HB 781

1
A bill to be entitled
2An act relating to direct-mail marketing solicitations;
3creating s. 501.0585, F.S.; defining terms; requiring the
4Department of Agriculture and Consumer Services to
5establish and maintain by a specified date a statewide "do
6not mail" registry to contain a list of consumers who do
7not wish to receive direct-mail marketing solicitations;
8providing procedures by which a person may place his or
9her name on the registry; requiring the department to
10provide the registry to any direct-mail marketer upon
11request; requiring the marketer to provide certain
12information and to pay a fee established by rule of the
13department; prohibiting a direct-mail marketer from
14mailing solicitations to persons on the do not mail
15registry; requiring the department to investigate
16complaints; providing that the department or the
17Department of Legal Affairs may bring an action to impose
18a civil penalty and to seek other relief, including
19injunctive relief, as the court deems appropriate against
20a direct-mail marketer; limiting the civil penalty
21imposed; providing that a violation of the act is a
22deceptive or unfair trade practice; providing penalties;
23providing that a person who receives more than one
24solicitation within any 12-month period by or on behalf of
25the same direct-mail marketer in violation of the law may
26bring a civil action in circuit court for damages,
27injunctive relief, punitive damages, and reasonable costs
28and attorney's fees; providing for attorney's fees under
29certain circumstances; requiring the department to adopt
30rules; providing an effective date.
31
32Be It Enacted by the Legislature of the State of Florida:
33
34     Section 1.  Section 501.0585, Florida Statutes, is created
35to read:
36     501.0585  Direct-mail marketing solicitations;
37establishment of a do not mail registry.--
38     (1)  As used in this section, the term:
39     (a)  "Consumer" means an actual or prospective purchaser,
40lessee, or recipient of consumer goods or services who resides
41in the state.
42     (b)  "Consumer goods or services" means any real property
43or any tangible or intangible personal property that is normally
44used for personal, family, or household purposes, including, but
45not limited to, any such property intended to be attached to or
46installed in any real property, whether or not it is attached or
47installed, as well as cemetery lots and timeshare estates, and
48any services related to such property.
49     (c)  "Department" means the Department of Agriculture and
50Consumer Services.
51     (d)  "Direct-mail marketer" means any person who, for
52commercial purposes in connection with direct-mail marketing,
53mails solicitations for the sale of goods or services to a
54consumer who resides in this state. The term includes any person
55who directly controls or supervises the conduct of a direct-mail
56marketer.
57     (e)  "Direct-mail marketing" means any mailing that
58contains solicitations for the sale of goods or services and is
59directed to a consumer at the consumer's residence within this
60state by personal mail delivery to the consumer at his or her
61residence.
62     (f)  "Doing business in this state" means mailing or
63causing to be mailed any direct-mail marketing solicitation from
64a location in this state or from another state or nation to a
65consumer who resides in this state.
66     (g)  "Solicitation" means any communication by mail for the
67purpose of encouraging the purchase or rental of, or investment
68in, property, goods, or services. The term does not include
69communications by mail:
70     1.  To any resident with that resident's prior express
71invitation or permission;
72     2.  From or on behalf of any person with whom a resident
73had a business contact within the past 180 days or a current
74business or personal relationship, unless the consumer expresses
75to the direct-mail marketer that he or she no longer wishes to
76receive any more direct-mail marketing from the direct-mail
77marketer;
78     3.  From or on behalf of an entity organized under s.
79501(c)(3) of the Internal Revenue Code, as amended, while the
80entity is engaged in fundraising to support the charitable
81purpose for which the entity was established if a bona fide
82member of the exempt organization makes the communication;
83     4.  From a newspaper publisher or his or her agent or
84employee in connection with his or her business;
85     5.  From a person responding to a referral or working from
86his or her primary residence or a person licensed by this state
87to carry out a trade, occupation, or profession who is setting
88or attempting to set an appointment for actions relating to the
89licensed trade, occupation, or profession within this state or a
90county contiguous to the state; or
91     6.  From or on behalf of a political party, political
92committee, campaign committee, candidate committee, or entity
93organized under s. 527 of the Internal Revenue Code, as amended,
94while the entity is engaged in political speech or fundraising
95for political purposes.
96     (2)(a)  The department shall establish and maintain a
97statewide "do not mail" registry that shall contain a list of
98consumers who do not wish to receive direct-mail marketing
99solicitations. The department shall have the registry in
100operation by July 1, 2010.
101     (b)  Any consumer desiring to be placed on the do not mail
102registry, indicating that the consumer does not wish to receive
103any direct-mail marketing solicitations, may notify the
104department and be placed on the registry upon receipt by the
105department of a $10 initial listing charge. This registry
106listing shall be renewed by the department for each consumer
107upon receipt of a renewal notice and a $5 assessment. A consumer
108who wishes to be included on the registry may notify the
109department by calling a toll-free number provided by the
110department or by using the department's Internet website.
111     (c)  A consumer on the registry must be deleted from the
112registry upon the consumer's written request.
113     (d)  The department shall update the do not mail registry
114using initial consumer subscriptions and renewals. The
115department shall update the do not mail registry at least
116quarterly.
117     (e)1.  The department shall provide the registry to any
118direct-mail marketer upon request. Each direct-mail marketer
119shall provide a current business name, business address, e-mail
120address if available, and telephone number when initially
121registering for access to the database and notify the department
122upon any change in that information.
123     2.  Direct-mail marketers who wish to send solicitations or
124otherwise access the database established in this subsection
125shall pay to the department an annual registration fee of not
126more than $500. Fees shall be determined by a sliding fee scale
127established in rule by the department. A fee may not be charged
128to corporations not for profit.
129     (3)  All fees imposed under this section shall be deposited
130in the General Inspection Trust Fund and be used for
131administering this section.
132     (4)  A direct-mail marketer doing business in this state
133may not mail or cause to be mailed any solicitation to any
134consumer more than 30 days after the consumer's name and address
135appear on the most recent quarterly statewide do not mail
136registry made available by the department under subsection (2).
137     (5)(a)  The department shall investigate any complaints
138received concerning violations of this section. If, after
139investigating a complaint, the department finds a violation of
140this section, the department or the Department of Legal Affairs
141may bring an action to impose a civil penalty and to seek other
142relief, including injunctive relief, as the court deems
143appropriate against the direct-mail marketer. The civil penalty
144may not exceed $10,000 per violation and shall be deposited in
145the General Inspection Trust Fund if the action or proceeding is
146brought by the department or the Legal Affairs Revolving Trust
147Fund if the action or proceeding is brought by the Department of
148Legal Affairs. The civil penalty may be recovered in an action
149brought under this part by the department, or the department may
150terminate an investigation or action upon agreement by the
151person to pay a stipulated civil penalty. The department or the
152court may waive any civil penalty if the person first makes full
153restitution or reimbursement or pays actual damages to the
154consumers who were injured by the violation.
155     (b)  A person who violates this section commits a deceptive
156or unfair trade practice and is subject to the penalties and
157remedies provided in part II of this chapter. Each prohibited
158solicitation constitutes a separate violation.
159     (6)  A consumer on the do not mail registry who receives
160more than one solicitation within any 12-month period by or on
161behalf of the same direct-mail marketer in violation of this
162section may bring a civil action in circuit court for damages,
163injunctive relief, punitive damages in the case of a willful
164violation, and reasonable costs and attorney's fees. The court
165may issue an award for the person's actual damages or $500 for a
166first violation or $1,000 for each subsequent violation,
167whichever is greater. This subsection does not limit a direct-
168mail marketer's liability under any other civil or criminal law.
169     (7)(a)  In any civil litigation resulting from a violation
170of this section, the prevailing party, after judgment in the
171trial court and exhaustion of all appeals, if any, shall receive
172his or her reasonable costs and attorney's fees from the
173nonprevailing party.
174     (b)  The attorney for the prevailing party shall submit a
175sworn affidavit of his or her time spent on the case and his or
176her costs incurred for all the motions, hearings, and appeals to
177the trial judge who presides over the civil case.
178     (c)  The trial judge shall award the prevailing party the
179sum of reasonable costs incurred in the action plus a reasonable
180legal fee for the hours actually spent on the case as sworn to
181in the affidavit.
182     (d)  Any award of attorney's fees or costs shall become a
183part of the judgment and subject to execution as the law allows.
184     (e)  In any civil litigation initiated by the department or
185the Department of Legal Affairs, the court may award to the
186prevailing party reasonable costs and attorney's fees if the
187court finds a complete absence of a justiciable issue of law or
188fact raised by the nonprevailing party or if the court finds bad
189faith on the part of the nonprevailing party.
190     (8)  The department shall adopt rules under ss. 120.536(1)
191and 120.54 to administer this section.
192     Section 2.  This act shall take effect July 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.