HB 0833CS


1The State Resources Council 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; amending
19s. 501.142, F.S.; providing for preemption of the
20regulation of refunds in retail sales establishments to
21the Department of Agriculture and Consumer Services;
22amending s. 506.5131, F.S.; clarifying provisions with
23respect to the assessment of fees, fines, and costs
24relating to shopping carts found on public property;
25repealing s. 526.3135, F.S.; relating to an annual report
26compiled by the Division of Standards of the Department of
27Agriculture and Consumer Services; repealing ss. 546.001,
28546.002, 546.003, 546.004, 546.006, and 546.008, F.S.,
29relating to the "Amusement Ride and Attraction Insurance
30Act"; amending s. 559.801, F.S.; redefining the term
31"business opportunity" for purposes of the "Sale of
32Business Opportunities Act"; amending s. 559.920, F.S.;
33revising actions by motor vehicle repair shops or
34employees which are unlawful; amending s. 559.927, F.S.;
35providing a definition of "travel club"; amending s.
36559.928, F.S.; revising information to be submitted for
37registration as a seller of travel and information
38submitted by independent agents; requiring the payment of
39an annual fee by independent agents; amending s. 616.242,
40F.S.; exempting certain governmental entities from a
41requirement to maintain liability protection covering
42amusement rides; amending s. 849.094, F.S.; redefining the
43term "operator" for purposes of the regulation of game
44promotions in connection with the sale of consumer
45products or services; providing that the operator of
46certain game promotions need only include the material
47terms of the rules and regulations of the game in
48advertising copy used in connection therewith under
49specified conditions; reenacting s. 501.603(1)(a), F.S.,
50which defines "commercial telephone solicitation";
51reenacting s. 559.809(12), F.S., which specifies
52prohibited acts under the "Sale of Business Opportunities
53Act"; directing the State Technology Office to integrate
54additional features into the state's official Internet
55website; directing the State Technology Office to
56integrate information concerning the Florida 211 Network
57into the state's official Internet website; amending s.
58570.544, F.S.; designating the Division of Consumer
59Services within the Department of Agriculture and Consumer
60Services as the state clearinghouse for matters relating
61to consumer protection, consumer information, and consumer
62services; deleting certain reporting requirements;
63providing an effective date.
65Be It Enacted by the Legislature of the State of Florida:
67     Section 1.  Section 493.6303, Florida Statutes, is amended
68to read:
69     493.6303  License requirements.--In addition to the license
70requirements set forth elsewhere in this chapter, each
71individual or agency shall comply with the following additional
73     (1)  Each agency or branch office shall designate a minimum
74of one appropriately licensed individual to act as manager,
75directing the activities of the Class "D" employees.
76     (2)  An applicant for a Class "MB" license shall have 2
77years of lawfully gained, verifiable, full-time experience, or
78training in:
79     (a)  Security work or related fields of work that provided
80equivalent experience or training;
81     (b)  Experience described in paragraph (a) for 1 year and
82experience described in paragraph (c) for 1 year;
83     (c)  No more than 1 year using:
84     1.  Either college coursework related to criminal justice,
85criminology, or law enforcement administration; or
86     2.  Successfully completed law enforcement-related training
87received from any federal, state, county, or municipal agency;
89     (d)  Experience described in paragraph (a) for 1 year and
90work in a managerial or supervisory capacity for 1 year.
91     (3)  An applicant for a Class "M" license shall qualify for
92licensure as a Class "MA" manager as outlined under s.
93493.6203(2) and as a Class "MB" manager as outlined under
94subsection (2).
95     (4)(a)  Effective January 1, 2006 October 1, 1994, an
96applicant for a Class "D" license must complete have completed a
97minimum of 44 40 hours of professional training administered by
98at a school or training facility licensed by the department. The
99department shall by rule establish the general content and
100number of hours of all the training. Such training must include
101at least 8 hours of instruction in terrorism awareness or other
102special training prescribed by the department.
103     (b)  An applicant may fulfill the training requirement
104prescribed in paragraph (a) by submitting proof of:
105     1.  Successful completion of the total number of required
10640 hours of training before initial application for a Class "D"
107license; or
108     2.  Successful completion of 24 hours of training before
109initial application for, and the remaining 16 hours of training
110within 180 days after the date upon the first application is
111submitted for renewal of, a Class "D" license. If documentation
112of completion of the required training is not submitted within
113the specified timeframe, the individual's license is
114automatically suspended until such time as proof of the required
115training is provided to the department. However, Individuals
116licensed before October 1, 1994, or individuals who have
117successfully completed 40 hours of professional training before
118January 1, 2006, at a school or training facility licensed by
119the department are exempt from the training requirements of
120paragraph (a) need not complete additional training hours in
121order to renew their licenses.
123However, any person whose license has been revoked or whose
124license has been expired for 1 year or longer is considered,
125upon reapplication for a license, an initial applicant and must
126submit proof of successful completion of the total number of
127required 40 hours of professional training at a school or
128training facility licensed by the department.
129     (5)  An applicant for a Class "G" license shall satisfy the
130firearms training outlined in s. 493.6115.
131     Section 2.  Subsections (7), (8), and (9) of section
132501.059, Florida Statutes, are amended to read:
133     501.059  Telephone solicitation.--
134     (7)(a)  A No person may not shall make or knowingly allow a
135telephonic sales call to be made if the such call involves an
136automated system for the selection or dialing of telephone
137numbers or the playing of a recorded message when a connection
138is completed to a number called.
139     (b)  Nothing herein prohibits the use of an automated
140telephone dialing system with live messages if the calls are
141made or messages given solely in response to calls initiated by
142the persons to whom the automatic calls or live messages are
143directed or if the telephone numbers selected for automatic
144dialing have been screened to exclude any telephone subscriber
145who is included on the department's then-current "no sales
146solicitation calls" listing or any unlisted telephone number, or
147if the calls made concern goods or services that have been
148previously ordered or purchased.
149     (c)  A person may not transmit or knowingly allow the
150transmission of a facsimile of documents through connection with
151a telephone network if the facsimile transmission involves
152unsolicited advertising material for the sale of any real
153property, goods, or services.
154     (8)  The department shall investigate any complaints
155received concerning violations of this section. If, after
156investigating any complaint, the department finds that there has
157been a violation of this section, the department or the
158Department of Legal Affairs may bring an action to impose a
159civil penalty and to seek other relief, including injunctive
160relief, as the court deems appropriate against the telephone
161solicitor. The civil penalty shall not exceed $10,000 per
162violation and shall be deposited in the General Inspection Trust
163Fund if the action or proceeding was brought by the department,
164or the Legal Affairs Revolving Trust Fund if the action or
165proceeding was brought by the Department of Legal Affairs. This
166civil penalty may be recovered in any action brought under this
167part by the department, or the department may terminate any
168investigation or action upon agreement by the person to pay an
169agreed-upon a stipulated civil penalty. The department or the
170court may waive any civil penalty if the person has previously
171made full restitution or reimbursement or has paid actual
172damages to the consumers who have been injured by the violation.
173     (9)(a)  In any civil litigation resulting from a
174transaction involving a violation of this section, the
175prevailing party, after judgment in the trial court and
176exhaustion of all appeals, if any, shall receive his or her
177reasonable attorney's fees and costs from the nonprevailing
179     (b)  The attorney for the prevailing party shall submit a
180sworn affidavit of his or her time spent on the case and his or
181her costs incurred for all the motions, hearings, and appeals to
182the trial judge who presided over the civil case.
183     (c)  The trial judge shall award the prevailing party the
184sum of reasonable costs incurred in the action plus a reasonable
185legal fee for the hours actually spent on the case as sworn to
186in an affidavit.
187     (d)  Any award of attorney's fees or costs shall become a
188part of the judgment and subject to execution as the law allows.
189     (e)  In any civil litigation initiated by the department or
190the Department of Legal Affairs, the court may award to the
191prevailing party is entitled to recover reasonable attorney's
192fees and costs if the court finds that there was a complete
193absence of a justiciable issue of either law or fact raised by
194the losing party or if the court finds bad faith on the part of
195the losing party. Travel and per diem expenses incurred by the
196department or the Department of Legal Affairs for its attorneys
197and witnesses shall be recoverable costs by either the
198department or the Department of Legal Affairs should either
199agency prevail in civil litigation.
200     Section 3.  Subsection (3) is added to section 501.142,
201Florida Statutes, to read:
202     501.142  Retail sales establishments; notice of refund
203policy; exceptions.--
204     (3)  Notwithstanding any other provision of law or local
205ordinance, the regulation of refunds in retail sales
206establishments is expressly preempted to the Department of
207Agriculture and Consumer Services.
208     Section 4.  Section 506.5131, Florida Statutes, is amended
209to read:
210     506.5131  Return of shopping carts; assessment of fees,
211fines, and costs.--
212     (1)  The rightful owner of any shopping cart with a
213registered name or mark found on public property shall be
214immediately notified of its recovery.
215     (2)  Notwithstanding any other provision of law or local
216ordinance, no fee, fine, or costs may be assessed against the
217owner of a shopping cart unless the shopping cart was found on
218public property, unless the shopping cart and was removed from
219the premises or parking area of a retail establishment by the
220owner of the shopping cart, or an employee acting on the owner's
221behalf, and such fee, fine, or cost has been approved by the
222Department of Agriculture and Consumer Services.
223     Section 5.  Section 526.3135, Florida Statutes, is
225     Section 6.  Sections 546.001, 546.002, 546.003, 546.004,
226546.006, and 546.008, Florida Statutes, are repealed.
227     Section 7.  Paragraph (a) of subsection (1) of section
228559.801, Florida Statutes, is amended to read:
229     559.801  Definitions.--For the purpose of ss. 559.80-
230559.80-559.815, the term:
231     (1)(a)  "Business opportunity" means the sale or lease of
232any products, equipment, supplies, or services which are sold or
233leased to a purchaser to enable the purchaser to start a
234business for which the purchaser is required to pay an initial
235fee or sum of money which exceeds $500 to the seller, and in
236which the seller represents:
237     1.  That the seller or person or entity affiliated with or
238referred by the seller will provide locations, either
239contemporaneously at the time of the sale or lease or at a
240future time, or assist the purchaser in finding locations for
241the use or operation of vending machines, racks, display cases,
242currency or card operated equipment, or other similar devices or
243currency-operated amusement machines or devices on premises
244neither owned nor leased by the purchaser or seller;
245     2.  That the seller will purchase, either contemporaneously
246at the time of the sale or lease or at a future time, any or all
247products made, produced, fabricated, grown, bred, or modified by
248the purchaser using in whole or in part the supplies, services,
249or chattels sold to the purchaser;
250     3.  That the seller guarantees that the purchaser will
251derive income from the business opportunity which exceeds the
252price paid or rent charged for the business opportunity or that
253the seller will refund all or part of the price paid or rent
254charged for the business opportunity, or will repurchase any of
255the products, equipment, supplies, or chattels supplied by the
256seller, if the purchaser is unsatisfied with the business
257opportunity; or
258     4.  That the seller will provide, either contemporaneously
259at the time of the sale or lease or at a future time, a sales
260program or marketing program that will enable the purchaser to
261derive income from the business opportunity, except that this
262paragraph does not apply to the sale of a sales program or
263marketing program made in conjunction with the licensing of a
264trademark or service mark that is registered under the laws of
265any state or of the United States if the seller requires use of
266the trademark or service mark in the sales agreement.
268For the purpose of subparagraph 1., the term "assist the
269purchaser in finding locations" means, but is not limited to,
270supplying the purchaser with names of locator companies,
271contracting with the purchaser to provide assistance or supply
272names, or collecting a fee on behalf of or for a locator
274     Section 8.  Section 559.920, Florida Statutes, is amended
275to read:
276     559.920  Unlawful acts and practices.--It shall be a
277violation of this act for any motor vehicle repair shop or
278employee thereof to:
279     (1)  Engage or attempt to engage in repair work for
280compensation of any type without first being registered with or
281having submitted an affidavit of exemption to the department;
282     (2)  Make or charge for repairs which have not been
283expressly or impliedly authorized by the customer;
284     (3)  Misrepresent that repairs have been made to a motor
286     (4)  Misrepresent that certain parts and repairs are
287necessary to repair a vehicle;
288     (5)  Misrepresent that the vehicle being inspected or
289diagnosed is in a dangerous condition or that the customer's
290continued use of the vehicle may be harmful or cause great
291damage to the vehicle;
292     (6)  Fraudulently alter any customer contract, estimate,
293invoice, or other document;
294     (7)  Fraudulently misuse any customer's credit card;
295     (8)  Make or authorize in any manner or by any means
296whatever any written or oral statement which is untrue,
297deceptive or misleading, and which is known, or which by the
298exercise of reasonable care should be known, to be untrue,
299deceptive or misleading;
300     (9)  Make false promises of a character likely to
301influence, persuade, or induce a customer to authorize the
302repair, service, or maintenance of a motor vehicle;
303     (10)  Substitute used, rebuilt, salvaged, or straightened
304parts for new replacement parts without notice to the motor
305vehicle owner and to her or his insurer if the cost of repair is
306to be paid pursuant to an insurance policy and the identity of
307the insurer or its claims adjuster is disclosed to the motor
308vehicle repair shop;
309     (11)  Cause or allow a customer to sign any work order that
310does not state the repairs requested by the customer or the
311automobile's odometer reading at the time of repair;
312     (12)  Fail or refuse to give to a customer a copy of any
313document requiring the customer's signature upon completion or
314cancellation of the repair work;
315     (13)  Willfully depart from or disregard accepted practices
316and professional standards;
317     (14)  Have repair work subcontracted without the knowledge
318or consent of the customer unless the motor vehicle repair shop
319or employee thereof demonstrates that the customer could not
320reasonably have been notified;
321     (15)  Conduct the business of motor vehicle repair in a
322location other than that stated on the registration certificate;
323     (16)  Rebuild or restore a rebuilt vehicle without the
324knowledge of the owner in such a manner that it does not conform
325to the original vehicle manufacturer's established repair
326procedures or specifications and allowable tolerances for the
327particular model and year; or
328     (17)  Perform any other act that is a violation of this
329part or that constitutes fraud or misrepresentation.
330     Section 9.  Subsection (12) is added to section 559.927,
331Florida Statutes, to read:
332     559.927  Definitions.--For the purposes of this part, the
334     (12)  "Travel club" means a membership in an organization
335in which a member has the right to receive or purchase
336prearranged travel, tourist-related services, or tour-guide
337services, as such travel or services are from time to time
338offered, for an advance fee or payment, which may be available
339on a first-come, first-served, space-available reservation basis
340and in which a member is not granted a legal or equitable
341interest in any real property or specific right of use, without
342a reservation, of any specific property. A travel club
343registered under this part shall not be deemed to be nor
344constitute a timeshare interest or timeshare plan.
345     Section 10.  Subsections (1) and (3) of section 559.928,
346Florida Statutes, are amended to read:
347     559.928  Registration.--
348     (1)  Each seller of travel shall annually register with the
349department, providing: its legal business or trade name, mailing
350address, and business locations; the full names, addresses, and
351telephone numbers, and social security numbers of its owners or
352corporate officers and directors and the Florida agent of the
353corporation; a statement whether it is a domestic or foreign
354corporation, its state and date of incorporation, its charter
355number, and, if a foreign corporation, the date it registered
356with the State of Florida, and occupational license where
357applicable; the date on which a seller of travel registered its
358fictitious name if the seller of travel is operating under a
359fictitious or trade name; the name of all other corporations,
360business entities, and trade names through which each owner of
361the seller of travel operated, was known, or did business as a
362seller of travel within the preceding 5 years; a list of all
363authorized independent agents, including the agent's trade name,
364full name, mailing address, business address, telephone numbers,
365and social security number; the business location and address of
366each branch office and full name and address of the manager or
367supervisor; and proof of purchase of adequate bond or
368establishment of a letter of credit or certificate of deposit as
369required in this part. A certificate evidencing proof of
370registration shall be issued by the department and must be
371prominently displayed in the seller of travel's primary place of
373     (3)  Each independent agent shall annually file an
374affidavit with the department and pay a fee of $100 for deposit
375in the General Inspection Trust Fund of the department prior to
376engaging in business in this state. This affidavit must include
377the independent agent's full name, legal business or trade name,
378mailing address, business address, and telephone number, social
379security number, and the name or names and addresses of each
380seller of travel represented by the independent agent and must
381be accompanied by a copy of the independent agent's current
382contract with each seller of travel. A letter evidencing proof
383of filing must be issued by the department and must be
384prominently displayed in the independent agent's primary place
385of business. As used in this subsection, the term "independent
386agent" means a person who represents a seller of travel by
387soliciting persons on its behalf; who has a written contract
388with a seller of travel which is operating in compliance with
389this part and any rules adopted thereunder; who does not receive
390a fee, commission, or other valuable consideration directly from
391the purchaser for the seller of travel; who does not at any time
392have any unissued ticket stock or travel documents in his or her
393possession; and who does not have the ability to issue tickets,
394vacation certificates, or any other travel document. The term
395"independent agent" does not include an affiliate of the seller
396of travel, as that term is used in s. 559.935(3), or the
397employees of the seller of travel or of such affiliates.
398     Section 11.  Paragraph (c) is added to subsection (9) of
399section 616.242, Florida Statutes, to read:
400     616.242  Safety standards for amusement rides.--
402     (c)  The insurance requirements imposed under this
403subsection do not apply to a governmental entity that is covered
404by the provisions of s. 768.28(16).
405     Section 12.  Subsections (1) and (3) of section 849.094,
406Florida Statutes, are amended to read:
407     849.094  Game promotion in connection with sale of consumer
408products or services.--
409     (1)  As used in this section, the term:
410     (a)  "Game promotion" means, but is not limited to, a
411contest, game of chance, or gift enterprise, conducted within or
412throughout the state and other states in connection with the
413sale of consumer products or services, and in which the elements
414of chance and prize are present. However, "game promotion" shall
415not be construed to apply to bingo games conducted pursuant to
416s. 849.0931.
417     (b)  "Operator" means any person, firm, corporation, or
418association on whose behalf a game promotion is conducted or
419agent or employee thereof who promotes, operates, or conducts a
420game promotion, except any charitable nonprofit organization.
421     (3)  The operator of a game promotion in which the total
422announced value of the prizes offered is greater than $5,000
423shall file with the Department of Agriculture and Consumer
424Services a copy of the rules and regulations of the game
425promotion and a list of all prizes and prize categories offered
426at least 7 days before the commencement of the game promotion.
427Such rules and regulations may not thereafter be changed,
428modified, or altered. The operator of a game promotion shall
429conspicuously post the rules and regulations of such game
430promotion in each and every retail outlet or place where such
431game promotion may be played or participated in by the public
432and shall also publish the rules and regulations in all
433advertising copy used in connection therewith. However, such
434advertising copy need only include the material terms of the
435rules and regulations if the advertising copy includes a website
436address, a toll-free telephone number, or a mailing address
437where the full rules and regulations may be viewed, heard, or
438obtained for the full duration of the game promotion. Such
439disclosures must be legible. Radio and television announcements
440may indicate that the rules and regulations are available at
441retail outlets or from the operator of the promotion. A
442nonrefundable filing fee of $100 shall accompany each filing and
443shall be used to pay the costs incurred in administering and
444enforcing the provisions of this section.
445     Section 13.  For the purpose of incorporating the amendment
446to section 501.059, Florida Statutes, in a reference thereto,
447paragraph (a) of subsection (1) of section 501.603, Florida
448Statutes, is reenacted to read:
449     501.603  Definitions.--As used in this part, unless the
450context otherwise requires, the term:
451     (1)  "Commercial telephone solicitation" means:
452     (a)  An unsolicited telephone call to a person initiated by
453a commercial telephone seller or salesperson, or an automated
454dialing machine used in accordance with the provisions of s.
455501.059(7) for the purpose of inducing the person to purchase or
456invest in consumer goods or services;
458For purposes of this section, "other communication" means a
459written or oral notification or advertisement transmitted
460through any means. Also, for purposes of this section, "invites
461a response by telephone" does not mean the mere listing or
462including of a telephone number in a notification or
464     Section 14.  For the purpose of incorporating the amendment
465to section 559.801, Florida Statutes, in a reference thereto,
466subsection (12) of section 559.809, Florida Statutes, is
467reenacted to read:
468     559.809  Prohibited acts.--Business opportunity sellers
469shall not:
470     (12)  Misrepresent their ability or the ability of a person
471or entity providing services as defined in s. 559.801(1)(a) to
472provide locations or assist the purchaser in finding locations
473expected to have a positive impact on the success of the
474business opportunity.
475     Section 15.  The State Technology Office shall provide a
476banner on the official Internet website of the state which is
477hyperlinked to a website of the Department of Agriculture and
478Consumer Services which:
479     (1)  Aggregates a wide variety of consumer protection
480information and resources available from state agencies.
481     (2)  Features useful tools to help consumers identify which
482agencies have jurisdiction over specific subjects.
483     (3)  Includes alerts for consumers on known fraudulent
485     Section 16.  The State Technology Office shall provide a
486banner on the official Internet website of the state which is
487hyperlinked to a website of the Florida 211 Network which:
488     (1)  Profiles the information and referral system known as
489the Florida 211 Network.
490     (2)  Lists areas within the state where the network is
491available and the respective telephone numbers to access members
492of the Florida 211 network.
493     Section 17.  Subsections (3), (6), and (7) of section
494570.544, Florida Statutes, are amended to read:
495     570.544  Division of Consumer Services; director; powers;
496processing of complaints; records.--
497     (3)  In addition to the powers, duties, and
498responsibilities authorized by this or any other chapter, the
499Division of Consumer Services shall serve as the state a
500clearinghouse for matters relating to consumer protection,
501consumer information, and consumer services generally. It shall
502receive complaints and grievances from consumers and promptly
503transmit them to that agency most directly concerned in order
504that the complaint or grievance may be expeditiously handled in
505the best interests of the complaining consumer. If no agency
506exists, the Division of Consumer Services shall seek a
507settlement of the complaint using formal or informal methods of
508mediation and conciliation and may seek any other resolution of
509the matter in accordance with its jurisdiction.
510     (6)(a)  The office or agency to which a complaint has been
511referred shall within 30 days acknowledge receipt of the
512complaint and report on the disposition made of the complaint.
513In the event a complaint has not been disposed of within 30
514days, the receiving office or agency shall file progress reports
515with the Division of Consumer Services no less frequently than
51630 days until final disposition.
517     (b)  The report shall contain at least the following
519     1.  A finding of whether the receiving agency has
520jurisdiction of the subject matter involved in the complaint.
521     2.  Whether the complaint is deemed to be frivolous, sham,
522or without basis in fact or law.
523     3.  What action has been taken and a report on whether the
524original complainant was satisfied with the final disposition.
525     4.  Any recommendation regarding needed changes in law or
526procedure which in the opinion of the reporting agency or office
527will improve consumer protection in the area involved.
528     (7)(a)  If the office or agency receiving a complaint fails
529to file a report as contemplated in this section, that failure
530shall be construed as a denial by the receiving office or agency
531that it has jurisdiction of the subject matter contained in the
533     (b)  If an office or agency receiving a complaint
534determines that the matter presents a prima facie case for
535criminal prosecution or if the complaint cannot be settled at
536the administrative level, the complaint together with all
537supporting evidence shall be transmitted to the Department of
538Legal Affairs or other appropriate enforcement agency with a
539recommendation for civil or criminal action warranted by the
541     Section 18.  This act shall take effect October 1, 2005.

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