sales program or
220	marketing program made in conjunction with the licensing of a
221	trademark or service mark that is registered under the laws of
222	any state or of the United States if the seller requires use of
223	the trademark or service mark in the sales agreement.
224
225	For the purpose of subparagraph 1., the term "assist the
226	purchaser in finding locations" means, but is not limited to,
227	supplying the purchaser with names of locator companies,
228	contracting with the purchaser to provide assistance or supply
229	names, or collecting a fee on behalf of or for a locator
230	company.
231	Section 5.  Section 559.920, Florida Statutes, is amended
232	to read:
233	559.920  Unlawful acts and practices.--It shall be a
234	violation of this act for any motor vehicle repair shop or
235	employee thereof to:
236	(1)  Engage or attempt to engage in repair work for
237	compensation of any type without first being registered with or
238	having submitted an affidavit of exemption to the department;
239	(2)  Make or charge for repairs which have not been
240	expressly or impliedly authorized by the customer;
241	(3)  Misrepresent that repairs have been made to a motor
242	vehicle;
243	(4)  Misrepresent that certain parts and repairs are
244	necessary to repair a vehicle;
245	(5)  Misrepresent that the vehicle being inspected or
246	diagnosed is in a dangerous condition or that the customer's
247	continued use of the vehicle may be harmful or cause great
248	damage to the vehicle;
249	(6)  Fraudulently alter any customer contract, estimate,
250	invoice, or other document;
251	(7)  Fraudulently misuse any customer's credit card;
252	(8)  Make or authorize in any manner or by any means
253	whatever any written or oral statement which is untrue,
254	deceptive or misleading, and which is known, or which by the
255	exercise of reasonable care should be known, to be untrue,
256	deceptive or misleading;
257	(9)  Make false promises of a character likely to
258	influence, persuade, or induce a customer to authorize the
259	repair, service, or maintenance of a motor vehicle;
260	(10)  Substitute used, rebuilt, salvaged, or straightened
261	parts for new replacement parts without notice to the motor
262	vehicle owner and to her or his insurer if the cost of repair is
263	to be paid pursuant to an insurance policy and the identity of
264	the insurer or its claims adjuster is disclosed to the motor
265	vehicle repair shop;
266	(11)  Cause or allow a customer to sign any work order that
267	does not state the repairs requested by the customer or the
268	automobile's odometer reading at the time of repair;
269	(12)  Fail or refuse to give to a customer a copy of any
270	document requiring the customer's signature upon completion or
271	cancellation of the repair work;
272	(13)  Willfully depart from or disregard accepted practices
273	and professional standards;
274	(14)  Have repair work subcontracted without the knowledge
275	or consent of the customer unless the motor vehicle repair shop
276	or employee thereof demonstrates that the customer could not
277	reasonably have been notified;
278	(15)  Conduct the business of motor vehicle repair in a
279	location other than that stated on the registration certificate;
280	(16)  Rebuild or restore a rebuilt vehicle without the
281	knowledge of the owner in such a manner that it does not conform
282	to the original vehicle manufacturer's established repair
283	procedures or specifications and allowable tolerances for the
284	particular model and year; or
285	(17)  Perform any other act that is a violation of this
286	part or that constitutes fraud or misrepresentation.
287	Section 6.  Subsection (12) is added to section 559.927,
288	Florida Statutes, to read:
289	559.927  Definitions.--For the purposes of this part, the
290	term:
291	(12)  "Travel club" means a membership in an organization
292	in which a member has the right to receive or purchase
293	prearranged travel, tourist-related services, or tour-guide
294	services, as such travel or services are from time-to-time
295	offered, for an advance fee or payment, which may be available
296	on a first-come, first-served, space-available reservation basis
297	and in which a member is not granted a legal or equitable
298	interest in any real property or specific right of use of any
299	specific property. A travel club properly registered under this
300	part shall not be deemed to be nor constitute a timeshare
301	interest or timeshare plan.
302	Section 7.  Subsections (1) and (3) of section 559.928,
303	Florida Statutes, are amended to read:
304	559.928  Registration.--
305	(1)  Each seller of travel shall annually register with the
306	department, providing: its legal business or trade name, mailing
307	address, and business locations; the full names, addresses, and
308	telephone numbers, and social security numbers of its owners or
309	corporate officers and directors and the Florida agent of the
310	corporation; a statement whether it is a domestic or foreign
311	corporation, its state and date of incorporation, its charter
312	number, and, if a foreign corporation, the date it registered
313	with the State of Florida, and occupational license where
314	applicable; the date on which a seller of travel registered its
315	fictitious name if the seller of travel is operating under a
316	fictitious or trade name; the name of all other corporations,
317	business entities, and trade names through which each owner of
318	the seller of travel operated, was known, or did business as a
319	seller of travel within the preceding 5 years; a list of all
320	authorized independent agents, including the agent's trade name,
321	full name, mailing address, business address, telephone numbers,
322	and social security number; the business location and address of
323	each branch office and full name and address of the manager or
324	supervisor; and proof of purchase of adequate bond or
325	establishment of a letter of credit or certificate of deposit as
326	required in this part.  A certificate evidencing proof of
327	registration shall be issued by the department and must be
328	prominently displayed in the seller of travel's primary place of
329	business.
330	(3)  Each independent agent shall annually file an
331	affidavit with the department and pay a fee of $100 prior to
332	engaging in business in this state. This affidavit must include
333	the independent agent's full name, legal business or trade name,
334	mailing address, business address, and telephone number, social
335	security number, and the name or names and addresses of each
336	seller of travel represented by the independent agent and must
337	be accompanied by a copy of the independent agent's current
338	contract with each seller of travel. A letter evidencing proof
339	of filing must be issued by the department and must be
340	prominently displayed in the independent agent's primary place
341	of business.  As used in this subsection, the term "independent
342	agent" means a person who represents a seller of travel by
343	soliciting persons on its behalf; who has a written contract
344	with a seller of travel which is operating in compliance with
345	this part and any rules adopted thereunder; who does not receive
346	a fee, commission, or other valuable consideration directly from
347	the purchaser for the seller of travel; who does not at any time
348	have any unissued ticket stock or travel documents in his or her
349	possession; and who does not have the ability to issue tickets,
350	vacation certificates, or any other travel document. The term
351	"independent agent" does not include an affiliate of the seller
352	of travel, as that term is used in s. 559.935(3), or the
353	employees of the seller of travel or of such affiliates.
354	Section 8.  Paragraph (b) of subsection (5) and subsection
355	(9) of section 616.242, Florida Statutes, are amended to read:
356	616.242  Safety standards for amusement rides.--
357	(5)  ANNUAL PERMIT.--
358	(b)  To apply for an annual permit an owner must submit to
359	the department a written application on a form prescribed by
360	rule of the department, which must include the following:
361	1.  The legal name, address, and primary place of business
362	of the owner.
363	2.  A description, manufacturer's name, serial number,
364	model number and, if previously assigned, the United States
365	Amusement Identification Number of the amusement ride.
366	3.  A valid certificate of insurance or bond for each
367	amusement ride.
368	4.  An affidavit of compliance that the amusement ride was
369	inspected in person by the affiant and that the amusement ride
370	is in general conformance with the requirements of this section
371	and all applicable rules adopted by the department. The
372	affidavit must be executed by a professional engineer or a
373	qualified inspector no earlier than 60 days before, but not
374	later than, the date of the filing of the application with the
375	department. The owner shall request inspection and permitting of
376	the amusement ride within 60 days of the date of filing the
377	application with the department. The department shall inspect
378	and permit the amusement ride within 60 days after filing the
379	application with the department.
380	5.  If required by subsection (6), an affidavit of
381	nondestructive testing dated and executed no earlier than 60
382	days prior to, but not later than, the date of the filing of the
383	application with the department. The owner shall request
384	inspection and permitting of the amusement ride within 60 days
385	of the date of filing the application with the department. The
386	department shall inspect and permit the amusement ride within 60
387	days after filing the application with the department.
388	6.  A request for inspection.
389	7.  Upon request, the owner shall, at no cost to the
390	department, provide the department a copy of the manufacturer's
391	current recommended operating instructions in the possession of
392	the owner, the owner's operating fact sheet, and any written
393	bulletins in the possession of the owner concerning the safety,
394	operation, or maintenance of the amusement ride.
395	(9)  INSURANCE REQUIREMENTS.--
396	(a)  An owner may not operate an amusement ride unless the
397	owner has in effect at all times of operation insurance meeting
398	the following requirements:
399	1.  an insurance policy in an amount of not less than $1
400	million per occurrence, $1 million in the aggregate, which
401	insures the owner of the amusement ride against liability for
402	injury to persons arising out of the use of the amusement ride;
403	or
404	2.  A bond in a like amount; however, the aggregate
405	liability of the surety under the bond may not exceed the face
406	amount thereof.
407	(b)  The policy or bond must be procured from an insurer or
408	surety that is licensed to transact business in this state or
409	that is approved as a surplus lines insurer.
410	(c)  The insurance requirements imposed under this
411	subsection do not apply to a governmental entity that is covered
412	by the provisions of s. 768.28(16).
413	Section 9.  Subsections (1) and (3) of section 849.094,
414	Florida Statutes, are amended to read:
415	849.094  Game promotion in connection with sale of consumer
416	products or services.--
417	(1)  As used in this section, the term:
418	(a)  "Game promotion" means, but is not limited to, a
419	contest, game of chance, or gift enterprise, conducted within or
420	throughout the state and other states in connection with the
421	sale of consumer products or services, and in which the elements
422	of chance and prize are present. However, "game promotion" shall
423	not be construed to apply to bingo games conducted pursuant to
424	s. 849.0931.
425	(b)  "Operator" means any person, firm, corporation, or
426	association on whose behalf a game promotion is conducted or
427	agent or employee thereof who promotes, operates, or conducts a
428	game promotion, except any charitable nonprofit organization.
429	(3)  The operator of a game promotion in which the total
430	announced value of the prizes offered is greater than $5,000
431	shall file with the Department of Agriculture and Consumer
432	Services a copy of the rules and regulations of the game
433	promotion and a list of all prizes and prize categories offered
434	at least 7 days before the commencement of the game promotion.
435	Such rules and regulations may not thereafter be changed,
436	modified, or altered. The operator of a game promotion shall
437	conspicuously post the rules and regulations of such game
438	promotion in each and every retail outlet or place where such
439	game promotion may be played or participated in by the public
440	and shall also publish the rules and regulations in all
441	advertising copy used in connection therewith. However, such
442	advertising copy need only include the material terms of the
443	rules and regulations if the advertising copy includes a website
444	address, a toll-free telephone number, or a mailing address
445	where the full rules and regulations may be viewed, heard, or
446	obtained for the full duration of the game promotion. Such
447	disclosures must be legible. Radio and television announcements
448	may indicate that the rules and regulations are available at
449	retail outlets or from the operator of the promotion. A
450	nonrefundable filing fee of $100 shall accompany each filing and
451	shall be used to pay the costs incurred in administering and
452	enforcing the provisions of this section.
453	Section 10.  For the purpose of incorporating the amendment
454	to section 501.059, Florida Statutes, in a reference thereto,
455	paragraph (a) of subsection (1) of section 501.603, Florida
456	Statutes, is reenacted to read:
457	501.603  Definitions.--As used in this part, unless the
458	context otherwise requires, the term:
459	(1)  "Commercial telephone solicitation" means:
460	(a)  An unsolicited telephone call to a person initiated by
461	a commercial telephone seller or salesperson, or an automated
462	dialing machine used in accordance with the provisions of s.
463	501.059(7) for the purpose of inducing the person to purchase or
464	invest in consumer goods or services;
465
466	For purposes of this section, "other communication" means a
467	written or oral notification or advertisement transmitted
468	through any means. Also, for purposes of this section, "invites
469	a response by telephone" does not mean the mere listing or
470	including of a telephone number in a notification or
471	advertisement.
472	Section 11.  For the purpose of incorporating the amendment
473	to section 559.801, Florida Statutes, in a reference thereto,
474	subsection (12) of section 559.809, Florida Statutes, is
475	reenacted to read:
476	559.809  Prohibited acts.--Business opportunity sellers
477	shall not:
478	(12)  Misrepresent their ability or the ability of a person
479	or entity providing services as defined in s. 559.801(1)(a) to
480	provide locations or assist the purchaser in finding locations
481	expected to have a positive impact on the success of the
482	business opportunity.
483	Section 12.  This act shall take effect October 1, 2005.

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