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. |