Florida Senate - 2009 SB 1324 By Senator Aronberg 27-01154-09 20091324__ 1 A bill to be entitled 2 An act relating to direct-mail marketing 3 solicitations; creating s. 501.0585, F.S.; defining 4 terms; requiring the Department of Agriculture and 5 Consumer Services to establish and maintain by a 6 specified date a “do-not-mail” statewide registry to 7 contain a list of consumers who do not wish to receive 8 direct-mail marketing solicitations; providing 9 procedures by which a person may place his or her name 10 on the registry; requiring the department to provide 11 the registry to any direct-mail marketer upon request; 12 requiring the marketer to provide certain information 13 and to pay a fee established by rule of the 14 department; prohibiting a direct-mail marketer from 15 mailing solicitations to persons on the do-not-mail 16 registry; requiring the department to investigate 17 complaints; providing that the department or the 18 Department of Legal Affairs may bring an action to 19 impose a civil penalty and to seek other relief, 20 including injunctive relief, as the court deems 21 appropriate against a direct-mail marketer; limiting 22 the civil penalty imposed; providing that a violation 23 of the act constitutes a deceptive and unfair 24 practice; providing that a person who has received 25 more than one solicitation within any 12-month period 26 by or on behalf of the same direct-mail marketer in 27 violation of the law may bring a civil action in 28 circuit court for damages, injunctive relief, punitive 29 damages, and reasonable costs and attorney’s fees; 30 providing for attorney’s fees under certain 31 circumstances; requiring the department to adopt 32 rules; providing an effective date. 33 34 Be It Enacted by the Legislature of the State of Florida: 35 36 Section 1. Section 501.0585, Florida Statutes, is created 37 to read: 38 501.0585 Direct-mail marketing solicitations; establishment 39 of a do-not-mail registry.— 40 (1) As used in this section, the term: 41 (a) “Consumer” means an actual or prospective purchaser, 42 lessee, or recipient of consumer goods or services. 43 (b) “Consumer goods or services” means any real property or 44 any tangible or intangible personal property that is normally 45 used for personal, family, or household purposes, including, 46 without limitation, any such property intended to be attached to 47 or installed in any real property without regard to whether it 48 is so attached or installed, as well as cemetery lots and 49 timeshare estates, and any services related to such property. 50 (c) “Department” means the Department of Agriculture and 51 Consumer Services. 52 (d) “Direct-mail marketer” means any person who, for 53 commercial purposes in connection with direct-mail marketing, 54 mails solicitations for the sale of goods or services to a 55 consumer when the consumer is in this state. The term includes 56 any person who directly controls or supervises the conduct of a 57 direct-mail marketer. 58 (e) “Direct-mail marketing” means any mailing that contains 59 solicitations for the sale of goods or services and is directed 60 to a consumer at the consumer's residence within this state by 61 personal mail delivery to a consumer at his or her residence. 62 (f) “Doing business in this state” means mailing or causing 63 to be mailed any direct-mail marketing solicitation from a 64 location in this state or from other states or nations to 65 consumers located in this state. 66 (g) “Solicitation” means any communication via mail for the 67 purpose of encouraging the purchase or rental of, or investment 68 in, property, goods, or services. The term does not include 69 communications via mail: 70 1. To any resident with that resident’s prior express 71 invitation or permission; 72 2. By or on behalf of any person with whom a resident has 73 had a business contact within the past 180 days or a current 74 business or personal relationship, unless the consumer has 75 expressed to the direct-mail marketer that the consumer no 76 longer wishes to receive any more direct-mail marketing from 77 that direct-mail marketer; 78 3. By or on behalf of an entity organized under s. 79 501(c)(3) of the Internal Revenue Code, as amended, while the 80 entity is engaged in fundraising to support the charitable 81 purpose for which the entity was established if a bona fide 82 member of the exempt organization makes the communication; 83 4. By a newspaper publisher or his or her agent or employee 84 in connection with his or her business; 85 5. By a person responding to a referral, or working from 86 his or her primary residence, or a person licensed by this state 87 to carry out a trade, occupation, or profession who is setting 88 or attempting to set an appointment for actions relating to that 89 licensed trade, occupation, or profession within this state or 90 counties contiguous to the state; or 91 6. By or on behalf of a political party, political 92 committee, campaign committee, candidate committee, or entity 93 organized under s. 527 of the Internal Revenue Code, as amended, 94 while the entity is engaged in political speech or fund raising 95 for political purposes. 96 (2)(a) The department shall establish and maintain a “do 97 not-mail” statewide registry which shall contain a list of 98 consumers who do not wish to receive direct-mail marketing 99 solicitations. The department shall have the registry in 100 operation by July 1, 2010. 101 (b) Any consumer desiring to be placed on the do-not-mail 102 registry indicating that the consumer does not wish to receive 103 any direct-mail marketing solicitations may notify the 104 department and be placed on that registry upon receipt by the 105 department of a $10 initial listing charge. This registry 106 listing shall be renewed by the department for each consumer 107 upon receipt of a renewal notice and a $5 assessment. Any 108 consumer who wishes to be included on the registry may notify 109 the department by calling a toll-free number provided by the 110 department or by using the department's Internet website. 111 (c) A consumer on the registry must be deleted from the 112 registry upon the consumer's written request. 113 (d) The department shall update its do-not-mail registry 114 using initial consumer subscriptions and renewals. The 115 department shall update the do-not-mail registry at least 116 quarterly. 117 (e)1. The department shall provide the registry to any 118 direct-mail marketer upon request. Each direct-mail marketer 119 shall provide a current business name, business address, e-mail 120 address if available, and telephone number when initially 121 registering for access to the database and upon any change in 122 that information. 123 2. Direct-mail marketers who wish to send solicitations or 124 otherwise access the database established in this subsection, 125 shall pay to the department an annual registration fee of not 126 more than $500. Fees shall be determined by a sliding fee scale 127 established in rule by the department. A fee may not be charged 128 to nonprofit corporations. 129 (3) All fees imposed under this section shall be deposited 130 in the General Inspection Trust Fund and used for administering 131 this section. 132 (4) A direct-mail marketer doing business in this state may 133 not mail or cause to be mailed any solicitation to any consumer 134 more than 30 days after the consumer's name and address appears 135 on the then-current quarterly do-not-mail statewide registry 136 made available by the department under subsection (2). 137 (5)(a) The department shall investigate any complaints 138 received concerning violations of this section. If, after 139 investigating any complaint, the department finds that there has 140 been a violation of this section, the department or the 141 Department of Legal Affairs may bring an action to impose a 142 civil penalty and to seek other relief, including injunctive 143 relief, as the court deems appropriate against the direct-mail 144 marketer. The civil penalty may not exceed $10,000 per violation 145 and shall be deposited in the General Inspection Trust Fund if 146 the action or proceeding was brought by the department, or the 147 Legal Affairs Revolving Trust Fund if the action or proceeding 148 was brought by the Department of Legal Affairs. The civil 149 penalty may be recovered in any action brought under this part 150 by the department, or the department may terminate any 151 investigation or action upon agreement by the person to pay a 152 stipulated civil penalty. The department or the court may waive 153 any civil penalty if the person has previously made full 154 restitution or reimbursement or has paid actual damages to the 155 consumers who have been injured by the violation. 156 (b) A violation of this section constitutes a deceptive and 157 unfair practice. Each prohibited solicitation constitutes a 158 separate violation. 159 (6) A consumer who receives more than one solicitation 160 within any 12-month period by or on behalf of the same direct 161 mail marketer in violation of this section may bring a civil 162 action in circuit court for damages, injunctive relief, punitive 163 damages in the case of a willful violation, and reasonable costs 164 and attorney’s fees. The court may issue an award for the 165 person’s actual damages or $500 for a first violation, or $1,000 166 for each subsequent violation, whichever is greater. This 167 subsection does not limit a direct-mail marketer’s liability 168 under any other civil or criminal law. 169 (7)(a) In any civil litigation resulting from a violation 170 of this section, the prevailing party, after judgment in the 171 trial court and exhaustion of all appeals, if any, shall receive 172 his or her reasonable attorney's fees and costs from the 173 nonprevailing party. 174 (b) The attorney for the prevailing party shall submit a 175 sworn affidavit of his or her time spent on the case and his or 176 her costs incurred for all the motions, hearings, and appeals to 177 the trial judge who presided over the civil case. 178 (c) The trial judge shall award the prevailing party the 179 sum of reasonable costs incurred in the action plus a reasonable 180 legal fee for the hours actually spent on the case as sworn to 181 in an affidavit. 182 (d) Any award of attorney's fees or costs shall become a 183 part of the judgment and subject to execution as the law allows. 184 (e) In any civil litigation initiated by the department or 185 the Department of Legal Affairs, the court may award to the 186 prevailing party reasonable attorney's fees and costs if the 187 court finds that there was a complete absence of a justiciable 188 issue of law or fact raised by the losing party or if the court 189 finds bad faith on the part of the losing party. 190 (8) The department shall adopt rules to administer this 191 section. 192 Section 2. This act shall take effect July 1, 2009.