HB 0833CS


1The Agriculture Committee recommends the following:
3     Council/Committee Substitute
4     Remove the entire bill and insert:
A bill to be entitled
7An act relating to consumer protection; amending s.
8493.6303, F.S.; revising training requirements for
9obtaining a Class "D" license; requiring a minimum number
10of hours of training in terrorism awareness or other
11training prescribed by the Department of Agriculture and
12Consumer Services; providing a timeframe for submitting
13proof of having completed the training; revising the
14number of training hours required; amending s. 501.059,
15F.S.; prohibiting the transmission of facsimile documents
16under certain circumstances; providing for attorney's fees
17and for the recovery of certain litigation expenses by the
18department and the Department of Legal Affairs; repealing
19ss. 546.001, 546.002, 546.003, 546.004, 546.006, and
20546.008, F.S., relating to the "Amusement Ride and
21Attraction Insurance Act"; amending s. 559.801, F.S.;
22redefining the term "business opportunity" for purposes of
23the "Sale of Business Opportunities Act"; amending s.
24559.920, F.S.; revising actions by motor vehicle repair
25shops or employees which are unlawful; amending s.
26559.927, F.S.; providing a definition of "travel club";
27amending s. 559.928, F.S.; revising information to be
28submitted for registration as a seller of travel and
29information submitted by independent agents; requiring the
30payment of an annual fee by independent agents; amending
31s. 616.242, F.S.; deleting provisions authorizing the
32owner of an amusement ride to maintain liability
33protection in the form of a surety bond; exempting certain
34governmental entities from a requirement to maintain
35liability protection covering amusement rides; amending s.
36849.094, F.S.; redefining the term "operator" for purposes
37of the regulation of game promotions in connection with
38the sale of consumer products or services; providing that
39the operator of certain game promotions need only include
40the material terms of the rules and regulations of the
41game in advertising copy used in connection therewith
42under specified conditions; reenacting s. 501.603(1)(a),
43F.S., which defines "commercial telephone solicitation";
44reenacting s. 559.809(12), F.S., which specifies
45prohibited acts under the "Sale of Business Opportunities
46Act"; providing an effective date.
48Be It Enacted by the Legislature of the State of Florida:
50     Section 1.  Section 493.6303, Florida Statutes, is amended
51to read:
52     493.6303  License requirements.--In addition to the license
53requirements set forth elsewhere in this chapter, each
54individual or agency shall comply with the following additional
56     (1)  Each agency or branch office shall designate a minimum
57of one appropriately licensed individual to act as manager,
58directing the activities of the Class "D" employees.
59     (2)  An applicant for a Class "MB" license shall have 2
60years of lawfully gained, verifiable, full-time experience, or
61training in:
62     (a)  Security work or related fields of work that provided
63equivalent experience or training;
64     (b)  Experience described in paragraph (a) for 1 year and
65experience described in paragraph (c) for 1 year;
66     (c)  No more than 1 year using:
67     1.  Either college coursework related to criminal justice,
68criminology, or law enforcement administration; or
69     2.  Successfully completed law enforcement-related training
70received from any federal, state, county, or municipal agency;
72     (d)  Experience described in paragraph (a) for 1 year and
73work in a managerial or supervisory capacity for 1 year.
74     (3)  An applicant for a Class "M" license shall qualify for
75licensure as a Class "MA" manager as outlined under s.
76493.6203(2) and as a Class "MB" manager as outlined under
77subsection (2).
78     (4)(a)  Effective January 1, 2006 October 1, 1994, an
79applicant for a Class "D" license must complete have completed a
80minimum of 44 40 hours of professional training administered by
81at a school or training facility licensed by the department. The
82department shall by rule establish the general content and
83number of hours of all the training. Such training must include
84at least 8 hours of instruction in terrorism awareness or other
85special training prescribed by the department.
86     (b)  An applicant may fulfill the training requirement
87prescribed in paragraph (a) by submitting proof of:
88     1.  Successful completion of the total number of required
8940 hours of training before initial application for a Class "D"
90license; or
91     2.  Successful completion of 24 hours of training before
92initial application for, and the remaining 16 hours of training
93within 180 days after the date upon the first application is
94submitted for renewal of, a Class "D" license. If documentation
95of completion of the required training is not submitted within
96the specified timeframe, the individual's license is
97automatically suspended until such time as proof of the required
98training is provided to the department. However, Individuals
99licensed before October 1, 1994, or individuals who have
100successfully completed 40 hours of professional training before
101January 1, 2006, at a school or training facility licensed by
102the department are exempt from the training requirements of
103paragraph (a) need not complete additional training hours in
104order to renew their licenses.
106However, any person whose license has been revoked or whose
107license has been expired for 1 year or longer is considered,
108upon reapplication for a license, an initial applicant and must
109submit proof of successful completion of the total number of
110required 40 hours of professional training at a school or
111training facility licensed by the department.
112     (5)  An applicant for a Class "G" license shall satisfy the
113firearms training outlined in s. 493.6115.
114     Section 2.  Subsections (7), (8), and (9) of section
115501.059, 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
118telephonic sales call to be made if the such call involves an
119automated system for the selection or dialing of telephone
120numbers or the playing of a recorded message when a connection
121is completed to a number called.
122     (b)  Nothing herein prohibits the use of an automated
123telephone dialing system with live messages if the calls are
124made or messages given solely in response to calls initiated by
125the persons to whom the automatic calls or live messages are
126directed or if the telephone numbers selected for automatic
127dialing have been screened to exclude any telephone subscriber
128who is included on the department's then-current "no sales
129solicitation calls" listing or any unlisted telephone number, or
130if the calls made concern goods or services that have been
131previously ordered or purchased.
132     (c)  A person may not transmit or knowingly allow the
133transmission of a facsimile of documents through connection with
134a telephone network if the facsimile transmission involves
135unsolicited advertising material for the sale of any real
136property, goods, or services.
137     (8)  The department shall investigate any complaints
138received concerning violations of this section.  If, after
139investigating any complaint, the department finds that there has
140been a violation of this section, the department or the
141Department of Legal Affairs may bring an action to impose a
142civil penalty and to seek other relief, including injunctive
143relief, as the court deems appropriate against the telephone
144solicitor.  The civil penalty shall not exceed $10,000 per
145violation and shall be deposited in the General Inspection Trust
146Fund if the action or proceeding was brought by the department,
147or the Legal Affairs Revolving Trust Fund if the action or
148proceeding was brought by the Department of Legal Affairs. This
149civil penalty may be recovered in any action brought under this
150part by the department, or the department may terminate any
151investigation or action upon agreement by the person to pay an
152agreed-upon a stipulated civil penalty.  The department or the
153court may waive any civil penalty if the person has previously
154made full restitution or reimbursement or has paid actual
155damages to the consumers who have been injured by the violation.
156     (9)(a)  In any civil litigation resulting from a
157transaction involving a violation of this section, the
158prevailing party, after judgment in the trial court and
159exhaustion of all appeals, if any, shall receive his or her
160reasonable attorney's fees and costs from the nonprevailing
162     (b)  The attorney for the prevailing party shall submit a
163sworn affidavit of his or her time spent on the case and his or
164her costs incurred for all the motions, hearings, and appeals to
165the trial judge who presided over the civil case.
166     (c)  The trial judge shall award the prevailing party the
167sum of reasonable costs incurred in the action plus a reasonable
168legal fee for the hours actually spent on the case as sworn to
169in an affidavit.
170     (d)  Any award of attorney's fees or costs shall become a
171part of the judgment and subject to execution as the law allows.
172     (e)  In any civil litigation initiated by the department or
173the Department of Legal Affairs, the court shall may award to
174the prevailing party reasonable attorney's fees and costs if the
175court finds that there was a complete absence of a justiciable
176issue of either law or fact raised by the losing party or if the
177court finds bad faith on the part of the losing party. Travel
178and per diem expenses incurred by the department or the
179Department of Legal Affairs for its attorneys and witnesses
180shall be recoverable costs by the department or the Department
181of Legal Affairs if either party prevails in civil litigation.
182     Section 3.  Sections 546.001, 546.002, 546.003, 546.004,
183546.006, and 546.008, Florida Statutes, are repealed.
184     Section 4.  Paragraph (a) of subsection (1) of section
185559.801, Florida Statutes, is amended to read:
186     559.801  Definitions.--For the purpose of ss. 559.80-
187559.80-559.815, the term:
188     (1)(a)  "Business opportunity" means the sale or lease of
189any products, equipment, supplies, or services which are sold or
190leased to a purchaser to enable the purchaser to start a
191business for which the purchaser is required to pay an initial
192fee or sum of money which exceeds $500 to the seller, and in
193which the seller represents:
194     1.  That the seller or person or entity affiliated with or
195referred by the seller will provide locations, either
196contemporaneously at the time of the sale or lease or at a
197future time, or assist the purchaser in finding locations for
198the use or operation of vending machines, racks, display cases,
199currency or card operated equipment, or other similar devices or
200currency-operated amusement machines or devices on premises
201neither owned nor leased by the purchaser or seller;
202     2.  That the seller will purchase, either contemporaneously
203at the time of the sale or lease or at a future time, any or all
204products made, produced, fabricated, grown, bred, or modified by
205the purchaser using in whole or in part the supplies, services,
206or chattels sold to the purchaser;
207     3.  That the seller guarantees that the purchaser will
208derive income from the business opportunity which exceeds the
209price paid or rent charged for the business opportunity or that
210the seller will refund all or part of the price paid or rent
211charged for the business opportunity, or will repurchase any of
212the products, equipment, supplies, or chattels supplied by the
213seller, if the purchaser is unsatisfied with the business
214opportunity; or
215     4.  That the seller will provide, either contemporaneously
216at the time of the sale or lease or at a future time, a sales
217program or marketing program that will enable the purchaser to
218derive income from the business opportunity, except that this
219paragraph does not apply to the sale of a sales program or
220marketing program made in conjunction with the licensing of a
221trademark or service mark that is registered under the laws of
222any state or of the United States if the seller requires use of
223the trademark or service mark in the sales agreement.
225For the purpose of subparagraph 1., the term "assist the
226purchaser in finding locations" means, but is not limited to,
227supplying the purchaser with names of locator companies,
228contracting with the purchaser to provide assistance or supply
229names, or collecting a fee on behalf of or for a locator
231     Section 5.  Section 559.920, Florida Statutes, is amended
232to read:
233     559.920  Unlawful acts and practices.--It shall be a
234violation of this act for any motor vehicle repair shop or
235employee thereof to:
236     (1)  Engage or attempt to engage in repair work for
237compensation of any type without first being registered with or
238having submitted an affidavit of exemption to the department;
239     (2)  Make or charge for repairs which have not been
240expressly or impliedly authorized by the customer;
241     (3)  Misrepresent that repairs have been made to a motor
243     (4)  Misrepresent that certain parts and repairs are
244necessary to repair a vehicle;
245     (5)  Misrepresent that the vehicle being inspected or
246diagnosed is in a dangerous condition or that the customer's
247continued use of the vehicle may be harmful or cause great
248damage to the vehicle;
249     (6)  Fraudulently alter any customer contract, estimate,
250invoice, or other document;
251     (7)  Fraudulently misuse any customer's credit card;
252     (8)  Make or authorize in any manner or by any means
253whatever any written or oral statement which is untrue,
254deceptive or misleading, and which is known, or which by the
255exercise of reasonable care should be known, to be untrue,
256deceptive or misleading;
257     (9)  Make false promises of a character likely to
258influence, persuade, or induce a customer to authorize the
259repair, service, or maintenance of a motor vehicle;
260     (10)  Substitute used, rebuilt, salvaged, or straightened
261parts for new replacement parts without notice to the motor
262vehicle owner and to her or his insurer if the cost of repair is
263to be paid pursuant to an insurance policy and the identity of
264the insurer or its claims adjuster is disclosed to the motor
265vehicle repair shop;
266     (11)  Cause or allow a customer to sign any work order that
267does not state the repairs requested by the customer or the
268automobile's odometer reading at the time of repair;
269     (12)  Fail or refuse to give to a customer a copy of any
270document requiring the customer's signature upon completion or
271cancellation of the repair work;
272     (13)  Willfully depart from or disregard accepted practices
273and professional standards;
274     (14)  Have repair work subcontracted without the knowledge
275or consent of the customer unless the motor vehicle repair shop
276or employee thereof demonstrates that the customer could not
277reasonably have been notified;
278     (15)  Conduct the business of motor vehicle repair in a
279location other than that stated on the registration certificate;
280     (16)  Rebuild or restore a rebuilt vehicle without the
281knowledge of the owner in such a manner that it does not conform
282to the original vehicle manufacturer's established repair
283procedures or specifications and allowable tolerances for the
284particular model and year; or
285     (17)  Perform any other act that is a violation of this
286part or that constitutes fraud or misrepresentation.
287     Section 6.  Subsection (12) is added to section 559.927,
288Florida Statutes, to read:
289     559.927  Definitions.--For the purposes of this part, the
291     (12)  "Travel club" means a membership in an organization
292in which a member has the right to receive or purchase
293prearranged travel, tourist-related services, or tour-guide
294services, as such travel or services are from time-to-time
295offered, for an advance fee or payment, which may be available
296on a first-come, first-served, space-available reservation basis
297and in which a member is not granted a legal or equitable
298interest in any real property or specific right of use of any
299specific property. A travel club properly registered under this
300part shall not be deemed to be nor constitute a timeshare
301interest or timeshare plan.
302     Section 7.  Subsections (1) and (3) of section 559.928,
303Florida Statutes, are amended to read:
304     559.928  Registration.--
305     (1)  Each seller of travel shall annually register with the
306department, providing: its legal business or trade name, mailing
307address, and business locations; the full names, addresses, and
308telephone numbers, and social security numbers of its owners or
309corporate officers and directors and the Florida agent of the
310corporation; a statement whether it is a domestic or foreign
311corporation, its state and date of incorporation, its charter
312number, and, if a foreign corporation, the date it registered
313with the State of Florida, and occupational license where
314applicable; the date on which a seller of travel registered its
315fictitious name if the seller of travel is operating under a
316fictitious or trade name; the name of all other corporations,
317business entities, and trade names through which each owner of
318the seller of travel operated, was known, or did business as a
319seller of travel within the preceding 5 years; a list of all
320authorized independent agents, including the agent's trade name,
321full name, mailing address, business address, telephone numbers,
322and social security number; the business location and address of
323each branch office and full name and address of the manager or
324supervisor; and proof of purchase of adequate bond or
325establishment of a letter of credit or certificate of deposit as
326required in this part.  A certificate evidencing proof of
327registration shall be issued by the department and must be
328prominently displayed in the seller of travel's primary place of
330     (3)  Each independent agent shall annually file an
331affidavit with the department and pay a fee of $100 prior to
332engaging in business in this state. This affidavit must include
333the independent agent's full name, legal business or trade name,
334mailing address, business address, and telephone number, social
335security number, and the name or names and addresses of each
336seller of travel represented by the independent agent and must
337be accompanied by a copy of the independent agent's current
338contract with each seller of travel. A letter evidencing proof
339of filing must be issued by the department and must be
340prominently displayed in the independent agent's primary place
341of business.  As used in this subsection, the term "independent
342agent" means a person who represents a seller of travel by
343soliciting persons on its behalf; who has a written contract
344with a seller of travel which is operating in compliance with
345this part and any rules adopted thereunder; who does not receive
346a fee, commission, or other valuable consideration directly from
347the purchaser for the seller of travel; who does not at any time
348have any unissued ticket stock or travel documents in his or her
349possession; and who does not have the ability to issue tickets,
350vacation certificates, or any other travel document. The term
351"independent agent" does not include an affiliate of the seller
352of travel, as that term is used in s. 559.935(3), or the
353employees 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
359the department a written application on a form prescribed by
360rule of the department, which must include the following:
361     1.  The legal name, address, and primary place of business
362of the owner.
363     2.  A description, manufacturer's name, serial number,
364model number and, if previously assigned, the United States
365Amusement Identification Number of the amusement ride.
366     3.  A valid certificate of insurance or bond for each
367amusement ride.
368     4.  An affidavit of compliance that the amusement ride was
369inspected in person by the affiant and that the amusement ride
370is in general conformance with the requirements of this section
371and all applicable rules adopted by the department. The
372affidavit must be executed by a professional engineer or a
373qualified inspector no earlier than 60 days before, but not
374later than, the date of the filing of the application with the
375department. The owner shall request inspection and permitting of
376the amusement ride within 60 days of the date of filing the
377application with the department. The department shall inspect
378and permit the amusement ride within 60 days after filing the
379application with the department.
380     5.  If required by subsection (6), an affidavit of
381nondestructive testing dated and executed no earlier than 60
382days prior to, but not later than, the date of the filing of the
383application with the department. The owner shall request
384inspection and permitting of the amusement ride within 60 days
385of the date of filing the application with the department. The
386department shall inspect and permit the amusement ride within 60
387days 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
390department, provide the department a copy of the manufacturer's
391current recommended operating instructions in the possession of
392the owner, the owner's operating fact sheet, and any written
393bulletins in the possession of the owner concerning the safety,
394operation, or maintenance of the amusement ride.
396     (a)  An owner may not operate an amusement ride unless the
397owner has in effect at all times of operation insurance meeting
398the following requirements:
399     1.  an insurance policy in an amount of not less than $1
400million per occurrence, $1 million in the aggregate, which
401insures the owner of the amusement ride against liability for
402injury to persons arising out of the use of the amusement ride;
404     2.  A bond in a like amount; however, the aggregate
405liability of the surety under the bond may not exceed the face
406amount thereof.
407     (b)  The policy or bond must be procured from an insurer or
408surety that is licensed to transact business in this state or
409that is approved as a surplus lines insurer.
410     (c)  The insurance requirements imposed under this
411subsection do not apply to a governmental entity that is covered
412by the provisions of s. 768.28(16).
413     Section 9.  Subsections (1) and (3) of section 849.094,
414Florida Statutes, are amended to read:
415     849.094  Game promotion in connection with sale of consumer
416products or services.--
417     (1)  As used in this section, the term:
418     (a)  "Game promotion" means, but is not limited to, a
419contest, game of chance, or gift enterprise, conducted within or
420throughout the state and other states in connection with the
421sale of consumer products or services, and in which the elements
422of chance and prize are present. However, "game promotion" shall
423not be construed to apply to bingo games conducted pursuant to
424s. 849.0931.
425     (b)  "Operator" means any person, firm, corporation, or
426association on whose behalf a game promotion is conducted or
427agent or employee thereof who promotes, operates, or conducts a
428game promotion, except any charitable nonprofit organization.
429     (3)  The operator of a game promotion in which the total
430announced value of the prizes offered is greater than $5,000
431shall file with the Department of Agriculture and Consumer
432Services a copy of the rules and regulations of the game
433promotion and a list of all prizes and prize categories offered
434at least 7 days before the commencement of the game promotion.
435Such rules and regulations may not thereafter be changed,
436modified, or altered. The operator of a game promotion shall
437conspicuously post the rules and regulations of such game
438promotion in each and every retail outlet or place where such
439game promotion may be played or participated in by the public
440and shall also publish the rules and regulations in all
441advertising copy used in connection therewith. However, such
442advertising copy need only include the material terms of the
443rules and regulations if the advertising copy includes a website
444address, a toll-free telephone number, or a mailing address
445where the full rules and regulations may be viewed, heard, or
446obtained for the full duration of the game promotion. Such
447disclosures must be legible. Radio and television announcements
448may indicate that the rules and regulations are available at
449retail outlets or from the operator of the promotion. A
450nonrefundable filing fee of $100 shall accompany each filing and
451shall be used to pay the costs incurred in administering and
452enforcing the provisions of this section.
453     Section 10.  For the purpose of incorporating the amendment
454to section 501.059, Florida Statutes, in a reference thereto,
455paragraph (a) of subsection (1) of section 501.603, Florida
456Statutes, is reenacted to read:
457     501.603  Definitions.--As used in this part, unless the
458context otherwise requires, the term:
459     (1)  "Commercial telephone solicitation" means:
460     (a)  An unsolicited telephone call to a person initiated by
461a commercial telephone seller or salesperson, or an automated
462dialing machine used in accordance with the provisions of s.
463501.059(7) for the purpose of inducing the person to purchase or
464invest in consumer goods or services;
466For purposes of this section, "other communication" means a
467written or oral notification or advertisement transmitted
468through any means. Also, for purposes of this section, "invites
469a response by telephone" does not mean the mere listing or
470including of a telephone number in a notification or
472     Section 11.  For the purpose of incorporating the amendment
473to section 559.801, Florida Statutes, in a reference thereto,
474subsection (12) of section 559.809, Florida Statutes, is
475reenacted to read:
476     559.809  Prohibited acts.--Business opportunity sellers
477shall not:
478     (12)  Misrepresent their ability or the ability of a person
479or entity providing services as defined in s. 559.801(1)(a) to
480provide locations or assist the purchaser in finding locations
481expected to have a positive impact on the success of the
482business opportunity.
483     Section 12.  This act shall take effect October 1, 2005.

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