| 1 | A bill to be entitled |
| 2 | An act relating to direct-mail marketing solicitations; |
| 3 | creating s. 501.0585, F.S.; defining terms; requiring the |
| 4 | Department of Agriculture and Consumer Services to |
| 5 | establish and maintain by a specified date a statewide "do |
| 6 | not mail" registry to contain a list of consumers who do |
| 7 | not wish to receive direct-mail marketing solicitations; |
| 8 | providing procedures by which a person may place his or |
| 9 | her name on the registry; requiring the department to |
| 10 | provide the registry to any direct-mail marketer upon |
| 11 | request; requiring the marketer to provide certain |
| 12 | information and to pay a fee established by rule of the |
| 13 | department; prohibiting a direct-mail marketer from |
| 14 | mailing solicitations to persons on the do not mail |
| 15 | registry; requiring the department to investigate |
| 16 | complaints; providing that the department or the |
| 17 | Department of Legal Affairs may bring an action to impose |
| 18 | a civil penalty and to seek other relief, including |
| 19 | injunctive relief, as the court deems appropriate against |
| 20 | a direct-mail marketer; limiting the civil penalty |
| 21 | imposed; providing that a violation of the act is a |
| 22 | deceptive or unfair trade practice; providing penalties; |
| 23 | providing that a person who receives more than one |
| 24 | solicitation within any 12-month period by or on behalf of |
| 25 | the same direct-mail marketer in violation of the law may |
| 26 | bring a civil action in circuit court for damages, |
| 27 | injunctive relief, punitive damages, and reasonable costs |
| 28 | and attorney's fees; providing for attorney's fees under |
| 29 | certain circumstances; requiring the department to adopt |
| 30 | rules; providing an effective date. |
| 31 |
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| 32 | Be It Enacted by the Legislature of the State of Florida: |
| 33 |
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| 34 | Section 1. Section 501.0585, Florida Statutes, is created |
| 35 | to read: |
| 36 | 501.0585 Direct-mail marketing solicitations; |
| 37 | establishment of a do not mail registry.-- |
| 38 | (1) As used in this section, the term: |
| 39 | (a) "Consumer" means an actual or prospective purchaser, |
| 40 | lessee, or recipient of consumer goods or services who resides |
| 41 | in the state. |
| 42 | (b) "Consumer goods or services" means any real property |
| 43 | or any tangible or intangible personal property that is normally |
| 44 | used for personal, family, or household purposes, including, but |
| 45 | not limited to, any such property intended to be attached to or |
| 46 | installed in any real property, whether or not it is attached or |
| 47 | installed, as well as cemetery lots and timeshare estates, and |
| 48 | any services related to such property. |
| 49 | (c) "Department" means the Department of Agriculture and |
| 50 | Consumer Services. |
| 51 | (d) "Direct-mail marketer" means any person who, for |
| 52 | commercial purposes in connection with direct-mail marketing, |
| 53 | mails solicitations for the sale of goods or services to a |
| 54 | consumer who resides in this state. The term includes any person |
| 55 | who directly controls or supervises the conduct of a direct-mail |
| 56 | marketer. |
| 57 | (e) "Direct-mail marketing" means any mailing that |
| 58 | contains solicitations for the sale of goods or services and is |
| 59 | directed to a consumer at the consumer's residence within this |
| 60 | state by personal mail delivery to the consumer at his or her |
| 61 | residence. |
| 62 | (f) "Doing business in this state" means mailing or |
| 63 | causing to be mailed any direct-mail marketing solicitation from |
| 64 | a location in this state or from another state or nation to a |
| 65 | consumer who resides in this state. |
| 66 | (g) "Solicitation" means any communication by 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 by mail: |
| 70 | 1. To any resident with that resident's prior express |
| 71 | invitation or permission; |
| 72 | 2. From or on behalf of any person with whom a resident |
| 73 | had a business contact within the past 180 days or a current |
| 74 | business or personal relationship, unless the consumer expresses |
| 75 | to the direct-mail marketer that he or she no longer wishes to |
| 76 | receive any more direct-mail marketing from the direct-mail |
| 77 | marketer; |
| 78 | 3. From 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. From a newspaper publisher or his or her agent or |
| 84 | employee in connection with his or her business; |
| 85 | 5. From 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 the |
| 89 | licensed trade, occupation, or profession within this state or a |
| 90 | county contiguous to the state; or |
| 91 | 6. From 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 fundraising |
| 95 | for political purposes. |
| 96 | (2)(a) The department shall establish and maintain a |
| 97 | statewide "do not mail" registry that 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 the 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. A consumer |
| 108 | who wishes to be included on the registry may notify the |
| 109 | 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 the 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 notify the department |
| 122 | upon any change in 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 corporations not for profit. |
| 129 | (3) All fees imposed under this section shall be deposited |
| 130 | in the General Inspection Trust Fund and be used for |
| 131 | administering this section. |
| 132 | (4) A direct-mail marketer doing business in this state |
| 133 | may not mail or cause to be mailed any solicitation to any |
| 134 | consumer more than 30 days after the consumer's name and address |
| 135 | appear on the most recent quarterly statewide do not mail |
| 136 | registry 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 a complaint, the department finds a violation of |
| 140 | this section, the department or the Department of Legal Affairs |
| 141 | may bring an action to impose a civil penalty and to seek other |
| 142 | relief, including injunctive relief, as the court deems |
| 143 | appropriate against the direct-mail marketer. The civil penalty |
| 144 | may not exceed $10,000 per violation and shall be deposited in |
| 145 | the General Inspection Trust Fund if the action or proceeding is |
| 146 | brought by the department or the Legal Affairs Revolving Trust |
| 147 | Fund if the action or proceeding is brought by the Department of |
| 148 | Legal Affairs. The civil penalty may be recovered in an action |
| 149 | brought under this part by the department, or the department may |
| 150 | terminate an investigation or action upon agreement by the |
| 151 | person to pay a stipulated civil penalty. The department or the |
| 152 | court may waive any civil penalty if the person first makes full |
| 153 | restitution or reimbursement or pays actual damages to the |
| 154 | consumers who were injured by the violation. |
| 155 | (b) A person who violates this section commits a deceptive |
| 156 | or unfair trade practice and is subject to the penalties and |
| 157 | remedies provided in part II of this chapter. Each prohibited |
| 158 | solicitation constitutes a separate violation. |
| 159 | (6) A consumer on the do not mail registry who receives |
| 160 | more than one solicitation within any 12-month period by or on |
| 161 | behalf of the same direct-mail marketer in violation of this |
| 162 | section may bring a civil action in circuit court for damages, |
| 163 | injunctive relief, punitive damages in the case of a willful |
| 164 | violation, and reasonable costs and attorney's fees. The court |
| 165 | may issue an award for the person's actual damages or $500 for a |
| 166 | first violation or $1,000 for each subsequent violation, |
| 167 | whichever is greater. This subsection does not limit a direct- |
| 168 | mail marketer's liability 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 costs and attorney's fees 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 presides 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 the 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 costs and attorney's fees if the |
| 187 | court finds a complete absence of a justiciable issue of law or |
| 188 | fact raised by the nonprevailing party or if the court finds bad |
| 189 | faith on the part of the nonprevailing party. |
| 190 | (8) The department shall adopt rules under ss. 120.536(1) |
| 191 | and 120.54 to administer this section. |
| 192 | Section 2. This act shall take effect July 1, 2009. |