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2011 Florida Statutes
Chapter 501
CONSUMER PROTECTION
CONSUMER PROTECTION
CHAPTER 501
CONSUMER PROTECTION
PART I
GENERAL PROVISIONS(ss. 501.001-501.165)
PART II
DECEPTIVE AND UNFAIR TRADE PRACTICES(ss. 501.201-501.213)
PART III
AFTERMARKET CRASH PARTS ACT(ss. 501.30-501.34)
PART IV
FLORIDA TELEMARKETING ACT(ss. 501.601-501.626)
PART V
MISCELLANEOUS PROVISIONS(ss. 501.91-501.973)
PART VI
UNFAIR OR DECEPTIVE ACTS OR PRACTICES; VEHICLES(ss. 501.975, 501.976)
PART I
GENERAL PROVISIONS501.001 Florida Anti-Tampering Act.
501.005 Consumer report security freeze.
501.011 Credit cards; unsolicited delivery or mailing prohibited.
501.0115 Service station credit cards and franchise agreements; certain restrictions on sales and purchasers prohibited.
501.0117 Credit cards; transactions in which seller or lessor prohibited from imposing surcharge; penalty.
501.0118 Restrictions on information printed on receipts for payment-card transactions; penalties.
501.012 Health studios; legislative findings.
501.0125 Health studios; definitions.
501.013 Health studios; exemptions.
501.014 Health studios; powers and duties of the department.
501.015 Health studios; registration requirements and fees.
501.016 Health studios; security requirements.
501.017 Health studios; contracts.
501.018 Health studios; change of ownership or location.
501.019 Health studios; penalties.
501.021 Home solicitation sale; definitions.
501.022 Home solicitation sale; permit required.
501.025 Home solicitation sale; buyer’s right to cancel.
501.031 Home solicitation sale; written agreement.
501.035 Home solicitation sale; exclusions.
501.041 Home solicitation sale; restoration of down payment.
501.045 Home solicitation sale; duty of buyer.
501.046 Home solicitation sale; duty of businesses conducting home solicitation sales.
501.047 Home solicitation sale; prohibited practices.
501.052 Home solicitation sale; enforcement authority; injunctive relief.
501.053 Home solicitation sale; judicial review.
501.055 Home solicitation sale; penalties.
501.057 Commercial Weight-Loss Practices Act; short title.
501.0571 Commercial Weight-Loss Practices Act; definitions.
501.0573 Weight-loss provider requirements.
501.0575 Weight-Loss Consumer Bill of Rights.
501.0577 Commercial Weight-Loss Practices Act; exemptions.
501.0579 Commercial Weight-Loss Practices Act; unlawful practices.
501.0581 Commercial Weight-Loss Practices Act; civil remedies.
501.0583 Selling, delivering, bartering, furnishing, or giving weight-loss pills to persons under age 18; penalties; defense.
501.059 Telephone solicitation.
501.122 Control of nonionizing radiations; laser; penalties.
501.135 Consumer unit pricing.
501.137 Mortgage lenders; tax and insurance payments from escrow accounts; duties.
501.1375 Deposits received for purchase of residential dwelling units; placement in escrow; waiver; exceptions.
501.1377 Violations involving homeowners during the course of residential foreclosure proceedings.
501.138 Advertising of previews or trailers; standards.
501.141 Delivery of crated goods; written statement of satisfaction; right to cancel.
501.142 Retail sales establishments; preemption; notice of refund policy; exceptions; penalty.
501.143 Dance Studio Act.
501.145 Bedding Label Act.
501.160 Rental or sale of essential commodities during a declared state of emergency; prohibition against unconscionable prices.
501.164 Civil penalties.
501.165 Automatic renewal of service contracts.
501.001 Florida Anti-Tampering Act.—
(1) DEFINITIONS.—As used in this section:
(a) “Consumer product” includes:
1. “Food,” which means:
a. Any article used for food or drink for humans or other animals;
b. Chewing gum; or
c. Any article intended for use as a component of any article specified in sub-subparagraph a. or sub-subparagraph b.
2. “Drug,” which means:
a. Any agent or product recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement thereof;
b. Any agent or product intended for use in the diagnosis, cure, mitigation, treatment, therapy, or prevention of disease in humans or other animals;
c. Any agent or product, other than food, intended to affect the structure or any function of the body of humans or other animals; or
d. Any agent or product intended for use as a component of any agent or product specified in sub-subparagraph a., sub-subparagraph b., or sub-subparagraph c., but does not include devices or their components, parts, or accessories.
3. “Device,” which means any instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, which is:
a. Recognized in the official National Formulary or the United States Pharmacopoeia, or any supplement thereof;
b. Intended for use in the diagnosis, cure, mitigation, treatment, therapy, or prevention of disease in humans or other animals; or
c. Intended to affect the structure or any function of the body of humans or other animals,
and which does not achieve any of its principal intended purposes through chemical action within or on the body of humans or other animals and is not dependent upon being metabolized for the achievement of any of its principal intended purposes.
4. “Cosmetic,” which means:
a. Any substance or product intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, but does not include soap; or
b. Any substance or product intended for use as a component of any substance or product specified in sub-subparagraph a.
(b) “Labeling” means all labels and other written, printed, or graphic matter upon any article, agent, product, or substance, or any of its containers or wrappers, or accompanying such article, agent, product, or substance.
(c) “Bodily injury” means:
1. A cut, abrasion, bruise, burn, or disfigurement;
2. Physical pain;
3. Illness;
4. Impairment of the function of a bodily member, organ, or mental faculty; or
5. Any other injury to the body, no matter how temporary.
(2) TAMPERING; PENALTIES.—
(a) Whoever, with reckless disregard for the risk that another person will be placed in danger of death or bodily injury, tampers with, or conspires or attempts to tamper with, any consumer product or the labeling of, or container for, any such product is guilty of a felony of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Whoever, with intent to cause serious injury to the business of any person, tampers with any consumer product or renders materially false or misleading the labeling of, or container for, a consumer product is guilty of a felony of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(c)1. Whoever knowingly communicates false information that a consumer product has been tampered with, if such tampering, had it occurred, would create a risk of death or bodily injury to another person, is guilty of a felony of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. “Communicates false information” means to communicate information that is false, and that the communicator knows is false, under circumstances in which the information may reasonably be expected to be believed.
(d) Whoever knowingly threatens, under circumstances in which the threat may reasonably be expected to be believed, that he or she will commit or cause to be committed an act which would violate paragraph (a) is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(3)(a) In addition to any other agency which has authority to investigate and prosecute violations of this section, the Department of Agriculture and Consumer Services, under chapter 500, shall initiate actions necessary to safeguard the public welfare by identifying and removing suspect foods from consumer channels and shall coordinate such actions with other interested agencies if food tampering is identified, alleged, or suspected.
(b) In addition to any other agency which has authority to investigate and prosecute violations of this section, the Department of Health, under chapter 499, shall initiate actions necessary to safeguard the public welfare by identifying and removing suspect drugs, devices, or cosmetics from consumer channels if drug, device, or cosmetic tampering is identified, alleged, or suspected.
History.—s. 2, ch. 87-57; s. 609, ch. 97-103; s. 244, ch. 99-8.
501.005 Consumer report security freeze.—
(1) For purposes of this section, a “security freeze” means a notice placed in a consumer report that prohibits a consumer reporting agency, as defined in 15 U.S.C. s. 1681a(f), from releasing the consumer report, credit score, or any information contained within the consumer report to a third party without the express authorization of the consumer. This section does not prevent a consumer reporting agency from advising a third party that a security freeze is in effect with respect to the consumer report. For purposes of this part, the term “consumer report” has the same meaning set forth in 15 U.S.C. s. 1681a(d).
(2) A consumer may place a security freeze on his or her consumer report by:
(a) Making a request in writing by certified mail to a consumer reporting agency.
(b) Including information that properly identifies the consumer.
(c) Paying a fee authorized under this section.
(3) A consumer reporting agency shall place a security freeze on a consumer report no later than 5 business days after receiving a request from the consumer.
(4) The consumer reporting agency shall send a written confirmation of the security freeze to the consumer within 10 business days after instituting the security freeze and shall provide the consumer with a unique personal identification number or password to be used by the consumer when providing authorization for the removal of a security freeze on his or her consumer report pursuant to subsection (5) or subsection (11).
(5) A consumer may allow his or her consumer report to be accessed for a designated period of time while a security freeze is in effect by contacting the consumer reporting agency and requesting that the freeze be temporarily lifted. The consumer must provide the following information to the consumer reporting agency as part of the request:
(a) Proper identification as determined by the consumer reporting agency.
(b) The unique personal identification number or password provided by the consumer reporting agency pursuant to subsection (4).
(c) Information specifying the period of time for which the report shall be made available.
(d) Payment of a fee authorized by this section.
(6) A consumer reporting agency that receives a request from a consumer to temporarily lift a freeze on a consumer report pursuant to subsection (5) shall comply with the request no later than 3 business days after receiving the request.
(7) No later than July 1, 2007, a consumer reporting agency doing business in this state shall select and develop a secure electronic contact method, which may include the use of telephone, fax, the Internet, or other secure electronic means, by which to receive and process requests from consumers to temporarily lift a freeze on a consumer report pursuant to subsection (5).
(8) A consumer reporting agency shall temporarily lift or remove a security freeze placed on a consumer report only in the following instances:
(a) Upon consumer request, pursuant to subsection (5) or subsection (11).
(b) If the consumer report was frozen due to a material misrepresentation of fact by the consumer. If a consumer reporting agency intends to remove a security freeze on a consumer report pursuant to this paragraph, the consumer reporting agency shall notify the consumer in writing prior to removing the security freeze.
(9) A third party requesting access to a consumer report on which a security freeze is in effect in connection with an application for credit or other permissible use may treat the application as incomplete if the consumer has not authorized a temporary lifting of the security freeze for the period of time during which the request is made.
(10) If a consumer requests a security freeze, the consumer reporting agency shall disclose to the consumer all information relevant to the process of instituting, temporarily lifting, and removing a security freeze and shall include the disclosure required by subsection (17).
(11) A security freeze shall remain in place until the consumer requests that it be removed. A consumer reporting agency shall remove a security freeze within 3 business days after receiving a request for removal from the consumer, who, upon making the request for removal, must provide the following:
(a) Proper identification as determined by the consumer reporting agency.
(b) The unique personal identification number or password provided by the consumer reporting agency pursuant to subsection (4).
(c) Payment of a fee authorized by this section.
(12) The provisions of this section do not apply to the use of a consumer report by the following persons or for the following reasons:
(a) A person to whom the consumer owes a financial obligation or a subsidiary, affiliate, or agent of the person, or an assignee of a financial obligation owed by the consumer to the person, or a prospective assignee of a financial obligation owed by the consumer to the person in conjunction with the proposed purchase of the financial obligation, with which the consumer has or had prior to assignment an account or contract, including a deposit account, or to whom the consumer issued a negotiable instrument, for the purposes of reviewing the account or collecting the financial obligation owed for the account, contract, or negotiable instrument. For purposes of this paragraph, “reviewing the account” includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements.
(b) A subsidiary, affiliate, agent, assignee, or prospective assignee of a person to whom access has been granted under this section for purposes of facilitating the extension of credit or other permissible use.
(c) A state agency acting within its lawful investigative or regulatory authority.
(d) A state or local law enforcement agency acting to investigate a crime or conducting a criminal background check.
(e) Any person administering a credit file monitoring subscription service to which the consumer has subscribed.
(f) Any person for the purpose of providing a consumer with a copy of the consumer report upon the consumer’s request.
(g) Pursuant to a court order lawfully entered.
(h) The use of credit information for the purposes of prescreening as provided for by the federal Fair Credit Reporting Act.
(i) Any insurance company for use in setting or adjusting a rate, adjusting a claim, or underwriting for insurance purposes.
(j) A consumer reporting agency’s database or file which consists entirely of information concerning, and is used solely for, one or more of the following:
1. Criminal record information.
2. Personal loss history information.
3. Fraud prevention or detection.
4. Tenant screening.
5. Employment screening.
(13)(a) A consumer reporting agency may charge a reasonable fee, not to exceed $10, to a consumer who elects to place, remove, or temporarily lift a security freeze on his or her consumer report.
(b) A consumer reporting agency shall not charge any fee:
1. To a consumer 65 years of age or older for the initial placement or removal of a security freeze; or
2. To a victim of identity theft who has submitted, at the time the security freeze is requested, a copy of a valid investigative or incident report or complaint with a law enforcement agency about the unlawful use of the victim’s identifying information by another person.
(c) A consumer reporting agency may charge a reasonable fee, not to exceed $10, if the consumer fails to retain the original personal identification number or password provided by the consumer reporting agency and the agency must reissue the personal identification number or password or provide a new personal identification number or password to the consumer.
(14) If a security freeze is in effect, a consumer reporting agency shall not change any of the following official information in a consumer report without sending a written confirmation of the change to the consumer within 30 days after the change is posted to the consumer’s file:
(a) Name.
(b) Address.
(c) Date of birth.
(d) Social security number.
Written confirmation is not required for technical corrections of a consumer’s official information, including name and street abbreviations, complete spellings, or transposition of numbers or letters. In the case of an address change, the written confirmation shall be sent to both the new address and the former address.
(15) The provisions of this section do not apply to the following entities:
(a) A check services company, which issues authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers, or similar methods of payment.
(b) A deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, automatic teller machine abuse, or similar negative information regarding a consumer to an inquiring financial institution as defined in s. 655.005 for use only in reviewing a consumer request for a deposit account at the inquiring financial institution, as defined in s. 655.005 or in federal law.
(c) A consumer reporting agency that acts only as a reseller of credit information by assembling and merging information contained in the database of another consumer reporting agency or multiple consumer reporting agencies and does not maintain a permanent database of credit information from which new consumer reports are produced. However, a consumer reporting agency shall honor any security freeze placed, removed, or temporary lifted on a consumer report by another consumer reporting agency.
(d) A fraud prevention services company issuing reports to prevent or investigate fraud.
(16) In addition to any other penalties or remedies provided under law, a person who is aggrieved by a violation of the provisions of this section may bring a civil action as authorized by this subsection.
(a) Any person who willfully fails to comply with any requirement imposed under this section with respect to any consumer is liable to that consumer for actual damages sustained by the consumer as a result of the failure of not less than $100 and not more than $1,000, plus the cost of the action together with reasonable attorney’s fees.
(b) Any individual who obtains a consumer report under false pretenses or knowingly without a permissible purpose is liable to the consumer for actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000, whichever is greater. Any person who obtains a consumer report from a consumer reporting agency under false pretenses or knowingly without a permissible purpose is liable to the consumer reporting agency for actual damages sustained by the consumer reporting agency or $1,000, whichever is greater.
(c) Punitive damages may be assessed for willful violations of this section.
(d) Any person who is negligent in failing to comply with any requirement imposed under this section with respect to any consumer is liable to that consumer for any actual damages sustained by the consumer as a result of the failure of not less than $100 and not more than $1,000.
(e) Upon a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this subsection was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorney’s fees that are reasonable in relation to the work performed in responding to the pleading, motion, or other paper.
(17) Any written disclosure by a consumer reporting agency, pursuant to 15 U.S.C. s. 1681g, to any consumer residing in this state shall include a written summary of all rights the consumer has under this section, and, in the case of a consumer reporting agency which compiles and maintains consumer reports on a nationwide basis, a toll-free telephone number which the consumer can use to communicate with the consumer reporting agency. The information set forth in paragraph (b) of the written summary of rights must be in at least 12-point boldface type. The written summary of rights required under this section is sufficient if it is substantially in the following form:
(a) You have a right to place a “security freeze” on your consumer report, which will prohibit a consumer reporting agency from releasing any information in your consumer report without your express authorization. A security freeze must be requested in writing by certified mail to a consumer reporting agency. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent.
(b) YOU SHOULD BE AWARE THAT USING A SECURITY FREEZE TO CONTROL ACCESS TO THE PERSONAL AND FINANCIAL INFORMATION IN YOUR CONSUMER REPORT MAY DELAY, INTERFERE WITH, OR PROHIBIT THE TIMELY APPROVAL OF ANY SUBSEQUENT REQUEST OR APPLICATION YOU MAKE REGARDING A NEW LOAN, CREDIT, MORTGAGE, INSURANCE, GOVERNMENT SERVICES OR PAYMENTS, RENTAL HOUSING, EMPLOYMENT, INVESTMENT, LICENSE, CELLULAR PHONE, UTILITIES, DIGITAL SIGNATURE, INTERNET CREDIT CARD TRANSACTION, OR OTHER SERVICES, INCLUDING AN EXTENSION OF CREDIT AT POINT OF SALE.
(c) When you place a security freeze on your consumer report, you will be provided a personal identification number or password to use if you choose to remove the freeze on your consumer report or authorize the release of your consumer report for a designated period of time after the security freeze is in place. To provide that authorization, you must contact the consumer reporting agency and provide all of the following:
1. The personal identification number or password.
2. Proper identification to verify your identity.
3. Information specifying the period of time for which the report shall be made available.
4. Payment of a fee authorized by this section.
(d) A consumer reporting agency must authorize the release of your consumer report no later than 3 business days after receiving the above information.
(e) A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which you have an existing account, that requests information in your consumer report for the purposes of reviewing or collecting the account. Reviewing the account includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements.
(f) You have the right to bring a civil action against anyone, including a consumer reporting agency, who fails to comply with the provisions of s. 501.005, Florida Statutes, which governs the placing of a consumer report security freeze on your consumer report.
History.—s. 1, ch. 2006-124; s. 38, ch. 2011-194.
501.011 Credit cards; unsolicited delivery or mailing prohibited.—
(1) As used in this section the term “credit card” means any credit card or other document or device intended or adopted for the purpose of establishing the identity and credit of any person in connection with the purchase or rental on credit of goods or services or the obtaining of loans.
(2) Except as provided in subsection (3), it shall be unlawful for any financial institution, retail merchant, or other person to mail or otherwise deliver any credit card in this state. Any violation of this subsection shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(3) This section shall not apply to any credit card when mailed or otherwise delivered:
(a) In response to a request or application for a credit card; or
(b) As a replacement for a credit card previously issued to the person to whom the credit card is shipped or mailed.
(4) No credit card bearer shall be liable for the unauthorized use of any credit card issued on an unsolicited basis, after July 5, 1970.
History.—ss. 1, 2, ch. 70-352; s. 456, ch. 71-136.
501.0115 Service station credit cards and franchise agreements; certain restrictions on sales and purchasers prohibited.—It shall be unlawful and shall be deemed a deceptive trade practice for any producer or refiner or a subsidiary of any producer or refiner to distribute credit cards, as defined in s. 501.011, intended to be used by credit card holders for the purchase of motor fuel, goods, or services from retail service stations, whether or not owned or operated by the producer or refiner or a subsidiary thereof, unless such credit card is valid for purchases of all motor fuel at each such retail service station. It shall be unlawful for any producer or refiner or a subsidiary thereof to include any restrictions on credit card sales in any franchise agreements with retail service stations which restrictions are not equally applicable to sales of all types of motor fuels sold at such retail service stations. Any person violating the provisions of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. The Department of Legal Affairs or any state attorney is authorized to seek an injunction to prevent the distribution or continued use of credit cards in violation of this section during any litigation contesting the validity thereof. The penalties provided by this section are in addition to any civil remedies otherwise provided by law.
History.—s. 12, ch. 80-77.
501.0117 Credit cards; transactions in which seller or lessor prohibited from imposing surcharge; penalty.—
(1) A seller or lessor in a sales or lease transaction may not impose a surcharge on the buyer or lessee for electing to use a credit card in lieu of payment by cash, check, or similar means, if the seller or lessor accepts payment by credit card. A surcharge is any additional amount imposed at the time of a sale or lease transaction by the seller or lessor that increases the charge to the buyer or lessee for the privilege of using a credit card to make payment. Charges imposed pursuant to approved state or federal tariffs are not considered to be a surcharge, and charges made under such tariffs are exempt from this section. A convenience fee imposed upon a student or family paying tuition, fees, or other student account charges by credit card to a William L. Boyd, IV, Florida resident access grant eligible institution, as defined in s. 1009.89, is not considered to be a surcharge and is exempt from this section if the amount of the convenience fee does not exceed the total cost charged by the credit card company to the institution. The term “credit card” includes those cards for which unpaid balances are payable on demand. This section does not apply to the offering of a discount for the purpose of inducing payment by cash, check, or other means not involving the use of a credit card, if the discount is offered to all prospective customers.
(2) A person who violates the provisions of subsection (1) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1, 2, ch. 87-43; s. 3, ch. 2010-219.
501.0118 Restrictions on information printed on receipts for payment-card transactions; penalties.—
(1) As used in this section, the term:
(a) “Cardholder” means the person or organization named on the face of a payment card to whom or for whose benefit the payment card is issued.
(b) “Merchant” means a person who receives from a cardholder a payment card, or information from a payment card, as the instrument for obtaining, purchasing, or receiving goods, services, money, or anything else of value from the person.
(c) “Payment card” means a credit card, charge card, debit card, or any other card that is issued to a cardholder and that allows the cardholder to obtain, purchase, or receive goods, services, money, or anything else of value from a merchant.
(2) A merchant who accepts a payment card for the transaction of business may not print more than the last five digits of the payment card’s account number or print the payment card’s expiration date on a receipt provided to the cardholder. This subsection applies only to receipts described in subsection (3) and does not apply to a transaction in which the sole means of recording the payment card’s account number or expiration date is by handwriting or by an imprint or copy of the payment card.
(3)(a) Effective July 1, 2003, this section applies to receipts that are electronically printed using a cash register or other machine or device that is first used on or after July 1, 2003.
(b) Effective July 1, 2005, this section applies to all receipts that are electronically printed, including those printed using a cash register or other machine or device that is first used before July 1, 2003.
(4) A merchant who violates this section commits a noncriminal violation as defined in s. 775.08, punishable by a fine of $250 for the first violation and $1,000 for a second or subsequent violation in accordance with s. 775.083.
(5) The office of the state attorney may bring an action to enforce this section for each violation that occurs in or affects the judicial circuit under the office’s jurisdiction. The appropriate county court has jurisdiction.
History.—s. 1, ch. 2002-170.
501.012 Health studios; legislative findings.—The Legislature finds and declares that there exist in connection with a substantial number of contracts for health studio services certain practices and business and financing methods which have worked undue financial hardship upon some of the citizens of our state and that existing legal remedies are inadequate to correct existing problems in the industry. The Legislature finds and declares that the health studio industry has a significant impact upon the economy and well-being of the people of the state and that the provisions of ss. 501.012-501.019 regulating health studio contracts are necessary for the public welfare.
History.—s. 1, ch. 77-432; ss. 1, 2, ch. 78-419; s. 1, ch. 80-49; s. 1, ch. 83-236; s. 1, ch. 85-4; s. 1, ch. 85-275; s. 62, ch. 87-225; s. 1, ch. 88-267; s. 1, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429.
501.0125 Health studios; definitions.—For purposes of ss. 501.012-501.019, the following terms shall have the following meanings:
(1) “Health studio” means any person who is engaged in the sale of services for instruction, training, or assistance in a program of physical exercise or in the sale of services for the right or privilege to use equipment or facilities in furtherance of a program of physical exercise.
(2) “Health studio services” means privileges or rights offered for sale or provided by a health studio.
(3) “Business location” means any place where health studio services are performed by a health studio.
(4) “Department” means the Department of Agriculture and Consumer Services.
(5) “Reasonable and fair service fee” means no more than 10 percent of the total contract price for contracts. Service fee includes, but is not limited to, registration fee, membership fee, and processing or startup fee.
History.—s. 2, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429; s. 1, ch. 94-298.
501.013 Health studios; exemptions.—The following businesses or activities may be declared exempt from the provisions of ss. 501.012-501.019 upon the filing of an affidavit with the department establishing that the stated qualifications are met:
(1) A bona fide nonprofit organization which has been granted tax-exempt status by the Internal Revenue Service.
(2) A gymnastics school which engages only in instruction and training and in which exercise is only incidental to such instruction and training.
(3) A golf, tennis, or racquetball club in which sports play is the only activity offered by the club. If the facility offers the use of physical exercise equipment, this exemption shall not apply.
(4) A program or facility which is offered and used solely for the purpose of dance, aerobic exercise, or martial arts, and which utilizes no physical exercise equipment.
(5) A country club that has as its primary function the provision of a social life and recreational amenities to its members, and for which a program of physical exercise is merely incidental to membership. As used in this subsection, the term “country club” means a facility that offers its members a variety of services that may include, but need not be limited to, social activities; dining, banquet, catering, and lounge facilities; swimming; yachting; golf; tennis; card games such as bridge and canasta; and special programs for members’ children. Upon the filing of an affidavit with the department establishing that the stated qualifications of this subsection were met before July 1, 1997, this subsection will apply retroactively to the date that the country club met these qualifications.
History.—s. 3, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429; s. 5, ch. 97-250.
501.014 Health studios; powers and duties of the department.—
(1) The department may, at any time during business hours, enter any business location of a health studio required to be registered pursuant to ss. 501.012-501.019, examine the books or records of the health studio, and subpoena all necessary records when the department has reason to believe a violation of the provisions of ss. 501.012-501.019 has occurred.
(2) The department has the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement ss. 501.012-501.019.
(3) The department shall:
(a) Provide each business location of a health studio with a registration number at the time of registration.
(b) Provide a certificate of registration which prominently displays the registration number.
(c) Place all fees and fines collected pursuant to ss. 501.012-501.019 in the General Inspection Trust Fund of Florida as created in s. 570.20.
History.—s. 4, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429; s. 6, ch. 97-250; s. 171, ch. 98-200.
501.015 Health studios; registration requirements and fees.—Each health studio shall:
(1) Register each of its business locations with the department in a form and manner as required by the department.
(2) Remit an annual registration fee of $300 to the department at the time of registration for each of the health studio’s business locations.
(3) File a security as required by s. 501.016 at the time of registration.
(4) Post at the registration desk or front desk, whichever is more prominent, at each business location the proof of registration certificate provided by the department at the time of registration or renewal.
(5) Include the registration number issued by the department in all printed advertisements, contracts, and publications utilized by the health studio for a business location.
(6) Be considered a new health studio and shall be subject to the requirements of s. 501.016 each time the health studio changes ownership or, in the case of corporate ownership, each time the stock ownership is changed so as to effectively put the health studio under new management or control, notwithstanding the provisions of s. 501.016(6). A change of ownership does not occur within the meaning of this subsection if:
(a) Substantially the same stockholders form a new corporate entity;
(b) In the opinion of the department, the change does not effectively place the health studio under new management and control; and
(c) The health studio has a satisfactory complaint history with the department.
(7) Any person applying for or renewing a local occupational license to engage in business as a health studio must exhibit an active registration certificate from the Department of Agriculture and Consumer Services before the local occupational license may be issued or reissued.
(8) All moneys collected pursuant to this section shall be deposited into the General Inspection Trust Fund.
History.—s. 5, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429; s. 56, ch. 92-291; s. 1, ch. 93-116; s. 7, ch. 97-250.
501.016 Health studios; security requirements.—Each health studio that sells contracts for health studio services shall meet the following requirements:
(1) Each health studio shall maintain for each separate business location a bond issued by a surety company admitted to do business in this state. The principal sum of the bond shall be $50,000, and the bond, when required, shall be obtained before a business tax receipt may be issued under chapter 205. Upon issuance of a business tax receipt, the licensing authority shall immediately notify the department of such issuance in a manner established by the department by rule. The bond shall be in favor of the state for the benefit of any person injured as a result of a violation of ss. 501.012-501.019. The aggregate liability of the surety to all persons for all breaches of the conditions of the bonds provided herein shall in no event exceed the amount of the bond. The original surety bond required by this section shall be filed with the department.
(2) In lieu of maintaining the bond required in subsection (1), the health studio may furnish to the department:
(a) An irrevocable letter of credit from any foreign or domestic bank in the amount of $50,000; or
(b) A guaranty agreement which is secured by a certificate of deposit in the amount of $50,000.
The original letter of credit or certificate of deposit submitted in lieu of the bond shall be filed with the department. The department shall decide whether the security furnished in lieu of bond by the health studio is in compliance with the requirements of this section.
(3) A health studio which sells contracts for future health studio services and which collects direct payment on a monthly basis for those services shall be exempt from the security requirements of subsections (1) and (2) provided that any service fee charged is a reasonable and fair service fee. The number of monthly payments in such a contract shall be equal to the number of months in the contract. The contract shall conform to all the requirements for future health studio services contracts as specified in ss. 501.012-501.019 and shall specify in the terms of the contract the charges to be assessed for those health studio services.
(4) If the health studio furnishes the department with evidence satisfactory to the department that the aggregate dollar amount of all current outstanding contracts of the health studio is less than $5,000, the department may, at its discretion, reduce the principal amount of the surety bond or other sufficient financial responsibility required in subsections (1) and (2) to a sum of not less than $10,000. However, at any time the aggregate dollar amount of such contracts exceeds $5,000, the health studio shall so notify the department and shall thereupon provide the bond or other documentation as required in subsections (1) and (2). Health studios whose bonds have been reduced must provide the department with an annually updated list of members. Failure to file an annual report will result in the department raising the security requirement to $50,000.
(5) Each health studio shall furnish the department with a copy of the escrow account which would contain all funds received for future consumer services, whether by contract or otherwise, sold prior to the business location’s full operation and specify a date certain for opening, if such an escrow account is established.
(6) Subsections (1) and (2) shall not apply to a health studio that has been operating continuously under the same ownership and control for the most recent 5-year period in compliance with ss. 501.012-501.019 and the rules adopted thereunder and that has not had any civil, criminal, or administrative adjudication against it by any state or federal agency; and that has a satisfactory consumer complaint history. As used in this subsection, the term “satisfactory consumer complaint history” means that no unresolved consumer complaints regarding the health studio are on file with the department. A consumer complaint is unresolved if a health studio has not responded to the department’s efforts to mediate the complaint or if there has been an adjudication that the health studio has violated ss. 501.012-501.019 or the rules adopted thereunder. Such exemption extends to all current and future business locations of an exempt health studio.
(7) A business, otherwise defined as a health studio, which sells a single contract of 30 days or less to any member without any option for renewal or any other condition which establishes any right in the member beyond the term of such contract is exempt from the provisions of this section. This exemption shall not apply if the business offers any other health studio contract of whatever duration at any time during or prior to the existence of such single contract of 30 days or less.
(8) Except in the case of a natural disaster or an act of God, a health studio that is exempt from the requirements of subsections (1) and (2), but that has no business locations open for 14 consecutive days, waives its exemption and is considered to be a new health studio for the purposes of ss. 501.012-501.019.
History.—s. 6, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429; s. 57, ch. 92-291; s. 2, ch. 94-298; s. 8, ch. 97-250; s. 124, ch. 2007-5.
501.017 Health studios; contracts.—
(1) Every contract for the sale of future health studio services which is paid for in advance or which the buyer agrees to pay for in future installment payments shall be in writing and shall contain, contractual provisions to the contrary notwithstanding, in immediate proximity to the space reserved in the contract for the signature of the buyer, and in 10-point boldfaced type, language substantially equivalent to the following:
(a) A provision for the penalty-free cancellation of the contract within 3 days, exclusive of holidays and weekends, of its making, upon the mailing or delivery of written notice to the health studio, and refund upon such notice of all moneys paid under the contract, except that the health studio may retain an amount computed by dividing the number of complete days in the contract term or, if appropriate, the number of occasions health studio services are to be rendered into the total contract price and multiplying the result by the number of complete days that have passed since the making of the contract or, if appropriate, by the number of occasions that health studio services have been rendered. A refund shall be issued within 30 days after receipt of the notice of cancellation made within the 3-day provision.
(b)1. A provision for the cancellation and refund of the contract if the contracting business location of the health studio goes out of business, or moves its facilities more than 5 driving miles from the business location designated in such contract and fails to provide, within 30 days, a facility of equal quality located within 5 driving miles of the business location designated in such contract at no additional cost to the buyer.
2. A provision that notice of intent to cancel by the buyer shall be given in writing to the health studio. Such a notice of cancellation from the consumer shall also terminate automatically the consumer’s obligation to any entity to whom the health studio has subrogated or assigned the consumer’s contract. If the health studio wishes to enforce such contract after receipt of such showing, it may request the department to determine the sufficiency of the showing.
3. A provision that if the department determines that a refund is due the buyer, the refund shall be an amount computed by dividing the contract price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term. The business location of a health studio shall not be deemed out of business when temporarily closed for repair and renovation of the premises:
a. Upon sale, for not more than 14 consecutive days; or
b. During ownership, for not more than 7 consecutive days and not more than two periods of 7 consecutive days in any calendar year.
A refund shall be issued within 30 days after receipt of the notice of cancellation made pursuant to this paragraph.
(c) A provision in the disclosure statement advising the buyer to contact the department for information within 60 days should the health studio go out of business.
(d) A provision for the cancellation of the contract if the buyer dies or becomes physically unable to avail himself or herself of a substantial portion of those services which he or she used from the commencement of the contract until the time of disability, with refund of funds paid or accepted in payment of the contract in an amount computed by dividing the contract price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term. The contract may require a buyer or the buyer’s estate seeking relief under this paragraph to provide proof of disability or death. A physical disability sufficient to warrant cancellation of the contract by the buyer shall be established if the buyer furnishes to the health studio a certification of such disability by a physician licensed under chapter 458, chapter 459, chapter 460, or chapter 461 to the extent the diagnosis or treatment of the disability is within the physician’s scope of practice. A refund shall be issued within 30 days after receipt of the notice of cancellation made pursuant to this paragraph.
(e) A provision that the initial contract will not be for a period in excess of 36 months, and thereafter shall only be renewable annually. Such renewal contracts may not be executed and the fee therefor paid until 60 days or less before the preceding contract expires.
(f) A provision that if the health studio requires a buyer to furnish identification upon entry to the facility and as a condition of using the services of the health studio, the health studio shall provide the buyer with the means of such identification.
(2) Every health studio exempt from the requirements of s. 501.016(1) and (2) shall include in all of its contracts for health studio services, in the same manner as provided in subsection (1) of this section, the following disclosure:
SHOULD YOU (THE BUYER) CHOOSE TO PAY FOR MORE THAN 1 MONTH OF THIS AGREEMENT IN ADVANCE, BE AWARE THAT YOU ARE PAYING FOR FUTURE SERVICES AND MAY BE RISKING LOSS OF YOUR MONEY IN THE EVENT THIS HEALTH STUDIO AND/OR THIS BUSINESS LOCATION CEASES TO OPERATE. THIS HEALTH STUDIO IS NOT REQUIRED BY FLORIDA LAW TO PROVIDE ANY SECURITY, AND THERE MAY NOT BE OTHER PROTECTIONS PROVIDED TO YOU SHOULD YOU CHOOSE TO PAY IN ADVANCE.
(3) Upon entering into a contract for health studio services, the buyer shall be provided with a written contract, which shall include the name, address, and primary place of business of the health studio. Prior to entering into any such contract, the health studio shall also provide the buyer with a current copy of any rules applicable to the buyer’s use of the health studio.
(4) The provisions of this section do not apply to any contracts for health studio services entered into before October 1, 1990, or to the subsequent renewals of such contracts.
(5) No health studio may, orally or in writing, make any representation that a health studio contract for future services is for a lifetime or is a perpetual membership or use any words or combination of words which may tend to give a prospective buyer the impression that a contract or membership entitles the buyer to services or the use of facilities for an indefinite term.
History.—s. 7, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429; s. 1, ch. 96-149; s. 1156, ch. 97-103; s. 8, ch. 2001-214.
501.018 Health studios; change of ownership or location.—
(1) Whenever the ownership of a health studio is changed or, in the case of corporate ownership, whenever the stock ownership is changed so as to effectively put the health studio under new management or control, the new owner or manager shall, within 10 days of such change, provide each buyer then under contract with the health studio with notice of the rights and obligations of the buyer and the health studio affected by such change.
(2) Whenever the majority ownership of a health studio is changed pursuant to subsection (1) or whenever a health studio moves a business location or closes its facilities, it shall notify the department by certified mail at least 30 days in advance of any such change of majority ownership, move, or closure of a business location and shall post a notice of such change at the front entrance of the affected business location.
History.—s. 8, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429.
501.019 Health studios; penalties.—
(1) Any health studio or any owner or manager thereof, or, in the case of corporate ownership, any substantial stockholder of the corporation owning the health studio, who is convicted of a violation of the provisions of ss. 501.012-501.019 is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Any person who knowingly makes a false representation to the department with the intent to obtain an exemption of any kind from the requirements of s. 501.016 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) The department may institute proceedings in the appropriate circuit court to recover any penalties or damages allowed in this section and for injunctive relief to enforce compliance with ss. 501.012-501.019 or any rule or order of the department. The department may seek a civil penalty of up to $5,000 for each violation of this section.
(4)(a) The department may enter an order imposing one or more of the penalties set forth in paragraph (b) if the department finds that a health studio:
1. Violated or is operating in violation of any of the provisions of this part or of the rules adopted or orders issued thereunder;
2. Made a material false statement in any application, document, or record required to be submitted or retained under this part;
3. Refused or failed, or any of its principal officers has refused or failed, after notice, to produce any document or record or disclose any information required to be produced or disclosed under this part or the rules of the department;
4. Made a material false statement in response to any request or investigation by the department, the Department of Legal Affairs, or the state attorney; or
5. Has intentionally defrauded the public through dishonest or deceptive means.
(b) Upon a finding as set forth in paragraph (a), the department may enter an order doing one or more of the following:
1. Issuing a notice of noncompliance pursuant to s. 120.695.
2. For a violation of s. 501.015 or s. 501.016, imposing an administrative fine not to exceed $5,000 per violation.
3. For a violation of s. 501.013, s. 501.017, or s. 501.018, imposing an administrative fine not to exceed $500 per violation.
4. Directing that the health studio cease and desist specified activities.
5. Refusing to register or revoking or suspending a registration.
6. Placing the registrant on probation for a period of 5 years, subject to such conditions as the department may specify by rule.
(c) The administrative proceedings which could result in the entry of an order imposing any of the penalties specified in paragraph (b) shall be conducted in accordance with chapter 120.
(5) All moneys collected pursuant to this section shall be deposited into the General Inspection Trust Fund.
History.—s. 9, ch. 90-312; s. 14, ch. 91-201; s. 4, ch. 91-429; s. 58, ch. 92-291; s. 2, ch. 93-116; s. 9, ch. 97-250; s. 9, ch. 2001-214.
501.021 Home solicitation sale; definitions.—As used in ss. 501.021-501.055:
(1) “Home solicitation sale” means a sale, lease, or rental of consumer goods or services with a purchase price in excess of $25 which includes all interest, service charges, finance charges, postage, freight, insurance, and service or handling charges, whether under single or multiple contracts, made pursuant to an installment contract, a loan agreement, other evidence of indebtedness, or a cash transaction or other consumer credit transaction, in which:
(a) The seller or a person acting for him or her engages in a personal solicitation of the sale, lease, or rental at a place other than at the seller’s fixed location business establishment where goods or services are offered or exhibited for sale, lease, or rental, and
(b) The buyer’s agreement or offer to purchase is given to the seller and the sale, lease, or rental is consummated at a place other than at the seller’s fixed location business establishment,
including a transaction unsolicited by the consumer and consummated by telephone and without any other contact between the buyer and the seller or its representative prior to delivery of the goods or performance of the services. It does not include a sale, lease, or rental made at any fair or similar commercial exhibit or a sale, lease, or rental that results from a request for specific goods or services by the purchaser or lessee or a sale made by a motor vehicle dealer licensed under s. 320.27 which occurs at a location or facility open to the general public or to a designated group.
(2) “Business day” means any calendar day except Sunday or a federal holiday.
(3) “Future delivery” means delivery more than 3 business days after the buyer signs an agreement or offer to purchase.
History.—ss. 1, 4, ch. 70-363; s. 1, ch. 71-65; s. 1, ch. 77-350; s. 1, ch. 86-144; s. 1, ch. 87-344; s. 610, ch. 97-103; s. 10, ch. 97-250.
501.022 Home solicitation sale; permit required.—
(1)(a) It is unlawful for any person to conduct any home solicitation sale, as defined in s. 501.021, or to supervise excluded minors conducting such sales provided in subparagraph (b)5., in this state without first obtaining a valid home solicitation sale permit as provided in this section.
(b) The following are excluded from the operation of this section:
1. Bona fide agents, business representatives, or salespersons making calls or soliciting orders at the usual place of business of a customer regarding products or services for use in connection with the customer’s business.
2. Solicitors, salespersons, or agents making a call or business visit upon the express invitation, oral or written, of an inhabitant of the premises or her or his agent.
3. Telephone solicitors, salespersons, or agents making calls which involve transactions that are unsolicited by the consumer and consummated by telephone and without any other contact between the buyer and the seller or its representative prior to delivery of the goods or performance of the services.
4. Solicitors, salespersons, or agents conducting a sale, lease, or rental of consumer goods or services by sample, catalog, or brochure for future delivery.
5. Minors, as defined in s. 1.01(13), conducting home solicitation sales under the supervision of an adult supervisor who holds a valid home solicitation sale permit. Minors excluded from operation of this section must, however, carry personal identification which includes their full name, date of birth, residence address, and employer and the name and permit number of their adult supervisor.
6. Those sellers or their representatives that are currently regulated as to the sale of goods and services by chapter 475 or chapter 497.
7. Solicitors, salespersons, or agents making calls or soliciting orders on behalf of a religious, charitable, scientific, educational, or veterans’ institution or organization holding a sales tax exemption certificate under s. 212.08(7).
(2) Applicants for permits shall file sworn applications in writing with the clerk of the circuit court for the county in which applicants intend to conduct home solicitation sales. The clerk of the circuit court for the county is authorized to impose a reasonable permit fee sufficient to offset the administrative costs associated with the permitting procedure. Each application shall be on a form as required by the clerk of the circuit court for the county receiving the application, but shall contain the following as a minimum:
(a) Full name of applicant.
(b) Date of birth of applicant.
(c) Race and sex of applicant.
(d) Permanent residence address of applicant.
(e) Local residence address of applicant.
(f) Name and address of applicant’s employer.
(g) Two recent color photographs of applicant.
(h) A statement as to whether or not the applicant has been convicted of or has pleaded guilty or nolo contendere to any crime, the nature of the offense, and the punishment or penalty assessed therefor.
(i) A complete set of fingerprints taken by an authorized law enforcement agency.
(3) Upon receipt of a sworn application for a home solicitation sale permit, the clerk of the circuit court for the county shall submit the fingerprints to the Department of Law Enforcement for state processing and a copy of the application to the sheriff for a local criminal background investigation. Both the Department of Law Enforcement and the sheriff shall report any criminal justice information to the clerk of the circuit court for the county within 60 days after receipt of the fingerprints and copy of application.
(4) A clerk of the circuit court for the county may revoke, suspend, or deny the issuance of any home solicitation sale permit if it is determined that an applicant or permitholder has:
(a) Been convicted of, or entered a plea of guilty or nolo contendere to, a crime against the laws of this state or any other state or the United States, involving moral turpitude, fraudulent or dishonest dealing, or the illegal use or sale of a controlled substance, or been convicted of, or entered a plea of guilty or nolo contendere to, a violation of any of the provisions of ss. 501.021-501.055.
(b) Has obtained a permit by fraud, false statement, misrepresentation, or failure to truthfully answer any question in the required permit application.
(c) Has failed to obtain required county or municipal occupational licenses.
(d) Has failed in any material respect to comply with the provisions of ss. 501.021-501.055.
(5) Whenever any person, after applying for or receiving a home solicitation sale permit, moves from the address named in such application or in the permit issued to her or him or when the name of a permitholder is changed by marriage or otherwise, such person shall within 15 days thereafter notify the issuing clerk of the circuit court for the county in writing of her or his old and new addresses or of which former and new names and of the number of her or his permit.
(6) The issuing clerk of the circuit court for the county shall notify each applicant or permitholder of a decision to deny, suspend, or revoke a permit by certified mail sent to any one of the last addresses submitted by the applicant or permitholder.
(7) If the investigation provided for in subsection (3) reveals no grounds for denial of a home solicitation sale permit, the clerk of the circuit court for the county shall issue a home solicitation sale permit in the form of a laminated identification card which shall bear the photograph of the permitholder; the permitholder’s full name, date of birth, race, and sex; the name and address of the permitholder’s employer or the statement “self-employed”; the signature of the permitholder; a permit number; an expiration date; and a telephone number of the issuing clerk’s office which consumers may call to verify the validity of the permit. A permit issued hereunder shall be valid for a period of 1 year from the date of issuance unless earlier revoked as provided for in this section.
(8) Every permitholder shall carry the permit and certificate required by this section at all times while engaged in home solicitation sales and shall display the same to all prospective buyers before initiating the solicitation of a sale, lease, or rental.
History.—s. 2, ch. 86-144; s. 2, ch. 87-344; s. 113, ch. 93-399; s. 611, ch. 97-103; s. 11, ch. 97-250; s. 44, ch. 2000-154; s. 145, ch. 2004-301; s. 138, ch. 2008-4.
501.025 Home solicitation sale; buyer’s right to cancel.—In addition to any other right to revoke an offer, the buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase. Cancellation is evidenced by the buyer giving written notice of cancellation in person, by telegram, or by mail to the seller at the address stated in the agreement or offer to purchase. The written notice of cancellation given by mail shall be effective upon postmarking. The notice of cancellation need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale. Notice of a buyer’s right to cancel must appear on every note or other evidence of indebtedness given pursuant to any home solicitation sale. For the purposes of this section, unless a mortgage also creates the buyer’s promise to pay the secured debt, it is not an evidence of indebtedness.
History.—s. 2, ch. 70-363; s. 1, ch. 77-350; s. 1, ch. 84-63; s. 6, ch. 99-307; s. 37, ch. 99-391.
501.031 Home solicitation sale; written agreement.—Every home solicitation sale shall be evidenced by a writing as provided in this section.
(1) In a home solicitation sale, the seller must present to and obtain from the buyer his or her signature to a written agreement or offer to purchase which designates, as the date of the transaction, the date on which the buyer actually signs and which contains a statement of the buyer’s rights, which statement complies with subsection (2).
(2) The statement must:
(a) Appear under the conspicuous caption, “BUYER’S RIGHT TO CANCEL”;
(b) Read as follows: “This is a home solicitation sale, and if you do not want the goods or services, you may cancel this agreement by providing written notice to the seller in person, by telegram, or by mail. This notice must indicate that you do not want the goods or services and must be delivered or postmarked before midnight of the third business day after you sign this agreement. If you cancel this agreement, the seller may not keep all or part of any cash down payment.”
History.—s. 3, ch. 70-363; s. 2, ch. 84-63; s. 1, ch. 85-5; s. 612, ch. 97-103.
501.035 Home solicitation sale; exclusions.—There shall be excluded from the operation of ss. 501.021-501.055:
(1) The sale of insurance; and
(2) The sale of farm equipment or machinery.
History.—s. 5, ch. 70-363.
501.041 Home solicitation sale; restoration of down payment.—Within 10 days after a home solicitation sale has been canceled or an offer to purchase revoked, the seller must tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness. If the down payment includes goods traded in, the goods must be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement. Until the seller has complied with the obligations imposed by this section, the buyer may retain possession of goods delivered to her or him by the seller and has a lien on the goods in her or his possession or control for any recovery to which she or he is entitled.
History.—s. 6, ch. 70-363; s. 2, ch. 85-5; s. 613, ch. 97-103.
501.045 Home solicitation sale; duty of buyer.—Except as provided in s. 501.041, within a reasonable time after a home solicitation sale has been canceled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale, but he or she is not obligated to tender at any place other than his or her residence. If the seller fails to demand possession of goods within a reasonable time after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them. For the purposes of this section, 40 days is presumed to be a reasonable time. The buyer has the duty to take reasonable care of the goods in his or her possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller’s risk. If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller is entitled to no compensation for such services.
History.—s. 7, ch. 70-363; s. 3, ch. 85-5; s. 614, ch. 97-103.
501.046 Home solicitation sale; duty of businesses conducting home solicitation sales.—
(1) All businesses conducting home solicitation sales in this state shall:
(a) Ensure that all employees engaged in home solicitation sales obtain the permit required in s. 501.022 and direct all such employees to comply with all provisions of said section.
(b) Direct all employees engaged in home solicitation sales to leave with the buyer a “business card,” contract, or receipt, which shall include:
1. The disclosure required in s. 501.031.
2. The name, address, and telephone number of the parent company or sponsor.
3. The name, address, and telephone number of the employee making the home solicitation sale.
(2) In the case of telephone sales solicitations, the name, address, and telephone number of the parent company or sponsor shall be clearly and conspicuously disclosed on sales materials and contracts sent to or delivered to the buyer.
History.—s. 2, ch. 77-350; s. 3, ch. 86-144.
501.047 Home solicitation sale; prohibited practices.—In conducting a home solicitation, no person shall:
(1) Misrepresent the terms or conditions of the sale, lease, or rental.
(2) Misrepresent the seller’s affiliation with the parent company or sponsor.
(3) Misrepresent the seller’s reasons for soliciting the sale, lease, or rental of goods or services, such as participation in a contest or inability to perform any other job, when such is not a fact.
(4) Allege or imply that the agreement to purchase, lease, or rent goods or services is noncancelable when such is not a fact.
(5) Perform any other act which constitutes misrepresentation.
History.—s. 2, ch. 77-350; s. 4, ch. 86-144.
501.052 Home solicitation sale; enforcement authority; injunctive relief.—The Attorney General or state attorney may institute proceedings to enjoin any person found to be violating the provisions of ss. 501.021-501.055.
History.—s. 2, ch. 77-350; s. 12, ch. 97-250.
501.053 Home solicitation sale; judicial review.—Any person, firm, corporation, or agency aggrieved by any decision of a clerk of the circuit court under authority granted in ss. 501.021-501.055 may appeal to the courts, as provided by general law, within 90 days from the date of the decision sought to be reviewed.
History.—s. 3, ch. 87-344.
501.055 Home solicitation sale; penalties.—
(1) Violation of any of the provisions of ss. 501.025-501.047 is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Any person who conducts or attempts to conduct a home solicitation sale without first obtaining and having in her or his possession a valid, current permit as required by s. 501.022 or who uses or attempts to use an expired, suspended, or revoked home solicitation sale permit in a home solicitation sale is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Upon second or subsequent conviction for violation of this subsection, the offender is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Any person who uses a false or fictitious name in any application for a home solicitation sale permit or certificate as provided for in s. 501.022 or who makes a false statement, conceals a material fact, or otherwise commits a fraud in any such application is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second or subsequent conviction for violation of this subsection, the offender is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The obtaining of two or more permits which are in different names or the possession of two or more such permits shall be prima facie evidence that this subsection has been violated.
History.—s. 8, ch. 70-363; s. 457, ch. 71-136; s. 5, ch. 86-144; s. 4, ch. 87-344; s. 122, ch. 91-224; s. 615, ch. 97-103.
501.057 Commercial Weight-Loss Practices Act; short title.—Sections 501.057-501.0581 may be cited as the “Florida Commercial Weight-Loss Practices Act.”
History.—s. 1, ch. 93-274.
501.0571 Commercial Weight-Loss Practices Act; definitions.—As used in ss. 501.057-501.0581:
(1) “Examination” means any type of medical, psychological, or nutritional review of a consumer.
(2) “Supplement” means any type of vitamin, mineral, or other dietary additive which is recommended to be taken by a weight-loss provider.
(3) “Weight-loss location” means any place where a weight-loss program is provided by a weight-loss provider.
(4) “Weight-loss program” means any plan or procedure offered to encourage weight loss.
(5) “Weight-loss provider” means any person engaged in the business of offering services to consumers to assist them in losing weight and making oral or written statements, visual descriptions, advertisements, or other representations that have the capacity, tendency, or effect of leading consumers to believe that participation in a weight-loss program will result in weight loss.
History.—s. 2, ch. 93-274.
501.0573 Weight-loss provider requirements.—Each weight-loss provider shall:
(1) Provide to a consumer a written itemized statement of the fixed or estimated cost of the weight-loss program that is being recommended, including all additional products, services, supplements, examinations, or laboratory tests the consumer may have to purchase from the weight-loss provider as part of such program.
(2) Disclose the actual or estimated duration of the recommended weight-loss program.
(3) Provide a copy of the educational and professional experience of the weight-loss provider’s staff upon request.
(4) Provide the name, address, and qualifications of the person who has reviewed and approved the weight-loss program according to s. 468.505(1)(j).
(5) Produce and distribute to all consumers who inquire about their weight-loss program a palm-sized card with the Weight-Loss Consumer Bill of Rights printed on it.
(6) Conspicuously post the Weight-Loss Consumer Bill of Rights at the front registration desk in each weight-loss location and require every agent, representative, franchisee, or independent contractor to post such a bill of rights in a prominent place in every room in which a presentation or sale of a weight-loss program is made or in which a product or treatment is offered for sale.
History.—s. 3, ch. 93-274.
501.0575 Weight-Loss Consumer Bill of Rights.—
(1) The Weight-Loss Consumer Bill of Rights shall consist of the following provisions:
(A) WARNING: RAPID WEIGHT LOSS MAY CAUSE SERIOUS HEALTH PROBLEMS. RAPID WEIGHT LOSS IS WEIGHT LOSS OF MORE THAN 11/2 POUNDS TO 2 POUNDS PER WEEK OR WEIGHT LOSS OF MORE THAN 1 PERCENT OF BODY WEIGHT PER WEEK AFTER THE SECOND WEEK OF PARTICIPATION IN A WEIGHT-LOSS PROGRAM.
(B) CONSULT YOUR PERSONAL PHYSICIAN BEFORE STARTING ANY WEIGHT-LOSS PROGRAM.
(C) ONLY PERMANENT LIFESTYLE CHANGES, SUCH AS MAKING HEALTHFUL FOOD CHOICES AND INCREASING PHYSICAL ACTIVITY, PROMOTE LONG-TERM WEIGHT LOSS.
(D) QUALIFICATIONS OF THIS PROVIDER ARE AVAILABLE UPON REQUEST.
(E) YOU HAVE A RIGHT TO:
1. ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF THIS PROGRAM AND ITS NUTRITIONAL CONTENT, PSYCHOLOGICAL SUPPORT, AND EDUCATIONAL COMPONENTS.
2. RECEIVE AN ITEMIZED STATEMENT OF THE ACTUAL OR ESTIMATED PRICE OF THE WEIGHT-LOSS PROGRAM, INCLUDING EXTRA PRODUCTS, SERVICES, SUPPLEMENTS, EXAMINATIONS, AND LABORATORY TESTS.
3. KNOW THE ACTUAL OR ESTIMATED DURATION OF THE PROGRAM.
4. KNOW THE NAME, ADDRESS, AND QUALIFICATIONS OF THE DIETITIAN OR NUTRITIONIST WHO HAS REVIEWED AND APPROVED THE WEIGHT-LOSS PROGRAM ACCORDING TO s. 468.505(1)(j), FLORIDA STATUTES.
(2) The copies of the Weight-Loss Consumer Bill of Rights to be posted according to s. 501.0573(6) shall be printed in at least 24-point boldfaced type on one side of a sign. The palm-sized copies to be distributed according to s. 501.0573(5) shall be in boldfaced type and legible. Each weight-loss provider shall be responsible for producing and printing appropriate copies of the Weight-Loss Consumer Bill of Rights.
History.—s. 4, ch. 93-274; s. 45, ch. 2000-154.
501.0577 Commercial Weight-Loss Practices Act; exemptions.—The provisions of this act do not apply to persons licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 465, or chapter 486 who may give weight-loss advice or provide any weight-loss service which is incidental to the performance of their profession and which is not the primary activity of the person’s practice.
History.—s. 5, ch. 93-274.
501.0579 Commercial Weight-Loss Practices Act; unlawful practices.—It is unlawful and an unfair and deceptive trade practice under part II of this chapter to fail to comply with the provisions of this act.
History.—s. 6, ch. 93-274.
501.0581 Commercial Weight-Loss Practices Act; civil remedies.—
(1) The Department of Agriculture and Consumer Services may bring a civil action in circuit court for temporary or permanent injunctive relief to enforce the provisions of this act and may seek other appropriate civil relief, including a civil penalty not to exceed $5,000 for each violation, for restitution and damages for injured customers, court costs, and reasonable attorney’s fees.
(2) The Department of Agriculture and Consumer Services may terminate any investigation or action upon agreement by the offender to pay a stipulated civil penalty, make restitution or pay damages to customers, or satisfy any other relief authorized herein and requested by the department.
(3) Remedies provided in this section shall be in addition to any other remedies provided by law.
History.—s. 7, ch. 93-274.
501.0583 Selling, delivering, bartering, furnishing, or giving weight-loss pills to persons under age 18; penalties; defense.—
(1) As used in this section, the term “weight-loss pill” means a pill that is available without a prescription, the marketing, advertising, or packaging of which indicates that its primary purpose is for facilitating or causing weight loss. The term includes a pill that contains at least one of the following ingredients: ephedra species, ephedrine alkaloid containing dietary supplements, or Sida cordifolia. However, the term does not include a pill containing one or more of such ingredients which is marketed or intended for a primary purpose other than weight loss.
(2) It is unlawful to sell, deliver, barter, furnish, or give, directly or indirectly, a weight-loss pill to a person under 18 years of age. However, it is a defense to a charge of violating this subsection if the buyer or recipient of the weight-loss pill displayed to the person alleged to have committed the violation a driver’s license or identification card issued by this state or another state, a passport, or a United States armed services identification card that indicated that the buyer or recipient was 18 years of age or older and the appearance of the buyer or recipient was such that a prudent person would reasonably believe that the buyer or recipient was not under 18 years of age.
(3) A first violation of subsection (2) or this subsection is punishable by a fine of $100. A second violation of subsection (2) or this subsection is punishable by a fine of $250. A third violation of subsection (2) or this subsection is punishable by a fine of $500. A fourth or subsequent violation of subsection (2) or this subsection is punishable by a fine as determined by the Department of Agriculture and Consumer Services, not to exceed $1,000.
(4) The Department of Agriculture and Consumer Services is authorized to adopt rules to implement this section.
History.—s. 1, ch. 2003-24.
501.059 Telephone solicitation.—
(1) As used in this section:
(a) “Telephonic sales call” means a call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of any consumer goods or services, or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
(b) “Consumer goods or services” means any real property or any tangible or intangible personal property which is normally used for personal, family, or household purposes, including, without limitation, any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed, as well as cemetery lots and timeshare estates, and any services related to such property.
(c) “Unsolicited telephonic sales call” means a telephonic sales call other than a call made:
1. In response to an express request of the person called;
2. Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of such call;
3. To any person with whom the telephone solicitor has a prior or existing business relationship; or
4. By a newspaper publisher or his or her agent or employee in connection with his or her business.
(d) “Commission” means the Florida Public Service Commission.
(e) “Telephone solicitor” means any natural person, firm, organization, partnership, association, or corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but not limited to, calls made by use of automated dialing or recorded message devices.
(f) “Consumer” means an actual or prospective purchaser, lessee, or recipient of consumer goods or services.
(g) “Merchant” means a person who, directly or indirectly, offers or makes available to consumers any consumer goods or services.
(h) “Doing business in this state” refers to businesses who conduct telephonic sales calls from a location in Florida or from other states or nations to consumers located in Florida.
(i) “Department” means the Department of Agriculture and Consumer Services.
(2) Any telephone solicitor who makes an unsolicited telephonic sales call to a residential, mobile, or telephonic paging device telephone number shall identify himself or herself by his or her true first and last names and the business on whose behalf he or she is soliciting immediately upon making contact by telephone with the person who is the object of the telephone solicitation.
(3)(a) Any residential, mobile, or telephonic paging device telephone subscriber desiring to be placed on a “no sales solicitation calls” listing indicating that the subscriber does not wish to receive unsolicited telephonic sales calls may notify the department and be placed on that listing upon receipt by the department of a $10 initial listing charge. This listing shall be renewed by the department annually for each consumer upon receipt of a renewal notice and a $5 assessment.
(b) The department shall update its “no sales solicitation calls” listing upon receipt of initial consumer subscriptions or renewals and provide this listing for a fee to telephone solicitors upon request.
(c) All fees imposed pursuant to this section shall be deposited in the General Inspection Trust Fund for the administration of this section.
(4) No telephone solicitor shall make or cause to be made any unsolicited telephonic sales call to any residential, mobile, or telephonic paging device telephone number if the number for that telephone appears in the then-current quarterly listing published by the department. Any telephone solicitor or person who offers for sale any consumer information which includes residential, mobile, or telephonic paging device telephone numbers, except directory assistance and telephone directories sold by telephone companies and organizations exempt under s. 501(c)(3) or (6) of the Internal Revenue Code, shall screen and exclude those numbers which appear on the division’s then-current “no sales solicitation calls” list. This subsection does not apply to any person licensed pursuant to chapter 475 who calls an actual or prospective seller or lessor of real property when such call is made in response to a yard sign or other form of advertisement placed by the seller or lessor.
(5)(a) A contract made pursuant to a telephonic sales call is not valid and enforceable against a consumer unless made in compliance with this subsection.
(b) A contract made pursuant to a telephonic sales call:
1. Shall be reduced to writing and signed by the consumer.
2. Shall comply with all other applicable laws and rules.
3. Shall match the description of goods or services as principally used in the telephone solicitations.
4. Shall contain the name, address, and telephone number of the seller, the total price of the contract, and a detailed description of the goods or services being sold.
5. Shall contain, in bold, conspicuous type, immediately preceding the signature, the following statement:
“You are not obligated to pay any money unless you sign this contract and return it to the seller.”
6. May not exclude from its terms any oral or written representations made by the telephone solicitor to the consumer in connection with the transaction.
(c) The provisions of this subsection do not apply to contractual sales regulated under other sections of the Florida Statutes, or to the sale of financial services, security sales, or sales transacted by companies or their wholly owned subsidiaries or agents, which companies are regulated by chapter 364, or to the sale of cable television services to the duly franchised cable television operator’s existing subscribers within that cable television operator’s franchise area, or to any sales where no prior payment is made to the merchant and an invoice accompanies the goods or services allowing the consumer 7 days to cancel or return without obligation for any payment.
(6)(a) A merchant who engages a telephone solicitor to make or cause to be made a telephonic sales call shall not make or submit any charge to the consumer’s credit card account or make or cause to be made any electronic transfer of funds until after the merchant receives from the consumer a copy of the contract, signed by the purchaser, which complies with this section.
(b) A merchant who conducts a credit card account transaction pursuant to this section shall be subject to the provisions of s. 817.62.
(c) The provisions of this subsection do not apply to a transaction:
1. Made in accordance with prior negotiations in the course of a visit by the consumer to a merchant operating a retail business establishment which has a fixed permanent location and where consumer goods are displayed or offered for sale on a continuing basis;
2. In which the consumer may obtain a full refund for the return of undamaged and unused goods or a cancellation of services notice to the seller within 7 days after receipt by the consumer, and the seller will process the refund within 30 days after receipt of the returned merchandise by the consumer;
3. In which the consumer purchases goods or services pursuant to an examination of a television, radio, or print advertisement or a sample, brochure, or catalog of the merchant that contains:
a. The name, address, and telephone number of the merchant;
b. A description of the goods or services being sold; and
c. Any limitations or restrictions that apply to the offer; or
4. In which the merchant is a bona fide charitable organization or a newspaper as defined in chapter 50.
(7)(a) No person shall make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.
(b) Nothing herein prohibits the use of an automated telephone dialing system with live messages if the calls are made or messages given solely in response to calls initiated by the persons to whom the automatic calls or live messages are directed or if the telephone numbers selected for automatic dialing have been screened to exclude any telephone subscriber who is included on the department’s then-current “no sales solicitation calls” listing or any unlisted telephone number, or if the calls made concern goods or services that have been previously ordered or purchased.
(c) It shall be unlawful for any person who makes a telephonic sales call or causes a telephonic sales call to be made to fail to transmit or cause not to be transmitted the telephone number and, when made available by the telephone solicitor’s carrier, the name of the telephone solicitor to any caller identification service in use by a recipient of a telephonic sales call. However, it shall not be a violation to substitute, for the name and telephone number used in or billed for making the call, the name of the seller on behalf of which a telephonic sales call is placed and the seller’s customer service telephone number, which is answered during regular business hours. For purposes of this section, the term “caller identification service” means a service that allows a telephone subscriber to have the telephone number and, where available, the name of the calling party transmitted contemporaneously with the telephone call and displayed on a device in or connected to the subscriber’s telephone.
(d) It shall be unlawful for any person who makes a telephonic sales call or causes a telephonic sales call to be made to intentionally alter the voice of the caller in an attempt to disguise or conceal the identity of the caller in order to defraud, confuse, or financially or otherwise injure the recipient of a telephonic sales call or in order to obtain personal information from the recipient of a telephonic sales call which may be used in a fraudulent or unlawful manner.
(8) The department shall investigate any complaints received concerning violations of this section. If, after investigating any complaint, the department finds that there has been a violation of this section, the department or the Department of Legal Affairs may bring an action to impose a civil penalty and to seek other relief, including injunctive relief, as the court deems appropriate against the telephone solicitor. The civil penalty shall not exceed $10,000 per violation and shall be deposited in the General Inspection Trust Fund if the action or proceeding was brought by the department, or the Legal Affairs Revolving Trust Fund if the action or proceeding was brought by the Department of Legal Affairs. This civil penalty may be recovered in any action brought under this part by the department, or the department may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The department or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation.
(9)(a) In any civil litigation resulting from a transaction involving a violation of this section, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his or her reasonable attorney’s fees and costs from the nonprevailing party.
(b) The attorney for the prevailing party shall submit a sworn affidavit of his or her time spent on the case and his or her costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
(c) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
(d) Any award of attorney’s fees or costs shall become a part of the judgment and subject to execution as the law allows.
(e) In any civil litigation initiated by the department or the Department of Legal Affairs, the court may award to the prevailing party reasonable attorney’s fees and costs if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or if the court finds bad faith on the part of the losing party.
(10) The commission shall by rule ensure that telecommunications companies inform their customers of the provisions of this section. The notification may be made by:
(a) Annual inserts in the billing statements mailed to customers; and
(b) Conspicuous publication of the notice in the consumer information pages of the local telephone directories.
History.—s. 1, ch. 87-253; s. 1, ch. 90-143; ss. 3, 5, ch. 91-237; s. 1, ch. 92-186; s. 59, ch. 92-291; s. 3, ch. 94-298; s. 616, ch. 97-103; s. 4, ch. 2003-179; s. 4, ch. 2006-165.
501.122 Control of nonionizing radiations; laser; penalties.—
(1) DEFINITIONS.—For the purposes of this section:
(a) “Laser” means light amplification by stimulated emission of radiation, encompassing wavelengths above and below those in visual range, if produced by laser devices.
(b) “Laser device” means any device designed or used to amplify electromagnetic radiation by stimulated emission.
(c) “Nonionizing radiation” means electromagnetic or sound waves which do not produce or result in ionization.
(d) “Ionizing radiation” means gamma and X rays, alpha and beta particles, high-speed electrons, neutrons, protons, and other nuclear particles.
(e) “Department” means the Department of Health.
(2) AUTHORITY TO ISSUE REGULATIONS.—Except for electrical transmission and distribution lines and substation facilities subject to regulation by the Department of Environmental Protection pursuant to chapter 403, the Department of Health shall adopt rules as necessary to protect the health and safety of persons exposed to laser devices and other nonionizing radiation, including the user or any others who might come in contact with such radiation. The Department of Health may:
(a) Develop a program for registration of laser devices and uses and of identifying and controlling sources and uses of other nonionizing radiations.
(b) Maintain liaison with, and receive information from, industry, industry associations, and other organizations or individuals relating to present or future radiation-producing products or devices.
(c) Study and evaluate the degree of hazard associated with the use of laser devices or other sources of radiation.
(d) Establish and prescribe performance standards for lasers and other radiation control, including requirements for radiation surveys and measurements and the methods and instruments used to perform surveys; the qualifications, duties, and training of users; the posting of warning signs and labels for facilities and devices; recordkeeping; and reports to the department, if it determines that such standards are necessary for the protection of the public health.
(e) Amend or revoke any performance standard established under the provisions of this section.
(3) PENALTIES FOR USING UNREGISTERED LASER DEVICE OR PRODUCT.—
(a) No person licensed to practice the healing arts, nor any other person, may use a Class III or a Class IV laser device or product as defined by federal regulations unless she or he has complied with the rules governing the registration of such devices with the department promulgated pursuant to subsection (2).
(b) Any person who violates the provisions of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1, 2, ch. 71-189; s. 437, ch. 77-147; s. 94, ch. 83-329; s. 7, ch. 86-173; s. 54, ch. 86-186; s. 123, ch. 91-224; s. 459, ch. 94-356; s. 622, ch. 97-103; s. 42, ch. 98-151; s. 46, ch. 2000-242.
501.135 Consumer unit pricing.—
(1) SHORT TITLE.—This act shall be known and cited as “The Consumer Unit Pricing Act.”
(2) PURPOSES; RULE OF INTERPRETATION.—This act shall be liberally construed to effectively promote the following purposes and policies:
(a) Protect the interests of consumers and encourage constructive and useful competition in the sale of consumer commodities.
(b) Encourage, to the extent that it will facilitate the consumer’s choice of consumer commodities, the development and use of a method of unit pricing for consumer commodities.
(c) Prohibit the use of unit pricing of consumer commodities when it would tend to mislead or deceive consumers.
(d) Encourage competition among sellers of consumer commodities through the use of uniform units of quantity for unit pricing of consumer commodities.
(e) Encourage the development and use, by sellers, of consumer education programs with respect to factors which should be considered in the purchase of consumer commodities which are offered for sale or sold on a unit price basis, with special attention to the needs of disadvantaged consumers for such consumer education programs.
(f) Provide for a state-approved program of unit pricing of consumer commodities.
(3) DEFINITIONS.—As used in this act:
(a) “Seller” means any person engaged in the business of selling a consumer commodity at retail.
(b) “Consumer commodity” means any article, product, or commodity of any kind or class, other than durable articles, textiles, items of apparel, appliances, paints, writing supplies, and articles specially ordered from the seller, including prescription drugs, which is customarily produced or distributed for sale at retail for consumption by individuals or use by individuals for purposes of personal care or in the performance of routine services ordinarily rendered regularly within the household, and which is usually consumed or expended in the course of such consumption or use.
(c) “Unit price” means the pricing of, or expression of the price of, a consumer commodity as the price per an approved unit of quantity.
(d) “Department” means the Department of Agriculture and Consumer Services.
(4) RESPONSIBILITY OF DEPARTMENT.—The department shall have the authority, duty and responsibility of administering and enforcing this act.
(5) APPROVED UNIT OF QUANTITY AND COMPUTATION OF UNIT PRICE.—
(a) The price of all consumer commodities offered for sale or sold by a seller shall be expressed as the price per approved unit of quantity, which shall be the price per:
1. Avoirdupois ounce;
2. Fluid ounce;
3. Unit;
4. Square foot;
5. Linear foot;
6. Pound; or
7. Such substitute unit or units of quantity as may be approved by the department upon a finding of need for such substitute unit.
(b) Unit prices shall be computed to the nearest one-hundredth of 1 cent rounded to the nearest one-tenth of 1 cent for purposes of display to consumers. Five one-hundredths of 1 cent shall be rounded to the next highest one-tenth of 1 cent.
(c) This act shall not apply to any seller unless he or she voluntarily establishes a system of unit pricing.
(6) DISPLAY AND ADVERTISING OF CONSUMER COMMODITY UNIT PRICES.—A seller shall conspicuously and clearly display the price per package or unit and the unit price in close proximity to the display of the commodity in such manner as may be established by rules of the department. However, the display of the prices may not obliterate or conceal any other information required by law or regulation. Nothing contained herein shall be construed to require that a seller unit price any consumer commodity other than those with regard to which he or she has voluntarily established a system of unit pricing.
(7) PENALTIES.—Any person who offers for sale, or sells, any consumer commodity in violation of this act is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(8) INJUNCTIVE RELIEF.—The department may institute proceedings in the appropriate circuit court for injunctive relief to enforce this act.
History.—ss. 1, 2, 3, 4, 5, 6, 7, 8, ch. 72-325; s. 6, ch. 78-95; s. 623, ch. 97-103.
501.137 Mortgage lenders; tax and insurance payments from escrow accounts; duties.—
(1) Every lender of money, whether a natural person or an artificial entity, whose loans are secured by a mortgage on real estate located within the state and who receives funds incidental thereto or in connection therewith for the payment of property taxes or hazard insurance premiums when the funds are held in escrow by or on behalf of the lender, shall promptly pay the taxes or insurance premiums when the taxes or premiums become due and adequate escrow funds are deposited, so that the maximum tax discount available may be obtained with regard to the taxable property and so that insurance coverage on the property does not lapse.
(2) If an escrow account for the taxes or insurance premiums is deficient, the lender shall notify the property owner within 15 days after the lender receives the notification of taxes due from the county tax collector or receives the notification from the insurer that a premium is due.
(3)(a) If the lender, as a result of neglect, fails to pay any tax or insurance premium when the tax or premium is due and there are sufficient escrow funds on deposit to pay the tax or premium, and if the property owner suffers a loss as a result of this failure, then the lender is liable for the loss; except, however, that with respect to any loss which would otherwise have been insured, the extent of the liability shall not exceed the coverage limits of any insurance policy which has lapsed.
(b) If the lender violates paragraph (a) and the premium payment is not more than 90 days overdue, the insurer shall reinstate the insurance policy, retroactive to the date of cancellation, and the lender shall reimburse the property owner for any penalty or fees imposed by the insurer and paid by the property owner for purposes of reinstating the policy.
(c) If the lender violates paragraph (a) and the premium payment is more than 90 days overdue or if the insurer refuses to reinstate the insurance policy, the lender shall pay the difference between the cost of the previous insurance policy and a new, comparable insurance policy for a period of 2 years. If the lender refuses, the lender is liable for the reasonable attorney’s fees and costs of the property owner for a violation of this section.
(4) At the expiration of the annual accounting period, the lender shall issue to the property owner an annual statement of the escrow account.
History.—s. 1, ch. 76-12; s. 1, ch. 77-174; s. 1, ch. 84-52; s. 3, ch. 2004-370; s. 149, ch. 2004-390; s. 23, ch. 2006-213.
501.1375 Deposits received for purchase of residential dwelling units; placement in escrow; waiver; exceptions.—
(1) DEFINITIONS.—
(a) “Building contractor” means any person who, for compensation, constructs and sells one-family or two-family residential dwelling units, except for a person who sells or constructs less than 10 units per year statewide.
(b) “Developer” means either a building contractor who offers new residential dwelling units for sale or any person who offers a new one-family or two-family residential dwelling unit for sale, except for a person who sells or constructs less than 10 units per year statewide.
(c) “Closing” means that point in time at which legal title to the real property shall transfer from grantor thereof to grantee.
(d) “Default” means the failure of the buyer to close the transaction after issuance of the certificate of occupancy or the failure of the buyer to comply with any of the buyer’s obligations under the terms of the purchase contract.
(e) “Escrow” or “to place in escrow” means the delivery to or deposit with a third party, the escrow holder, of money or documents to be held and disbursed by such escrow agent consistent with the provisions of this section.
(2) NOTICE TO BUYER OF RIGHT TO HAVE DEPOSIT FUNDS PLACED IN ESCROW ACCOUNT.—In all offers to purchase, sales agreements, or written contracts made between a building contractor or a developer and a prospective buyer of a one-family or two-family residential dwelling unit, the building contractor or developer shall notify the prospective buyer that any deposit (up to 10 percent of the purchase price) made by the buyer to the building contractor or developer shall, unless waived in writing by the buyer, be deposited in an escrow account with a savings and loan association, bank, or trust company, an attorney who is a member of The Florida Bar, a licensed Florida real estate broker, or a title insurance company authorized to insure title to real property in this state. The funds, if escrowed, may be deposited in separate accounts or commingled with other escrow or trust accounts. Any such offer, agreement, or contract used by the building contractor or developer with respect to the sale of a one-family or two-family residential dwelling unit shall contain the following legend in conspicuous type: THE BUYER OF A ONE-FAMILY OR TWO-FAMILY RESIDENTIAL DWELLING UNIT HAS THE RIGHT TO HAVE ALL DEPOSIT FUNDS (UP TO 10 PERCENT OF THE PURCHASE PRICE) DEPOSITED IN AN ESCROW ACCOUNT. THIS RIGHT MAY BE WAIVED, IN WRITING, BY THE BUYER.
(3) ESCROW ACCOUNTS; WITHDRAWALS.—If the buyer of a one-family or two-family residential dwelling unit does not waive the right to have deposits placed in an escrow account, the building contractor or developer shall place the funds (up to 10 percent of the purchase price) in an escrow account. The account shall be clearly denoted on the records of the escrow holder as an escrow account. All withdrawals from the account shall require the signatures of both the building contractor or developer and the buyer or the buyer’s agent, except as provided in this section.
(4) RIGHT TO INTEREST; USE OF ESCROWED FUNDS; SURETY BOND OR LOAN.—When money has been placed in an escrow account pursuant to this section, the building contractor or developer shall be entitled to any interest accrued by the account, payable at closing. When the building contractor or developer desires to use escrowed funds for building purposes, after notification to the buyer, the building contractor or developer shall acquire a surety bond issued by a company licensed to do business in this state, if such a bond is readily available in the open market, payable to the buyer in the amount of the escrow deposit; and the funds in the escrow deposit shall thereafter be released to the building contractor or developer for construction purposes only. In the case where no surety bond is available, the building contractor or developer may borrow money in an amount equal to the funds held in escrow for construction purposes only, in which case any interest which the building contractor or developer pays on such a loan for a period not to exceed 12 months shall be paid by the buyer at the time of closing, but the buyer shall be credited for any interest accrued on the escrow account.
(5) MASTER SURETY BOND.—In lieu of and as an alternative to the requirements of subsection (4), a blanket or master surety bond issued by a company licensed to do business in this state may be acquired by the builder or developer, in an amount equal to or greater than the total amount of escrow deposits withdrawn by the builder or developer pursuant to this section. The buyer shall be debited at closing in an amount equal to the premium for the applicable portion of the bond securing his or her deposit. The master surety bond amount and the pro rata share of bond premium debited against the buyer may be based on a reasonable projection of annual escrowed deposit amounts which will be withdrawn pursuant to this section. Bond rates charged under this subsection shall be subject to the provisions of part I of chapter 627 of the Florida Insurance Code.
(6) ACCOUNTABILITY OF ESCROW HOLDER FOR USE OF ESCROWED FUNDS.—No escrow holder, bonding company, or lending institution referred to in this section shall be chargeable with the use to which a builder or developer puts escrowed funds.
(7) RELEASE OF DEPOSIT MONEYS.—Funds in an escrow account established pursuant to this section shall be released without the signature of both the building contractor or developer and the buyer only under the following conditions:
(a) Pursuant to subsection (4).
(b) Pursuant to subsection (5).
(c) If the buyer properly terminates the contract pursuant to its terms, the funds, including any accrued interest, shall be paid to the buyer.
(d) If the buyer defaults in the performance of his or her obligations under the contract of purchase and sale, the funds shall be paid to the building contractor or developer together with any interest earned, in the following manner: The builder or developer may, upon default of the buyer to comply with the terms and conditions of the written contract between the parties, and if the builder or developer is not in default, withdraw any funds being held in escrow pursuant to said written agreement. In order to make such withdrawal, the builder or developer shall send written notice by certified mail to the buyer of his or her intention to make said withdrawals at least 72 hours prior to the intended time of withdrawal. After this 72-hour period, the builder or developer, upon presentation to the escrow holder of a withdrawal slip and the passbook, if any, together with an affidavit certifying that the buyer is in default and that the builder or developer is not in default, may withdraw the escrowed funds. The escrow holder, upon receipt of these items, shall release the funds to the builder or developer. The escrow holder shall not be liable for the release of the funds pursuant to this subsection.
(e) If the funds of the buyer have not been previously disbursed in accordance with this subsection, they shall be disbursed to the building contractor or developer at the closing of the transaction.
(8) NO RIGHT OF LIEN, SUBROGATION, OR CLAIM.—
(a) An escrow deposit or surety bond purchased pursuant to this section shall not be subject to any lien pursuant to part I of chapter 713 or any lien of any lending institution (except if contracted for by the buyer) or subrogation in the case of default.
(b) In the event that closing occurs with respect to a sale under this section, the buyer shall then have no right to place a claim on any escrowed funds for breach of contract.
(9) PENALTIES.—Any developer who willfully fails to comply with the provisions of this section concerning establishment of an escrow account, deposits of funds into escrow, or withdrawal of funds from escrow commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The failure to place funds in an escrow account, if required by this section, within 10 days after receipt by the developer of such funds is prima facie evidence of a violation of this section.
(10) CIVIL ACTIONS.—In the event of any civil litigation arising under this section, the prevailing party shall be entitled to attorney’s fees and costs. Any escrow account interest shall continue to accrue to the benefit of the building contractor or developer on said escrow account during the pendency of any such litigation, except in the event of a ruling adverse to the building contractor or developer.
(11) STATE STANDARDS.—The provisions of this section constitute maximum statewide standards.
(12) EXEMPTIONS.—This section shall not apply to deposits, as described in this section, which are:
(a) Placed in an escrow account required by the Federal Housing Administration or the United States Department of Veterans Affairs; or
(b) Made to licensed real estate brokers pursuant to this section, which shall instead be deposited in accordance with the provisions of chapter 475.
History.—ss. 1, 2, 3, 4, 5, 6, 7, ch. 80-386; s. 385, ch. 81-259; s. 1, ch. 88-251; s. 25, ch. 90-109; s. 23, ch. 93-268; s. 6, ch. 95-240; s. 13, ch. 96-298; s. 73, ch. 96-388; s. 1158, ch. 97-103.
501.1377 Violations involving homeowners during the course of residential foreclosure proceedings.—
(1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds that homeowners who are in default on their mortgages, in foreclosure, or at risk of losing their homes due to nonpayment of taxes may be vulnerable to fraud, deception, and unfair dealings with foreclosure-rescue consultants or equity purchasers. The intent of this section is to provide a homeowner with information necessary to make an informed decision regarding the sale or transfer of his or her home to an equity purchaser. It is the further intent of this section to require that foreclosure-related rescue services agreements be expressed in writing in order to safeguard homeowners against deceit and financial hardship; to ensure, foster, and encourage fair dealing in the sale and purchase of homes in foreclosure or default; to prohibit representations that tend to mislead; to prohibit or restrict unfair contract terms; to provide a cooling-off period for homeowners who enter into contracts for services related to saving their homes from foreclosure or preserving their rights to possession of their homes; to afford homeowners a reasonable and meaningful opportunity to rescind sales to equity purchasers; and to preserve and protect home equity for the homeowners of this state.
(2) DEFINITIONS.—As used in this section, the term:
(a) “Equity purchaser” means a person who acquires a legal, equitable, or beneficial ownership interest in any residential real property as a result of a foreclosure-rescue transaction. The term does not apply to a person who acquires the legal, equitable, or beneficial interest in such property:
1. By a certificate of title from a foreclosure sale conducted under chapter 45;
2. At a sale of property authorized by statute;
3. By order or judgment of any court;
4. From a spouse, parent, grandparent, child, grandchild, or sibling of the person or the person’s spouse; or
5. As a deed in lieu of foreclosure, a workout agreement, a bankruptcy plan, or any other agreement between a foreclosing lender and a homeowner.
(b) “Foreclosure-rescue consultant” means a person who directly or indirectly makes a solicitation, representation, or offer to a homeowner to provide or perform, in return for payment of money or other valuable consideration, foreclosure-related rescue services. The term does not apply to:
1. A person excluded under s. 501.212.
2. A person acting under the express authority or written approval of the United States Department of Housing and Urban Development or other department or agency of the United States or this state to provide foreclosure-related rescue services.
3. A charitable, not-for-profit agency or organization, as determined by the United States Internal Revenue Service under s. 501(c)(3) of the Internal Revenue Code, which offers counseling or advice to an owner of residential real property in foreclosure or loan default if the agency or organization does not contract for foreclosure-related rescue services with a for-profit lender or person facilitating or engaging in foreclosure-rescue transactions.
4. A person who holds or is owed an obligation secured by a lien on any residential real property in foreclosure if the person performs foreclosure-related rescue services in connection with this obligation or lien and the obligation or lien was not the result of or part of a proposed foreclosure reconveyance or foreclosure-rescue transaction.
5. A financial institution as defined in s. 655.005 and any parent or subsidiary of the financial institution or of the parent or subsidiary.
6. A licensed mortgage broker or mortgage lender that provides mortgage counseling or advice regarding residential real property in foreclosure, which counseling or advice is within the scope of services set forth in chapter 494 and is provided without payment of money or other consideration other than a loan origination fee.
7. An attorney licensed to practice law in this state who provides foreclosure rescue-related services as an ancillary matter to the attorney’s representation of a homeowner as a client.
(c) “Foreclosure-related rescue services” means any good or service related to, or promising assistance in connection with:
1. Stopping, avoiding, or delaying foreclosure proceedings concerning residential real property; or
2. Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation.
(d) “Foreclosure-rescue transaction” means a transaction:
1. By which residential real property in foreclosure is conveyed to an equity purchaser and the homeowner maintains a legal or equitable interest in the residential real property conveyed, including, without limitation, a lease option interest, an option to acquire the property, an interest as beneficiary or trustee to a land trust, or other interest in the property conveyed; and
2. That is designed or intended by the parties to stop, avoid, or delay foreclosure proceedings against a homeowner’s residential real property.
(e) “Homeowner” means the record title owner of residential real property.
(f) “Residential real property” means real property consisting of one-family to four-family dwelling units.
(g) “Residential real property in foreclosure” means residential real property against which there is an outstanding notice of the pendency of foreclosure proceedings recorded pursuant to s. 48.23.
(3) PROHIBITED ACTS.—In the course of offering or providing foreclosure-related rescue services, a foreclosure-rescue consultant may not:
(a) Engage in or initiate foreclosure-related rescue services without first executing a written agreement with the homeowner for foreclosure-related rescue services; or
(b) Solicit, charge, receive, or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services before completing or performing all services contained in the agreement for foreclosure-related rescue services.
(4) FORECLOSURE-RELATED RESCUE SERVICES; WRITTEN AGREEMENT.—
(a) The written agreement for foreclosure-related rescue services must be printed in at least 12-point uppercase type and signed by both parties. The agreement must include the name and address of the person providing foreclosure-related rescue services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the homeowner for the services, and the date of the agreement. The date of the agreement may not be earlier than the date the homeowner signed the agreement. The foreclosure-rescue consultant must give the homeowner a copy of the agreement to review not less than 1 business day before the homeowner is to sign the agreement.
(b) The homeowner has the right to cancel the written agreement without any penalty or obligation if the homeowner cancels the agreement within 3 business days after signing the written agreement. The right to cancel may not be waived by the homeowner or limited in any manner by the foreclosure-rescue consultant. If the homeowner cancels the agreement, any payments that have been given to the foreclosure-rescue consultant must be returned to the homeowner within 10 business days after receipt of the notice of cancellation.
(c) An agreement for foreclosure-related rescue services must contain, immediately above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:
HOMEOWNER’S RIGHT OF CANCELLATION
YOU MAY CANCEL THIS AGREEMENT FOR FORECLOSURE-RELATED RESCUE SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS FOLLOWING THE DATE THIS AGREEMENT IS SIGNED BY YOU.
THE FORECLOSURE-RESCUE CONSULTANT IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES ARE COMPLETE. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU NO LATER THAN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.
TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO (NAME) AT (ADDRESS) NO LATER THAN MIDNIGHT OF (DATE) .
IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR MORTGAGE SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE.
(d) The inclusion of the statement does not prohibit the foreclosure-rescue consultant from giving the homeowner more time in which to cancel the agreement than is set forth in the statement, provided all other requirements of this subsection are met.
(e) The foreclosure-rescue consultant must give the homeowner a copy of the signed agreement within 3 hours after the homeowner signs the agreement.
(5) FORECLOSURE-RESCUE TRANSACTIONS; WRITTEN AGREEMENT.—
(a)1. A foreclosure-rescue transaction must include a written agreement prepared in at least 12-point uppercase type that is completed, signed, and dated by the homeowner and the equity purchaser before executing any instrument from the homeowner to the equity purchaser quitclaiming, assigning, transferring, conveying, or encumbering an interest in the residential real property in foreclosure. The equity purchaser must give the homeowner a copy of the completed agreement within 3 hours after the homeowner signs the agreement. The agreement must contain the entire understanding of the parties and must include:
a. The name, business address, and telephone number of the equity purchaser.
b. The street address and full legal description of the property.
c. Clear and conspicuous disclosure of any financial or legal obligations of the homeowner that will be assumed by the equity purchaser.
d. The total consideration to be paid by the equity purchaser in connection with or incident to the acquisition of the property by the equity purchaser.
e. The terms of payment or other consideration, including, but not limited to, any services that the equity purchaser represents will be performed for the homeowner before or after the sale.
f. The date and time when possession of the property is to be transferred to the equity purchaser.
2. A foreclosure-rescue transaction agreement must contain, above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:
I UNDERSTAND THAT UNDER THIS AGREEMENT I AM SELLING MY HOME TO THE OTHER UNDERSIGNED PARTY.
3. A foreclosure-rescue transaction agreement must state the specifications of any option or right to repurchase the residential real property in foreclosure, including the specific amounts of any escrow payments or deposit, down payment, purchase price, closing costs, commissions, or other fees or costs.
4. A foreclosure-rescue transaction agreement must comply with all applicable provisions of 15 U.S.C. ss. 1601 et seq. and related regulations.
(b) The homeowner may cancel the foreclosure-rescue transaction agreement without penalty if the homeowner notifies the equity purchaser of such cancellation no later than 5 p.m. on the 3rd business day after signing the written agreement. Any moneys paid by the equity purchaser to the homeowner or by the homeowner to the equity purchaser must be returned at cancellation. The right to cancel does not limit or otherwise affect the homeowner’s right to cancel the transaction under any other law. The right to cancel may not be waived by the homeowner or limited in any way by the equity purchaser. The equity purchaser must give the homeowner, at the time the written agreement is signed, a notice of the homeowner’s right to cancel the foreclosure-rescue transaction as set forth in this subsection. The notice, which must be set forth on a separate cover sheet to the written agreement that contains no other written or pictorial material, must be in at least 12-point uppercase type, double-spaced, and read as follows:
NOTICE TO THE HOMEOWNER/SELLER
PLEASE READ THIS FORM COMPLETELY AND CAREFULLY. IT CONTAINS VALUABLE INFORMATION REGARDING CANCELLATION RIGHTS.
BY THIS CONTRACT, YOU ARE AGREEING TO SELL YOUR HOME. YOU MAY CANCEL THIS TRANSACTION AT ANY TIME BEFORE 5:00 P.M. OF THE THIRD BUSINESS DAY FOLLOWING RECEIPT OF THIS NOTICE.
THIS CANCELLATION RIGHT MAY NOT BE WAIVED IN ANY MANNER BY YOU OR BY THE PURCHASER.
ANY MONEY PAID DIRECTLY TO YOU BY THE PURCHASER MUST BE RETURNED TO THE PURCHASER AT CANCELLATION. ANY MONEY PAID BY YOU TO THE PURCHASER MUST BE RETURNED TO YOU AT CANCELLATION.
TO CANCEL, SIGN THIS FORM AND RETURN IT TO THE PURCHASER BY 5:00 P.M. ON (DATE) AT (ADDRESS) . IT IS BEST TO MAIL IT BY CERTIFIED MAIL OR OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, AND TO KEEP A PHOTOCOPY OF THE SIGNED FORM AND YOUR POST OFFICE RECEIPT.
I (we) hereby cancel this transaction.
Seller’s Signature
Printed Name of Seller
Seller’s Signature
Printed Name of Seller
Date
(c) In any foreclosure-rescue transaction in which the homeowner is provided the right to repurchase the residential real property, the homeowner has a 30-day right to cure any default of the terms of the contract with the equity purchaser, and this right to cure may be exercised on up to three separate occasions. The homeowner’s right to cure must be included in any written agreement required by this subsection.
(d) In any foreclosure-rescue transaction, before or at the time of conveyance, the equity purchaser must fully assume or discharge any lien in foreclosure as well as any prior liens that will not be extinguished by the foreclosure.
(e) If the homeowner has the right to repurchase the residential real property, the equity purchaser must verify and be able to demonstrate that the homeowner has or will have a reasonable ability to make the required payments to exercise the option to repurchase under the written agreement. For purposes of this subsection, there is a rebuttable presumption that the homeowner has a reasonable ability to make the payments required to repurchase the property if the homeowner’s monthly payments for primary housing expenses and regular monthly principal and interest payments on other personal debt do not exceed 60 percent of the homeowner’s monthly gross income.
(f) If the homeowner has the right to repurchase the residential real property, the price the homeowner pays may not be unconscionable, unfair, or commercially unreasonable. A rebuttable presumption, solely between the equity purchaser and the homeowner, arises that the foreclosure-rescue transaction was unconscionable if the homeowner’s repurchase price is greater than 17 percent per annum more than the total amount paid by the equity purchaser to acquire, improve, maintain, and hold the property. Unless the repurchase agreement or a memorandum of the repurchase agreement is recorded in accordance with s. 695.01, the presumption arising under this subsection shall not apply against creditors or subsequent purchasers for a valuable consideration and without notice.
(6) REBUTTABLE PRESUMPTION.—Any foreclosure-rescue transaction involving a lease option or other repurchase agreement creates a rebuttable presumption, solely between the equity purchaser and the homeowner, that the transaction is a loan transaction and the conveyance from the homeowner to the equity purchaser is a mortgage under s. 697.01. Unless the lease option or other repurchase agreement, or a memorandum of the lease option or other repurchase agreement, is recorded in accordance with s. 695.01, the presumption created under this subsection shall not apply against creditors or subsequent purchasers for a valuable consideration and without notice.
(7) VIOLATIONS.—A person who violates any provision of this section commits an unfair and deceptive trade practice as defined in part II of this chapter. Violators are subject to the penalties and remedies provided in part II of this chapter, including a monetary penalty not to exceed $15,000 per violation.
History.—s. 1, ch. 2008-79; ss. 62, 63, ch. 2009-241; s. 112, ch. 2010-5.
501.138 Advertising of previews or trailers; standards.—
(1) Any motion picture theater owner or operator who desires to exhibit, on the same program, a motion picture which has received a “G” rating and which he or she advertises as “G” rated, and a preview or trailer of a motion picture which has not received a “G” rating, shall in all such advertising of the program give notice to the public of the exhibition of the preview or trailer in the manner provided in subsections (2) and (3).
(2) The advertisement of the preview or trailer which is required by subsection (1) shall conform to the following standards:
(a) In the case of printed matter or marquees, such advertising shall be contiguous to and in the same type size as, and shall contain the same kind of information as, the advertisement for the motion picture which has received a “G” rating and is to be shown on the same program.
(b) In the case of oral advertising and television advertising, the text used for the broadcast of such trailer or preview shall contain the same kind of information as, and be broadcast in the same manner, form, detail, and time as, the text advertising the motion picture which has received a “G” rating and is to be shown on the same program.
(c) In the case of any other form of advertisement, such dissemination shall be in the same manner, form, detail, time, and place as that used for the motion picture which has received the “G” rating and is to be shown on the same program.
(3) For the purposes of this act, advertisement or advertising shall include, but not be limited to, marquee, poster, flier, newspaper, television, radio, and billboard.
(4) Any person violating the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1, 2, ch. 77-220; s. 212, ch. 79-400; s. 124, ch. 91-224; s. 624, ch. 97-103.
501.141 Delivery of crated goods; written statement of satisfaction; right to cancel.—
(1) As used in this section, “statement of satisfaction” means any receipt, statement, or document by which any retail noncommercial buyer of goods, which goods are to be delivered or are delivered in any box, crate, or other covering which hides the goods from view, is requested or required, as a condition upon receipt of any such purchased goods, to attest satisfaction with the condition or operation of any goods delivered or to be delivered by a seller or her or his representative.
(2) Every statement of satisfaction requested or required to be attested or agreed to in this state shall be evidenced by a writing as provided in this section.
(a) The person or business entity requesting or requiring any such statement of satisfaction shall present to and obtain from the buyer her or his signature to the statement of satisfaction which designates, as the date of the attestation of or agreement to the statement, the date on which the buyer actually signs and which contains a statement of buyer’s rights which complies with paragraph (b).
(b) The statement must:
1. Appear under the conspicuous caption, “BUYER’S RIGHT TO CANCEL.”
2. Read as follows: “If the goods you have received are not in satisfactory condition or operation, you may cancel this statement of satisfaction by mailing a notice to the seller. This notice must indicate that you do not want the goods in the condition in which they were delivered and must be postmarked before midnight of the fifth business day after you sign this statement.”
(3) Any statement of satisfaction agreed or attested to which is not in compliance with the provisions of this section shall be null, void, and of no force or effect.
History.—s. 1, ch. 77-346; s. 625, ch. 97-103.
501.142 Retail sales establishments; preemption; notice of refund policy; exceptions; penalty.—
(1) The regulation of refunds is preempted to the Department of Agriculture and Consumer Services notwithstanding any other law or local ordinance to the contrary. Every retail sales establishment offering goods for sale to the general public that offers no cash refund, credit refund, or exchange of merchandise must post a sign so stating at the point of sale. Failure of a retail sales establishment to exhibit a “no refund” sign under such circumstances at the point of sale shall mean that a refund or exchange policy exists, and the policy shall be presented in writing to the consumer upon request. Any retail establishment failing to comply with the provisions of this section shall grant to the consumer, upon request and proof of purchase, a refund on the merchandise, within 7 days of the date of purchase, provided the merchandise is unused and in the original carton, if one was furnished. Nothing herein shall prohibit a retail sales establishment from having a refund policy which exceeds the number of days specified herein. The department may adopt rules pursuant to ss. 120.536(1) and 120.54 to enforce the provisions of this section. However, this subsection does not prohibit a local government from enforcing the provisions established by this section or department rule.
(2) The provisions of this section shall not apply to the sale of food, perishable goods, goods which are custom made, goods which are custom altered at the request of the customer, or goods which cannot be resold by the merchant because of any law, rule, or regulation adopted by a governmental body.
(3) The department may enter an order doing one or more of the following if the department finds that a person has violated or is operating in violation of any of the provisions of this section or the rules or orders issued under this section:
(a) Issue a notice of noncompliance pursuant to s. 120.695.
(b) Impose an administrative fine not to exceed $100 for each violation.
(c) Direct the person to cease and desist specified activities.
(4) The administrative proceedings that could result in the entry of an order imposing any of the penalties specified in subsection (3) are governed by chapter 120.
(5) Any moneys recovered by the Department of Agriculture and Consumer Services as a penalty under this section shall be deposited in the General Inspection Trust Fund.
(6) Upon the first violation of this section, a local government may issue a written warning. Upon a second and any subsequent violation, a local government may impose a fine of up to $50 per violation. Any moneys recovered by the local government as a penalty under this section shall be deposited in the appropriate local account.
History.—ss. 1, 2, ch. 78-148; s. 5, ch. 2006-165; s. 2, ch. 2007-334.
501.143 Dance Studio Act.—
(1) SHORT TITLE.—This section may be cited as the “Dance Studio Act.”
(2) DEFINITIONS.—For the purposes of this section, the term:
(a) “Ballroom dance studio” means any person that:
1. Engages in the sale of ballroom dance studio lessons or services which are provided at a location specifically used for dance studio lessons or services; or
2. Secures floor space at a registered ballroom dance studio facility or other facility which is not used primarily for rendering dance studio lessons or services and enters into contracts for future dance studio lessons or services.
(b) “Dance studio lessons” include instruction, training, or assistance in dancing and the use of ballroom dance studio facilities.
(c) “Dance studio services” include membership in any group, club, or association formed by a ballroom dance studio, participation in dance competitions, dance showcases, trips, tours, parties, and other organized events.
(d) “Department” means the Department of Agriculture and Consumer Services.
(e) “Enforcing authority” means the Department of Agriculture and Consumer Services or the Department of Legal Affairs.
(f) “Notice of cancellation” means the mailing or delivering by a pupil or prospective pupil of written notification to cancel the contract or written agreement.
(g) “Reasonable and fair service fee” means no more than 10 percent of the total contract price for contracts of $1,000 and under. For contracts over $1,000, “reasonable and fair service fee” shall mean no more than $100 plus an amount equal to 5 percent of the total contract price over $1,000 (not to exceed $250 in total).
(3) REGISTRATION OF BALLROOM DANCE STUDIOS.—
(a) Each owner or operator of a ballroom dance studio shall annually register with the department providing its legal business or trade name, mailing address, and business locations, and the full names, addresses, and telephone numbers of its owners or corporate officers and directors and the Florida agent of the corporation. A copy of all contracts offered to the public shall also be submitted to the department. A certificate evidencing proof of registration shall be issued by the department. This certificate must be prominently displayed at the sales or front desk at each business location of a ballroom dance studio defined in subparagraph (2)(a)1. Ballroom dance studios defined in subparagraph (2)(a)2. must possess the certificate when providing dance studio lessons or services.
(b) Any person applying for or renewing a local business tax receipt to engage in business as a ballroom dance studio must exhibit an active registration certificate from the department before the local business tax receipt may be issued or reissued under chapter 205.
(c) Each advertisement or contract of a ballroom dance studio shall include the phrase “ (NAME OF FIRM) is registered with the State of Florida as a Ballroom Dance Studio Registration No. .”
(d) Registration fees shall be $300 per year for each dance studio location. All amounts collected shall be deposited in the General Inspection Trust Fund of the Department of Agriculture and Consumer Services for the administration of this section.
(e) No registration shall be valid for any ballroom dance studio defined in subparagraph (2)(a)1. that transacts business at any place other than that designated in its application, unless the department is first notified in writing in advance of any change of location. A registration issued under this section shall not be assignable, and the ballroom dance studio shall not be permitted to conduct business under more than one name except as registered. A ballroom dance studio desiring to change its registered name or location or designated agent for service of process at a time other than upon renewal of registration shall notify the department of such change.
(f) The department may deny or refuse to renew the registration of any dance studio based upon a determination that the dance studio, or any of its directors, officers, owners, or general partners:
1. Has failed to meet the requirements for initial application or renewal as provided in this section; or
2. Has been convicted of a crime involving fraud, dishonest dealing, or any other act of moral turpitude; or
3. Has not satisfied any fine or penalty arising out of any administrative or civil enforcement action brought by any governmental agency or private person based upon conduct involving fraud, dishonest dealing, or any violation of this section; or
4. Has had a judgment entered against him or her in any action brought under ss. 501.201-501.213 by the Department of Legal Affairs or brought under this section by the department.
(4) CONTRACT REQUIREMENTS.—Every contract for ballroom dance studio services or lessons shall be in writing and shall be subject to this section. All provisions, requirements, and prohibitions which are mandated by this section shall be contained in the written contract before it is signed by the customer. A copy of the signed contract shall be given to the customer at the time the customer signs the contract.
(a) Every contract for ballroom dance studio services or lessons shall set forth the customer’s total payment obligation for services or lessons to be received pursuant to the contract and shall contain a written statement of the hourly or lesson rate charged for each type of lesson for which the customer has contracted.
(b) If the contract includes ballroom dance studio lessons which are sold at different hourly or lesson rates, the contract shall contain separate hourly or lesson rates for each different type of lesson sold.
(c) If the contract for dance studio services or lessons calls for payment in installments, the studio shall comply with all the provisions of the Retail Installment Sales Act, part II of chapter 520.
(d) All charges for dance studio services or lessons for which the customer has contracted which are not capable of an hourly rate shall be set forth in writing in specific terms.
(e) Every ballroom dance studio to which this section applies shall keep a copy of each contract for dance studio services or lessons on file for as long as the contract is in effect and for a period of 2 years thereafter.
(f) Every contract for the sale of future dance studio services or lessons which are paid for in advance or which the buyer agrees to pay for in future installment payments shall be in writing and shall contain in boldfaced type, under conspicuous caption, contractual provisions to the contrary notwithstanding, the following:
1. A provision for the penalty-free cancellation of the contract within 3 days, exclusive of holidays and weekends, of its making, upon the mailing or delivery of written notice to the ballroom dance studio. Written notice may be construed as any written expression of the customer to not be bound by the contract. The ballroom dance studio shall refund upon such notice all moneys paid under the contract except the amount for ballroom dance studio services or lessons actually rendered or to have been rendered, by contract, during the number of days prior to the cancellation notice. A refund shall be issued within 20 days after receipt of the notice of cancellation made within the 3-day notice.
2. A provision for the cancellation of the contract, if the buyer dies or becomes physically or mentally unable to avail himself or herself of the dance studio lessons or services or if the lessons or services cease to be offered as stated in the contract, after 3 business days of its making and release from further payments upon notice of cancellation. After 3 business days the studio shall charge only for the dance instruction and dance instruction services actually furnished under the agreement plus a reasonable and fair service fee. The studio shall refund the balance in three equal monthly installments, to be completed within not more than 90 days after receiving notice of cancellation.
3. Any provision in a dance contract, certificate, dance package, or brochure or other material from a dance studio that purports to waive, limit, restrict, or avoid any of the duties, obligations, or prescriptions of the dance studio, as provided in this section, is void and unenforceable and against public policy, unless it is necessitated by contractual arrangements with suppliers and fully disclosed.
(g) A contract for ballroom dance studio services or lessons may not be for a period in excess of 36 months and, thereafter, is only renewable annually. Such renewal contracts may not be executed nor may the fee therefor be paid until 60 days or less before the preceding contract expires.
(h) A ballroom dance studio may not, directly or indirectly, make an oral or written representation that a ballroom dance studio contract for future services is for a lifetime, constitutes a perpetual membership, or is otherwise for an indefinite term.
(5) SECURITY PROVISIONS.—Each ballroom dance studio that has been in business under the same ownership for less than 3 years and that requires or receives an advance payment from any customer in excess of $250 or enters into retail installment contracts for payment by any customer for dance studio services or lessons in installments shall establish and maintain a mechanism for ensuring customer refunds. These ballroom dance studios shall maintain security in the form of a bond issued by a surety company admitted to do business in this state, an irrevocable letter of credit from any foreign or domestic bank, or a guaranty agreement that is secured by a certificate of deposit. If the ballroom dance studio has been in business under the same ownership for less than 1 year, the principal amount of the bond or other security shall be $5,000. If the ballroom dance studio has been in business under the same ownership for at least 1 year, but less than 2 years, the principal amount of the bond or other security shall be $10,000. If the ballroom dance studio has been in business under the same ownership for at least 2 years, but less than 3 years, the principal amount of the bond or other security shall be $15,000. The aggregate liability to all persons for all breaches of the conditions of the bond or other security provided under this subsection shall not exceed the amount of the bond or other security.
(a) The bond shall be in favor of the state for the benefit of any person injured as a result of a violation of this section. The original surety bond required by this section shall be filed with the department.
(b) The original letter of credit or certificate of deposit submitted in lieu of the bond shall be filed with the department. The department shall decide whether the security furnished in lieu of bond by the ballroom dance studio is in compliance with the requirements of this section.
(6) PROHIBITED PRACTICES.—It is a violation of this section for any person:
(a) To conduct business as a ballroom dance studio without registering annually with the department.
(b) Knowingly to make any false statement, representation, or certification in any application or registration form required by department rule.
(c) Knowingly to violate or fail to comply with any rule or order adopted or issued by the department pursuant to its lawful authority in carrying out the intent of this section.
(d) To represent, directly or by implication, that a specified number of dance studio lessons or a dance studio service will be furnished, unless the bona fide lessons or service is in fact furnished as represented.
(e) To refuse to honor the terms and provisions of any offer or promise.
(f) To use any of the following or similar techniques or practices to mislead, coerce, or induce the purchase of dance studio lessons or dance studio services:
1. Requesting any customer to sign an uncompleted contract or agreement;
2. Misrepresenting to any customer what is or will be due or payable;
3. Using any single day “relay salesmanship” or consecutive sales talks with more than one representative, with or without the use of hidden listening devices;
4. Falsely assuring or representing to any customer that a given course of dance studio lessons will enable him or her to achieve a given standard of dancing proficiency;
5. Representing in any manner that a dancing instructor or job is obtainable at a studio or misrepresenting what such an instructor will be paid; or
6. Using any analyses, tests, studio competitions, or other artifices purportedly designed to evaluate dancing ability, progress, or proficiency when the artifices are not so designed or so used.
The department may employ investigators and conduct investigations of violations of this section.
(7) PENALTIES; REMEDIES.—The following penalties and remedies are available for enforcement of the provisions of this section:
(a) The department shall have administrative authority to issue a notice of noncompliance pursuant to s. 120.695 and to suspend or revoke the registration of any ballroom dance studio that violates any of the provisions of this section or the rules adopted or orders issued pursuant to such rules. Such ballroom dance studio may not engage in business while the registration is revoked or suspended.
(b) The department may impose an administrative fine not to exceed $5,000 per violation against any ballroom dance studio that violates any of the provisions of this section or the rules adopted or orders issued pursuant to this section.
(c) Notwithstanding the provisions of subsection (5), the department may require any ballroom dance studio that has operated or is operating in violation of any of the provisions of this section or the rules adopted or orders issued pursuant to such rules to post security with the department in an amount not to exceed $25,000.
(d) The department may proceed by injunction to prevent any ballroom dance studio from doing business subject to the provisions of this section until a performance bond, letter of credit, or certificate of deposit is posted with the department.
(e) The enforcing authority may seek a civil penalty not to exceed $5,000 for each violation of this section or the rules adopted or orders issued pursuant to such rules and may institute a civil action in circuit court to recover any penalties or damages allowed in this section and for injunctive relief to enforce compliance with this section or any rule or order of the department.
(f) The remedies provided in this section are in addition to any other remedies available for the same conduct.
(8) CRIMINAL PENALTIES.—Any person which knowingly violates this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. However, any person which knowingly conducts business as a ballroom dance studio without registering annually with the department commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(9) GENERAL INSPECTION TRUST FUND; PAYMENTS.—Any moneys recovered by the enforcing authority as a penalty under this section shall be deposited in the General Inspection Trust Fund if the action or proceeding was brought by the department, or the Legal Affairs Revolving Trust Fund if the action or proceeding was brought by the Department of Legal Affairs.
(10) ENFORCEMENT BY CUSTOMER.—Any customer injured by a fraudulent act or fraudulent omission in violation of this section may bring an action for the recovery of damages. Judgment may be entered for three times the amount at which the actual damages are assessed, plus costs and reasonable attorney’s fees.
(11) EXEMPTIONS.—This section does not apply to governmental and bona fide tax-exempt not-for-profit entities.
(12) RULEMAKING AUTHORITY.—The department has the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this section.
History.—s. 1, ch. 92-133; s. 89, ch. 92-291; s. 3, ch. 93-116; s. 626, ch. 97-103; s. 13, ch. 97-250; s. 172, ch. 98-200; s. 6, ch. 98-299; s. 71, ch. 2000-158; s. 11, ch. 2003-132; s. 5, ch. 2003-179; s. 125, ch. 2007-5.
501.145 Bedding Label Act.—
(1) SHORT TITLE.—This section may be cited as the Bedding Label Act.
(2) DEFINITIONS.—For the purpose of this section, the term:
(a) “Bedding” means any mattress, box spring, pillow, or cushion made of leather or any other material which is or can be stuffed or filled in whole or in part with any substance or material, which can be used by any human being for sleeping or reclining purposes.
(b) “Department” means the Department of Legal Affairs.
(3) PROHIBITED ACTS.—All bedding manufactured and sold in the state that contains any previously used materials must bear a conspicuous label notifying the consumer of that fact. The label must be at least 1 inch by 2 inches in dimension, specifically describe the used materials contained in the bedding, and declare the amount present in the bedding. The label must be stitched or otherwise firmly attached to the bedding in such a manner that it may be seen by consumers prior to purchase. Used material does not mean new components that are made from recycled material.
(4) PENALTIES.—The department may bring an action for injunctive relief against any person who violates the provisions of this section. Any person who knowingly sells bedding which contains used material that is not labeled in accordance with this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 8, ch. 94-298; s. 22, ch. 2011-205.
501.160 Rental or sale of essential commodities during a declared state of emergency; prohibition against unconscionable prices.—
(1) As used in this section:
(a) “Commodity” means any goods, services, materials, merchandise, supplies, equipment, resources, or other article of commerce, and includes, without limitation, food, water, ice, chemicals, petroleum products, and lumber necessary for consumption or use as a direct result of the emergency.
(b) It is prima facie evidence that a price is unconscionable if:
1. The amount charged represents a gross disparity between the price of the commodity or rental or lease of any dwelling unit or self-storage facility that is the subject of the offer or transaction and the average price at which that commodity or dwelling unit or self-storage facility was rented, leased, sold, or offered for rent or sale in the usual course of business during the 30 days immediately prior to a declaration of a state of emergency, unless the increase in the amount charged is attributable to additional costs incurred in connection with the rental or sale of the commodity or rental or lease of any dwelling unit or self-storage facility, or regional, national, or international market trends; or
2. The amount charged grossly exceeds the average price at which the same or similar commodity was readily obtainable in the trade area during the 30 days immediately prior to a declaration of a state of emergency, unless the increase in the amount charged is attributable to additional costs incurred in connection with the rental or sale of the commodity or rental or lease of any dwelling unit or self-storage facility, or regional, national, or international market trends.
(2) Upon a declaration of a state of emergency by the Governor, it is unlawful and a violation of s. 501.204 for a person or her or his agent or employee to rent or sell or offer to rent or sell at an unconscionable price within the area for which the state of emergency is declared, any essential commodity including, but not limited to, supplies, services, provisions, or equipment that is necessary for consumption or use as a direct result of the emergency. This prohibition is effective not to exceed 60 days under the initial declared state of emergency as defined in s. 252.36(2) and shall be renewed by statement in any subsequent renewals of the declared state of emergency by the Governor.
(3) It is unlawful and a violation of s. 501.204 for any person to impose unconscionable prices for the rental or lease of any dwelling unit or self-storage facility during a period of declared state of emergency.
(4) A price increase approved by an appropriate government agency shall not be a violation of this section.
(5) This section shall not apply to sales by growers, producers, or processors of raw or processed food products, except for retail sales of such products to the ultimate consumer within the area of the declared state of emergency.
(6) Nothing herein shall be interpreted to preempt the powers of local government except that the evidentiary standards and defenses contained in this section shall be the only evidentiary standards and defenses used in any ordinance adopted by local government to restrict price gouging during a declared state of emergency.
(7) Section 501.211 notwithstanding, nothing in this section creates a private cause of action in favor of any person damaged by a violation of this section.
(8) Any violation of this section may be enforced by the office of the state attorney or the Department of Legal Affairs.
(9) Upon a declaration of a state of emergency by the Governor, in order to protect the health, safety, and welfare of residents, any person who offers goods and services for sale to the public during the duration of the emergency and who does not possess a business tax receipt under s. 205.032 or s. 205.042 commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. During a declared emergency, this subsection does not apply to religious, charitable, fraternal, civic, educational, or social organizations. During a declared emergency and when there is an allegation of price gouging against the person, failure to possess a license constitutes reasonable cause to detain the person, provided that the detention shall only be made in a reasonable manner and only for a reasonable period of time sufficient for an inquiry into the circumstances surrounding the failure to possess a license.
History.—s. 1, ch. 92-353; s. 627, ch. 97-103; s. 28, ch. 2002-295; s. 1, ch. 2005-283; s. 11, ch. 2006-71; s. 126, ch. 2007-5; s. 3, ch. 2011-56; s. 23, ch. 2011-205.
501.164 Civil penalties.—In addition to all other remedies provided by the Florida Deceptive and Unfair Trade Practices Act, the court may impose a civil penalty of not more than $1,000 per violation with an aggregate total not to exceed $25,000 for any 24-hour period against any person who violates the provisions of s. 501.160. Any penalties so collected shall accrue to the enforcing authority to further consumer enforcement efforts.
History.—s. 2, ch. 92-353.
501.165 Automatic renewal of service contracts.—
(1) DEFINITIONS.—As used in this section:
(a) “Automatic renewal provision” means a provision under which a service contract is renewed for a specified period of more than 1 month if the renewal causes the service contract to be in effect more than 6 months after the day of the initiation of the service contract. Such renewal is effective unless the consumer gives notice to the seller of the consumer’s intention to terminate the service contract.
(b) “Consumer” means an individual, as defined in s. 501.603, receiving service, maintenance, or repair under a service contract. The term does not include an individual engaged in business or employed by or otherwise acting on behalf of a governmental entity if the individual enters into the service contract as part of or ancillary to the individual’s business activities or on behalf of the business or governmental entity.
(c) “Seller” means any person, firm, partnership, association, or corporation engaged in commerce that sells, leases, or offers to sell or lease any service to a consumer pursuant to a service contract.
(d) “Service contract” means a written contract for the performance of services over a fixed period of time or for a specified duration.
(2) SERVICE CONTRACTS WITH AUTOMATIC RENEWAL PROVISIONS.—
(a) Any seller that sells, leases, or offers to sell or lease any service to a consumer pursuant to a service contract that has an automatic renewal provision, unless the consumer cancels that contract, shall disclose the automatic renewal provision clearly and conspicuously in the contract or contract offer.
(b) Any seller that sells or offers to sell any service to a consumer pursuant to a service contract the term of which is a specified period of 12 months or more and that automatically renews for a specified period of more than 1 month, unless the consumer cancels the contract, shall provide the consumer with written or electronic notification of the automatic renewal provision. Notification shall be provided to the consumer no less than 30 days or no more than 60 days before the cancellation deadline pursuant to the automatic renewal provision. Such notification shall disclose clearly and conspicuously:
1. That unless the consumer cancels the contract the contract will automatically renew.
2. Methods by which the consumer may obtain details of the automatic renewal provision and cancellation procedure, whether by contacting the seller at a specified telephone number or address, by referring to the contract, or by any other method.
(c) A seller that fails to comply with the requirements of this subsection is in violation of this subsection unless the seller demonstrates that:
1. As part of the seller’s routine business practice, the seller has established and implemented written procedures to comply with this section and enforces compliance with the procedures;
2. Any failure to comply with this subsection is the result of error; and
3. As part of the seller’s routine business practice, where an error has caused the failure to comply with this subsection, the unearned portion of the contract subject to the automatic renewal provision is refunded as of the date on which the seller is notified of the error.
(d) This subsection does not apply to:
1. A financial institution as defined in s. 655.005 or any depository institution as defined in 12 U.S.C. s. 1813(c)(2).
2. A foreign bank maintaining a branch or agency licensed under the laws of any state of the United States.
3. Any subsidiary or affiliate of an entity described in subparagraph 1. or subparagraph 2.
4. A health studio as defined in s. 501.0125.
5. Any entity licensed under chapter 624, chapter 627, chapter 634, chapter 636, or chapter 641.
6. Any electric utility as defined in s. 366.02.
7. Any private company as defined in s. 180.05 providing services described in chapter 180 which is competing against a governmental entity or has a governmental entity providing billing services on its behalf.
(e) A violation of this subsection renders the automatic renewal provision void and unenforceable.
History.—s. 1, ch. 2010-58; s. 39, ch. 2011-194.
PART II
DECEPTIVE AND UNFAIRTRADE PRACTICES
501.201 Short title.
501.202 Purposes; rules of construction.
501.203 Definitions.
501.204 Unlawful acts and practices.
501.205 Rulemaking authority.
501.206 Investigative powers of enforcing authority.
501.2065 Confidentiality of intelligence or investigative information.
501.207 Remedies of enforcing authority.
501.2075 Civil penalty.
501.2077 Violations involving senior citizen or handicapped person; civil penalties; presumption.
501.2079 Violations involving discrimination in the provision of video services.
501.208 Cease and desist orders; procedures.
501.209 Other supervision.
501.2101 Enforcing authorities; moneys received in certain proceedings.
501.2105 Attorney’s fees.
501.211 Other individual remedies.
501.212 Application.
501.213 Effect on other remedies.
501.201 Short title.—This part shall be known and may be cited as the “Florida Deceptive and Unfair Trade Practices Act.”
History.—s. 1, ch. 73-124.
501.202 Purposes; rules of construction.—The provisions of this part shall be construed liberally to promote the following policies:
(1) To simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices.
(2) To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.
(3) To make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.
History.—s. 1, ch. 73-124; s. 1, ch. 93-38.
501.203 Definitions.—As used in this chapter, unless the context otherwise requires, the term:
(1) “Final judgment” means a judgment, including any supporting opinion, that determines the rights of the parties and concerning which appellate remedies have been exhausted or the time for appeal has expired.
(2) “Enforcing authority” means the office of the state attorney if a violation of this part occurs in or affects the judicial circuit under the office’s jurisdiction. “Enforcing authority” means the Department of Legal Affairs if the violation occurs in or affects more than one judicial circuit or if the office of the state attorney defers to the department in writing, or fails to act upon a violation within 90 days after a written complaint has been filed with the state attorney.
(3) “Violation of this part” means any violation of this act or the rules adopted under this act and may be based upon any of the following as of July 1, 2006:
(a) Any rules promulgated pursuant to the Federal Trade Commission Act, 15 U.S.C. ss. 41 et seq.;
(b) The standards of unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts;
(c) Any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.
(4) “Department” means the Department of Legal Affairs.
(5) “Order” means a cease and desist order issued by the enforcing authority as set forth in s. 501.208.
(6) “Interested party or person” means any person affected by a violation of this part or any person affected by an order of the enforcing authority.
(7) “Consumer” means an individual; child, by and through its parent or legal guardian; business; firm; association; joint venture; partnership; estate; trust; business trust; syndicate; fiduciary; corporation; any commercial entity, however denominated; or any other group or combination.
(8) “Trade or commerce” means the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.
(9) “Thing of value” may include, without limitation, any moneys, donation, membership, credential, certificate, prize, award, benefit, license, interest, professional opportunity, or chance of winning.
History.—s. 1, ch. 73-124; s. 1, ch. 79-386; s. 1, ch. 90-190; s. 2, ch. 93-38; s. 24, ch. 97-98; s. 1, ch. 2001-39; s. 22, ch. 2001-214; s. 1, ch. 2006-196.
501.204 Unlawful acts and practices.—
(1) Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(2) It is the intent of the Legislature that, in construing subsection (1), due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2006.
History.—s. 1, ch. 73-124; s. 1, ch. 83-117; s. 4, ch. 85-63; s. 2, ch. 90-190; s. 3, ch. 93-38; s. 2, ch. 2001-39; s. 23, ch. 2001-214; s. 2, ch. 2006-196.
501.205 Rulemaking authority.—
(1) The department may adopt rules which set forth with specificity acts or practices that violate this part and which prescribe procedural rules for the administration of this part. All rules and administrative actions taken by the department shall be pursuant to chapter 120.
(2) All substantive rules promulgated under this part must not be inconsistent with the rules, regulations, and decisions of the Federal Trade Commission and the federal courts in interpreting the provisions of s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1).
History.—s. 1, ch. 73-124; s. 22, ch. 78-95; s. 2, ch. 79-386; s. 2, ch. 83-117; s. 3, ch. 90-190; s. 1, ch. 92-1; s. 3, ch. 92-133; s. 5, ch. 93-38.
501.206 Investigative powers of enforcing authority.—
(1) If, by his or her own inquiry or as a result of complaints, the enforcing authority has reason to believe that a person has engaged in, or is engaging in, an act or practice that violates this part, he or she may administer oaths and affirmations, subpoena witnesses or matter, and collect evidence. Within 5 days, excluding weekends and legal holidays, after the service of a subpoena or at any time before the return date specified therein, whichever is longer, the party served may file in the circuit court in the county in which he or she resides or in which he or she transacts business and serve upon the enforcing authority a petition for an order modifying or setting aside the subpoena. The petitioner may raise any objection or privilege which would be available under this chapter or upon service of such subpoena in a civil action. The subpoena shall inform the party served of his or her rights under this subsection.
(2) If matter that the enforcing authority seeks to obtain by subpoena is located outside the state, the person subpoenaed may make it available to the enforcing authority or his or her representative to examine the matter at the place where it is located. The enforcing authority may designate representatives, including officials of the state in which the matter is located, to inspect the matter on his or her behalf, and he or she may respond to similar requests from officials of other states.
(3) Upon failure of a person without lawful excuse to obey a subpoena and upon reasonable notice to all persons affected, the enforcing authority may apply to the circuit court for an order compelling compliance.
(4) The enforcing authority may request that an individual who refuses to comply with a subpoena on the ground that testimony or matter may incriminate him or her be ordered by the court to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or matter after asserting a privilege against self-incrimination to which he or she is entitled by law shall not have the testimony or matter so provided, or evidence derived therefrom, received against him or her in any criminal investigation or proceeding.
(5) Any person upon whom a subpoena is served pursuant to this section shall comply with the terms thereof unless otherwise provided by order of the court. Any person who fails to appear with the intent to avoid, evade, or prevent compliance in whole or in part with any investigation under this part or who removes from any place, conceals, withholds, mutilates, alters, or destroys, or by any other means falsifies any documentary material in the possession, custody, or control of any person subject to any such subpoena, or knowingly conceals any relevant information with the intent to avoid, evade, or prevent compliance shall be liable for a civil penalty of not more than $5,000, reasonable attorney’s fees, and costs.
History.—s. 1, ch. 73-124; s. 1, ch. 85-3; s. 6, ch. 93-38; s. 628, ch. 97-103.
501.2065 Confidentiality of intelligence or investigative information.—Whenever criminal or civil intelligence, investigative information, or any other information held by any state or federal agency is available to the department on a confidential or a similarly restricted basis, the department, in the course of the investigation of any violation of this part, may obtain and use such information. Any such intelligence or investigative information that is confidential or exempt from the provisions of s. 119.07(1) retains its status as confidential or exempt from the provisions of s. 119.07(1).
History.—s. 5, ch. 90-190; s. 2, ch. 92-1; s. 7, ch. 93-38; s. 334, ch. 96-406.
501.207 Remedies of enforcing authority.—
(1) The enforcing authority may bring:
(a) An action to obtain a declaratory judgment that an act or practice violates this part.
(b) An action to enjoin any person who has violated, is violating, or is otherwise likely to violate, this part.
(c) An action on behalf of one or more consumers or governmental entities for the actual damages caused by an act or practice in violation of this part. However, damages are not recoverable under this section against a retailer who has in good faith engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this part.
(2) Before bringing an action under paragraph (1)(a) or paragraph (1)(c), the head of the enforcing authority shall review the matter and determine if an enforcement action serves the public interest. This determination shall be made in writing, but shall not be subject to the provisions of chapter 120.
(3) Upon motion of the enforcing authority or any interested party in any action brought under subsection (1), the court may make appropriate orders, including, but not limited to, appointment of a general or special magistrate or receiver or sequestration or freezing of assets, to reimburse consumers or governmental entities found to have been damaged; to carry out a transaction in accordance with the reasonable expectations of consumers or governmental entities; to strike or limit the application of clauses of contracts to avoid an unconscionable result; to bring actions in the name of and on behalf of the defendant enterprise, without regard to any wrongful acts that were committed by the enterprise; to order any defendant to divest herself or himself of any interest in any enterprise, including real estate; to impose reasonable restrictions upon the future activities of any defendant to impede her or him from engaging in or establishing the same type of endeavor; to order the dissolution or reorganization of any enterprise; or to grant legal, equitable, or other appropriate relief. The court may assess the expenses of a general or special magistrate or receiver against a person who has violated, is violating, or is otherwise likely to violate this part. Any injunctive order, whether temporary or permanent, issued by the court shall be effective throughout the state unless otherwise provided in the order.
(4) If a violator shows that a violation of this part resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error, recovery under this section is limited to the amount, if any, by which the violator was unjustly enriched by the violation.
(5) No action may be brought by the enforcing authority under this section more than 4 years after the occurrence of a violation of this part or more than 2 years after the last payment in a transaction involved in a violation of this part, whichever is later.
(6) The enforcing authority may terminate an investigation or an action upon acceptance of a person’s written assurance of voluntary compliance with this part. Acceptance of an assurance may be conditioned on a commitment to reimburse consumers or governmental entities, make contributions, pay civil penalties, pay attorney’s fees and costs, or take other appropriate corrective action. An assurance is not evidence of a prior violation of this part. However, unless an assurance has been rescinded by agreement of the parties or voided by a court for good cause, subsequent failure to comply with the terms of an assurance is prima facie evidence of a violation of this part. Such assurance is not a limitation upon any action or remedy available to a person aggrieved by a violation of this part.
(7) In any trial or other proceeding brought by the enforcing authority pursuant to this part, statements having circumstantial guarantees of trustworthiness may be used to supplement and explain other evidence and shall not be excluded as hearsay evidence, even though the declarant is available as a witness, if the trier of fact determines that:
(a) The statement is offered as evidence of a material fact;
(b) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(c) The general purpose of the Florida Rules of Evidence and the interests of justice will be best served by the admission of such statement into evidence.
However, a statement may not be admitted hereunder unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or proceeding to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
History.—s. 1, ch. 73-124; s. 3, ch. 79-386; s. 2, ch. 85-3; s. 4, ch. 90-190; s. 4, ch. 92-133; s. 8, ch. 93-38; s. 629, ch. 97-103; s. 3, ch. 2001-39; s. 24, ch. 2001-214; s. 89, ch. 2004-11; s. 3, ch. 2006-196.
501.2075 Civil penalty.—Except as provided in s. 501.2077, any person, firm, corporation, association, or entity, or any agent or employee of the foregoing, who is willfully using, or has willfully used, a method, act, or practice declared unlawful under s. 501.204, or who is willfully violating any of the rules of the department adopted under this part, is liable for a civil penalty of not more than $10,000 for each such violation. Willful violations occur when the person knew or should have known that his or her conduct was unfair or deceptive or prohibited by rule. This civil penalty may be recovered in any action brought under this part by the enforcing authority; or the enforcing authority may terminate any investigation or action upon agreement by the person, firm, corporation, association, or entity, or the agent or employee of the foregoing, to pay a stipulated civil penalty. The department or the court may waive any such civil penalty if the person, firm, corporation, association, or entity, or the agent or employee of the foregoing, has previously made full restitution or reimbursement or has paid actual damages to the consumers or governmental entities who have been injured by the unlawful act or practice or rule violation. If civil penalties are assessed in any litigation, the enforcing authority is entitled to reasonable attorney’s fees and costs. A civil penalty so collected shall accrue to the state and shall be deposited as received into the General Revenue Fund unallocated.
History.—s. 3, ch. 83-117; s. 1, ch. 92-40; s. 5, ch. 92-133; s. 9, ch. 93-38; s. 630, ch. 97-103; s. 4, ch. 2001-39; s. 25, ch. 2001-214.
501.2077 Violations involving senior citizen or handicapped person; civil penalties; presumption.—
(1) As used in this section:
(a) “Senior citizen” means a person who is 60 years of age or older.
(b) “Handicapped person” means any person who has a mental or educational impairment which substantially limits one or more major life activities.
(c) “Mental or educational impairment” means:
1. Any mental or psychological disorder or specific learning disability.
2. Any educational deficiency which substantially affects a person’s ability to read and comprehend the terms of any contractual agreement entered into.
(d) “Major life activities” means functions associated with the normal activities of independent daily living such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(2) Any person who is willfully using, or has willfully used, a method, act, or practice in violation of this part, which method, act, or practice victimizes or attempts to victimize senior citizens or handicapped persons, and commits such violation when she or he knew or should have known that her or his conduct was unfair or deceptive, is liable for a civil penalty of not more than $15,000 for each such violation.
(3) Any order of restitution or reimbursement based on a violation of this part committed against a senior citizen or handicapped person has priority over the imposition of civil penalties for such violations pursuant to this section.
(4) Civil penalties collected pursuant to this section shall be deposited into the Legal Affairs Revolving Trust Fund of the Department of Legal Affairs and allocated solely to the Department of Legal Affairs for the purpose of preparing and distributing consumer education materials, programs, and seminars to benefit senior citizens and handicapped persons or to further enforcement efforts.
History.—s. 2, ch. 92-40; s. 10, ch. 93-38; s. 631, ch. 97-103; s. 6, ch. 2003-179.
501.2079 Violations involving discrimination in the provision of video services.—
(1) As used in this section, the term:
(a) “Cable service” has the same meaning as in s. 610.103(1).
(b) “Video service” has the same meaning as in s. 610.103(11).
(c) “Resident” means a resident residing within a service area as set out in s. 610.104(2)(e)5. and (6).
(d) “Provider” means a cable or video service provider that has been issued and holds a statutory certificate of franchise authority from the Department of State.
(e) “Discrimination” means the denial of access to cable or video service to any individual or group of residents because of the race or income of the residents in the local area in which such individual or group resides. Such discrimination shall be prohibited as to residents throughout the service area of the municipality or county within which service is provided.
(2) Discrimination among residents by a provider of cable or video services is declared unlawful and constitutes a violation of this section.
(3) For purposes of determining whether a provider has violated subsection (2), a cable or video service provider may satisfy the nondiscrimination requirements of this section through the use of alternative technology that offers service, functionality, and content that is demonstrably similar to that provided through the provider’s system and may include a technology that does not require the use of any public right-of-way. The technology used to comply with the requirements of this section is subject to all the requirements of chapter 610. If a provider makes cable or video service available within a reasonable period of time from the initiation of service to residents in its service area, the provider shall be presumed to be in compliance with subsection (2). A provider is not required to offer or provide service to end users residing in an area having a density of fewer than 30 homes per linear cable mile from the provider’s nearest activated video distribution plant. This section does not impose a buildout requirement.
(4) For purposes of determining whether a provider has violated subsection (2), cost, density, distance, and technological or commercial limitations shall be taken into account. The inability to provide access to cable or video service because a provider is prohibited from placing its own facilities in a building or property or due to natural disasters is not a violation of subsection (2).
(5) Enforcement of this section shall be as provided in ss. 501.206, 501.207 and 501.211.
(6) Upon a finding by a court of competent jurisdiction that a provider has engaged in unlawful discrimination, the provider shall have a reasonable period of time as specified by the court to cure such noncompliance. If the provider fails to cure within a specified time, any provider who is found to have violated subsection (2) is liable for a civil penalty of not more than $15,000 for each such violation. For purposes of this section, discrimination against each individual member of a group constitutes a separate violation and is subject to a separate penalty as set forth in this section.
History.—s. 15, ch. 2007-29.
501.208 Cease and desist orders; procedures.—
(1) Whenever the Department of Legal Affairs has reason to believe that a person has been, or is, violating this part, and if it appears to the department that a cease and desist order against such violation would be in the interest of the public, it shall issue and serve upon such person a complaint and order stating its charges in that respect and containing a notice of a hearing upon a day and at the place therein fixed at least 30 days after the service of said complaint. Said hearing shall be held in conformity with the provisions of chapter 120.
(2) The department may modify or set aside its order at any time by rehearing upon its own motion when such rehearing is in the interest of the public welfare.
(3) Judicial review of orders of the department shall be in accordance with the provisions of s. 120.68 and shall take precedence over other civil cases pending and shall be expedited in every way.
(4) An order of the department to cease and desist shall not become effective until 10 days after all administrative action has been concluded or, if appeal is made to the district court of appeal and bond is posted, until a final order has been entered by that court.
(5) No cease and desist order shall act as a limitation upon any other action or remedy available to a person aggrieved by a violation of this act.
(6) When a court remands an order of the department for rehearing, such rehearing shall be held within 45 days after the remand.
(7) Any person who violates a cease and desist order of the department after it has become final and while such order is in effect shall forfeit and pay to the state a civil penalty of not more than $5,000 for each violation which shall accrue to the state and may be recovered in a civil action brought by the state. Each separate violation of such an order shall be a separate offense, except that in the case of a violation through continuing failure or neglect to obey a final order of the department, each day of continuance of such failure or neglect shall be deemed a separate offense.
History.—s. 1, ch. 73-124; s. 22, ch. 78-95; s. 4, ch. 79-386.
501.209 Other supervision.—If the enforcing authority receives a complaint or other information relating to noncompliance with this act by a person who is subject to other supervision in this state, the enforcing authority shall inform the official or agency having that supervision.
History.—s. 1, ch. 73-124; s. 15, ch. 93-38.
501.2101 Enforcing authorities; moneys received in certain proceedings.—
(1) Any moneys received by an enforcing authority for attorney’s fees and costs of investigation or litigation in proceedings brought under the provisions of s. 501.207, s. 501.208, or s. 501.211 shall be deposited as received in the Legal Affairs Revolving Trust Fund if the action is brought by the Department of Legal Affairs, and in the Consumer Frauds Trust Fund of the Justice Administrative Commission if the action is brought by a state attorney.
(2) Any moneys received by an enforcing authority and neither received for attorney’s fees and costs of investigation or litigation nor used to reimburse consumers found under this law to be damaged shall accrue to the state and be deposited as received in the General Revenue Fund unallocated.
History.—s. 6, ch. 79-386; s. 6, ch. 92-133; s. 7, ch. 98-299; s. 3, ch. 2003-179; s. 32, ch. 2004-234.
501.2105 Attorney’s fees.—
(1) In any civil litigation resulting from an act or practice involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.
(2) The attorney for the prevailing party shall submit a sworn affidavit of his or her time spent on the case and his or her costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
(3) The trial judge may award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
(4) Any award of attorney’s fees or costs shall become a part of the judgment and subject to execution as the law allows.
(5) In any civil litigation initiated by the enforcing authority, the court may award to the prevailing party reasonable attorney’s fees and costs if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or if the court finds bad faith on the part of the losing party.
(6) In any administrative proceeding or other nonjudicial action initiated by an enforcing authority, the attorney for the enforcing authority may certify by sworn affidavit the number of hours and the cost thereof to the enforcing authority for the time spent in the investigation and litigation of the case plus costs reasonably incurred in the action. Payment to the enforcing authority of the sum of such costs may be made by stipulation of the parties a part of the final order or decree disposing of the matter. The affidavit shall be attached to and become a part of such order or decree.
History.—s. 1, ch. 73-124; s. 5, ch. 79-386; s. 11, ch. 93-38; s. 4, ch. 94-298; s. 632, ch. 97-103.
Note.—Former s. 501.210.
501.211 Other individual remedies.—
(1) Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.
(2) In any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages, plus attorney’s fees and court costs as provided in s. 501.2105. However, damages, fees, or costs are not recoverable under this section against a retailer who has, in good faith, engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this part.
(3) In any action brought under this section, upon motion of the party against whom such action is filed alleging that the action is frivolous, without legal or factual merit, or brought for the purpose of harassment, the court may, after hearing evidence as to the necessity therefor, require the party instituting the action to post a bond in the amount which the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney’s fees. This subsection shall not apply to any action initiated by the enforcing authority.
History.—s. 1, ch. 73-124; s. 37, ch. 91-220; s. 12, ch. 93-38; s. 6, ch. 2001-39; s. 27, ch. 2001-214.
501.212 Application.—This part does not apply to:
(1) An act or practice required or specifically permitted by federal or state law.
(2) A publisher, broadcaster, printer, or other person engaged in the dissemination of information or the reproduction of printed or pictorial matter, insofar as the information or matter has been disseminated or reproduced on behalf of others without actual knowledge that it violated this part.
(3) A claim for personal injury or death or a claim for damage to property other than the property that is the subject of the consumer transaction.
(4) Any person or activity regulated under laws administered by:
(a) The Office of Insurance Regulation of the Financial Services Commission;
(b) Banks and savings and loan associations regulated by the Office of Financial Regulation of the Financial Services Commission;
(c) Banks or savings and loan associations regulated by federal agencies; or
(d) Any person or activity regulated under the laws administered by the former Department of Insurance which are now administered by the Department of Financial Services.
(5) Any activity regulated under laws administered by the Florida Public Service Commission.
(6) An act or practice involving the sale, lease, rental, or appraisal of real estate by a person licensed, certified, or registered pursuant to chapter 475, which act or practice violates s. 475.42 or s. 475.626.
(7)(a) Causes of action pertaining to commercial real property located in this state if the parties to the action executed a written lease or contract that expressly provides for the process of resolution of any dispute and the award of damages, attorney’s fees, and costs, if any; or
(b) Causes of action concerning failure to maintain real property if the Florida Statutes:
1. Require the owner to comply with applicable building, housing, and health codes;
2. Require the owner to maintain buildings and improvements in common areas in a good state of repair and maintenance and maintain the common areas in a good state of appearance, safety, and cleanliness; and
3. Provide a cause of action for failure to maintain the real property and provide legal or equitable remedies, including the award of attorney’s fees.
However, this subsection does not affect any action or remedy concerning residential tenancies covered under part II of chapter 83, nor does it prohibit the enforcing authority from maintaining exclusive jurisdiction to bring any cause of action authorized under this part.
History.—s. 1, ch. 73-124; s. 7, ch. 79-386; s. 13, ch. 93-38; s. 7, ch. 2001-39; s. 28, ch. 2001-214; s. 565, ch. 2003-261; s. 13, ch. 2004-390.
501.213 Effect on other remedies.—
(1) The remedies of this part are in addition to remedies otherwise available for the same conduct under state or local law.
(2) This part is supplemental to, and makes no attempt to preempt, local consumer protection ordinances not inconsistent with this part.
History.—s. 1, ch. 73-124.
PART III
AFTERMARKET CRASH PARTS ACT501.30 Short title.
501.31 Legislative purpose.
501.32 Definitions.
501.33 Disclosure.
501.34 Enforcement.
501.30 Short title.—This part may be cited as the “Aftermarket Crash Parts Act.”
History.—s. 1, ch. 89-241.
501.31 Legislative purpose.—The purpose of this part is to regulate the use of aftermarket crash parts by requiring disclosure when any use is proposed in an insurance estimate of a nonoriginal equipment manufacturer aftermarket crash part.
History.—s. 2, ch. 89-241.
501.32 Definitions.—As used in this part:
(1) “Aftermarket crash part” means a replacement for any of the nonmechanical sheet metal or plastic parts which generally constitute the exterior of a motor vehicle, including inner and outer panels.
(2) “Insurer” includes an insurance company and any person authorized to represent the insurer with respect to a claim and who is parting within the scope of the person’s authority.
(3) “Nonoriginal equipment manufacturer aftermarket crash part” means an aftermarket crash part made by any manufacturer other than the original vehicle manufacturer or her or his supplier.
(4) “Repair facility” means a motor vehicle dealer, garage, body shop, or other commercial entity which undertakes the repair or replacement of those parts that generally constitute the exterior of a motor vehicle.
History.—s. 3, ch. 89-241; s. 633, ch. 97-103.
501.33 Disclosure.—In all instances where nonoriginal equipment manufacturer aftermarket crash parts are used in preparing an estimate for repairs, the written estimate prepared by the insurer or the repair facility, or both, shall clearly identify each such part. A disclosure shall be attached to, or included in, the estimate and shall contain the following information in no smaller than 10-point type: THIS ESTIMATE HAS BEEN PREPARED BASED ON THE USE OF CRASH PARTS SUPPLIED BY A SOURCE OTHER THAN THE MANUFACTURER OF YOUR MOTOR VEHICLE. THE AFTERMARKET CRASH PARTS USED IN THE PREPARATION OF THIS ESTIMATE ARE WARRANTED BY THE MANUFACTURER OR DISTRIBUTOR OF SUCH PARTS RATHER THAN THE MANUFACTURER OF YOUR VEHICLE.
History.—s. 4, ch. 89-241.
501.34 Enforcement.—
(1) Any violation of this part by an insurer shall be deemed a violation of the Unfair Insurance Trade Practices Act, part IX, chapter 626.
(2) Any violation of this part by a repair facility shall be deemed a violation of the Florida Deceptive and Unfair Trade Practices Act, part II, this chapter.
History.—s. 5, ch. 89-241; s. 21, ch. 2001-63.
PART IV
FLORIDA TELEMARKETING ACT501.601 Short title.
501.602 Purpose.
501.603 Definitions.
501.604 Exemptions.
501.605 Licensure of commercial telephone sellers.
501.606 Disclosures required of commercial telephone sellers.
501.607 Licensure of salespersons.
501.608 License or affidavit of exemption; occupational license.
501.609 License renewal.
501.611 Security.
501.612 Grounds for departmental action against licensure applicants or licensees.
501.613 General disclosures.
501.614 Disclosures of gifts and premiums.
501.615 Written contract; cancellation; refund.
501.616 Unlawful acts and practices.
501.617 Investigative powers of enforcing authority.
501.618 General civil remedies.
501.619 Civil penalties.
501.621 Attorney’s fees and costs.
501.622 Criminal prosecuting authority.
501.623 Criminal penalties.
501.624 Exempt businesses; burden of proof.
501.625 Other individual remedies.
501.626 Rulemaking power.
501.601 Short title.—This part may be cited as the “Florida Telemarketing Act.”
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429.
501.602 Purpose.—The provisions of this part shall be construed liberally to promote the general welfare of the public and the integrity of the telemarketing industry.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429.
501.603 Definitions.—As used in this part, unless the context otherwise requires, the term:
(1) “Commercial telephone solicitation” means:
(a) An unsolicited telephone call to a person initiated by a commercial telephone seller or salesperson, or an automated dialing machine used in accordance with the provisions of s. 501.059(7) for the purpose of inducing the person to purchase or invest in consumer goods or services;
(b) Other communication with a person where:
1. A gift, award, or prize is offered; or
2. A telephone call response is invited; and
3. The salesperson intends to complete a sale or enter into an agreement to purchase during the course of the telephone call; or
(c) Other communication with a person which represents a price, quality, or availability of consumer goods or services and which invites a response by telephone or which is followed by a call to the person by a salesperson.
For purposes of this section, “other communication” means a written or oral notification or advertisement transmitted through any means. Also, for purposes of this section, “invites a response by telephone” does not mean the mere listing or including of a telephone number in a notification or advertisement.
(2) “Commercial telephone seller” means any person who engages in commercial telephone solicitation on his or her own behalf or through salespersons, except that a commercial telephone seller does not include any of the persons or entities exempted from this part by s. 501.604. A commercial telephone seller does not include a salesperson as defined in subsection (10). A commercial telephone seller includes, but is not limited to, owners, operators, officers, directors, partners, or other individuals engaged in the management activities of a business entity pursuant to this part.
(3) “Consumer goods or services” means any real property or any tangible or intangible personal property which is normally used for personal, family, or household purposes or any property of any nature which is solicited for the purpose of providing a profit or investment opportunity, including, without limitation, any such property intended to be attached to or installed in any real property, without regard to whether it is so attached or installed, as well as timeshare estates and licenses, and any services related to such property.
(4) “Department” means the Department of Agriculture and Consumer Services.
(5) “Enforcing authority” means the Department of Agriculture and Consumer Services or the office of the state attorney if a violation of this part occurs in or affects the judicial circuit under the jurisdiction of the office of the state attorney.
(6) “Gift, award, or prize” means a gratuity which the purchaser believes to be of value.
(7) “Individual” means a single human being and does not mean a firm, association of individuals, corporation, partnership, joint venture, sole proprietorship, or any other entity.
(8) “Person” includes any individual, group of individuals, firm, association, corporation, partnership, joint venture, sole proprietorship, or any other business entity.
(9) “Purchaser” means a person who is solicited to become or does become obligated to a commercial telephone seller.
(10) “Salesperson” means any individual employed, appointed, or authorized by a commercial telephone seller, regardless of whether the commercial telephone seller refers to the individual as an agent, representative, or independent contractor, who attempts to solicit or solicits a sale on behalf of the commercial telephone seller. A salesperson, however, does not include individuals exempted from this part by s. 501.604 or employees or agents of persons exempted from this part by s. 501.604, or companies and individuals under contract with persons exempted from this part by s. 501.604 when liability is assumed by the exempt entity.
(11) “Solicit” means to initiate contact with a purchaser for the purpose of attempting to sell consumer goods or services, where such purchaser has expressed no previous interest in purchasing, investing in, or obtaining information regarding the property, goods, or services attempted to be sold.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 2, ch. 92-186; s. 1, ch. 96-252; s. 1159, ch. 97-103.
501.604 Exemptions.—The provisions of this part, except ss. 501.608 and 501.616(6) and (7), do not apply to:
(1) A person engaging in commercial telephone solicitation where the solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature.
(2) A person soliciting for religious, charitable, political, or educational purposes. A person soliciting for other noncommercial purposes is exempt only if that person is soliciting for a nonprofit corporation and if that corporation is properly registered as such with the Secretary of State and is included within the exemption of s. 501(c)(3) or (6) of the Internal Revenue Code.
(3) A person who does not make the major sales presentation during the telephone solicitation and who does not intend to, and does not actually, complete or obtain provisional acceptance of a sale during the telephone solicitation, but who makes the major sales presentation and completes the sale at a later face-to-face meeting between the seller and the prospective purchaser in accordance with the home solicitation provisions in this chapter. However, if a seller, directly following a telephone solicitation, causes an individual whose primary purpose it is to go to the prospective purchaser to collect the payment or deliver any item purchased, this exemption does not apply.
(4) Any licensed securities, commodities, or investment broker, dealer, or investment adviser, when soliciting within the scope of his or her license, or any licensed associated person of a securities, commodities, or investment broker, dealer, or investment adviser, when soliciting within the scope of his or her license. As used in this section, “licensed securities, commodities, or investment broker, dealer, or investment adviser” means a person subject to license or registration as such by the Securities and Exchange Commission, by the National Association of Securities Dealers or other self-regulatory organization as defined by the Securities Exchange Act of 1934, 15 U.S.C. s. 78l, or by an official or agency of this state or of any state of the United States. As used in this section, “licensed associated person of a securities, commodities, or investment broker, dealer, or investment adviser” means any associated person registered or licensed by the National Association of Securities Dealers or other self-regulatory organization as defined by the Securities Exchange Act of 1934, 15 U.S.C. s. 78l, or by an official or agency of this state or of any state of the United States.
(5) A person primarily soliciting the sale of a newspaper of general circulation.
(6) A book, video, or record club or contractual plan or arrangement:
(a) Under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise.
(b) Which is regulated by the Federal Trade Commission trade regulation concerning “use of negative option plans by sellers in commerce.”
(c) Which provides for the sale of books, records, or videos which are not covered under paragraph (a) or paragraph (b), including continuity plans, subscription arrangements, standing order arrangements, supplements, and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive such merchandise on a periodic basis.
(7) Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in this section, “supervised financial institution” means any commercial bank, trust company, savings and loan association, mutual savings bank, credit union, industrial loan company, consumer finance lender, commercial finance lender, or insurer, provided that the institution is subject to supervision by an official or agency of this state, of any state, or of the United States. For the purposes of this exemption, “affiliate” means a person who directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, a supervised financial institution.
(8) Any licensed insurance broker, agent, customer representative, or solicitor when soliciting within the scope of his or her license. As used in this section, “licensed insurance broker, agent, customer representative, or solicitor” means any insurance broker, agent, customer representative, or solicitor licensed by an official or agency of this state or of any state of the United States.
(9) A person soliciting the sale of services provided by a cable television system operating under authority of a franchise or permit.
(10) A business-to-business sale where:
(a) The commercial telephone seller has been operating continuously for at least 3 years under the same business name and has at least 50 percent of its dollar volume consisting of repeat sales to existing businesses;
(b) The purchaser business intends to resell or offer for purposes of advertisement or as a promotional item the property or goods purchased; or
(c) The purchaser business intends to use the property or goods purchased in a recycling, reuse, remanufacturing, or manufacturing process.
(11) A person who solicits sales by periodically publishing and delivering a catalog of the seller’s merchandise to prospective purchasers, if the catalog:
(a) Contains a written description or illustration of each item offered for sale.
(b) Includes the business address or home office address of the seller.
(c) Includes at least 20 pages of written material and illustrations and is distributed in more than one state.
(d) Has an annual circulation by mailing of not less than 150,000.
(12) A person who solicits contracts for the maintenance or repair of goods previously purchased from the person making the solicitation or on whose behalf the solicitation is made.
(13) A commercial telephone seller licensed pursuant to chapter 516 or part II of chapter 520. For purposes of this exemption, the seller must solicit to sell a consumer good or service within the scope of his or her license and the completed transaction must be subject to the provisions of chapter 516 or part II of chapter 520.
(14) A telephone company subject to the provisions of chapter 364, or affiliate thereof or its agents, or a business which is regulated by the Florida Public Service Commission, or a Federal Communications Commission licensed cellular telephone company or other bona fide radio telecommunication services provider. For the purposes of this exemption, “affiliate” means a person who directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, a telephone company subject to the provisions of chapter 364.
(15) A person who is licensed pursuant to chapter 497 and who is soliciting within the scope of the license.
(16) An issuer or a subsidiary of an issuer that has a class of securities which is subject to s. 12 of the Securities Exchange Act of 1934, 15 U.S.C. s. 78l, and which is either registered or exempt from registration under paragraph (A), paragraph (B), paragraph (C), paragraph (E), paragraph (F), paragraph (G), or paragraph (H) of subsection (g)(2) of that section.
(17) A business soliciting exclusively the sale of telephone answering services provided that the telephone answering services will be supplied by the solicitor.
(18) A person soliciting a transaction regulated by the Commodity Futures Trading Commission if the person is registered or temporarily licensed for this activity with the Commodity Futures Trading Commission under the Commodity Exchange Act, 7 U.S.C. ss. 1 et seq., and the registration or license has not expired or been suspended or revoked.
(19) A person soliciting the sale of food or produce as defined in chapter 500 or chapter 504 if the solicitation neither intends to result in, or actually results in, a sale which costs the purchaser in excess of $500.
(20) A person who is registered pursuant to part XI of chapter 559 and who is soliciting within the scope of the registration.
(21) A person soliciting business from prospective consumers who have an existing business relationship with or who have previously purchased from the business enterprise for which the solicitor is calling, if the solicitor is operating under the same exact business name.
(22) A person who has been operating, for at least 1 year, a retail business establishment under the same name as that used in connection with telemarketing, and both of the following occur on a continuing basis:
(a) Either products are displayed and offered for sale or services are offered for sale and provided at the business establishment.
(b) A majority of the seller’s business involves the buyer obtaining such products or services at the seller’s location.
(23) A person who is a registered developer or exchange company pursuant to chapter 721 and who is soliciting within the scope of the chapter.
(24) Any person which has been providing telemarketing sales services continuously for at least 5 years under the same ownership and control and which derives 75 percent of its gross telemarketing sales revenues from contracts with persons exempted in this section.
(25) A person licensed pursuant to chapter 475 and who is soliciting within the scope of the chapter.
(26) A publisher, or an agent of a publisher by written agreement, who solicits the sale of his or her periodical or magazine of general, paid circulation. The term “paid circulation” shall not include magazines that are only circulated as part of a membership package or that are given as a free gift or prize from the publisher or agent of the publisher by written agreement.
(27) A person who is a licensed operator or an identification cardholder as defined in chapter 482, and who is soliciting within the scope of the chapter.
(28) A licensee, or an affiliate of a licensee, regulated under chapter 560, the Money Transmitters’ Code, for foreign currency exchange services.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 3, ch. 92-186; s. 60, ch. 92-291; s. 1, ch. 93-235; s. 8, ch. 95-314; s. 2, ch. 96-252; s. 1160, ch. 97-103; s. 7, ch. 99-307; s. 56, ch. 2003-164; s. 146, ch. 2004-301.
501.605 Licensure of commercial telephone sellers.—
(1) Prior to doing business in this state, a commercial telephone seller shall obtain a license from the department. Doing business in this state includes either telephone solicitation from a location in Florida or solicitation from other states or nations of purchasers located in Florida.
(2) An applicant for a license as a commercial telephone seller must submit to the department, in such form as it prescribes, a written application for the license. The application must set forth the following information:
(a) The true name, date of birth, driver’s license number, social security number, and home address of the applicant, including each name under which he or she intends to do business.
(b) Each business or occupation engaged in by the applicant during the 3 years immediately preceding the date of the application, and the location thereof.
(c) The previous experience of the applicant as a commercial telephone seller or salesperson.
(d) Whether the applicant has previously been arrested for, convicted of, or is under indictment or information for, a felony and, if so, the nature of the felony. Conviction includes a finding of guilt where adjudication has been withheld.
(e) Whether the applicant has previously been convicted of, or is under indictment or information for, racketeering or any offense involving fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property. Conviction includes a finding of guilt where adjudication has been withheld.
(f) Whether there has ever been a judicial or administrative finding that the applicant has previously been convicted of acting as a salesperson without a license, or whether such a license has previously been refused, revoked, or suspended in any jurisdiction.
(g) Whether the applicant has worked for, or been affiliated with, a company that has had entered against it an injunction, a temporary restraining order, or a final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document, in any civil or administrative action involving racketeering, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property or the use of any untrue, deceptive, or misleading representation or the use of any unfair, unlawful, or deceptive trade practice.
(h) Whether the applicant has had entered against him or her an injunction, a temporary restraining order, or a final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document, in any civil or administrative action involving racketeering, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property or the use of any untrue, deceptive, or misleading representation or the use of any unfair, unlawful, or deceptive trade practice; and whether or not there is any litigation pending against the applicant.
(i) The name of any parent or affiliated entity that:
1. Will engage in a business transaction with the purchaser relating to any sale solicited by the applicant; or
2. Accepts responsibility or is otherwise held out by the applicant as being responsible for any statement or act of the applicant relating to any sale solicited by the applicant.
(j) The complete street address of each location, designating the principal location, from which the applicant will be doing business. If any location is a mail drop, this shall be disclosed as such.
(k) A list of all telephone numbers to be used by the applicant, with the address where each telephone using these numbers will be located.
(l) The true name, current home address, date of birth, social security number, and all other names by which known, or previously known, of each:
1. Principal officer, director, trustee, shareholder, owner, or partner of the applicant, and of each other person responsible for the management of the business of the applicant.
2. Office manager or other person principally responsible for a location from which the applicant will do business.
3. Salesperson or other person to be employed by the applicant.
The application shall be accompanied by a copy of any: Script, outline, or presentation the applicant will require or suggest a salesperson to use when soliciting, or, if no such document is used, a statement to that effect; sales information or literature to be provided by the applicant to a salesperson; and sales information or literature to be provided by the applicant to a purchaser in connection with any solicitation.
(3) When an application sets forth information regarding an applicant as described in paragraphs (2)(d)-(h), the applicant must:
(a) Identify the court or administrative agency rendering the conviction, judgment, or order against the person or pending litigation.
(b) Provide the docket number of the matter; the date of the conviction, judgment, or order; and the name of the governmental agency, if any, that brought the action resulting in the conviction, judgment, or order. The applicant must also include litigation.
(4) If the applicant is other than a natural person, or if any parent or affiliated entity is identified pursuant to paragraph (2)(i), the applicant must, for itself and any such entity, identify its place of organization and:
(a) In the case of a partnership, provide a copy of any written partnership agreement; or
(b) In the case of a corporation, provide a copy of its articles of incorporation and bylaws.
(5) An application filed pursuant to this part must be verified and accompanied by:
(a) A bond, letter of credit, or certificate of deposit satisfying the requirements of s. 501.611.
(b) A fee for licensing in the amount of $1,500. The fee shall be deposited into the General Inspection Trust Fund.
(6) The department shall issue a license number to all commercial telephone sellers.
(7) It is a violation of this part for a commercial telephone seller to:
(a) Fail to maintain a valid license.
(b) Advertise that one is licensed as a commercial seller or represent that such licensing constitutes approval or endorsement by any government or governmental office or agency.
(c) Provide inaccurate or incomplete information to the department when making a license application.
(d) Misrepresent that a person is registered or that such a person has a valid license number.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 4, ch. 92-186; s. 3, ch. 96-252; s. 1161, ch. 97-103; s. 14, ch. 97-250.
501.606 Disclosures required of commercial telephone sellers.—
(1) With respect to any person identified pursuant to s. 501.605, an applicant for a license as a commercial telephone seller must state in his or her application the identity of any affiliated commercial seller or salesperson who:
(a) Has been convicted of, or is under indictment or information for, racketeering or any offense involving fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property. Conviction includes a finding of guilt where adjudication has been withheld;
(b) Is involved in pending litigation or has had entered against him or her an injunction, a temporary restraining order, or a final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document, in any civil or administrative action involving racketeering, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property or the use of any untrue, deceptive, or misleading representation or the use of any unfair, unlawful, or deceptive trade practice;
(c) Is, or ever has been, subject to any litigation, injunction, temporary restraining order, or final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document or any restrictive court order relating to a business activity as the result of any action brought by a governmental agency, including any action affecting any license to do business or practice an occupation or trade;
(d) Has at any time during the previous 7 years filed for bankruptcy, been adjudged bankrupt, or been reorganized because of insolvency; or
(e) Has been a principal, director, officer, or trustee of, or a general or limited partner in, or had responsibilities as a manager in, any corporation, partnership, joint venture, or other entity that filed for bankruptcy, was adjudged bankrupt, or was reorganized because of insolvency within 1 year after the person held that position. The disclosures required in paragraph (d) shall be applicable insofar as they relate to the applicant commercial telephone seller, as well as any affiliated commercial seller or salesperson.
(2)(a) For any person described in subsection (1), the applicant must:
1. Identify the court or administrative agency rendering the conviction, judgment, or order against the person or pending litigation.
2. Provide the docket number of the matter, the date of the conviction, judgment, or order, and the name of the governmental agency, if any, that brought the action resulting in the conviction, judgment, or order.
(b) For any person described in paragraph (1)(e), the applicant must provide the name and address of the person filing for bankruptcy, adjudged bankrupt, or reorganized because of insolvency, the date of the action, the court which exercised jurisdiction, and the docket number of the matter.
(3) Each commercial telephone seller shall disclose to the department the name, address, and account number of each institution where banking or similar monetary transactions are done by the commercial telephone seller.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 634, ch. 97-103.
501.607 Licensure of salespersons.—
(1) An applicant for a license as a salesperson must submit to the department, in such form as it prescribes, a written application for a license. The application must set forth the following information:
(a) The true name, date of birth, driver’s license number, social security number, and home address of the applicant.
(b) Each business or occupation engaged in by the applicant during the 3 years immediately preceding the date of the application, and the location thereof.
(c) The previous experience of the applicant as a commercial telephone seller or salesperson.
(d) Whether the applicant, regardless of adjudication, has previously been arrested for, convicted or found guilty of, has entered a plea of guilty or a plea of nolo contendere to, or is under indictment or information for, a felony and, if so, the nature of the felony.
(e) Whether the applicant, regardless of adjudication, has previously been convicted or found guilty of, has entered a plea of guilty or a plea of nolo contendere to, or is under indictment or information for, racketeering or any offense involving fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property.
(f) Whether there has ever been a judicial or administrative finding that the applicant has previously been convicted of acting as a salesperson without a license, or whether such a license has previously been refused, revoked, or suspended in any jurisdiction.
(g) Whether the applicant has worked for, or been affiliated with, a company that is involved in pending litigation or has had entered against it an injunction, a temporary restraining order, or a final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document, in any civil or administrative action involving racketeering, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property or the use of any untrue, deceptive, or misleading representation or the use of any unfair, unlawful, or deceptive trade practice.
(h) Whether the applicant is involved in pending litigation or has had entered against her or him an injunction, a temporary restraining order, or a final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document, in any civil or administrative action involving racketeering, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property or the use of any untrue, deceptive, or misleading representation or the use of any unfair, unlawful, or deceptive trade practice.
(2) An application filed pursuant to this section must be verified and be accompanied by:
(a) A verified statement of the commercial telephone seller with whom the salesperson will be associated, expressing the intention of the commercial telephone seller to associate the salesperson with her or him and to be responsible for the activities of the salesperson.
(b) A fee for licensing in the amount of $50 per salesperson. The fee shall be deposited into the General Inspection Trust Fund. The fee for licensing may be paid after the application is filed, but must be paid within 14 days after the applicant begins work as a salesperson.
(3) The department shall issue a license number to all salespersons. The department shall adopt rules which allow certain salesperson applicants to operate on an interim basis until such time as a license is granted or denied.
(4) It is a violation of this part for a salesperson to:
(a) Fail to maintain a valid license.
(b) Advertise that one is licensed as a salesperson or to represent that such licensing constitutes approval or endorsement by any government or governmental office or agency.
(c) Provide inaccurate or incomplete information to the department when making a license application.
(d) Misrepresent that a person is registered or that such a person has a valid license number.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 5, ch. 92-186; s. 635, ch. 97-103; s. 15, ch. 97-250; s. 8, ch. 98-299.
501.608 License or affidavit of exemption; occupational license.—
(1)(a) The department shall issue to each approved applicant a license in such form and size as is prescribed by the department and, in the case of a commercial telephone seller who is not exempt under the provisions of s. 501.604, shall issue a license for each location at which the commercial telephone seller proposes to do business.
(b) Any commercial telephone seller claiming to be exempt from the act under s. 501.604(2), (3), (5), (6), (9), (10), (11), (12), (17), (21), (22), (24), or (26) must file with the department a notarized affidavit of exemption. The affidavit of exemption must be on forms prescribed by the department and must require the name of the commercial telephone seller, the name of the business, and the business address. Any commercial telephone seller maintaining more than one business may file a single notarized affidavit of exemption that clearly indicates the location of each place of business. If a change of ownership occurs, the commercial telephone seller must notify the department.
(c) The affidavit of exemption may be used for the purpose of obtaining an occupational license.
(d) Each license issued under this part must show the name and address of the person to whom it is issued, as well as the license number, if any, and date of issuance.
(2) Each licensee or person claiming an exemption shall prominently display his or her license or a copy of his or her affidavit of exemption at each location where he or she does business. Each licensee or person claiming an exemption shall make the license or the copy of the affidavit of exemption available for inspection by any governmental agency upon request.
(3) Failure to display a license or a copy of the affidavit of exemption is sufficient grounds for the department to issue an immediate cease and desist order, which shall act as an immediate final order under s. 120.569(2)(n). The order may remain in effect until the commercial telephone seller or a person claiming to be exempt shows the authorities that he or she is licensed or exempt. The department may order the business to cease operations and shall order the phones to be shut off. Failure of a salesperson to display a license may result in the salesperson being summarily ordered by the department to leave the office until he or she can produce a license for the department.
(4) Any person applying for or renewing a local occupational license to engage in business as a commercial telephone seller must exhibit an active license or a copy of the affidavit of exemption before the local occupational license may be issued or reissued.
(5) An affidavit of exemption has no bearing on a person’s burden of proof in any civil or criminal proceeding as provided in s. 501.624.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 6, ch. 92-186; s. 2, ch. 93-235; s. 4, ch. 96-252; s. 241, ch. 96-410; s. 1162, ch. 97-103; s. 46, ch. 2000-154; s. 63, ch. 2003-1.
501.609 License renewal.—
(1) Each person licensed under the provisions of this part must renew his or her license annually by paying the fee for licensing and submitting to the department the application required by this part.
(2) Except as otherwise provided in subsection (3), if any material change in the information submitted for licensing occurs before the date for renewal, a licensee shall submit that information to the department in the manner prescribed by the department, along with a fee in the amount of $10.
(3) If any change is made to any script, outline, presentation, sales information, or literature used by a licensee in connection with any solicitation, the new or revised material must be submitted by the licensee to the department within 10 days of the change.
(4) If any licensee has a change of address or status as set forth in ss. 501.605-501.607, notification must be made to the department in writing within 10 days of the change.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 636, ch. 97-103.
501.611 Security.—
(1) An application filed pursuant to s. 501.605 must be accompanied by:
(a) A bond executed by a corporate surety approved by the department and licensed to do business in this state;
(b) An irrevocable letter of credit issued for the benefit of the applicant by a bank whose deposits are insured by an agency of the Federal Government; or
(c) A certificate of deposit in a financial institution insured by an agency of the Federal Government, which may be withdrawn only on the order of the department, except that the interest may accrue to the applicant.
(2) The amount of the bond, letter of credit, or certificate of deposit must be a minimum of $50,000, and the bond, letter of credit, or certificate of deposit must be conditioned upon compliance by the applicant with the provisions of this part. The department may, at its discretion, establish a bond of a greater amount to ensure the general welfare of the public and the interests of the telemarketing industry.
(3) The bond shall be posted with the department.
(4) The department or any governmental agency, on behalf of any injured purchaser or any purchaser herself or himself who is injured by the bankruptcy of the applicant or her or his breach of any agreement entered into in her or his capacity as a licensee, may bring and maintain an action to recover against the bond, letter of credit, or certificate of deposit.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 637, ch. 97-103.
501.612 Grounds for departmental action against licensure applicants or licensees.—
(1) The department may enter an order directing that one or more of the actions set forth in subsection (2) be taken if the department finds that a commercial telephone seller or salesperson or any person applying for licensure as a commercial telephone seller or salesperson, including, but not limited to, owners, operators, officers, directors, partners, or other individuals engaged in the management activities of a business entity:
(a) Has, regardless of adjudication, been convicted or found guilty of, or has entered a plea of guilty or a plea of nolo contendere to, racketeering or any offense involving fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, or any other crime involving moral turpitude;
(b) Has, regardless of adjudication, been convicted or found guilty of, or has entered a plea of guilty or a plea of nolo contendere to, any felony;
(c) Has had entered against him or her or any business for which he or she has worked or been affiliated, an injunction, a temporary restraining order, or a final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document, in any civil or administrative action involving racketeering, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property or the use of any untrue or misleading representation in an attempt to sell or dispose of real or personal property or the use of any unfair, unlawful, or deceptive trade practice;
(d) Is subject to or has worked or been affiliated with any company which is, or ever has been, subject to any injunction, temporary restraining order, or final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document, or any restrictive court order relating to a business activity as the result of any action brought by a governmental agency, including any action affecting any license to do business or practice an occupation or trade;
(e) Has at any time during the previous 7 years filed for bankruptcy, been adjudged bankrupt, or been reorganized because of insolvency;
(f) Has been a principal, director, officer, or trustee of, or a general or limited partner in, or had responsibilities as a manager in, any corporation, partnership, joint venture, or other entity that filed the bankruptcy, was adjudged bankrupt, or was reorganized because of insolvency within 1 year after the person held that position;
(g) Has been previously convicted of or found to have been acting as a salesperson or commercial telephone seller without a license or whose licensure has previously been refused, revoked, or suspended in any jurisdiction;
(h) Falsifies or willfully omits any material information asked for in any application, document, or record required to be submitted or retained under this part;
(i) Makes a material false statement in response to any request or investigation by the department or the state attorney;
(j) Refuses or fails, after notice, to produce any document or record or disclose any information required to be produced or disclosed under this part or the rules of the department;
(k) Is not of good moral character; or
(l) Otherwise violates or is operating in violation of any of the provisions of this part or of the rules adopted or orders issued thereunder.
(2) Upon a finding as set forth in subsection (1), the department may enter an order:
(a) Issuing a notice of noncompliance pursuant to s. 120.695.
(b) Imposing an administrative fine not to exceed $10,000 for each act or omission which constitutes a violation under this part.
(c) Directing that the person cease and desist specified activities.
(d) Refusing to issue or renew or revoking or suspending a license.
(e) Placing the licensee on probation for a period of time, subject to such conditions as the department may specify.
(3) The administrative proceedings which could result in entry of an order under subsection (2) shall be conducted in accordance with the provisions of chapter 120.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 5, ch. 96-252; s. 1163, ch. 97-103; s. 16, ch. 97-250.
501.613 General disclosures.—
(1) Within the first 30 seconds of a telephone call, a commercial telephone seller or salesperson shall identify herself or himself by stating her or his true name, the company on whose behalf the solicitation is being made, and the consumer goods or services being sold.
(2) If a sale or an agreement to purchase is completed, the commercial telephone seller must inform the purchaser of her or his cancellation rights as provided in this part, state the license number issued by the department for both the commercial telephone seller and the salesperson, and give the street address of the commercial telephone seller.
(3) All oral disclosures required by this section shall be made in a clear and intelligible manner.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 638, ch. 97-103.
501.614 Disclosures of gifts and premiums.—If a commercial telephone seller expressly or impliedly represents to any prospective purchaser, directly or through a salesperson, that the purchaser is or may be eligible to receive any gift, premium, bonus, or prize, however denominated, the commercial telephone seller shall submit to the department a statement setting forth, for each item mentioned:
(1) A description of the item.
(2) The value or worth of the item and the basis for the valuation.
(3) All terms and conditions a purchaser must satisfy in order to receive the item. The statement must be accompanied by a copy of the written statement of terms and conditions provided to purchasers pursuant to this part.
(4) If they are ascertainable, the odds, for a given purchaser, of receiving the item.
(5) If a purchaser is to receive fewer than all the items described by the seller:
(a) The manner in which the commercial telephone seller decides which item a given purchaser is to receive.
(b) If they are ascertainable, the odds, for a given purchaser, of receiving each item described.
(c) The name and address of each person who has, during the preceding 12 months or any portion thereof in which the commercial telephone seller has done business, received each gift, premium, bonus, or prize. The provisions of this section shall not apply if the item is unconditionally offered to a purchaser as part of a sale and the buyer has 7 days to return the goods or cancel the services and the right to receive a full refund in 30 days and the right to keep the item in that case without cost.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429.
501.615 Written contract; cancellation; refund.—
(1) A purchase of consumer goods or services ordered as a result of a commercial telephone solicitation as defined in this part, if not followed by a signed written contract, is not final. If a contract is not made in compliance with this section, it is not valid and enforceable against the purchaser. The contract made pursuant to a commercial telephone solicitation shall:
(a) Be reduced to writing and be signed by the purchaser.
(b) Match the description of the goods or services as that principally used in the telephone solicitation.
(c) Contain the name, address, telephone number, and registration number of the commercial telephone seller and the salesperson, the total price of the contract, and a detailed description of the goods or services being sold.
(d) Contain the value or worth of any item, good, or service specified in s. 501.614, and the basis for the valuation.
(e) Contain all terms and conditions a purchaser must satisfy in order to receive any item, good, or service specified in s. 501.614.
(f) Contain, if they are ascertainable, the odds, for a given purchaser, of receiving any item specified in s. 501.614.
(g) Contain, if a purchaser is to receive fewer than all the items specified in s. 501.614 described by the seller:
1. The manner in which the commercial telephone seller decides which item a given purchaser is to receive.
2. If they are ascertainable, the odds, for a given purchaser, of receiving each item described.
(h) Contain, in at least 12-point type, immediately preceding the signature, the following statement: “You are not obligated to pay any money unless you sign this contract and return it to the commercial telephone seller.”
(i) Not exclude from its terms any oral or written representations made by the commercial telephone seller or salesperson to the purchaser in connection with the transaction.
(2) A commercial telephone seller who engages a salesperson to make, or cause to be made, a telephone sales call shall not make or submit any charge to the purchaser’s credit card account or make or cause to be made any electronic transfer of funds until after the commercial telephone seller receives from the purchaser a copy of the contract, signed by the purchaser, which complies with this section. The commercial telephone seller shall then send the purchaser a written confirmation of the sale.
(3) The written contract must contain an explanation of the purchaser’s rights under this section and a statement indicating when notice of cancellation should be sent. The purchaser may give notice of cancellation to the commercial telephone seller in writing within 3 business days after receipt of the confirmation. If the commercial telephone seller has not provided an address for receipt of such notice, cancellation is effective by mailing the notice to the department.
(4) Notice of cancellation by the commercial telephone seller shall be given by certified mail, return receipt requested, and shall be effective when mailed. Notice of cancellation given by the purchaser need not take a particular form and is sufficient if it indicates, by any form of written expression, the name and address of the purchaser and the purchaser’s stated intention not to be bound by the sale.
(5) If a commercial telephone seller violates the provisions of this part in making a sale, or fails to deliver an item within 30 calendar days, the contract is voidable by giving notice to the commercial telephone seller, and the purchaser is entitled to a return from the seller, within 14 days, of all consideration paid. Notice of cancellation given by the purchaser need not take a particular form and is sufficient given orally or in writing. Upon receipt by the purchaser of the consideration paid to the commercial telephone seller, the purchaser shall return to the commercial telephone seller the items received by the purchaser. Any cost of returning the items received by the purchaser shall be borne by the commercial telephone seller, by providing or guaranteeing payment for return shipping. If such payment is not provided or guaranteed, the purchaser may keep, without further obligation, the items received.
(6) A person who purchases goods or services pursuant to a solicitation governed by this part must be given a refund, credit, or replacement, at his or her option, if:
(a) The goods or services are defective, are not as represented, or if any item described pursuant to this part is not received as promised.
(b) He or she returns the goods or makes a written request for the refund, credit, or replacement within 7 days after he or she receives the goods, services, prize, or premium, whichever is received later. A return or request is timely if shipment is made or the request is postmarked, properly addressed and postage prepaid, within the time provided by this section.
(7) If a purchaser of goods returns only a portion of the goods, the refund, credit, or replacement required by this section may be prorated accordingly.
(8) The refund, credit, or replacement required by this section must be guaranteed by the commercial telephone seller who made the sale, regardless of whether payment for the goods or services is made to that person.
(9) Any contract, agreement to purchase, or written confirmation executed by a seller which purports to waive the purchaser’s rights under this part is against public policy and shall be unenforceable, provided that an agreement between a purchaser and commercial telephone seller to extend the delivery time of an item to more than 30 days shall be enforceable if the commercial telephone seller has a reasonable basis to expect that he or she will be unable to ship the item within 30 days and if the agreement is included in the terms of the written confirmation.
(10) Where a contract or agreement to purchase confers on a purchaser greater rights to cancellation, refund, or return than those enumerated in this part, such contract shall be enforceable and not in violation of this part, provided that all rights under such a contract or agreement to purchase must be specifically stated in a written confirmation sent pursuant to this section.
(11) The provisions of this section shall not reduce, restrict, or eliminate any existing rights or remedies available to purchasers.
(12) Exempt from the requirements of subsections (1)-(5) is any sale in which the consumer is given a full refund for the return of undamaged and unused goods or a cancellation of services notice is given to the seller, within 7 days after receipt of the goods or services by the consumer, and the seller shall process the refund within 30 days after receipt of the returned merchandise by the consumer.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 5, ch. 94-298; s. 639, ch. 97-103.
501.616 Unlawful acts and practices.—
(1) It shall be unlawful for any commercial telephone seller or salesperson to require that payment be by credit card authorization or otherwise to announce a preference for that method of payment.
(2) It shall be unlawful for any commercial telephone seller to employ, or be affiliated with, any unlicensed salesperson.
(3) It shall be unlawful for any salesperson to be employed by, or affiliated with, an unlicensed commercial telephone seller.
(4) It shall be unlawful for any commercial telephone seller or salesperson to be unlicensed.
(5) It shall be unlawful for any salesperson or commercial telephone seller to otherwise violate the provisions of this part.
(6) It shall be unlawful for any commercial telephone seller or salesperson to make a commercial telephone solicitation phone call before 8:00 a.m. or after 9:00 p.m. local time at the called person’s location.
(7) It shall be unlawful for any commercial telephone seller or salesperson making telephonic solicitations to take any intentional action to prevent transmission of the telephone solicitor’s name or telephone number to the party called when the equipment or service used by the telephone solicitor is capable of creating and transmitting the telephone solicitor’s name or telephone number.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 8, ch. 99-307.
501.617 Investigative powers of enforcing authority.—
(1) If, by her or his own inquiries or as a result of complaints, the enforcing authority has reason to believe that a person has engaged in, or is engaging in, an act or practice that violates the provisions of this part, she or he may administer oaths and affirmations, subpoena witnesses or matter, and collect evidence. Within 10 days after the service of a subpoena or at any time before the return date specified therein, whichever is longer, the party served may file in the circuit court in the county in which she or he resides or in which she or he transacts business and serve upon the enforcing authority a petition for an order modifying or setting aside the subpoena. The petitioner may raise any objection or privilege which would be available under this part or upon service of such subpoena in a civil action. The subpoena shall inform the party served of her or his rights under this subsection.
(2) If matter that the enforcing authority seeks to obtain by subpoena is located outside the state, the person subpoenaed may make it available to the enforcing authority or her or his representative to examine the matter at the place where it is located. The enforcing authority may designate representatives, including officials of the state in which the matter is located, to inspect the matter on her or his behalf, and she or he may respond to similar requests from officials of other states.
(3) Upon failure of a person without lawful excuse to obey a subpoena and upon reasonable notice to all persons affected, the enforcing authority may apply to the circuit court for an order compelling compliance.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 640, ch. 97-103.
501.618 General civil remedies.—The department may bring:
(1) An action to obtain a declaratory judgment that an act or practice violates the provisions of this part.
(2) An action to enjoin a person who has violated, is violating, or is otherwise likely to violate the provisions of this part.
(3) An action on behalf of one or more purchasers for the actual damages caused by an act or practice performed in violation of the provisions of this part. Such an action may include, but is not limited to, an action to recover against a bond, letter of credit, or certificate of deposit as otherwise provided in this part.
Upon motion of the enforcing authority in any action brought under this section, the court may make appropriate orders, including appointment of a general or special magistrate or receiver or sequestration of assets, to reimburse consumers found to have been damaged, to carry out a consumer transaction in accordance with the consumer’s reasonable expectations, or to grant other appropriate relief. The court may assess the expenses of a general or special magistrate or receiver against a commercial telephone seller. Any injunctive order, whether temporary or permanent, issued by the court shall be effective throughout the state unless otherwise provided in the order.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 90, ch. 2004-11.
501.619 Civil penalties.—Any person who engages in any act or practice declared in this part to be unlawful is liable for a civil penalty of not more than $10,000 for each such violation. This civil penalty may be recovered in any action brought under this part by the department, or the department may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The department or the court may waive any such civil penalty or other fines or costs if the person has previously made full restitution or reimbursement or has paid actual damages to the purchasers who have been injured by the unlawful act or practice.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429.
501.621 Attorney’s fees and costs.—
(1) In any civil action or investigation resulting from a transaction involving a violation of the provisions of this part, except as provided in subsection (3), the department shall receive reasonable attorney’s fees and costs from the nonprevailing party.
(2) Any award of attorney’s fees or costs shall become a part of the judgment and subject to execution as the law allows.
(3) In any civil litigation initiated by the department resulting in a judgment or administrative order, the court may award to the prevailing party reasonable attorney’s fees and costs if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or if the court finds bad faith on the part of the losing party.
(4) The attorney for the prevailing party shall submit a sworn affidavit of his or her time spent on the case and his or her costs incurred.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 641, ch. 97-103.
501.622 Criminal prosecuting authority.—The department may refer such evidence as may be available concerning violations of the provisions of this part or of any rule or order hereunder to any criminal prosecuting agency, which may, in its discretion, with or without such a reference, in addition to any other action it might commence, bring an action against any person to enjoin, restrain, and prevent the doing of any act or practice herein prohibited or declared unlawful.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429.
501.623 Criminal penalties.—
(1) No salesperson shall solicit purchasers on behalf of a commercial telephone seller who is not currently licensed with the department pursuant to the provisions of this part. Any person who violates the provisions of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) No commercial telephone seller shall employ or be affiliated with a salesperson who is soliciting purchasers and who is not currently licensed with the department pursuant to the provisions of this part. Any person who violates the provisions of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) No commercial telephone seller or salesperson shall solicit without a license. Any person who violates the provisions of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) Any commercial telephone seller or salesperson who falsifies information on an application commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) Except as provided in subsection (1), subsection (2), subsection (3), or subsection (4), any person who otherwise violates any provision of this part or who directly or indirectly employs any device, scheme, or artifice to deceive in connection with the offer or sale by any commercial telephone seller commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(6) Any person who is convicted of a second or subsequent violation of the provisions of this part commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A conviction shall include a finding of guilt where adjudication has been withheld.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 46, ch. 95-144; s. 642, ch. 97-103.
501.624 Exempt businesses; burden of proof.—In any civil proceeding alleging a violation of the provisions of this part, the burden of proving an exemption specified in s. 501.604 or that such person or entity is not otherwise subject to the provisions of this part is upon the person or entity claiming the exemption. In any criminal proceeding alleging a violation of the provisions of this part, the burden of producing evidence to support a defense based upon an exemption specified in s. 501.604 or that such person or entity is not subject to the provisions of this part is upon the person or entity claiming the defense.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429.
501.625 Other individual remedies.—In addition to any other penalties or remedies provided under law, a person who is injured by a violation of the provisions of this part may bring a civil action for recovery of actual damages and/or punitive damages, including costs, court costs, and attorney’s fees. No provision in this part shall be construed to limit any right or remedy provided under law.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429.
501.626 Rulemaking power.—The department has the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this part.
History.—ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 17, ch. 97-250; s. 173, ch. 98-200.
PART V
MISCELLANEOUS PROVISIONS501.91 Short title.
501.911 Administration of act.
501.912 Definitions.
501.913 Registration.
501.914 Cancellation of registration.
501.915 Adulteration of antifreeze.
501.916 Mislabeling of antifreeze.
501.917 Inspection by department; sampling and analysis.
501.918 Prohibited activity.
501.919 Enforcement; stop-sale order.
501.92 Formula may be required.
501.921 Standards.
501.922 Violation.
501.923 Injunctive relief.
501.925 Used watches; sales regulated.
501.93 Copyright owners and performing rights societies.
501.937 Industrial hygienists and safety professionals; use of professional titles; failure to comply.
501.95 Gift certificates and credit memos.
501.97 Deceptive trade practices; print advertisement; penalties.
501.971 Fictitious Name Act not abrogated.
501.972 Actions based upon use of a creation that is not protected under federal copyright law.
501.973 Chambers of commerce.
501.91 Short title.—Sections 501.91-501.923 may be cited as the “Antifreeze Act of 1978.”
History.—s. 1, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429.
501.911 Administration of act.—Sections 501.91-501.923 shall be administered by the Division of Standards of the Department of Agriculture and Consumer Services.
History.—s. 2, ch. 78-199; s. 2, ch. 81-318; ss. 1, 4, 5, ch. 89-4; s. 4, ch. 91-429.
501.912 Definitions.—As used in ss. 501.91-501.923:
(1) “Antifreeze” means any substance or preparation sold, distributed, or intended for use as the cooling liquid, or to be added to the cooling liquid, in the cooling system of internal combustion engines of motor vehicles to prevent freezing of the cooling liquid or to lower its freezing point.
(2) “Antifreeze-coolant,” “antifreeze and summer coolant,” or “summer coolant” means any substance as defined in subsection (1) which also is sold, distributed, or intended for raising the boiling point of water or for the prevention of engine overheating whether or not used as a year-round cooling system fluid. Unless otherwise stated, the term “antifreeze” includes “antifreeze,” “antifreeze-coolant,” “antifreeze and summer coolant,” and “summer coolant.”
(3) “Department” means the Department of Agriculture and Consumer Services.
(4) “Distribute” means to hold with intent to sell, offer for sale, sell, barter, or otherwise supply to the consumer.
(5) “Package” means a sealed, tamperproof retail package, drum, or other container designed for the sale of antifreeze directly to the consumer or a container from which the antifreeze may be installed directly by the seller into the cooling system, but does not include shipping containers containing properly labeled inner containers.
(6) “Label” means any display of written, printed, or graphic matter on, or attached to, a package or to the outside individual container or wrapper of the package.
(7) “Labeling” means the labels and any other written, printed, or graphic matter accompanying a package.
History.—s. 3, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429; s. 61, ch. 92-291.
501.913 Registration.—
(1) Each brand of antifreeze to be distributed in this state shall be registered with the department prior to distribution. The person whose name appears on the label, the manufacturer, or the packager shall make application to the department on forms provided by the department no later than July 1 of each year. The registrant assumes, by application to register the brand, full responsibility for the quality and quantity of the product sold, offered, or exposed for sale in this state.
(2) The completed application shall be accompanied by:
(a) Specimens or facsimiles of the label for each brand of antifreeze;
(b) An application fee of $200 for each brand; and
(c) A properly labeled sample of each brand of antifreeze.
(3) The department may analyze or inspect the antifreeze to ensure that it:
(a) Meets the labeling claims;
(b) Conforms to minimum standards required for antifreeze by this chapter or rules of the department; and
(c) Is not adulterated as prescribed for antifreeze by this chapter.
(4)(a) If the registration requirements are met, and, if the antifreeze meets the minimum standards, is not adulterated, and meets the labeling claims, the department shall issue a certificate of registration authorizing the distribution of that antifreeze in the state for the permit year.
(b) If registration requirements are not met, or, if the antifreeze fails to meet the minimum standards, is adulterated, or fails to meet the labeling claims, the department shall refuse to register the antifreeze.
History.—s. 4, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429; s. 62, ch. 92-291; s. 1, ch. 99-391.
501.914 Cancellation of registration.—The department may cancel any registration after due notice and opportunity to be heard if it finds the antifreeze is adulterated or mislabeled or that the registration has failed to comply with any of the provisions of this act or the rules promulgated pursuant to this act.
History.—s. 4, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429.
501.915 Adulteration of antifreeze.—Antifreeze shall be deemed to be adulterated:
(1) If, in the form in which it is sold and directed to be used, it would be ineffective in or injurious to the cooling system in which it is to be installed or if, when used in such cooling system, it would make the operation of the engine dangerous to the user.
(2) If its strength, quality, or purity falls below the standard of strength, quality, or purity under which it is sold or offered for sale.
History.—s. 5, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429.
501.916 Mislabeling of antifreeze.—Antifreeze shall be deemed to be mislabeled:
(1) If it does not bear a label that specifies:
(a) The brand of the product.
(b) The identity of the product.
(c) The name and address of the manufacturer, packager, distributor, or registrant.
(d) The net quantity of contents (in terms of liquid measure) separately and accurately in a uniform location upon the principal display panel.
(e) A statement warning of any hazard of substantial injury to human beings which may result from the intended use or reasonably foreseeable misuse of the antifreeze.
(f) The primary chemical component functioning as the antifreeze agent.
(g) The appropriate amount, percentage, proportion, or concentration of the antifreeze to be used to provide claimed protection from freezing at a specified degree or degrees of temperature, claimed protection from corrosion, or claimed increase of boiling point or protection from overheating.
(2) If its labeling contains any claim that it has been approved or recommended by the department.
(3) If its labeling is false, deceptive, or misleading.
History.—s. 6, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429; s. 1, ch. 93-142; s. 2, ch. 99-391.
501.917 Inspection by department; sampling and analysis.—The department shall have the right to have access at reasonable hours to all places and property where antifreeze is stored, distributed, or offered or intended to be offered for sale, including the right to inspect and examine all antifreeze and to take reasonable samples of antifreeze for analysis together with specimens of labeling. All samples taken shall be properly sealed and sent to a laboratory designated by the department for examination together with all labeling pertaining to such samples. It shall be the duty of said laboratory to examine promptly all samples received in connection with the administration and enforcement of this act.
History.—s. 7, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429; s. 63, ch. 92-291.
501.918 Prohibited activity.—It is unlawful for any person to:
(1) Distribute any antifreeze which has not been registered in accordance with s. 501.913 or whose labeling is different from that accepted for registration. However, if the registration of an antifreeze which was registered in the immediately preceding registration period is not renewed, then any unsold inventory of that antifreeze which exists at the wholesale level or retail level shall be disposed of within 90 days by methods approved by rule of the department.
(2) Distribute any antifreeze which is adulterated, fails to meet minimum standards, or is mislabeled.
(3) Refuse to permit entry or inspection or to permit the acquisition of a sample of the antifreeze as authorized by s. 501.917.
(4) Dispose of any antifreeze which is under a stop-sale order in accordance with s. 501.919.
(5) Distribute any antifreeze unless it is in the registrant’s unbroken package, or is installed by the seller in the cooling system of the purchaser’s vehicle directly from the registrant’s package and the label on such package is less than 5 gallons, or the labeling of such package, if 5 gallons or more, does not bear the information required by s. 501.916. However, the department may by rule establish labeling and other reasonable requirements for the sale of a properly registered antifreeze from a bulk container into a container supplied by or for the purchaser.
(6) Refill any container bearing a registered label, other than a customer’s container, without first obtaining permission from the registrant.
(7) Refuse, when requested, to permit a purchaser to see the container from which antifreeze is drawn for installation into the purchaser’s vehicle.
(8) Distribute any antifreeze for which a practical, rapid means for measuring the freeze protection by the user is not readily available, whether by hydrometer or other means.
(9) Disseminate any false or misleading advertisement relating to an antifreeze product.
History.—s. 8, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429; s. 64, ch. 92-291; s. 2, ch. 93-142.
501.919 Enforcement; stop-sale order.—
(1) When the department finds any lot of antifreeze being distributed in violation of ss. 501.91-501.923 or any of the rules duly promulgated thereunder, the department shall issue and enforce a written “stop-sale” order. The stop-sale order shall warn the distributor not to dispose of any of that lot of antifreeze in any manner until written permission is given by the department. Copies of stop-sale orders shall also be sent to the registrant. The department shall release for distribution the lot of antifreeze under a stop-sale order when s. 501.918 and applicable rules have been complied with. If compliance is not obtained within 30 days, the department may begin proceedings for confiscation.
(2) Any lot of antifreeze not in compliance with said provisions and rules shall be subject to confiscation upon complaint of the department, or any of its agents, to the circuit court in the county in which said antifreeze is located. In the event the court finds the antifreeze to be in violation of this act, it may then order the condemnation of the antifreeze, and the same shall be disposed of in any manner consistent with the rules of the department and the laws of the state.
(3) Nothing in this act shall be construed to require the department to report for prosecution or for institution of libel proceedings any minor violations of the act whenever it believes that the public interest will be best served by a suitable notice of warning in writing to the violator.
History.—s. 9, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429; s. 65, ch. 92-291; s. 3, ch. 99-391.
501.92 Formula may be required.—The department may, if required for the analysis of antifreeze by the laboratory designated by the department for the purpose of registration, require the applicant to furnish a statement of the formula of such antifreeze, unless the applicant can furnish other satisfactory evidence that such antifreeze is not adulterated or misbranded. Such statement need not include inhibitor or other minor ingredients which total less than 5 percent by weight of the antifreeze; and, if over 5 percent, the composition of the inhibitor and such other ingredients may be given in generic terms.
History.—s. 10, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429.
501.921 Standards.—The department’s rules for standards, definitions, and test procedures for antifreeze may encompass those specified by ASTM International. The department may adopt any other specification it considers appropriate to protect consumers from questionable formulations of antifreeze.
History.—s. 11, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429; s. 3, ch. 93-142; s. 4, ch. 2007-232.
501.922 Violation.—
(1) The department may enter an order imposing one or more of the following penalties against any person who violates ss. 501.91-501.923 or who impedes, obstructs, or hinders the department in performing its duties under those sections:
(a) Imposition of an administrative fine of not more than $1,000 per violation for a first-time offender. For a second-time or repeat offender, or any person who willfully and intentionally violates ss. 501.91-501.923, the administrative fine may not exceed $5,000 per violation.
(b) Revocation or suspension of any registration issued by the department. Any period of suspension may not exceed 1 year.
(2) If a registrant in violation of ss. 501.91-501.923 fails to pay a fine within 30 days after imposition of the fine, the department may suspend all registrations issued to the registrant by the department until the fine is paid.
(3) All fines collected by the department shall be deposited in the General Inspection Trust Fund.
History.—s. 12, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429; s. 66, ch. 92-291; s. 643, ch. 97-103; s. 4, ch. 99-391.
501.923 Injunctive relief.—In addition to the remedies provided in this act, and notwithstanding the existence of any adequate remedy at law, the department is hereby authorized to make application for injunction to a circuit court. Such circuit court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction, to be issued without bond, restraining any person from violating or continuing to violate any of the provisions of this act or from failing or refusing to comply with the requirements of this act or any rule duly promulgated under the provisions of this act.
History.—s. 13, ch. 78-199; s. 2, ch. 81-318; ss. 4, 5, ch. 89-4; s. 4, ch. 91-429.
501.925 Used watches; sales regulated.—
(1) The purpose of this law is to identify all watches other than new, with a label or designation of “used” in order to safeguard the public from being misled in purchasing used, rebuilt or reconditioned watches as new.
(2) Any person, firm, partnership, association or corporation engaged in the business of buying or selling watches, or any agent or servant thereof, who shall sell or exchange, or offer for sale or exchange, expose for sale or exchange, possess with the intent to sell or exchange, or display with the intent to sell or exchange any used watch, shall affix and keep affixed to the same a tag with the word “used” clearly and legibly written or printed thereon, and the said tag shall be so placed that the word “used” shall be in plain sight at all times.
(3) Any person, firm, partnership, association or corporation engaged in the business of buying or selling watches, or any agent or servant thereof, who shall sell a used watch or in any other way pass title thereto shall deliver to the vendee a written invoice bearing the words “used watch” in bold letters larger than any of the other written matter upon said invoice. Said invoice shall further set forth the name and address of the vendor, the name and address of the vendee, the date of the sale, the name of the watch or its maker, and the serial numbers, if any, and any other distinguishing numbers or identification marks upon its case and movement. If the serial numbers or other distinguishing numbers or identification marks shall have been erased, defaced, removed, altered or covered, said invoice shall so state. The vendor shall keep on file a duplicate of said invoice for at least 2 years from the date of the sale thereof, which shall be open to inspection during all business hours by the sheriff or any prosecuting officer of the county in which the vendor is engaged in business.
(4) Any person, firm, partnership, association or corporation, or any agent or servant thereof, who may advertise or display in any manner a used watch for sale or exchange shall state clearly in such advertisement or display that said watch is a used watch.
(5) A watch shall be deemed to be used if:
(a) It as a whole or the case thereof or the movement thereof has been previously sold to or acquired by any person who bought or acquired the same for her or his use or the use of another, but not for resale; provided, however, that a watch which has been so sold or acquired and is thereafter returned either through an exchange or for credit to the original individual, firm, partnership, association or corporation who sold or passed title to such watch within 10 days after the sale or acquisition thereof, shall not be deemed to be a used watch for the purpose of this section, if such vendor shall keep a written or printed record setting forth the name of the purchaser thereof, the date of the sale or transfer thereof and the serial number, if any, on the case and the movement, and any other distinguishing numbers or identification marks, which said record shall be kept for at least 2 years from the date of such sale or transfer and shall be open for inspection during all business hours by the sheriff or any prosecuting officer of the county in which such vendor is engaged in business; or
(b) Its case serial numbers or movement numbers or other distinguishing numbers or identification marks are erased, defaced, removed, altered or covered; however, a watch will not be deemed used if such numbers or marks are erased, defaced, removed, altered, or covered by any person, firm, partnership, association, or corporation engaged in the business of selling watches who bought or acquired such watch for resale, but not for her or his use or the use of another, from an authorized dealer who bought or acquired such watch directly from its manufacturer, wholesaler, or distributor; or
(c) Its movement is more than 5 years old and has been repaired by any person or persons, including the vendor. Cleaning and oiling a watch movement or recasing the movement in a new case shall not be deemed a watch repair for the purpose of this section.
(6) Any person, firm, partnership, association or corporation, or any agent or servant thereof, who shall violate any of the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1, 2, 3, 4, 5, 6, ch. 22040, 1943; s. 689, ch. 71-136; s. 644, ch. 97-103; s. 18, ch. 97-250; s. 31, ch. 99-7.
Note.—Former s. 726.10.
501.93 Copyright owners and performing rights societies.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Business” means a retail establishment, restaurant, bar, lounge, sports or entertainment facility, or any other similar place of business or any professional office located in this state in which the public assembles and in which nondramatic musical works are performed, broadcast, or otherwise transmitted for the enjoyment of the members of the public there assembled.
(b) “Copyright owner” means the owner of a copyright of a nondramatic musical work, other than a motion picture or other audiovisual work, recognized and enforceable under the copyright laws of the United States pursuant to Title 17 of the United States Code, Pub. L. No. 94-653, 17 U.S.C. ss. 101 et seq.
(c) “Performing rights society” means any business entity or association that licenses the public performance of nondramatic musical works on behalf of copyright owners, including the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc., and SESAC, Inc.
(d) “Proprietor” means the owner, operator, or manager of a business.
(e) “Royalty” means the fee payable by a proprietor to a performing rights society for the public performance of a nondramatic musical work.
(2) PROHIBITED ACTIVITIES.—
(a) A performing rights society may not enter into, or offer to enter into, a contract for the payment of royalties by a proprietor unless at the time of the offer, or any time thereafter, but no later than 72 hours before the execution of that contract, it provides to the proprietor, in writing, all of the following:
1. A schedule of the rates and terms of royalties under the contract and the basis upon which those rates were calculated.
2. Notice that the performing rights society will make available, upon written request of any proprietor, the most current available listing of the copyrighted works in the society’s repertory, provided that such notice must specify the means by which the society provides this information. A society may charge a proprietor requesting such a list no more than the costs incurred in responding to the request.
3. Notice that the performing rights society has established a toll-free telephone number and a means of computer access that can be used to answer inquiries of a proprietor regarding the specific musical works and copyright owners represented by the society.
4. Notice that a copy of each form of contract or agreement offered by a performing rights society to a proprietor in this state will be made available upon request of any proprietor.
5. Notice that the agreement complies with federal law and orders of courts having appropriate jurisdiction regarding the rates and terms of royalties and the circumstances under which licenses for rights of public performance are offered to any proprietor.
6. Notice that the proprietor is entitled to the information contained in this paragraph, and that the failure of the performing rights society to provide that information is unlawful.
7. Notice that the proprietor should consider obtaining a separate license or other form of authorization from those performing rights societies or copyright owners whose copyrighted musical works are not licensed pursuant to such contract.
(b) A performing rights society, or any agent or employee of a society, may not:
1. Enter onto the premises of a proprietor’s business for the purpose of discussing or inquiring about a contract for the payment of royalties with the proprietor or the proprietor’s employees, without first identifying himself or herself to the proprietor or the proprietor’s employees and making known to them the purpose of the discussion or inquiry;
2. Collect or attempt to collect a royalty payment or any other fee except as provided in a contract executed in accordance with this section; or
3. Use or attempt to use any unfair trade practice in negotiating with a proprietor, or in retaliation for a proprietor’s failure or refusal to negotiate, with respect to a contract for the payment of royalties.
(3) CONTRACT REQUIREMENTS.—Each contract for the payment of royalties between a proprietor and a performing rights society that is executed, issued, or renewed in this state after October 1, 1996, must:
(a) Be in writing;
(b) Be signed by the parties; and
(c) Include at least the following information:
1. The proprietor’s name and business address and the name and location of each business to which the contract applies.
2. The name and address of the performing rights society authorized to act on behalf of copyright owners being paid royalties under the contract.
3. The duration of the contract.
4. The schedule of rates and terms of the royalties to be collected under the contract, including any sliding scale or schedule for any increase or decrease of those rates for the duration of that contract, and the basis upon which those rates were calculated.
(4) VERIFICATION SERVICE.—In addition to providing the information required under subparagraph (2)(a)2., the performing rights society must make available a toll-free telephone number and a means of computer access that can be used to answer inquiries of a proprietor regarding the specific musical works and copyright owners represented by the society.
(5) CIVIL REMEDIES.—Any person who suffers a violation of this section may bring an action seeking injunctive relief, actual damages, reasonable attorney’s fees and costs, and any other remedy available at law or in equity.
(6) APPLICATION.—This section applies only to performing rights societies. This section does not apply to a contract between a performing rights society and a broadcaster that is licensed by the Federal Communications Commission. This section does not apply to conduct engaged in for purposes of enforcing s. 540.11(3)(a). Nothing in this section shall be construed to prohibit a performing rights society or copyright owner from conducting investigations to determine the existence of music use by a proprietor or from informing the proprietor of the proprietor’s obligations under the federal copyright laws, Title 17 of the United States Code.
History.—s. 1, ch. 96-249; s. 1164, ch. 97-103.
501.937 Industrial hygienists and safety professionals; use of professional titles; failure to comply.—
(1) Any person representing himself or herself as a “safety professional” or “industrial hygienist” must accurately disclose his or her credentials.
(2) A person may not represent himself or herself as a “certified safety professional,” “associate safety professional,” “certified occupational health and safety technologist,” “industrial hygienist in training,” or “certified industrial hygienist” unless he or she holds a current valid certificate in the field of safety or industrial hygiene from either the American Board of Industrial Hygiene or the Board of Certified Safety Professionals, or unless the Department of Business and Professional Regulation has, upon request, examined another certification program and has formally concluded that the certification standards of that certification program are substantially equivalent to the standards for certificates issued by those organizations; nor may the person mislead or deceive anyone by the unauthorized use of any certification mark that has been awarded by the United States Patent and Trademark Office.
(3)(a) A “safety professional” is a person having a baccalaureate degree in safety, engineering, chemistry, physics, or a closely related physical or biological science who has acquired competency in the field of safety. The studies and training necessary to acquire such competency should have been sufficient in all of the above cognate sciences to provide the abilities to anticipate, identify, and evaluate hazardous conditions and practices; to develop hazard control designs, methods, procedures, and programs; to implement, administer, and advise others on hazard controls and hazard control programs; and to measure, audit, and evaluate the effectiveness of hazard controls and hazard control programs.
(b) An “industrial hygienist” is a person having a baccalaureate degree in engineering, chemistry, physics, or a closely related physical or biological science who has acquired competency in the field of industrial hygiene. The studies and training necessary to acquire such competency should have been sufficient in all of the above cognate sciences to provide the abilities to anticipate and recognize the environmental factors and stresses associated with work and work operations and to understand their effects on people and their well-being; to evaluate, on the basis of training and experience and with the aid of quantitative measurement techniques, the magnitude of these factors and stresses in terms of ability to impair human health and well-being; and to prescribe methods to eliminate, control, or reduce such factors and stresses when necessary to alleviate their effects.
(4) Failure to comply with this section constitutes a deceptive and unfair trade practice.
History.—s. 51, ch. 98-419.
501.95 Gift certificates and credit memos.—
(1) As used in this section, the term:
(a) “Credit memo” means a certificate, card, stored value card, or similar instrument issued in exchange for returned merchandise when the certificate, card, or similar instrument is redeemable for merchandise, food, or services regardless of whether any cash may be paid to the owner of the certificate, card, or instrument as part of the redemption transaction.
(b) “Gift certificate” means a certificate, gift card, stored value card, or similar instrument purchased for monetary consideration when the certificate, card, or similar instrument is redeemable for merchandise, food, or services regardless of whether any cash may be paid to the owner of the certificate, card, or instrument as part of the redemption transaction, but this term shall not include tickets as specified in s. 717.1355 or manufacturer or retailer discounts and coupons.
(2)1(a) A gift certificate purchased or credit memo issued in this state may not have an expiration date, expiration period, or any type of postsale charge or fee imposed on the gift certificate or credit memo, including, but not limited to, service charges, dormancy fees, account maintenance fees, or cash-out fees. However, a gift certificate may have an expiration date of not less than 3 years if it is provided as a charitable contribution, or not less than 1 year if it is provided as a benefit pursuant to an employee-incentive program, and the expiration date is prominently disclosed in writing to the consumer at the time it is provided. In addition, a gift certificate may have an expiration date if it is provided to the recipient, or to a purchaser for transfer to the recipient, as part of a loyalty or promotional program when the recipient does not pay a separate identifiable charge for the certificate, or if it is provided in conjunction with a convention, conference, vacation, or sporting or fine arts event having a limited duration so long as the majority of the value paid by the recipient is attributable to the convention, conference, vacation, or event. An issuer may honor a gift certificate that has expired on or before the effective date of this act.
(b) Paragraph (a) does not apply to a gift certificate or credit memo sold or issued by a financial institution, as defined in s. 655.005, or by a money services business, as defined in s. 560.103, if the gift certificate or credit memo is redeemable by multiple unaffiliated merchants.
(c) Enforcement of this section shall be as provided in s. 501.142(3), (4), and (5) for violations of this section.
History.—s. 1, ch. 2007-256; s. 1, ch. 2007-334; s. 50, ch. 2008-177.
1Note.—Section 3, ch. 2007-78, provides that “[s]ection 501.95(2)(a), Florida Statutes, as created in CS for CS for CS for SB 1638 or similar legislation, does not apply to prepaid calling arrangements as defined in s. 212.05(1)(e), Florida Statutes, including prepaid cards for wireless or wireline telecommunications service.”
501.97 Deceptive trade practices; print advertisement; penalties.—
(1) A person may not misrepresent the geographic location of the supplier of a service or product by listing a fictitious business name or an assumed business name in print advertisement if:
(a) The name and overall context of the advertisement misrepresent that the supplier maintains an established place of business within the state when in fact the supplier has no such business in the state; and
(b) Calls to the local telephone number are routinely forwarded or otherwise transferred to a business location that is outside the State of Florida.
For purposes of this section, a newspaper publisher, magazine or other publication, telephone directory or directory assistance service or its officer or agent, or the owner or operator of a radio or television station, or any other owner or operator of a medium primarily devoted to advertising who publishes, broadcasts, or otherwise disseminates an advertisement in good faith without actual knowledge of its false, deceptive, or misleading character is immune from liability for publishing the listing of a fictitious business name or assumed business name of a supplier unless the advertiser is the same person as the supplier of services or products who has committed the act prohibited by this section. This section applies to all advertisements published after the effective date of this act.
(2) A violation of this section is a deceptive and unfair trade practice and constitutes a violation of part II of this chapter. A person who violates this section commits a deceptive and unfair trade practice, punishable by the penalties provided under part II of this chapter, and is subject to the enforcement of remedies for the violation as provided in part II of this chapter.
(3) This section is supplemental to those provisions of state or federal criminal or civil law which impose prohibitions or provide penalties, sanctions, or remedies against the same conduct prohibited by this section. Nothing in this section may be construed as barring any cause of action which would otherwise be available, as precluding any action that would otherwise be available, or as precluding the imposition of penalties or sanctions or the pursuit of remedies otherwise provided for by law, except that this section may not be construed to permit duplicate enforcement of penalties, sanctions, and remedies provided for under part II of this chapter. Furthermore, the provisions of this section may not be construed to preclude the applicability of any other provision of law which now applies, or may in the future apply, to prohibit, penalize, or impose sanctions or remedies for any conduct that violates this section.
History.—s. 1, ch. 99-232.
501.971 Fictitious Name Act not abrogated.—This act is not intended to abrogate or modify the Fictitious Name Act, s. 865.09. Any person who acts in accordance with the requirements of s. 865.09 is not in violation of s. 501.97, as created by this act, without actual misrepresentation as contemplated under this chapter.
History.—s. 2, ch. 99-232.
501.972 Actions based upon use of a creation that is not protected under federal copyright law.—
(1) Except as provided in subsection (2), the use of an idea, procedure, process, system, method of operation, concept, principle, discovery, thought, or other creation that is not a work of authorship protected under federal copyright law does not give rise to a claim or cause of action, in law or in equity, unless the parties to the claim or cause of action have executed a writing sufficient to indicate that a contract has been made between them governing such use.
(2) Subsection (1) does not affect or limit:
(a) Any cause of action based in copyright, trademark, patent, or trade secret; or
(b) Any defense raised in connection with a cause of action described in paragraph (a).
History.—s. 4, ch. 2006-196.
501.973 Chambers of commerce.—
(1) For the purposes of this section:
(a) “Business entity” means any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.
(b) “Chamber of commerce” means a voluntary membership, dues-paying organization of business and professional persons dedicated, as stated in the articles of incorporation or bylaws of the organization, to improving the economic climate and business development of the community, area, or region in which the organization is located and which:
1. Operates as an approved not-for-profit corporation under chapter 617 and as a corporation or association qualified for tax-exempt status under s. 501(c)(3) or s. 501(c)(6) of the Internal Revenue Code of 1986, as amended.
2. Files any required corporation annual reports with the Secretary of State and, if applicable, required annual information returns with the United States Internal Revenue Service.
3. Is governed by a volunteer board of directors of at least seven members who are elected from among the membership of the organization and who serve without compensation.
(2) A business entity, other than a chamber of commerce, shall not use the term “chamber of commerce” in its name or to describe itself, except for binational chambers of commerce recognized by the Office of International Affairs of the Department of State or chambers of commerce in existence on or before October 1, 1992. Any business entity which violates this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) This section imposes no requirement for oversight or regulation of a business entity name, trademark, trade name, or other requirement for filing or registration under any provision of law.
(4) Subject to the provisions of s. 495.151, a chamber of commerce may sue any business entity that is not a chamber of commerce as defined in this section to enjoin such entity from using the term “chamber of commerce” in its name or to describe itself as a chamber of commerce in any business or commerce.
History.—s. 5, ch. 2007-232.
PART VI
UNFAIR OR DECEPTIVE ACTSOR PRACTICES; VEHICLES
501.975 Definitions.
501.976 Actionable, unfair, or deceptive acts or practices.
501.975 Definitions.—As used in s. 501.976, the following terms shall have the following meanings:
(1) “Customer” includes a customer’s designated agent.
(2) “Dealer” means a motor vehicle dealer as defined in s. 320.27, but does not include a motor vehicle auction as defined in s. 320.27(1)(c)4.
(3) “Replacement item” means a tire, bumper, bumper fascia, glass, in-dashboard equipment, seat or upholstery cover or trim, exterior illumination unit, grill, sunroof, external mirror and external body cladding. The replacement of up to three of these items does not constitute repair of damage if each item is replaced because of a product defect or damaged due to vandalism while the new motor vehicle is under the control of the dealer and the items are replaced with original manufacturer equipment, unless an item is replaced due to a crash, collision, or accident.
(4) “Threshold amount” means 3 percent of the manufacturer’s suggested retail price of a motor vehicle or $650, whichever is less.
(5) “Vehicle” means any automobile, truck, bus, recreational vehicle, or motorcycle required to be licensed under chapter 320 for operation over the roads of Florida, but does not include trailers, mobile homes, travel trailers, or trailer coaches without independent motive power.
History.—s. 28, ch. 2001-196.
501.976 Actionable, unfair, or deceptive acts or practices.—It is an unfair or deceptive act or practice, actionable under the Florida Deceptive and Unfair Trade Practices Act, for a dealer to:
(1) Represent directly or indirectly that a motor vehicle is a factory executive vehicle or executive vehicle unless such vehicle was purchased directly from the manufacturer or a subsidiary of the manufacturer and the vehicle was used exclusively by the manufacturer, its subsidiary, or a dealer for the commercial or personal use of the manufacturer’s, subsidiary’s, or dealer’s employees.
(2) Represent directly or indirectly that a vehicle is a demonstrator unless the vehicle complies with the definition of a demonstrator in s. 320.60(3).
(3) Represent the previous usage or status of a vehicle to be something that it was not, or make usage or status representations unless the dealer has correct information regarding the history of the vehicle to support the representations.
(4) Represent the quality of care, regularity of servicing, or general condition of a vehicle unless known by the dealer to be true and supportable by material fact.
(5) Represent orally or in writing that a particular vehicle has not sustained structural or substantial skin damage unless the statement is made in good faith and the vehicle has been inspected by the dealer or his or her agent to determine whether the vehicle has incurred such damage.
(6) Sell a vehicle without fully and conspicuously disclosing in writing at or before the consummation of sale any warranty or guarantee terms, obligations, or conditions that the dealer or manufacturer has given to the buyer. If the warranty obligations are to be shared by the dealer and the buyer, the method of determining the percentage of repair costs to be assumed by each party must be disclosed. If the dealer intends to disclaim or limit any expressed or implied warranty, the disclaimer must be in writing in a conspicuous manner and in lay terms in accordance with chapter 672 and the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act.
(7) Provide an express or implied warranty and fail to honor such warranty unless properly disclaimed pursuant to subsection (6).
(8) Misrepresent warranty coverage, application period, or any warranty transfer cost or conditions to a customer.
(9) Obtain signatures from a customer on contracts that are not fully completed at the time the customer signs or which do not reflect accurately the negotiations and agreement between the customer and the dealer.
(10) Require or accept a deposit from a prospective customer prior to entering into a binding contract for the purchase and sale of a vehicle unless the customer is given a written receipt that states how long the dealer will hold the vehicle from other sale and the amount of the deposit, and clearly and conspicuously states whether and upon what conditions the deposit is refundable or nonrefundable.
(11) Add to the cash price of a vehicle as defined in s. 520.02(2) any fee or charge other than those provided in that section and in rule 69V-50.001, Florida Administrative Code. All fees or charges permitted to be added to the cash price by rule 69V-50.001, Florida Administrative Code, must be fully disclosed to customers in all binding contracts concerning the vehicle’s selling price.
(12) Alter or change the odometer mileage of a vehicle.
(13) Sell a vehicle without disclosing to the customer the actual year and model of the vehicle.
(14) File a lien against a new vehicle purchased with a check unless the dealer fully discloses to the purchaser that a lien will be filed if purchase is made by check and fully discloses to the buyer the procedures and cost to the buyer for gaining title to the vehicle after the lien is filed.
(15) Increase the price of the vehicle after having accepted an order of purchase or a contract from a buyer, notwithstanding subsequent receipt of an official price change notification. The price of a vehicle may be increased after a dealer accepts an order of purchase or a contract from a buyer if:
(a) A trade-in vehicle is reappraised because it subsequently is damaged, or parts or accessories are removed;
(b) The price increase is caused by the addition of new equipment, as required by state or federal law;
(c) The price increase is caused by the revaluation of the United States dollar by the Federal Government, in the case of a foreign-made vehicle;
(d) The price increase is caused by state or federal tax rate changes; or
(e) Price protection is not provided by the manufacturer, importer, or distributor.
(16) Advertise the price of a vehicle unless the vehicle is identified by year, make, model, and a commonly accepted trade, brand, or style name. The advertised price must include all fees or charges that the customer must pay, including freight or destination charge, dealer preparation charge, and charges for undercoating or rustproofing. State and local taxes, tags, registration fees, and title fees, unless otherwise required by local law or standard, need not be disclosed in the advertisement. When two or more dealers advertise jointly, with or without participation of the franchisor, the advertised price need not include fees and charges that are variable among the individual dealers cooperating in the advertisement, but the nature of all charges that are not included in the advertised price must be disclosed in the advertisement.
(17) Charge a customer for any predelivery service required by the manufacturer, distributor, or importer for which the dealer is reimbursed by the manufacturer, distributor, or importer.
(18) Charge a customer for any predelivery service without having printed on all documents that include a line item for predelivery service the following disclosure: “This charge represents costs and profit to the dealer for items such as inspecting, cleaning, and adjusting vehicles, and preparing documents related to the sale.”
(19) Fail to disclose damage to a new motor vehicle, as defined in s. 319.001(9), of which the dealer had actual knowledge, if the dealer’s actual cost of repairs exceeds the threshold amount, excluding replacement items.
In any civil litigation resulting from a violation of this section, when evaluating the reasonableness of an award of attorney’s fees to a private person, the trial court shall consider the amount of actual damages in relation to the time spent.
History.—s. 29, ch. 2001-196; s. 4, ch. 2002-4; s. 1, ch. 2002-54; s. 19, ch. 2002-235; s. 7, ch. 2003-269; s. 139, ch. 2008-4; s. 43, ch. 2008-176.