Senate Bill sb1318

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    Florida Senate - 2006                                  SB 1318

    By Senator Crist





    12-406A-06

  1                      A bill to be entitled

  2         An act relating to telephone solicitation;

  3         amending s. 501.059, F.S.; defining the terms

  4         "cellular telephone," "electronic serial

  5         number," and "mobile identification number";

  6         prohibiting a telephone solicitor from making a

  7         telephonic sales call to any telephone number

  8         assigned to a cellular telephone service

  9         without the prior consent of the subscriber to

10         the cellular telephone service; amending ss.

11         501.603 and 648.44, F.S., conforming

12         cross-references; providing an effective date.

13  

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

15  

16         Section 1.  Section 501.059, Florida Statutes, is

17  amended to read:

18         501.059  Telephone solicitation.--

19         (1)  As used in this section:

20         (a)  "Telephonic sales call" means a call made by a

21  telephone solicitor to a consumer, for the purpose of

22  soliciting a sale of any consumer goods or services, or for

23  the purpose of soliciting an extension of credit for consumer

24  goods or services, or for the purpose of obtaining information

25  that will or may be used for the direct solicitation of a sale

26  of consumer goods or services or an extension of credit for

27  such purposes.

28         (b)  "Consumer goods or services" means any real

29  property or any tangible or intangible personal property which

30  is normally used for personal, family, or household purposes,

31  including, without limitation, any such property intended to

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 1  be attached to or installed in any real property without

 2  regard to whether it is so attached or installed, as well as

 3  cemetery lots and timeshare estates, and any services related

 4  to such property.

 5         (c)  "Unsolicited telephonic sales call" means a

 6  telephonic sales call other than a call made:

 7         1.  In response to an express request of the person

 8  called;

 9         2.  Primarily in connection with an existing debt or

10  contract, payment or performance of which has not been

11  completed at the time of such call;

12         3.  To any person with whom the telephone solicitor has

13  a prior or existing business relationship; or

14         4.  By a newspaper publisher or his or her agent or

15  employee in connection with his or her business.

16         (d)  "Commission" means the Florida Public Service

17  Commission.

18         (e)  "Telephone solicitor" means any natural person,

19  firm, organization, partnership, association, or corporation,

20  or a subsidiary or affiliate thereof, doing business in this

21  state, who makes or causes to be made a telephonic sales call,

22  including, but not limited to, calls made by use of automated

23  dialing or recorded message devices.

24         (f)  "Consumer" means an actual or prospective

25  purchaser, lessee, or recipient of consumer goods or services.

26         (g)  "Merchant" means a person who, directly or

27  indirectly, offers or makes available to consumers any

28  consumer goods or services.

29         (h)  "Doing business in this state" refers to

30  businesses who conduct telephonic sales calls from a location

31  

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 1  in Florida or from other states or nations to consumers

 2  located in Florida.

 3         (i)  "Department" means the Department of Agriculture

 4  and Consumer Services.

 5         (j)  "Electronic serial number" means the unique

 6  numerical algorithm that is programmed into the microchip of

 7  each cellular telephone by the manufacturer and is vital to

 8  the successful operation and billing of the telephone.

 9         (k)  "Mobile identification number" means the cellular

10  telephone number assigned to the cellular telephone by the

11  cellular telephone carrier.

12         (l)  "Cellular telephone" means a communication device

13  containing a unique electronic serial number that is

14  programmed into its computer chip by its manufacturer and

15  whose operation is dependent on the transmission of that

16  electronic serial number, along with a mobile identification

17  number that is assigned by the cellular telephone carrier, in

18  the form of radio signals through cell sites and mobile

19  switching stations.

20         (2)  Any telephone solicitor who makes an unsolicited

21  telephonic sales call to a residential, mobile, or telephonic

22  paging device telephone number shall identify himself or

23  herself by his or her true first and last names and the

24  business on whose behalf he or she is soliciting immediately

25  upon making contact by telephone with the person who is the

26  object of the telephone solicitation.

27         (3)  A telephone solicitor may not make any telephonic

28  sales call, other than a call made with the prior written

29  express consent of the called party, to any telephone number

30  assigned to a cellular telephone service or any service for

31  which the called party is charged for the call.

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 1         (4)(3)(a)  Any residential, mobile, or telephonic

 2  paging device telephone subscriber desiring to be placed on a

 3  "no sales solicitation calls" listing indicating that the

 4  subscriber does not wish to receive unsolicited telephonic

 5  sales calls may notify the department and be placed on that

 6  listing upon receipt by the department of a $10 initial

 7  listing charge.  This listing shall be renewed by the

 8  department annually for each consumer upon receipt of a

 9  renewal notice and a $5 assessment.

10         (b)  The department shall update its "no sales

11  solicitation calls" listing upon receipt of initial consumer

12  subscriptions or renewals and provide this listing for a fee

13  to telephone solicitors upon request.

14         (c)  All fees imposed under pursuant to this section

15  shall be deposited in the General Inspection Trust Fund for

16  the administration of this section.

17         (5)(4)  A No telephone solicitor may not shall make or

18  cause to be made any unsolicited telephonic sales call to any

19  residential, mobile, or telephonic paging device telephone

20  number if the number for that telephone appears in the

21  then-current quarterly listing published by the department.

22  Any telephone solicitor or person who offers for sale any

23  consumer information which includes residential, mobile, or

24  telephonic paging device telephone numbers, except directory

25  assistance and telephone directories sold by telephone

26  companies and organizations exempt under s. 501(c)(3) or (6)

27  of the Internal Revenue Code, shall screen and exclude those

28  numbers which appear on the division's then-current "no sales

29  solicitation calls" list. This subsection does not apply to

30  any person licensed pursuant to chapter 475 who calls an

31  actual or prospective seller or lessor of real property when

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 1  such call is made in response to a yard sign or other form of

 2  advertisement placed by the seller or lessor.

 3         (6)(5)(a)  A contract made pursuant to a telephonic

 4  sales call is not valid and enforceable against a consumer

 5  unless made in compliance with this subsection.

 6         (b)  A contract made pursuant to a telephonic sales

 7  call:

 8         1.  Shall be reduced to writing and signed by the

 9  consumer.

10         2.  Shall comply with all other applicable laws and

11  rules.

12         3.  Shall match the description of goods or services as

13  principally used in the telephone solicitations.

14         4.  Shall contain the name, address, and telephone

15  number of the seller, the total price of the contract, and a

16  detailed description of the goods or services being sold.

17         5.  Shall contain, in bold, conspicuous type,

18  immediately preceding the signature, the following statement:

19         "You are not obligated to pay any money unless you sign

20  this contract and return it to the seller."

21         6.  May not exclude from its terms any oral or written

22  representations made by the telephone solicitor to the

23  consumer in connection with the transaction.

24         (c)  The provisions of This subsection does do not

25  apply to contractual sales regulated under other sections of

26  the Florida Statutes, or to the sale of financial services,

27  security sales, or sales transacted by companies or their

28  wholly owned subsidiaries or agents, which companies are

29  regulated by chapter 364, or to the sale of cable television

30  services to the duly franchised cable television operator's

31  existing subscribers within that cable television operator's

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 1  franchise area, or to any sales where no prior payment is made

 2  to the merchant and an invoice accompanies the goods or

 3  services allowing the consumer 7 days to cancel or return

 4  without obligation for any payment.

 5         (7)(6)(a)  A merchant who engages a telephone solicitor

 6  to make or cause to be made a telephonic sales call may shall

 7  not make or submit any charge to the consumer's credit card

 8  account or make or cause to be made any electronic transfer of

 9  funds until after the merchant receives from the consumer a

10  copy of the contract, signed by the purchaser, which complies

11  with this section.

12         (b)  A merchant who conducts a credit card account

13  transaction under pursuant to this section shall be subject to

14  the provisions of s. 817.62.

15         (c)  The provisions of This subsection does do not

16  apply to a transaction:

17         1.  Made in accordance with prior negotiations in the

18  course of a visit by the consumer to a merchant operating a

19  retail business establishment which has a fixed permanent

20  location and where consumer goods are displayed or offered for

21  sale on a continuing basis;

22         2.  In which the consumer may obtain a full refund for

23  the return of undamaged and unused goods or a cancellation of

24  services notice to the seller within 7 days after receipt by

25  the consumer, and the seller will process the refund within 30

26  days after receipt of the returned merchandise by the

27  consumer;

28         3.  In which the consumer purchases goods or services

29  pursuant to an examination of a television, radio, or print

30  advertisement or a sample, brochure, or catalog of the

31  merchant that contains:

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 1         a.  The name, address, and telephone number of the

 2  merchant;

 3         b.  A description of the goods or services being sold;

 4  and

 5         c.  Any limitations or restrictions that apply to the

 6  offer; or

 7         4.  In which the merchant is a bona fide charitable

 8  organization or a newspaper as defined in chapter 50.

 9         (8)(7)(a)  A No person may not shall make or knowingly

10  allow a telephonic sales call to be made if the such call

11  involves an automated system for the selection or dialing of

12  telephone numbers or the playing of a recorded message when a

13  connection is completed to a number called.

14         (b)  This subsection does not prohibit Nothing herein

15  prohibits the use of an automated telephone dialing system

16  with live messages if the calls are made or messages given

17  solely in response to calls initiated by the persons to whom

18  the automatic calls or live messages are directed or if the

19  telephone numbers selected for automatic dialing have been

20  screened to exclude any telephone subscriber who is included

21  on the department's then-current "no sales solicitation calls"

22  listing or any unlisted telephone number, or if the calls made

23  concern goods or services that have been previously ordered or

24  purchased.

25         (9)(8)  The department shall investigate any complaints

26  received concerning violations of this section.  If, after

27  investigating any complaint, the department finds that there

28  has been a violation of this section, the department or the

29  Department of Legal Affairs may bring an action to impose a

30  civil penalty and to seek other relief, including injunctive

31  relief, as the court deems appropriate against the telephone

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 1  solicitor.  The civil penalty may shall not exceed $10,000 per

 2  violation and shall be deposited in the General Inspection

 3  Trust Fund if the action or proceeding was brought by the

 4  department, or the Legal Affairs Revolving Trust Fund if the

 5  action or proceeding was brought by the Department of Legal

 6  Affairs. This civil penalty may be recovered in any action

 7  brought under this part by the department, or the department

 8  may terminate any investigation or action upon agreement by

 9  the person to pay a stipulated civil penalty.  The department

10  or the court may waive any civil penalty if the person has

11  previously made full restitution or reimbursement or has paid

12  actual damages to the consumers who have been injured by the

13  violation.

14         (10)(9)(a)  In any civil litigation resulting from a

15  transaction involving a violation of this section, the

16  prevailing party, after judgment in the trial court and

17  exhaustion of all appeals, if any, shall receive his or her

18  reasonable attorney's fees and costs from the nonprevailing

19  party.

20         (b)  The attorney for the prevailing party shall submit

21  a sworn affidavit of his or her time spent on the case and his

22  or her costs incurred for all the motions, hearings, and

23  appeals to the trial judge who presided over the civil case.

24         (c)  The trial judge shall award the prevailing party

25  the sum of reasonable costs incurred in the action plus a

26  reasonable legal fee for the hours actually spent on the case

27  as sworn to in an affidavit.

28         (d)  Any award of attorney's fees or costs shall become

29  a part of the judgment and subject to execution as the law

30  allows.

31  

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 1         (e)  In any civil litigation initiated by the

 2  department or the Department of Legal Affairs, the court may

 3  award to the prevailing party reasonable attorney's fees and

 4  costs if the court finds that there was a complete absence of

 5  a justiciable issue of either law or fact raised by the losing

 6  party or if the court finds bad faith on the part of the

 7  losing party.

 8         (11)(10)  The commission shall by rule ensure that

 9  telecommunications companies inform their customers of the

10  provisions of this section.  The notification may be made by:

11         (a)  Annual inserts in the billing statements mailed to

12  customers; and

13         (b)  Conspicuous publication of the notice in the

14  consumer information pages of the local telephone directories.

15         Section 2.  Subsection (1) of section 501.603, Florida

16  Statutes, is amended to read:

17         501.603  Definitions.--As used in this part, unless the

18  context otherwise requires, the term:

19         (1)  "Commercial telephone solicitation" means:

20         (a)  An unsolicited telephone call to a person

21  initiated by a commercial telephone seller or salesperson, or

22  an automated dialing machine used in accordance with the

23  provisions of s. 501.059(8) s. 501.059(7) for the purpose of

24  inducing the person to purchase or invest in consumer goods or

25  services;

26         (b)  Other communication with a person where:

27         1.  A gift, award, or prize is offered; or

28         2.  A telephone call response is invited; and

29         3.  The salesperson intends to complete a sale or enter

30  into an agreement to purchase during the course of the

31  telephone call; or

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 1         (c)  Other communication with a person which represents

 2  a price, quality, or availability of consumer goods or

 3  services and which invites a response by telephone or which is

 4  followed by a call to the person by a salesperson.

 5  

 6  For purposes of this section, "other communication" means a

 7  written or oral notification or advertisement transmitted

 8  through any means. Also, for purposes of this section,

 9  "invites a response by telephone" does not mean the mere

10  listing or including of a telephone number in a notification

11  or advertisement.

12         Section 3.  Paragraph (c) of subsection (1) of section

13  648.44, Florida Statutes, is amended to read:

14         648.44  Prohibitions; penalty.--

15         (1)  A bail bond agent or temporary bail bond agent may

16  not:

17         (c)  Initiate in-person or telephone solicitation after

18  9:00 p.m. or before 8:00 a.m., in the case of domestic

19  violence cases, at the residence of the detainee or the

20  detainee's family. Any solicitation not prohibited by this

21  chapter must comply with the telephone solicitation

22  requirements in ss. 501.059(2) and (5) (4), 501.613, and

23  501.616(6).

24         Section 4.  This act shall take effect July 1, 2006.

25  

26            *****************************************

27                          SENATE SUMMARY

28    Defines the terms "cellular telephone," "electronic
      serial number," and "mobile identification number."
29    Prohibits a telephone solicitor from making a telephonic
      sales call to any telephone number assigned to a cellular
30    telephone service without the prior consent of the
      subscriber to the cellular telephone service.
31  

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