1 | The State Administration Appropriations Committee recommends the |
2 | following: |
3 |
|
4 | Council/Committee Substitute |
5 | Remove the entire bill and insert: |
6 | A bill to be entitled |
7 | An act relating to talent agencies and advance-fee talent |
8 | services; repealing part VII of ch. 468, F.S., relating to |
9 | the regulation of talent agencies; providing definitions; |
10 | requiring each talent agency and advance-fee talent |
11 | service to obtain a surety bond for a specified amount; |
12 | requiring each talent agency and advance-fee talent |
13 | service to give each artist a copy of the bond; providing |
14 | criminal penalties for failing to comply with the bonding |
15 | requirements; requiring each talent agency and advance-fee |
16 | talent service to maintain a permanent office during |
17 | certain specified hours; directing that certain records, |
18 | with specified information in them, be kept for each |
19 | artist; requiring that records be maintained for a |
20 | specified period; directing that all records of a talent |
21 | agency and advance-fee talent service be open to the |
22 | inspection of a state attorney; requiring that the talent |
23 | agency or advance-fee talent service give the state |
24 | attorney a copy of the records when so requested; |
25 | providing criminal penalties if the talent agency or |
26 | advance-fee talent service fails or refuses to disclose |
27 | information to a state attorney; providing criminal |
28 | penalties for failing to comply with the requirements |
29 | pertaining to records; directing a talent agency or |
30 | advance-fee talent service to post an itemized schedule of |
31 | maximum fees, charges, or commissions that it intends to |
32 | charge and collect for its services; providing for the |
33 | location for posting of the schedule; providing criminal |
34 | penalties for failing to post the fee schedule; requiring |
35 | that an artist and a talent agency or advance-fee talent |
36 | service enter into a written contract when such entity |
37 | agrees to perform services for the artist; providing an |
38 | exception under specified circumstances; providing for the |
39 | content of the written contract; requiring that a talent |
40 | agency or advance-fee talent service provide each artist |
41 | with a copy of the contract; requiring any person who |
42 | holds himself or herself out as an employee or agent of a |
43 | talent agency or advance-fee talent service to submit |
44 | fingerprints for background screening requirements prior |
45 | to owning, operating, soliciting business for, or |
46 | otherwise engaging in or carrying on the business of a |
47 | talent agency or advance-fee talent service in this state; |
48 | directing that a talent agency or advance-fee talent |
49 | service provide each artist with a copy of the screening |
50 | results; directing that all money collected by a talent |
51 | agency from an employer or buyer be paid to the artist |
52 | within a specified period; providing that a contract is |
53 | voidable under certain circumstances; permitting an artist |
54 | to cancel a contract by giving written notice of the |
55 | cancellation to the talent agency or advance-fee talent |
56 | service within a specified period; prohibiting an artist |
57 | from waiving the right to cancel a contract; providing the |
58 | way in which a talent agency or advance-fee talent service |
59 | must refund money to an artist; providing criminal |
60 | penalties for violating provisions relating to |
61 | contracting; specifying certain prohibited acts by a |
62 | talent agency or advance-fee talent service; providing |
63 | criminal penalties for failure to comply; providing for |
64 | certain specified civil remedies for violations of the |
65 | act; removing the authority of the Department of Business |
66 | and Professional Regulation to regulate talent agencies; |
67 | providing for the use of certain funds after the effective |
68 | date of the act; requiring the department to rebate talent |
69 | agency license fees; authorizing the department to |
70 | continue to prosecute any legal proceedings and related |
71 | administrative cases that are pending on the effective |
72 | date of the act; providing an appropriation; providing an |
73 | effective date. |
74 |
|
75 | Be It Enacted by the Legislature of the State of Florida: |
76 |
|
77 | Section 1. Part VII of chapter 468, Florida Statutes, |
78 | consisting of sections 468.401, 468.402, 468.403, 468.404, |
79 | 468.405, 468.406, 468.407, 468.408, 468.409, 468.410, 468.411, |
80 | 468.412, 468.413, 468.414, and 468.415, is repealed. |
81 | Section 2. Definitions.--As used in sections 2 through 7 |
82 | of this act, the term: |
83 | (1) "Advance-fee talent service" means a service practiced |
84 | by a person or business entity, or the person's or business |
85 | entity's employees or authorized agents, which charges, attempts |
86 | to charge, or receives an advance fee from an artist for the |
87 | purpose of promoting, but not procuring, the employment or |
88 | engagement of the artist. Promoting the employment or engagement |
89 | of an artist includes, but is not limited to, the following |
90 | activities: |
91 | (a) Promoting or advertising an artist to a casting |
92 | director, talent agency, talent manager, or any other person |
93 | represented to be in a position to offer assistance in procuring |
94 | engagements or employment for the artist. |
95 | (b) Promoting or advertising an artist by using the |
96 | Internet, trade publications, or other media. |
97 | (c) Registering or listing an artist for employment in the |
98 | entertainment industry or as a customer of the advance-fee |
99 | talent service. |
100 | (d) Managing, directing, developing, or advancing the |
101 | artist's career. |
102 | (e) Preparing the artist for employment through career |
103 | counseling or consulting, vocational guidance, aptitude testing, |
104 | or evaluation. |
105 | (2) "Advance fee" means a fee that is due from or paid by |
106 | an artist before the artist obtains employment as an artist or |
107 | before the artist receives earnings as an artist. An advance fee |
108 | also includes money paid by the artist which exceeds the |
109 | earnings received by the artist. |
110 | (a) An advance fee does not include reimbursement for out- |
111 | of-pocket costs actually incurred by an advance-fee talent |
112 | service on behalf of the artist when paying for services |
113 | rendered or goods provided to the artist by an independent third |
114 | party if all of the following conditions are met: |
115 | 1. The advance-fee talent service does not have a direct |
116 | or an indirect financial interest in the third party. |
117 | 2. The advance-fee talent service does not accept a |
118 | referral fee or other consideration from the third party. |
119 | 3. The services rendered or goods provided for the out-of- |
120 | pocket costs are not represented to be, and are not, a condition |
121 | for the advance-fee talent service to register or list the |
122 | artist with the advance-fee talent service. |
123 | 4. The advance-fee talent service maintains adequate |
124 | records documenting that any amount to be reimbursed to the |
125 | advance-fee talent service was actually advanced or owed to a |
126 | third party, that the third party is not a person in which the |
127 | advance-fee talent service has a direct or indirect financial |
128 | interest, and that the advance-fee talent service did not |
129 | receive any consideration for referring the artist. |
130 | (b) The burden of producing evidence to support a defense |
131 | based upon an exemption or an exception provided in paragraph |
132 | (a) is on the advance-fee talent service claiming the exemption |
133 | or exception. |
134 | (3) "Artist" means a person who seeks to become or is an |
135 | actor, actress, director, writer, cinematographer, composer, |
136 | lyricist, arranger, model, extra, or other person rendering |
137 | professional services on the legitimate stage or in the |
138 | production of motion pictures, radio productions, musicals, |
139 | television productions, print advertisements, or other |
140 | entertainment enterprises. |
141 | (4) "Buyer" or "employer" means a person, company, |
142 | partnership, corporation, or other business entity that uses the |
143 | services of a talent agency or advance-fee talent service. |
144 | (5) "Compensation" means any one or more of the following: |
145 | (a) Money or other valuable consideration paid or promised |
146 | to be paid for services rendered by an individual conducting the |
147 | business of a talent agency or an advance-fee talent service; |
148 | (b) Money received by a person in excess of that which has |
149 | been paid by the person for transportation, transfer of baggage, |
150 | or board and lodging for an applicant for employment; or |
151 | (c) The difference between the amount of money received by |
152 | a person who furnishes employees, performers, or entertainers |
153 | for circus, vaudeville, theatrical, or other entertainments, |
154 | exhibitions, engagements, or performances and the amount paid by |
155 | the person to an employee, performer, or entertainer. |
156 | (6) "Divided fee" means the process by which, without |
157 | written contractual approval of the artist, any two or more |
158 | persons receive compensation for performing services for an |
159 | artist and the total compensation paid to these persons exceeds |
160 | the compensation that would have been paid to only one person |
161 | acting on behalf of the artist. |
162 | (7) "Engagement" means any employment or placement of an |
163 | artist during which the artist performs in his or her artistic |
164 | capacity. The term does not apply to procuring opera, music, |
165 | theater, or dance engagements for any nonprofit organization |
166 | defined in s. 501(c)(3) of the Internal Revenue Code or any |
167 | nonprofit arts organization in this state which has received a |
168 | grant from the Division of Cultural Affairs of the Department of |
169 | State or has participated in the state touring program of the |
170 | Division of Cultural Affairs. |
171 | (8) "Operator" means the person who is or who will be in |
172 | actual charge of a talent agency or an advance-fee talent |
173 | service. |
174 | (9) "Owner" means a partner in a partnership, member of a |
175 | firm, or one or more principal officers of a corporation whose |
176 | partnership, firm, or corporation owns a talent agency or an |
177 | advance-fee talent service, or an individual who is the sole |
178 | owner of a talent agency or an advance-fee talent service. |
179 | (10) "Talent agency" or "agency" means a business entity |
180 | or person who, for compensation, engages in the occupation or |
181 | business of procuring or attempting to procure engagements for |
182 | an artist and includes the agency's employees and authorized |
183 | agents. |
184 | Section 3. Bond required.-- |
185 | (1) Each talent agency or advance-fee talent service shall |
186 | obtain a bond in the form of a surety by a reputable company |
187 | engaged in the bonding business which is authorized to do |
188 | business in this state. The bond must be for the penal sum of |
189 | not less than $10,000 and be conditioned on the talent agency or |
190 | advance-fee talent service conforming to and not violating any |
191 | duty, term, condition, provision, or requirement of this act. |
192 | (2) A talent agency or advance-fee talent service must |
193 | provide the artist with a copy of the bond. |
194 | (3) If a person fails to obtain or maintain a bond |
195 | according to this section, the person commits: |
196 | (a) A misdemeanor of the second degree for a first |
197 | violation, punishable as provided in s. 775.082 or s. 775.083, |
198 | Florida Statutes. |
199 | (b) A misdemeanor of the first degree for a second |
200 | violation, punishable as provided in s. 775.082 or s. 775.083, |
201 | Florida Statutes. |
202 | (c) A felony of the third degree for a third or subsequent |
203 | violation, punishable as provided in s. 775.082, s. 775.083, or |
204 | s. 775.084, Florida Statutes. |
205 | Section 4. Office and records.-- |
206 | (1) A talent agency or advance-fee talent service must |
207 | maintain a permanent office and must maintain regular operating |
208 | hours at that office. The office shall not be located on or |
209 | within any property where intoxicating liquor is sold, where |
210 | gambling is permitted, or where acts of prostitution are |
211 | committed. |
212 | (2) A talent agency or advance-fee talent service must |
213 | keep on file the application, registration, and fully executed |
214 | contract of each artist that the talent agency or advance-fee |
215 | talent service represents. The artist file of a talent agency |
216 | must also include the total amount of compensation received by |
217 | the artist, the amount of compensation received by the artist |
218 | for each performance, and documentation of all attempts made by |
219 | the talent agency to procure engagements for the artist. The |
220 | artist file of an advance-fee talent service must also include |
221 | documentation of all attempts to promote or advertise the |
222 | artist. |
223 | (3) A talent agency or advance-fee talent service shall |
224 | not knowingly make a false entry in an applicant's file or |
225 | receipt file. |
226 | (4) Each document in the file must be preserved for a |
227 | period of not less than 5 years after the date of the last entry |
228 | entered into the file. |
229 | (5)(a) All books, records, and other papers kept under |
230 | this act by a talent agency or advance-fee talent service must |
231 | be open to the inspection of a state attorney, or the state |
232 | attorney's authorized agent, at any reasonable hour. The talent |
233 | agency or advance-fee talent service must give the state |
234 | attorney a true copy of the books, records, and papers, or any |
235 | portion thereof, when so requested. |
236 | (b) A person may not refuse to disclose any information |
237 | within his or her knowledge as required by this subsection, or |
238 | fail or refuse to produce any document, book, or record for |
239 | inspection which is in his or her possession, to a state |
240 | attorney or the state attorney's authorized agent. |
241 | (c) If a person fails or refuses to disclose information |
242 | to a state attorney as required by this subsection, the person |
243 | commits a misdemeanor of the second degree, punishable as |
244 | provided in s. 775.082 or s. 775.083, Florida Statutes. |
245 | (6) A talent agency must maintain records that contain all |
246 | of the following information or documents: |
247 | (a) The name and current address of each artist employing |
248 | the talent agency. |
249 | (b) The amount of commissions the talent agency has |
250 | received from each artist. |
251 | (c) A record sheet for each engagement obtained by the |
252 | talent agency. The record sheet is the only record required to |
253 | show engagements. The record sheet must be kept in the artist's |
254 | file for a period of not less than 5 years after the date of the |
255 | last record sheet that was posted in the artist's file. |
256 | (d) The engagement the artist was performing in at the |
257 | time the artist was retained by the talent agency. The documents |
258 | must include the amount of compensation received by the artist |
259 | from this engagement. |
260 | (e) The engagements the talent agency procured for the |
261 | artist after the artist and talent agency entered into a |
262 | contract. The documents must include the amount of compensation |
263 | received by the artist from the engagements obtained for the |
264 | artist during the life of the contract. |
265 | (7) An advance-fee talent service must maintain records |
266 | that contain all of the following information or documents: |
267 | (a) The name and current address of each artist employing |
268 | the advance-fee talent service. |
269 | (b) The amount of the advance fees paid by or for the |
270 | artist during the term of the contract with the advance-fee |
271 | talent service. |
272 | (c) A record of all efforts made in promoting the artist. |
273 | A record of each effort to promote the artist must be maintained |
274 | in the artist's file for a period of not less than 5 years after |
275 | the effort to promote the artist was made. |
276 | (8)(a) If a person fails to maintain a permanent office |
277 | and keep regular hours at that office, fails to maintain records |
278 | and files as required by subsection (7), or knowingly makes |
279 | false entries in an artist's files, the person commits: |
280 | 1. A misdemeanor of the second degree for a first |
281 | violation, punishable as provided in s. 775.082 or s. 775.083, |
282 | Florida Statutes. |
283 | 2. A misdemeanor of the first degree for a second |
284 | violation, punishable as provided in s. 775.082 or s. 775.083, |
285 | Florida Statutes. |
286 | 3. A felony of the third degree for a third or subsequent |
287 | violation, punishable as provided in s. 775.082, s. 775.083, or |
288 | s. 775.084, Florida Statutes. |
289 | (b) If a person establishes or keeps an office where |
290 | intoxicating liquor is sold, where gambling is permitted, or |
291 | where acts of prostitution are committed, the person commits a |
292 | felony of the second degree, punishable as provided in s. |
293 | 775.082, s. 775.083, or s. 775.084, Florida Statutes. |
294 | Section 5. Contracts and fees.-- |
295 | (1)(a) A talent agency or advance-fee talent service shall |
296 | post an itemized schedule of maximum fees, charges, or |
297 | commissions that it intends to charge and collect for its |
298 | services. The schedule must be posted in a conspicuous place in |
299 | each place of business. The schedule must be printed in not less |
300 | than 30-point boldfaced type. |
301 | (b) A talent agency that uses a written contract |
302 | containing a schedule of its maximum fees, charges, and |
303 | commissions is not required to post the schedule. |
304 | (c) If a person fails to post in a conspicuous place a |
305 | schedule of the itemized fees, charges, and commissions, if |
306 | required to do so, the person commits: |
307 | 1. A misdemeanor of the second degree for a first |
308 | violation, punishable as provided in s. 775.082 or s. 775.083, |
309 | Florida Statutes. |
310 | 2. A misdemeanor of the first degree for a second |
311 | violation, punishable as provided in s. 775.082 or s. 775.083, |
312 | Florida Statutes. |
313 | 3. A felony of the third degree for a third or subsequent |
314 | violation, punishable as provided in s. 775.082, s. 775.083, or |
315 | s. 775.084, Florida Statutes. |
316 | (2) An artist and a talent agency or advance-fee talent |
317 | service must enter into a written contract when the parties |
318 | agree that a talent agency or advance-fee talent service shall |
319 | perform services for the artist. If the circumstances of the |
320 | arrangement between the artist and the talent agency or advance- |
321 | fee talent service prevent the execution of a contract before |
322 | the artist performs, the artist and the talent agency or |
323 | advance-fee talent service must execute the contract no later |
324 | than 7 days after the first performance. |
325 | (3) The contract must incorporate the full agreement |
326 | between the artist and the talent agency or advance-fee talent |
327 | service, be contained in a single document, and include the |
328 | elements set forth in this section. |
329 | (4) Each contract between an artist and an advance-fee |
330 | talent service must contain all of the following provisions: |
331 | (a) A description of the specific services to be performed |
332 | by the advance-fee talent service, the duration of the contract, |
333 | and the refund provisions if the services are not provided |
334 | according to the contract. |
335 | (b) A statement of the fees that the advance-fee talent |
336 | service will charge to or collect from the artist receiving the |
337 | services and the date or dates when the artist must pay the |
338 | fees. |
339 | (c) The following statement, in type no smaller than 10- |
340 | point boldfaced type and in close proximity to the artist's |
341 | signature, must be included in each advance-fee talent service |
342 | contract: |
343 | RIGHT TO REFUND |
344 |
|
345 | If you pay in advance all or any portion of a fee |
346 | charged to you by (name of advance-fee talent service) |
347 | and you fail to receive the services promised to you |
348 | or that you were led to believe would be performed, |
349 | (name of advance-fee talent service) shall, upon your |
350 | request, return the full amount paid by you within 48 |
351 | hours after your request for a refund. If the refund |
352 | is not made within 48 hours, (name of advance-fee |
353 | talent service) shall also pay to you, in addition to |
354 | the refund due to you, a sum equal to the amount of |
355 | the refund. |
356 | YOUR RIGHT TO CANCEL |
357 |
|
358 |
|
359 | (enter date of transaction) |
360 |
|
361 | You may cancel this contract for advance-fee talent |
362 | services without any penalty or obligation if you give |
363 | notice of the cancellation, in writing, no later than |
364 | 14 days after the date of the transaction stated |
365 | above. If you wish to cancel the contract, you must |
366 | mail or deliver a signed and dated copy of the |
367 | following cancellation notice, another written |
368 | document notifying the advance-fee talent service that |
369 | you intend to cancel the contract, or send a telegram, |
370 | fax, or e-mail notifying the advance-fee talent |
371 | service that you intend to cancel the contract, to |
372 | (name of advance-fee talent service) at (address of |
373 | its place of business) NOT LATER THAN MIDNIGHT AFTER |
374 | (enter the date). ONLY A TALENT AGENCY MAY ENGAGE IN |
375 | THE OCCUPATION OF PROCURING, OFFERING, PROMISING, OR |
376 | ATTEMPTING TO PROCURE EMPLOYMENT OR ENGAGEMENTS FOR AN |
377 | ARTIST. |
378 | CANCELLATION NOTICE |
379 |
|
380 |
|
381 | I hereby cancel this contract. |
382 | Dated: |
383 | ________________________________________ |
384 | Artist Signature. |
385 |
|
386 | (5) A talent agency or advance-fee talent service must |
387 | give each artist a copy of the signed or authenticated contract |
388 | listing the services to be provided and the fees, charges, or |
389 | commissions to be charged at the time the contract is signed. |
390 | (6) A talent agency or advance-fee talent service must |
391 | give each artist a copy of this act at the time the contract is |
392 | signed. |
393 | (7)(a) Before owning, operating, soliciting business for, |
394 | or otherwise engaging in or carrying on the business of a talent |
395 | agency or advance-fee talent service in this state, each agent, |
396 | owner, operator, or other person who is acting as or has a |
397 | financial interest in a talent agency or advance-fee talent |
398 | service must submit a full set of fingerprints as required by |
399 | paragraph (b) and must obtain and maintain a letter, as provided |
400 | in paragraph (e), from the Department of Business and |
401 | Professional Regulation documenting that the results of the |
402 | criminal history check do not disqualify the agent, owner, |
403 | operator, or other person who is acting as or has a financial |
404 | interest in a talent agency or advance-fee talent service. |
405 | (b) Each owner of a talent agency or advance-fee talent |
406 | service shall submit to the Department of Business and |
407 | Professional Regulation a full set of fingerprints, along with |
408 | all applicable fees for processing and maintenance, of each |
409 | agent, owner, operator, or other person having a financial |
410 | interest in the talent agency or advance-fee talent service. |
411 | (c) The fingerprint card or electronic fingerprints must |
412 | be forwarded to the Department of Law Enforcement for purposes |
413 | of processing the fingerprints to determine if the applicant has |
414 | a state criminal history record. The fingerprints must also be |
415 | forwarded to the Federal Bureau of Investigation for purposes of |
416 | processing the fingerprints to determine if the applicant has a |
417 | national criminal history record. The information obtained by |
418 | the processing of the fingerprints by the Department of Law |
419 | Enforcement and the Federal Bureau of Investigation shall be |
420 | sent to the Department of Business and Professional Regulation |
421 | for the purpose of determining if any agent, owner, operator, or |
422 | other person having a financial interest in the talent agency or |
423 | advance-fee talent service has been found guilty of, regardless |
424 | of adjudication, or entered a plea of nolo contendere or guilty |
425 | to sexual battery, lewd acts, or other sexual misconduct |
426 | proscribed in chapter 800, Florida Statutes, or in s. 794.011, |
427 | s. 827.071, s. 847.012, s. 847.0125, s. 847.013, s. 847.0133, or |
428 | s. 847.0145, Florida Statutes. |
429 | (d) The cost for the fingerprint processing shall be borne |
430 | by the person subject to the criminal history record check. The |
431 | fingerprint processing and maintenance fee shall be collected by |
432 | the Department of Business and Professional Regulation through a |
433 | process established by rule in an amount not to exceed $100. The |
434 | Department of Law Enforcement shall render a bill to the |
435 | Department of Business and Professional Regulation for the |
436 | fingerprints submitted by the Department of Business and |
437 | Professional Regulation each month. |
438 | (e) Upon receipt and review of each criminal history |
439 | record, the Department of Business and Professional Regulation |
440 | shall, within 30 days, issue a letter to the talent agency or |
441 | advance-fee talent service notifying the talent agency or |
442 | advance-fee talent service: |
443 | 1. That the results of the criminal history check do not |
444 | disqualify the agent, owner, operator, or other person who is |
445 | acting as or has a financial interest in a talent agency or |
446 | advance-fee talent service; or |
447 | 2. That the results of the criminal history check |
448 | disqualify the agent, owner, operator, or other person who is |
449 | acting as or has a financial interest in a talent agency or |
450 | advance-fee talent service. |
451 | (f) Each talent agency and advance-fee talent service must |
452 | give the artist a copy of the letter issued by the Department of |
453 | Business and Professional Regulation documenting that the |
454 | results of the criminal history check do not disqualify the |
455 | agent, owner, operator, or other person who is acting as or has |
456 | a financial interest in a talent agency or advance-fee talent |
457 | service, as provided under subparagraph (e)2., before executing |
458 | a contract with an artist. The letter must have been issued |
459 | within the previous 36 months. |
460 | (g) If any talent agency or advance-fee talent service |
461 | agent, owner, or operator, or any other person who is acting as |
462 | or has a financial interest in a talent agency or advance-fee |
463 | talent service, fails to submit fingerprints for the background |
464 | check as required by this subsection, the person commits a |
465 | felony of the second degree, punishable as provided in s. |
466 | 775.082, s. 775.083, or s. 775.084, Florida Statutes. |
467 | (8)(a) All money collected by a talent agency from an |
468 | employer or buyer for the benefit of an artist must be paid to |
469 | the artist within 7 business days after receiving the money from |
470 | the employer. The talent agency may reduce the amount paid to |
471 | the artist by the talent agency's commission. |
472 | (b) A talent agency is not required to pay money to an |
473 | artist until the talent agency receives payment from the |
474 | employer or buyer. |
475 | (9) A contract entered into by a talent agency or advance- |
476 | fee talent service which does not conform to this act is |
477 | voidable by the artist. If an artist voids a contract with a |
478 | talent agency or advance-fee talent service, the artist is not |
479 | required to pay or return any consideration received from the |
480 | talent agency or advance-fee talent service to induce the artist |
481 | to enter into the contract. |
482 | (10) An artist may cancel a contract with a talent agency |
483 | or advance-fee talent service by giving written notice of the |
484 | cancellation to the talent agency or advance-fee talent service |
485 | no later than 14 days after the date of transaction. If an |
486 | artist cancels a contract, the artist is not required to pay or |
487 | return any consideration received from the talent agency or |
488 | advance-fee talent service to induce the artist to enter into |
489 | the contract. |
490 | (11) An artist shall not waive the right to cancel a |
491 | contract with a talent agency or advance-fee talent service as |
492 | provided in this act. Any attempt by a talent agency or advance- |
493 | fee talent service to induce an artist to waive the artist's |
494 | right to cancel the contract is a violation of this act. |
495 | (12)(a) If an artist gives consideration to a talent |
496 | agency to be used for expenses to obtain a specific engagement |
497 | or employment and the talent agency fails to procure the |
498 | specific engagement or employment for the artist, the talent |
499 | agency shall, upon the artist's demand, repay all consideration |
500 | paid by the artist. |
501 | (b) The talent agency must refund the consideration to the |
502 | artist no later than 48 hours after receiving the demand from |
503 | the artist. If the talent agency does not refund the artist |
504 | within the prescribed time period, the talent agency must pay |
505 | the artist a penalty that is equal to the amount of all |
506 | consideration paid to the talent agency. |
507 | (13) An advance-fee talent service must refund fees as |
508 | follows: |
509 | (a) If the artist does not receive the services promised |
510 | or the services the artist was led to believe would be |
511 | performed, the advance-fee talent service must, upon the |
512 | artist's demand, refund the artist any fees collected by the |
513 | advance-fee talent service for those services. The advance-fee |
514 | talent service must make the refund to the artist no later than |
515 | 48 hours after the artist demands the refund. If the advance-fee |
516 | talent service does not refund the artist within the prescribed |
517 | time period, the advance-fee talent service must pay the artist |
518 | a penalty that is equal to the amount of all fees paid to the |
519 | advance-fee talent service. |
520 | (b) If an artist cancels the contract, the advance-fee |
521 | talent service must refund in full all fees paid by the artist. |
522 | The advance-fee talent service must refund the fees no later |
523 | than 14 days after the artist cancels the contract. If the |
524 | advance-fee talent service does not refund the artist within the |
525 | prescribed time period, the advance-fee talent service must pay |
526 | the artist a penalty that is equal to the amount of all fees |
527 | paid to the advance-fee talent service. |
528 | (14) A talent agency or advance-fee talent service that |
529 | violates this section commits: |
530 | (a) A misdemeanor of the second degree for a first |
531 | violation, punishable as provided in s. 775.082 or s. 775.083, |
532 | Florida Statutes. |
533 | (b) A misdemeanor of the first degree for a second |
534 | violation, punishable as provided in s. 775.082 or s. 775.083, |
535 | Florida Statutes. |
536 | (c) A felony of the third degree for a third or subsequent |
537 | violation, punishable as provided in s. 775.082, s. 775.083, or |
538 | s. 775.084, Florida Statutes. |
539 | Section 6. Prohibitions and penalties.-- |
540 | (1)(a) A person, business entity, talent agency, or |
541 | advance-fee talent service shall not accept an advance fee for |
542 | procuring, offering, promising, or attempting to procure |
543 | employment or engagements for an artist. |
544 | (b) A person, business entity, talent agency, or advance- |
545 | fee talent service that violates this subsection commits a |
546 | felony of the second degree, punishable as provided in s. |
547 | 775.082, s. 775.083, or s. 775.084, Florida Statutes. |
548 | (2)(a) An advance-fee talent service shall not make any |
549 | false statement, representation, promise, or implication by its |
550 | choice of name that it is a talent agency. An advance-fee talent |
551 | service shall not state, promise, or represent that it will |
552 | procure, or attempt to procure, employment or engagements for |
553 | the artist. |
554 | (b) A person or advance-fee talent service that violates |
555 | this subsection commits a felony of the second degree, |
556 | punishable as provided in s. 775.082, s. 775.083, or s. 775.084, |
557 | Florida Statutes. |
558 | (3)(a) A person, talent agency, or advance-fee talent |
559 | service, or an owner, operator, employee, or agent of a talent |
560 | agency or advance-fee talent service, shall not: |
561 | 1. Give an artist false information, make a false promise |
562 | or misrepresentation concerning any engagement or employment, or |
563 | make a false or misleading verbal or written promise or |
564 | guarantee of any engagement as an artist. |
565 | 2. Print, publish, distribute, or cause, authorize, or |
566 | knowingly permit the making, printing, publication, or |
567 | distribution of any false statement, description, or promise |
568 | that would reasonably induce a person to act to his or her |
569 | damage or injury. |
570 | 3. Knowingly commit, or be a party to, any material fraud, |
571 | misrepresentation, concealment, conspiracy, collusion, trick, |
572 | scheme, or device whereby any other person lawfully relying upon |
573 | the work, representation, or conduct of the talent agency or |
574 | advance-fee talent service acts or has acted to his or her |
575 | injury or damage. |
576 | 4. Commit fraud or deceit in the operation of a talent |
577 | agency or advance-fee talent service. |
578 | 5. Conspire with another talent agency or advance-fee |
579 | talent service or with another person to commit an act that |
580 | coerces, intimidates, or precludes another talent agency or |
581 | advance-fee talent service from advertising its services. |
582 | 6. Solicit business, either personally or through any |
583 | other person, using fraud, deception, or misleading statements |
584 | or through the exercise of intimidation or undue influence. |
585 | 7. Exercise undue influence on the artist in order to |
586 | exploit the artist for the financial gain of the talent agency, |
587 | advance-fee talent service, or a third party. |
588 | 8. Commit sexual misconduct with an artist. An owner, |
589 | operator, employee, or agent of the talent agency or advance-fee |
590 | talent service shall not use the artist-agent relationship to |
591 | induce or attempt to induce the artist to engage or attempt to |
592 | engage in sexual activity. |
593 | 9. Employ an employee, agent, owner, operator, or other |
594 | person with a financial interest who has been convicted of |
595 | sexual battery, lewd acts, or other sexual misconduct proscribed |
596 | in chapter 800, Florida Statutes, or in s. 794.011, s. 827.071, |
597 | s. 847.012, s. 847.0125, s. 847.013, s. 847.0133, or s. |
598 | 847.0145, Florida Statutes. |
599 | 10. Send, or cause to send, an artist to a house of ill |
600 | fame, a house or place of amusement for immoral purposes, a |
601 | place where prostitution is performed, or a place for the |
602 | modeling or photographing of a minor in the nude, the character |
603 | of which could have been ascertained upon reasonable inquiry by |
604 | the talent agency or advance-fee talent service. |
605 | a. For the purposes of this subparagraph, the term |
606 | "modeling or photographing of a minor in the nude" means the |
607 | visual display of the buttocks, genitals, or female breast, |
608 | areolae, or nipples of a person younger than 18 years of age. |
609 | b. This subparagraph does not apply if both parents or the |
610 | legal guardian of the minor are fully advised of the intended |
611 | activity and both parents or the guardian execute a written |
612 | consent for the visual display of their child or ward. |
613 | 11. Fail to submit to the fingerprint background check |
614 | when required by this act. |
615 | (b) A person, talent agency, or advance-fee talent service |
616 | that violates this subsection commits a felony of the second |
617 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
618 | 775.084, Florida Statutes. |
619 | (4)(a) A person, talent agency, or advance-fee talent |
620 | service shall not: |
621 | 1. Make, or cause to be made, any false, misleading, or |
622 | deceptive advertisement or representation concerning the |
623 | services the artist will receive or the costs the artist will |
624 | incur. |
625 | 2. Publish or cause to be published any false, fraudulent, |
626 | or misleading information, representation, notice, or |
627 | advertisement. |
628 | 3. Charge, collect, or receive compensation for any |
629 | service performed by the talent agency or advance-fee talent |
630 | service greater than the charge, fee, or compensation specified |
631 | in its schedule of maximum fees, charges, and commissions. |
632 | 4. Advertise goods or services in a manner that is |
633 | fraudulent, false, deceptive, or misleading in form or content. |
634 | 5. Permit, aid, assist, procure, or advise a person to |
635 | operate a talent agency or advance-fee talent service contrary |
636 | to this act. |
637 | 6. Fail to perform any statutory or legal obligation |
638 | required by law for a talent agency or advance-fee talent |
639 | service. |
640 | 7. Require the applicant or artist to subscribe to or |
641 | purchase any publication, postcard service, advertisement, |
642 | resume service, photography service, website service, or video |
643 | or audiotapes, or attend any school, acting school, workshop, or |
644 | acting class as a condition to performing services for an |
645 | applicant or artist. |
646 | 8. Charge or attempt to charge, directly or indirectly, an |
647 | artist for creating or providing photographs, filmstrips, |
648 | videotapes, audition tapes, demonstration reels, talent |
649 | brochures, or other reproductions of the artist, or for |
650 | providing costumes, lessons, coaching, or similar training for |
651 | the artist. |
652 | 9. Refer an artist to a person who charges the artist a |
653 | fee for the services described in this act in which the talent |
654 | agency or advance-fee talent service has a direct or indirect |
655 | financial interest. |
656 | 10. Accept any compensation for referring an artist to a |
657 | person charging the artist a fee for the services described in |
658 | this act. |
659 | 11. Knowingly issue a contract containing any term or |
660 | condition that, if complied with, would be in violation of law. |
661 | 12. Knowingly send or influence an artist to go to a |
662 | prospective employer or place of business the character or |
663 | operation of which the talent agency or advance-fee talent |
664 | service knows to be in violation of the laws of the United |
665 | States or this state. |
666 | 13. Divide fees with anyone, including, but not limited |
667 | to, an agent or other employee of an employer, buyer, casting |
668 | director, producer, or director. |
669 | 14. Fail to maintain records required by this act or |
670 | knowingly making false entries in the records. |
671 | 15. Fail, either before or at the time of executing a |
672 | contract, to give the artist a copy of the signed or |
673 | authenticated contract listing the services to be provided; an |
674 | itemized schedule of maximum fees, charges, and commissions that |
675 | it intends to charge and collect for its services; a copy of |
676 | this act; a copy of the letter from the Department of Business |
677 | and Professional Regulation indicating the results of the |
678 | criminal history record; and a copy of a bond. |
679 | 16. Charge a registration fee, except as permitted for |
680 | advance-fee talent services. |
681 | 17. Fail to notify an artist that there is a strike, |
682 | lockout, or other labor dispute in active progress before |
683 | sending the artist to an engagement. |
684 | (b) A person, talent agency, or advance-fee talent service |
685 | that violates this subsection commits: |
686 | 1. A misdemeanor of the second degree for a first offense, |
687 | punishable as provided in s. 775.082 or s. 775.083, Florida |
688 | Statutes. |
689 | 2. A misdemeanor of the first degree for a second |
690 | violation, punishable as provided in s. 775.082 or s. 775.083, |
691 | Florida Statutes. |
692 | 3. A felony of the third degree for a third or subsequent |
693 | violation, punishable as provided in s. 775.082, s. 775.083, or |
694 | s. 775.084, Florida Statutes. |
695 | Section 7. Remedies.-- |
696 | (1)(a) If a state attorney believes there is probable |
697 | cause that a talent agency, advanced-fee talent service, or |
698 | other person has violated subsection (1), subsection (2), or |
699 | subsection (3) of section 6 of this act, the state attorney may |
700 | file a civil action in the circuit court to enjoin the talent |
701 | agency, advanced-fee talent service, or other person from |
702 | continuing the violation or doing any act in furtherance |
703 | thereof, and for such other relief as the court deems |
704 | appropriate. |
705 | (b) A state attorney may file a civil action in circuit |
706 | court upon the sworn affidavit of a person alleging a violation |
707 | of this act. The court may grant a temporary or permanent |
708 | injunction restraining any talent agency, advanced-fee talent |
709 | service, or other person from violating this act and the |
710 | injunction shall issue without bond. |
711 | (2)(a) If an artist or other person is injured by the |
712 | misconduct of a talent agency or advance-fee talent service, the |
713 | artist may file a civil action in his or her own name upon the |
714 | bond of the talent agency or advance-fee talent service in any |
715 | court having jurisdiction of the amount claimed. |
716 | (b) The artist or other person filing the complaint may |
717 | bring the action for temporary or permanent injunctive relief |
718 | and may seek other relief, including, but not limited to, |
719 | restitution for damages, court costs, a civil penalty not to |
720 | exceed $5,000 for each violation, treble damages for injured |
721 | parties, and reasonable attorney's fees. |
722 | (c) Any claim made by an artist or other person is |
723 | assignable, and the assignee is entitled to the same remedies |
724 | upon the bond of the talent agency or advance-fee talent service |
725 | or otherwise as the artist or other person aggrieved would be |
726 | entitled to if the claim had not been assigned. A claim so |
727 | assigned may be enforced in the name of the assignee. |
728 | (3) The remedies provided in this section are cumulative |
729 | and not exclusive of any other remedy provided by law. |
730 | Section 8. The regulation of talent agencies by the |
731 | Department of Business and Professional Regulation is abolished. |
732 | Any funds and balances associated with the regulation of talent |
733 | agencies remaining in the Professional Regulation Trust Fund |
734 | after July 1, 2005, shall be used to pay any remaining expenses |
735 | associated with this regulation. The department shall rebate |
736 | talent agency license fees, on a pro rata basis, for the period |
737 | beginning July 1, 2005, through the period for which license |
738 | fees have been paid. If the account is in a deficit balance, the |
739 | funds shall be provided from the General Revenue Fund. Another |
740 | profession regulated by the Department of Business and |
741 | Professional Regulation shall not be assessed the cost of any |
742 | refund. Any funds or balances remaining in the trust fund after |
743 | January 1, 2006, shall be transferred to the General Revenue |
744 | Fund. |
745 | Section 9. The Department of Business and Professional |
746 | Regulation may continue to prosecute any legal proceedings and |
747 | related administrative cases that are pending on July 1, 2005. |
748 | Section 10. For fiscal year 2005-2006, $59,331 in |
749 | nonrecurring funds is appropriated to the Department of Business |
750 | and Professional Regulation from the General Revenue Fund to |
751 | provide pro rata rebates of license fees paid by registrants. |
752 | Section 11. This act shall take effect July 1, 2005. |