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         501.0585Direct-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.