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





                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Forman moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         On page 30, between lines 28 and 29,

15

16  insert:

17         Section 16.  Effective July 1, 1999, section 427.802,

18  Florida Statutes, is amended to read:

19         427.802  Definitions.--As used in this part:

20         (1)  "Assistive technology devices" means manual

21  wheelchairs, motorized wheelchairs, motorized scooters,

22  voice-synthesized computer modules, optical scanners, talking

23  software, braille printers, environmental control devices for

24  use by a person with quadriplegia, motor vehicle adaptive

25  transportation aids, devices that enable persons with severe

26  speech disabilities to in effect speak, personal transfer

27  systems, and specialty beds, including a demonstrator, that a

28  consumer purchases or accepts transfer of in this state for

29  use by a person with a disability.

30         (2)  "Assistive Technology Device Warranty Act rights

31  period" means the period ending 1 year after first delivery of

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

    Amendment No.    





 1  the assistive technology device to the consumer or the

 2  manufacturer's express written warranty, whichever is longer.

 3         (3)(2)  "Person with a disability" means any person who

 4  has one or more permanent physical or mental limitations that

 5  restrict his or her ability to perform the normal activities

 6  of daily living and impede his or her capacity to live

 7  independently.

 8         (4)(3)  "Assistive technology device dealer" means a

 9  business entity that is primarily engaged person who is in the

10  business of selling or leasing of assistive technology

11  devices. As used in this subsection, the term "primarily"

12  means no less than 30 percent of the business entity's gross

13  sales in the previous fiscal year.

14         (5)(4)  "Assistive technology device lessor" means a

15  person who leases an assistive technology device to a

16  consumer, or holds the lessor's rights, under a written lease.

17         (6)(5)  "Collateral costs" means expenses incurred by a

18  consumer in connection with the repair of a nonconformity,

19  including the costs of obtaining an alternative assistive

20  technology device.

21         (7)(6)  "Consumer" means any of the following:

22         (a)  The purchaser of an assistive technology device,

23  if the assistive technology device was purchased from an

24  assistive technology device dealer or manufacturer for

25  purposes other than resale.

26         (b)  A person to whom the assistive technology device

27  is transferred for purposes other than resale, if the transfer

28  occurs before the expiration of an express warranty applicable

29  to the assistive technology device.

30         (c)  A person who may enforce the warranty.

31         (d)  A person who leases an assistive technology device

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

    Amendment No.    





 1  from an assistive technology device lessor under a written

 2  lease.

 3         (8)(7)  "Demonstrator" means an assistive technology

 4  device used primarily for the purpose of demonstration to the

 5  public.

 6         (9)  "Department" means the Department of Agriculture

 7  and Consumer Services.

 8         (10)(8)  "Early termination cost" means any expense or

 9  obligation that an assistive technology device lessor incurs

10  as a result of both the termination of a written lease before

11  the termination date set forth in that lease and the return of

12  an assistive technology device to a manufacturer pursuant to

13  this section.  The term includes a penalty for prepayment

14  under a financial arrangement.

15         (11)(9)  "Early termination saving" means any expense

16  or obligation that an assistive technology device lessor

17  avoids as a result of both the termination of a written lease

18  before the termination date set forth in the lease and the

19  return of an assistive technology device to a manufacturer

20  pursuant to this section.  The term includes an interest

21  charge that the assistive technology device lessor would have

22  paid to finance the assistive technology device or, if the

23  assistive technology device lessor does not finance the

24  assistive technology device, the difference between the total

25  amount for which the lease obligates the consumer during the

26  period of the lease term remaining after the early termination

27  and the present value of that amount at the date of the early

28  termination.

29         (12)(10)  "Manufacturer" means a business entity that

30  manufactures or produces assistive technology devices for sale

31  and agents of that business entity, including an importer, a

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

    Amendment No.    





 1  distributor, a factory branch, a distributor branch, and any

 2  warrantors of the manufacturer's assistive technology device,

 3  but not including an assistive technology device dealer.

 4         (13)(11)  "Nonconformity" means a condition or defect

 5  of an assistive technology device which substantially impairs

 6  the use, value, or safety of the device and which is covered

 7  by an express warranty applicable to the assistive technology

 8  device, but does not include a condition or defect that is the

 9  result of abuse, neglect, or unauthorized modification or

10  alteration of the assistive technology device by a consumer.

11         (14)(12)  "Reasonable attempt to repair" means, within

12  the terms of an express warranty applicable to a new assistive

13  technology device:

14         (a)  A maximum of three efforts by the manufacturer,

15  the assistive technology device lessor, or any of the

16  manufacturer's authorized assistive technology device dealers

17  to repair a nonconformity that is subject to repair under the

18  warranty; or

19         (b)  The passage of at least 30 cumulative days during

20  which the assistive technology device is out of service

21  because of a nonconformity that is covered by the warranty.

22         Section 17.  Effective July 1, 1999, section 427.803,

23  Florida Statutes, is amended to read:

24         427.803  Duty of manufacturer and an assistive

25  technology device dealer to conform an assistive technology

26  device to the warranty Express warranty.--

27         (1)  A manufacturer who sells a new assistive

28  technology device to a consumer, either directly or through an

29  assistive technology device dealer, shall furnish the consumer

30  with an express warranty for the assistive technology device.

31  The duration of the express warranty must be at least 1 year

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

    Amendment No.    





 1  after first delivery of the assistive technology device to the

 2  consumer.  In the absence of an express warranty from the

 3  manufacturer, the manufacturer is considered to have expressly

 4  warranted to the consumer of an assistive technology device

 5  that, for a period of 1 year after the date of first delivery

 6  to the consumer, the assistive technology device will be free

 7  from any condition or defect that substantially impairs the

 8  value of the assistive technology device to the consumer.

 9         (2)  If an assistive technology device does not conform

10  to the warranty and the consumer first reports the problem to

11  the manufacturer during the Assistive Technology Device

12  Warranty Act rights period, the manufacturer shall make such

13  repairs as are necessary to conform the device to the

14  warranty, irrespective of whether such repairs are made after

15  the expiration of the Assistive Technology Device Warranty Act

16  rights period. Such repairs shall be at no cost to the

17  consumer if reported to the manufacturer or assistive

18  technology device dealer during the Assistive Technology

19  Device Warranty Act rights period. Nothing in this paragraph

20  shall be construed to grant an extension of the Assistive

21  Technology Device Warranty Act rights period or to expand the

22  time within which a consumer must file a complaint under this

23  chapter.

24         (3)  Each manufacturer or assistive technology device

25  dealer shall provide to its consumers conspicuous notice of

26  the address and phone number for its zone, district, or

27  regional office for this state in the written warranty or

28  owner's manual.  Within 10 days after the department's written

29  request, a manufacturer shall forward to the department a copy

30  of the owner's manual and any written warranty for each make

31  and model of assistive technology device that it sells in this

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

    Amendment No.    





 1  state.

 2         (4)  The manufacturer shall provide to the assistive

 3  technology device dealer and, at the time of acquisition, the

 4  assistive technology device dealer shall provide to the

 5  consumer a written statement that explains the consumer's

 6  rights under this chapter.  The written statement shall be

 7  prepared by the department and shall contain a toll-free

 8  number for the department that the consumer can contact to

 9  obtain information regarding the consumer's rights and

10  obligations under this chapter or to commence arbitration. The

11  consumer's signed acknowledgment of receipt of materials

12  required under this subsection shall constitute prima facie

13  evidence of compliance by the manufacturer and assistive

14  technology device dealer. The form of the acknowledgments

15  shall be approved by the department, and the assistive

16  technology device dealer shall maintain the consumer's signed

17  acknowledgment for 3 years.

18         (5)  A manufacturer or an assistive technology device

19  dealer shall provide to the consumer, each time the consumer's

20  assistive technology device is returned after being examined

21  or repaired under the warranty, a fully itemized, legible

22  statement of any diagnosis made and all work performed on the

23  assistive technology device, including, but not limited to, a

24  general description of the problem reported by the consumer or

25  an identification of the defect or condition, parts and labor,

26  the date on which the assistive technology device was

27  submitted for examination or repair, and the date when the

28  repair or examination was completed.

29         Section 18.  Effective July 1, 1999, section 427.804,

30  Florida Statutes, is amended to read:

31         427.804  Repair of nonconforming assistive technology

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 1  devices; refund or replacement of devices after attempt to

 2  repair; sale or lease of returned device; arbitration;

 3  investigation; limitation of rights.--

 4         (1)  If a new assistive technology device does not

 5  conform to an applicable express warranty and the consumer

 6  reports the nonconformity to the manufacturer, the assistive

 7  technology device lessor, or any of the manufacturer's

 8  authorized assistive technology device dealers and makes the

 9  assistive technology device available for repair within 1 year

10  after first delivery or return of the assistive technology

11  device to the consumer, the nonconformity must be repaired at

12  no charge to the consumer.

13         (2)  If, after a reasonable attempt to repair, the

14  nonconformity is not repaired, the manufacturer, at the

15  direction of a consumer as defined in s. 427.802(6)(a)-(c),

16  must do one of the following:

17         (a)  Accept return of the assistive technology device

18  and replace the assistive technology device with a comparable

19  new assistive technology device and refund any collateral

20  costs.

21         (b)  Accept return of the assistive technology device

22  and refund to the consumer and to any holder of a perfected

23  security interest in the consumer's assistive technology

24  device, as the interest may appear, the full purchase price

25  plus any finance charge amount paid by the consumer at the

26  point of sale, and collateral costs.

27         (c)  With respect to a consumer as defined in s.

28  427.802(6)(d), accept return of the assistive technology

29  device, refund to the assistive technology device lessor and

30  to any holder of a perfected security interest in the

31  assistive technology device, as the interest may appear, the

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

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 1  current value of the written lease, and refund to the consumer

 2  the amount that the consumer paid under the written lease plus

 3  any collateral costs.

 4         (3)  The current value of the written lease equals the

 5  total amount for which the lease obligates the consumer during

 6  the period of the lease remaining after its early termination

 7  plus the assistive technology device dealer's early

 8  termination costs and the value of the assistive technology

 9  device at the lease expiration date if the lease sets forth

10  the value, less the assistive technology device lessor's early

11  termination savings.

12         (4)  To receive a comparable new assistive technology

13  device or a refund due under paragraph (2)(a), a consumer must

14  offer to the manufacturer of the assistive technology device

15  having the nonconformity to transfer possession of the

16  assistive technology device to the manufacturer.  No later

17  than 30 days after the offer, the manufacturer shall provide

18  the consumer with the comparable assistive technology device

19  or refund.  When the manufacturer provides the comparable

20  assistive technology device or refund, the consumer shall

21  return the assistive technology device having the

22  nonconformity to the manufacturer, along with any endorsements

23  necessary to transfer real possession to the manufacturer.

24         (5)  To receive a refund due under paragraph (2)(b), a

25  consumer must offer to return the assistive technology device

26  having the nonconformity to its manufacturer.  No later than

27  30 days after the offer, the manufacturer shall provide the

28  refund to the consumer.  When the manufacturer provides the

29  refund, the consumer shall return to the manufacturer the

30  assistive technology device having the nonconformity.

31         (6)  To receive a refund due under paragraph (2)(c), an

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

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 1  assistive technology device lessor must offer to transfer

 2  possession of the assistive technology device having the

 3  nonconformity to its manufacturer.  No later than 30 days

 4  after the offer, the manufacturer shall provide the refund to

 5  the assistive technology device lessor.  When the manufacturer

 6  provides the refund, the assistive technology device lessor

 7  shall provide to the manufacturer any endorsements necessary

 8  to transfer legal possession to the manufacturer.

 9         (7)  A person may not enforce the lease against the

10  consumer after the consumer receives a refund due under

11  paragraph (2)(c).

12         (8)  An assistive technology device that is returned by

13  a consumer or assistive technology device lessor in this

14  state, or by a consumer or assistive technology device lessor

15  in another state under a similar law of that state, may not be

16  sold or leased again in this state, unless full disclosure of

17  the reasons for return is made to any prospective buyer or

18  lessee.

19         (9)  Each consumer may submit any dispute arising under

20  this part to the department by completing a complaint form.

21  The department may investigate the complaint on behalf of the

22  consumer if reasonable evidence warrants such an action.

23         (10)  The department shall process consumer complaints

24  pursuant to s. 570.544.

25         (11)(9)  Each consumer may submit any dispute arising

26  under this part to an alternative arbitration mechanism

27  established pursuant to chapter 682. Upon notice by the

28  consumer, all manufacturers must submit to such alternative

29  arbitration.

30         (12)(10)  Such alternative arbitration must be

31  conducted by a professional arbitrator or arbitration firm

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 1  appointed under chapter 682 and any applicable rules.  These

 2  procedures must provide for the personal objectivity of the

 3  arbitrators and for the right of each party to present its

 4  case, to be in attendance during any presentation made by the

 5  other party, and to rebut or refute such a presentation.

 6         (13)(11)  This part does not limit rights or remedies

 7  available to a consumer under any other law.

 8         Section 19.  Effective July 1, 1999, section 427.8041,

 9  Florida Statutes, is created to read:

10         427.8041  Assistive technology device dealers

11  registration; application; exemption; penalties; adoption of

12  fees and fines; purchase fees.--

13         (1)  Each assistive technology device dealer must

14  register with the department prior to doing business in this

15  state. The application for registration must be on a form

16  adopted by the department and must include at least the

17  following information:

18         (a)  The name of the applicant.

19         (b)  The name under which the applicant is doing

20  business.

21         (c)  The business address at which the applicant sells

22  assistive technology devices or in the case of a mobile

23  assistive technology device business, the home address of the

24  owner, if different from the business address.

25         (d)  Copies of all licenses, permits, and

26  certifications obtained by the applicant or employees of the

27  applicant.

28         (2)  Any assistive technology device dealer maintaining

29  more than one place of business must register each separate

30  location. In such case, fees shall be paid for each place of

31  business.

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 1         (3)  Each initial application and renewal application

 2  for registration must be accompanied by a registration fee of

 3  $300.

 4         (4)  The department shall issue to each applicant a

 5  registration certificate.  In the case of an applicant with

 6  more than one place of business, the department shall issue a

 7  registration certificate for each place of business. The

 8  certificate must show at least the name and address of the

 9  assistive technology device dealer and the registration number

10  for that place of business. In the case of a mobile assistive

11  technology device dealer, the certificate must show the home

12  address of the owner, if different from the business address.

13  The registration certificate must be posted in a conspicuous

14  manner in the assistive technology device dealer's place of

15  business.

16         (5)  Any person applying for or renewing a local

17  occupational license on or after July 1, 1999, to engage in

18  selling assistive technology devices must exhibit an active

19  registration certificate from the department before the local

20  occupational license may be issued or renewed.

21         (6)  Each registration must be renewed annually on or

22  before the expiration date of the current registration. A late

23  fee of $25 shall be paid, in addition to the registration fee

24  or any other penalty, for any registration renewal application

25  that is received by the department after the expiration date

26  of the current registration. The department may not issue the

27  registration until all fees are paid.

28         (7)  The department may deny or refuse to renew the

29  registration of the assistive technology device dealer based

30  upon a determination that the dealer, or any of its directors,

31  officers, owners, or general partners:

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

    Amendment No.    





 1         (a)  Have failed to meet the requirements for

 2  registration as provided in this part;

 3         (b)  Have not satisfied a civil fine, administrative

 4  fine, or other penalty arising out of any administrative or

 5  enforcement action brought by any governmental agency based

 6  upon conduct involving fraud, dishonest dealing, or any

 7  violation of this part;

 8         (c)  Have had against them any civil, criminal, or

 9  administrative adjudication in any jurisdiction, based upon

10  conduct involving fraud, dishonest dealing, or any violation

11  of this part; or

12         (d)  Have had a judgment entered against them in any

13  action brought by the department or the state attorney.

14         (8)  All assistive technology device dealers shall

15  allow department personnel to enter their place of business to

16  ascertain whether the registration certificate is current.  If

17  department personnel are refused entry or access to the

18  premises, the department may seek injunctive relief in circuit

19  court in order to obtain compliance with this subsection.

20         (9)  The department may enter an order imposing one or

21  more of the penalties set forth in subsection (13) if the

22  department finds that an assistive technology device dealer:

23         (a)  Violated or is operating in violation of any of

24  the provisions of this part or of the rules adopted or orders

25  issued thereunder;

26         (b)  Made a material false statement in any

27  application, document, or record required to be submitted or

28  retained under this part;

29         (c)  Refused or failed, or any of its principal

30  officers have refused or failed, after notice, to produce any

31  document or record or disclose any information required to be

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    Bill No. CS for SB 1712

    Amendment No.    





 1  produced or disclosed under this part or the rules of the

 2  department;

 3         (d)  Made a material false statement in response to any

 4  request or investigation by the department, the Department of

 5  Legal Affairs, or the state attorney; or

 6         (e)  Has intentionally defrauded the public through

 7  dishonest or deceptive means.

 8         (10)  Upon a finding as set forth in subsection (12),

 9  the department may enter an order doing one or more of the

10  following:

11         (a)  Issuing a notice of noncompliance pursuant to s.

12  120.695.

13         (b)  Imposing an administrative fine not to exceed

14  $5,000 per violation for each act which constitutes a

15  violation of this part or a rule or order.

16         (c)  Directing that the assistive technology device

17  dealer cease and desist specified activities.

18         (d)  Refusing to register or revoking or suspending a

19  registration.

20         (e)  Placing the registrant on probation for a period

21  of time, subject to such conditions as the department may

22  specify.

23         (11)  The administrative proceedings which could result

24  in the entry of an order imposing any of the penalties

25  specified in subsection (10) shall be conducted in accordance

26  with chapter 120.

27         (12)  The department or the state attorney, if a

28  violation of this part occurs in his or her judicial circuit,

29  shall be the enforcing authority for purposes of this part and

30  may bring a civil action in circuit court for temporary or

31  permanent injunctive relief and may seek other appropriate

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 1  civil relief, including a civil penalty not to exceed $5,000

 2  for each violation, restitution and damages for injured

 3  customers, court costs, and reasonable attorney's fees.

 4         (13)  The enforcing authority may terminate any

 5  investigation or action upon agreement by the offender to pay

 6  a stipulated civil penalty, to make restitution or pay damages

 7  to customers, or to satisfy any other relief authorized herein

 8  and requested by the department.

 9         (14)  The remedies provided for in this section shall

10  be in addition to any other remedy provided by law.

11         (15)  Fees and fines collected under this part by the

12  Department of Agriculture and Consumer Services shall be

13  deposited in the General Inspection Trust Fund.

14         (16)  A $2 fee shall be collected by the assistive

15  technology device dealer or assistive technology device lessor

16  from the consumer at the consummation of the sale or lease of

17  an assistive technology device. Such fees must be remitted

18  monthly to the Department of Revenue. All fees, less the cost

19  of administration, must be transferred monthly to the

20  Department of Agriculture and Consumer Services for deposit

21  into the General Inspection Trust Fund to carry out the

22  provisions of s. 427.8041. The Department of Agriculture and

23  Consumer Services may use an amount it determines necessary to

24  purchase expert consultation services to assist in carrying

25  out the provisions of this act.

26         (17)  In fiscal year 1999-2000, the Department of

27  Agriculture and Consumer Services may use 5 percent of the

28  fees collected and remitted in that fiscal year by the

29  assistive technology device dealers or lessors under

30  subsection (16) and, during each fiscal year thereafter, may

31  use between 5 percent and 10 percent of such fees collected in

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    Amendment No.    





 1  that fiscal year, towards the development of an Assistive

 2  Technology Device Warranty Act Education Program or to

 3  purchase expert consultation services from an entity having

 4  the mission of promoting access to, awareness of, and advocacy

 5  for assistive technology devices and services to:

 6         (a)  Assist investigators to effectively carry out s.

 7  427.806.

 8         (b)  Conduct sensitivity training for the department's

 9  staff as it relates to assistive technology to ensure

10  effective recording of complaints relating to assistive

11  technology.

12         (c)  Assist in the design and strategy of a consumer

13  education program to educate consumers of assistive technology

14  devices and assistive technology device dealers on this act as

15  amended.

16         (18)  In addition to pursuing any other remedy, a

17  consumer may bring an action to recover damages for any injury

18  caused by a violation of this part. The court shall award a

19  consumer who prevails in such an action twice the amount of

20  any pecuniary loss, together with costs, disbursements, and

21  reasonable attorney's fees, and any equitable relief that the

22  court determines is appropriate.

23         (19)  An assistive technology device dealer that is

24  required to be registered under this act must keep and

25  maintain records relating to each sale or lease of assistive

26  technology devices for a period of 2 years.

27         (20)  The department may, at any time during business

28  hours, enter any business location of an assistive technology

29  device dealer that is required to be registered under this act

30  and examine the books and records of the assistive technology

31  device dealer.

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    Amendment No.    





 1         (21)  The department may adopt rules in accordance with

 2  chapter 120 to implement this part.

 3         Section 20.  There is appropriated from the General

 4  Inspection Trust Fund of the Department of Agriculture and

 5  Consumer Services for Fiscal Year 1999-2000 the sum of

 6  $450,000 for six full-time equivalent positions to administer

 7  this act. This section takes effect July 1, 1999.

 8

 9  (Redesignate subsequent sections.)

10

11

12  ================ T I T L E   A M E N D M E N T ===============

13  And the title is amended as follows:

14         On page 3, line 8, following the semicolon

15

16  insert:

17         amending s. 427.802, F.S.; providing

18         definitions; amending s. 427.803, F.S.;

19         requiring the manufacturer to make repairs

20         necessary to conform the device to the

21         warranty; providing notice of the dealer's and

22         manufacturer's address and telephone number;

23         providing procedures for filing claims;

24         amending s. 427.804, F.S.; allowing consumers

25         to submit disputes to the Department of

26         Agriculture and Consumer Services; authorizing

27         the department to investigate complaints;

28         creating s. 427.8041, F.S.; providing for

29         registration of dealers, for fees, and for

30         application procedures; providing grounds for

31         refusal or denial of registration; requiring

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1712

    Amendment No.    





 1         dealers to allow department personnel to enter

 2         their places of business; authorizing the

 3         department to impose penalties; authorizing the

 4         department or the state attorney to bring civil

 5         actions for violations of the act; providing

 6         for fees and fines collected to be deposited

 7         into the General Inspection Trust Fund;

 8         authorizing dealers to collect a fee from the

 9         consumer at the time of sale or lease of a

10         device; allowing consumers to bring a civil

11         action for violation of the act; requiring

12         recordkeeping and retention of records;

13         providing for rulemaking; providing an

14         appropriation;

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