Senate Bill 1712c1

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    Florida Senate - 1999                           CS for SB 1712

    By the Committee on Regulated Industries and Senator Meek





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  1                      A bill to be entitled

  2         An act relating to consumer protection;

  3         amending s. 496.404, F.S.; revising

  4         definitions; amending s. 496.405, F.S.;

  5         providing additional information to be included

  6         within initial registration statements for

  7         charitable organizations and sponsors;

  8         prohibiting an employee of a charitable

  9         organization or sponsor from soliciting

10         contributions on behalf of the charitable

11         organization or sponsor under specified

12         conditions; amending s. 496.409, F.S.; revising

13         and providing additional information to be

14         included within application for registration or

15         renewal of registration as a professional

16         fundraising consultant; prohibiting a person

17         from acting as a professional fundraising

18         consultant under specified circumstances;

19         amending s. 496.410, F.S.; revising and

20         providing additional information to be included

21         within application for registration or renewal

22         of registration as a professional solicitor;

23         revising provisions that prohibit a person from

24         acting as a professional solicitor; amending s.

25         496.420, F.S.; revising provisions relating to

26         civil remedies and enforcement; amending s.

27         501.025, F.S.; clarifying provisions relating

28         to home solicitation sale and buyer's right to

29         cancel; amending ss. 501.604, 501.616, F.S.;

30         prohibiting certain telephone calls by a

31         commercial telephone seller or salesperson;

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  1         amending s. 539.001, F.S.; revising license

  2         requirements under the Florida Pawnbroking Act;

  3         revising conditions of eligibility for license;

  4         requiring specified persons to file certain

  5         documentation upon application for license;

  6         requiring the submission of fingerprints with

  7         each initial application for licensure;

  8         requiring the Division of Consumer Services to

  9         submit fingerprints of each applicant for

10         licensure to the Florida Department of Law

11         Enforcement; requiring the Florida Department

12         of Law Enforcement to forward the fingerprints

13         to the Federal Bureau of Investigation;

14         providing an additional condition under which a

15         pawnbroker license may be suspended or revoked;

16         amending s. 559.803, F.S.; revising provisions

17         relating to required information contained in

18         disclosure statements with respect to the sale

19         or lease of business opportunities; amending s.

20         559.805, F.S.; requiring a seller of business

21         opportunities to file additional information

22         with the department; reenacting s. 559.815,

23         F.S.; providing a penalty; amending s. 559.903,

24         F.S.; revising the definition of "motor

25         vehicle" for the purposes of pt. IX of ch. 559,

26         F.S., relating to repair of motor vehicles;

27         amending s. 559.904, F.S.; requiring the

28         department to post a specified sign at any

29         motor vehicle repair shop that has had its

30         registration suspended or revoked or that has

31         been determined to be operating without a

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  1         registration; providing a second-degree

  2         misdemeanor penalty for defacing or removing

  3         such a sign, for operating without a

  4         registration, or for operating with a revoked

  5         or suspended registration; authorizing the

  6         department to impose administrative sanctions;

  7         amending s. 741.0305, F.S.; conforming a

  8         cross-reference; providing an effective date.

  9

10  Be It Enacted by the Legislature of the State of Florida:

11

12         Section 1.  Subsections (5) and (6) of section 496.404,

13  Florida Statutes, 1998 Supplement, are amended, present

14  subsection (21) is renumbered as subsection (20) and amended,

15  and subsections (7) through (24) are renumbered as subsections

16  (6) through (23), respectively, to read:

17         496.404  Definitions.--As used in ss. 496.401-496.424:

18         (5)  "Contribution" means the promise, pledge, or grant

19  of any money or property, financial assistance, or any other

20  thing of value in response to a solicitation. "Contribution"

21  includes, in the case of a charitable organization or sponsor

22  offering goods and services to the public, the difference

23  between the direct cost of the goods and services to the

24  charitable organization or sponsor and the price at which the

25  charitable organization or sponsor or any person acting on

26  behalf of the charitable organization or sponsor resells those

27  goods or services to the public. "Contribution" does not

28  include bona fide fees, dues, or assessments paid by members,

29  provided that membership is not conferred solely as

30  consideration for making a contribution in response to a

31  solicitation. "Contribution" also does not include funds

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  1  obtained by a charitable organization or sponsor pursuant to

  2  government grants or contracts, or obtained as an allocation

  3  from a United Way organization that is duly registered with

  4  the department or received from an organization that is exempt

  5  from federal income taxation under s. 501(a) of the Internal

  6  Revenue Code and described in s. 501(c) of the Internal

  7  Revenue Code and that is duly registered with the department.

  8         (6)  "Conviction" means a determination of guilt

  9  resulting from plea or trial, regardless of whether

10  adjudication was withheld or imposition of sentence was

11  suspended.

12         (20)(21)  "Solicitation" means a request, directly or

13  indirectly, for money, property, financial assistance, or any

14  other thing of value on the plea or representation that such

15  money, property, financial assistance, or other thing of value

16  or a portion of it will be used for a charitable or sponsor

17  purpose or will benefit a charitable organization or sponsor.

18  "Solicitation" includes, but is not limited to, the following

19  methods of requesting or securing the promise, pledge, or

20  grant of money, property, financial assistance, or any other

21  thing of value:

22         (a)  Any oral or written request;

23         (b)  Making any announcement to the press, on radio or

24  television, by telephone or telegraph, or by any other

25  communication device concerning an appeal or campaign by or

26  for any charitable organization or sponsor or for any

27  charitable or sponsor purpose;

28         (c)  Distributing, circulating, posting, or publishing

29  any handbill, written advertisement, or other publication that

30  directly or by implication seeks to obtain any contribution;

31  or

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  1         (d)  Selling or offering or attempting to sell any

  2  advertisement, advertising space, book, card, coupon, chance,

  3  device, magazine, membership, merchandise, subscription,

  4  sponsorship, flower, admission, ticket, food, or other service

  5  or tangible good, item, or thing of value, or any right of any

  6  description in connection with which any appeal is made for

  7  any charitable organization or sponsor or charitable or

  8  sponsor purpose, or when the name of any charitable

  9  organization or sponsor is used or referred to in any such

10  appeal as an inducement or reason for making the sale or when,

11  in connection with the sale or offer or attempt to sell, any

12  statement is made that all or part of the proceeds from the

13  sale will be used for any charitable or sponsor purpose or

14  will benefit any charitable organization or sponsor.

15

16  A solicitation is considered as having taken place whether or

17  not the person making the solicitation receives any

18  contribution. A solicitation does not occur when a person

19  applies for a grant or an award to the government or to an

20  organization that is exempt from federal income taxation under

21  s. 501(a) of the Internal Revenue Code and described in s.

22  501(c) of the Internal Revenue Code and that is duly

23  registered with the department.

24         Section 2.  Paragraph (d) of subsection (2) of section

25  496.405, Florida Statutes, 1998 Supplement, is amended, and

26  subsection (8) is added to that section, to read:

27         496.405  Registration statements by charitable

28  organizations and sponsors.--

29         (2)  The initial registration statement must be

30  submitted on a form prescribed by the department, signed under

31  oath by the treasurer or chief fiscal officer of the

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  1  charitable organization or sponsor, and include the following

  2  information or material:

  3         (d)  A statement of whether:

  4         1.  The charitable organization or sponsor is

  5  authorized by any other state to solicit contributions;

  6         2.  The charitable organization or sponsor or any of

  7  its officers, directors, trustees, or principal salaried

  8  executive personnel have been enjoined in any jurisdiction

  9  from soliciting contributions or have been found to have

10  engaged in unlawful practices in the solicitation of

11  contributions or administration of charitable assets;

12         3.  The charitable organization or sponsor has had its

13  registration or authority denied, suspended, or revoked by any

14  governmental agency, together with the reasons for such

15  denial, suspension, or revocation; and

16         4.  The charitable organization or sponsor has

17  voluntarily entered into an assurance of voluntary compliance

18  or agreement similar to that set forth in s. 496.420, together

19  with a copy of that agreement.

20         5.  The charitable organization or sponsor or any of

21  its officers, directors, trustees, or principal salaried

22  executive personnel, regardless of adjudication, has been

23  convicted of, or found guilty of, or pled guilty or nolo

24  contendere to, or has been incarcerated within the last 10

25  years as a result of having previously been convicted of, or

26  found guilty of, or pled guilty or nolo contendere to, any

27  felony or any crime involving fraud, theft, larceny,

28  embezzlement, fraudulent conversion, misappropriation of

29  property, or any crime arising from the conduct of a

30  solicitation for a charitable organization or sponsor within

31  the last 10 years and, if so, the name of such person, the

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  1  nature of the offense, the date of the offense, the court

  2  having jurisdiction in the case, the date of conviction or

  3  other disposition, and the disposition of the offense.

  4         6.  The charitable organization or sponsor or any of

  5  its officers, directors, trustees, or principal salaried

  6  executive personnel has been enjoined from violating any law

  7  relating to a charitable solicitation, and, if so, the name of

  8  such person, the date of the injunction, and the court issuing

  9  the injunction.

10         (8)  No employee of a charitable organization or

11  sponsor may solicit contributions on behalf of such charitable

12  organization or sponsor if such employee has, regardless of

13  adjudication, been convicted of, or found guilty of, or pled

14  guilty or nolo contendere to, or has been incarcerated within

15  the last 10 years as a result of having previously been

16  convicted of, or found guilty of, or pled guilty or nolo

17  contendere to, any felony within the last 10 years or any

18  crime within the last 10 years involving fraud, theft,

19  larceny, embezzlement, fraudulent conversion, misappropriation

20  of property, or any crime arising from the conduct of a

21  solicitation for a charitable organization or sponsor, or has

22  been enjoined from violating any law relating to a charitable

23  solicitation.

24         Section 3.  Subsection (2) of section 496.409, Florida

25  Statutes, is amended, and subsection (9) is added to that

26  section, to read:

27         496.409  Registration and duties of professional

28  fundraising consultant.--

29         (2)  Applications for registration or renewal of

30  registration must be submitted on a form prescribed by the

31

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  1  department, signed under oath, and must include the following

  2  information:

  3         (a)  The street address and telephone number of the

  4  principal place of business of the applicant and any Florida

  5  street addresses if the principal place of business is located

  6  outside this state.

  7         (b)  The form of the applicant's business.

  8         (c)  The names and residence addresses of all

  9  principals of the applicant, including all officers,

10  directors, and owners.

11         (d)  Whether any of the owners, directors, officers, or

12  employees of the applicant are related as parent, child,

13  spouse, or sibling to any other directors, officers, owners,

14  or employees of the applicant; to any officer, director,

15  trustee, or employee of any charitable organization or sponsor

16  under contract to the applicant; or to any supplier or vendor

17  providing goods or services to any charitable organization or

18  sponsor under contract to the applicant.

19         (e)  Whether the applicant or any of its officers,

20  directors, trustees, or principal salaried employees have,

21  within the last 10 5 years, regardless of adjudication, been

22  convicted of, or found guilty of, or pled guilty or nolo

23  contendere to, or have been incarcerated within the last 10

24  years as a result of having previously been convicted of, or

25  found guilty of, or pled guilty or nolo contendere to, any

26  felony and, if so, the name of such person, the nature of the

27  offense, the date of the offense, the court having

28  jurisdiction in the case, the date of conviction or other

29  disposition, and the disposition of the offense of any felony,

30  or of any misdemeanor arising from the conduct of a

31  solicitation for a charitable organization or sponsor or

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  1  charitable or sponsor purpose, or been enjoined from violating

  2  a charitable solicitation law in this or any other state.

  3         (f)  Whether the applicant or any of its officers,

  4  directors, trustees, or principal salaried employees have,

  5  regardless of adjudication, been convicted of, or found guilty

  6  of, or pled guilty or nolo contendere to, or have been

  7  incarcerated within the last 10 years as a result of having

  8  previously been convicted of, or found guilty of, or pled

  9  guilty or nolo contendere to, a crime within the last 10 years

10  involving fraud, theft, larceny, embezzlement, fraudulent

11  conversion, or misappropriation of property, or any crime

12  arising from the conduct of a solicitation for a charitable

13  organization or sponsor and, if so, the name of such person,

14  the nature of the offense, the date of the offense, the court

15  having jurisdiction in the case, the date of conviction or

16  other disposition, and the disposition of the offense.

17         (g)  Whether the applicant or any of its officers,

18  directors, trustees, or principal salaried employees have been

19  enjoined from violating any law relating to a charitable

20  solicitation and, if so, the name of such person, the date of

21  the injunction, and the court issuing the injunction.

22         (9)  No person may act as a professional fundraising

23  consultant if such person or any officer, trustee, director,

24  or principal salaried employee thereof has, regardless of

25  adjudication, been convicted of, or found guilty of, or pled

26  guilty or nolo contendere to, or has been incarcerated within

27  the last 10 years as a result of having previously been

28  convicted of, or found guilty of, or pled guilty or nolo

29  contendere to, any crime within the last 10 years involving

30  fraud, theft, larceny, embezzlement, fraudulent conversion, or

31  misappropriation of property, or any crime arising from the

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  1  conduct of a solicitation for a charitable organization or

  2  sponsor, or has been enjoined from violating any law relating

  3  to a charitable solicitation.

  4         Section 4.  Subsections (2) and (14) of section

  5  496.410, Florida Statutes, are amended to read:

  6         496.410  Registration and duties of professional

  7  solicitors.--

  8         (2)  Applications for registration or renewal of

  9  registration must be submitted on a form prescribed by rule of

10  the department, signed under oath, and must include the

11  following information:

12         (a)  The street address and telephone number of the

13  principal place of business of the applicant and any Florida

14  street addresses if the principal place of business is located

15  outside this state.

16         (b)  The form of the applicant's business.

17         (c)  The place and date when the applicant, if other

18  than an individual, was legally established.

19         (d)  The names and residence addresses of all

20  principals of the applicant, including all officers,

21  directors, and owners.

22         (e)  A statement as to whether any of the owners,

23  directors, officers, or employees of the applicant are related

24  as parent, spouse, child, or sibling to any other directors,

25  officers, owners, or employees of the applicant; to any

26  officer, director, trustee, or employee of any charitable

27  organization or sponsor under contract to the applicant; or to

28  any supplier or vendor providing goods or services to any

29  charitable organization or sponsor under contract to the

30  applicant.

31

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  1         (f)  A statement as to whether the applicant or any of

  2  its directors, officers, trustees, persons with a controlling

  3  interest in the applicant, or employees or agents involved in

  4  solicitation have been convicted, within the last 10 5 years,

  5  regardless of adjudication, been convicted of, or found guilty

  6  of, or pled guilty or nolo contendere to, or have been

  7  incarcerated within the last 10 years as a result of having

  8  previously been convicted of, or found guilty of, or pled

  9  guilty or nolo contendere to, any felony and, if so, the name

10  of such person, the nature of the offense, the date of the

11  offense, the court having jurisdiction in the case, the date

12  of conviction or other disposition, and the disposition of the

13  offense of any felony, or of a misdemeanor arising from the

14  conduct of a solicitation for any charitable organization or

15  sponsor or charitable or sponsor purpose, or been enjoined

16  from violating a charitable solicitation law in this or any

17  other state.

18         (g)  A statement as to whether the applicant or any of

19  its directors, officers, trustees, persons with a controlling

20  interest in the applicant, or employees or agents involved in

21  solicitation have, regardless of adjudication, been convicted

22  of, or found guilty of, or pled guilty or nolo contendere to,

23  or have been incarcerated within the last 10 years as a result

24  of having previously been convicted of, or found guilty of, or

25  pled guilty or nolo contendere to, a crime within the last 10

26  years involving fraud, theft, larceny, embezzlement,

27  fraudulent conversion, or misappropriation of property, or any

28  crime arising from the conduct of a solicitation for a

29  charitable organization or sponsor and, if so, the name of

30  such person, the nature of the offense, the date of the

31  offense, the court having jurisdiction in the case, the date

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  1  of conviction or other disposition, and the disposition of the

  2  offense.

  3         (h)  A statement as to whether the applicant or any of

  4  its directors, officers, trustees, persons with a controlling

  5  interest in the applicant, or employees or agents involved in

  6  solicitation have been enjoined from violating any law

  7  relating to a charitable solicitation and, if so, the name of

  8  such person, the date of the injunction, and the court issuing

  9  the injunction.

10         (i)(g)  The names of all persons in charge of any

11  solicitation activity.

12         (14)  No person may act as a professional solicitor if

13  such person, any officer, trustee, or director thereof, any

14  person with a controlling interest therein, or any person the

15  professional solicitor employs, engages, or procures to

16  solicit for compensation, has, regardless of adjudication,

17  been convicted of, or found guilty of, or pled guilty or nolo

18  contendere to, or has been incarcerated within the last 10

19  years as a result of having previously been convicted of, or

20  found guilty of, or pled guilty or nolo contendere to, a

21  felony within the last 10 years involving fraud, theft,

22  larceny, embezzlement, fraudulent conversion, or

23  misappropriation of property, or any crime arising from the

24  conduct of a solicitation for a charitable organization or

25  sponsor, or has been enjoined from violating any law relating

26  to a charitable solicitation been convicted in the last 5

27  years by a court in any state of the United States of a crime

28  arising from the conduct of a solicitation for a charitable

29  organization or sponsor or a charitable purpose or sponsor

30  purpose.

31

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  1         Section 5.  Section 496.420, Florida Statutes, is

  2  amended to read:

  3         496.420  Civil remedies and enforcement.--

  4         (1)  In addition to other remedies authorized by law,

  5  the department of Legal Affairs may bring a civil action in

  6  circuit court to enforce ss. 496.401-496.424 or s. 496.426.

  7  Upon a finding that any person has violated any of these

  8  sections, a court may make any necessary order or enter a

  9  judgment including, but not limited to, a temporary or

10  permanent injunction, a declaratory judgment, the appointment

11  of a master or receiver, the sequestration of assets, the

12  reimbursement of persons from whom contributions have been

13  unlawfully solicited, the distribution of contributions in

14  accordance with the charitable or sponsor purpose expressed in

15  the registration statement or in accordance with the

16  representations made to the person solicited, the

17  reimbursement of the department for investigative costs, and

18  of the Department of Legal Affairs for attorney's fees and

19  costs, including investigative costs, and any other equitable

20  relief the court finds appropriate. Upon a finding that any

21  person has violated any provision of ss. 496.401-496.424 or s.

22  496.426 with actual knowledge or knowledge fairly implied on

23  the basis of objective circumstances, a court may enter an

24  order imposing a civil penalty in an amount not to exceed

25  $10,000 per violation.

26         (2)  The department of Legal Affairs may conduct any

27  investigation necessary to bring a civil action under this

28  section including, but not limited to, administering oaths and

29  affirmations, subpoenaing witnesses or material, and

30  collecting evidence.

31

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  1         (3)  The department of Legal Affairs may terminate an

  2  investigation or an action upon acceptance of a person's

  3  written assurance of voluntary compliance with ss.

  4  496.401-496.424 or s. 496.426. Acceptance of an assurance may

  5  be conditioned on commitment to reimburse donors or to take

  6  other appropriate corrective action. An assurance is not

  7  evidence of a prior violation of any of these sections.

  8  However, unless an assurance has been rescinded by agreement

  9  of the parties or voided by a court for good cause, subsequent

10  failure to comply with the terms of an assurance is prima

11  facie evidence of a violation of one or more of these

12  sections.

13         (4)  All moneys, including, but not limited to, civil

14  penalties and attorney's fees and costs, collected pursuant to

15  this section and s. 496.416, shall be paid into the General

16  Inspection Consumer Frauds Trust Fund.

17         Section 6.  501.025, Florida Statutes, is amended to

18  read:

19         501.025  Home solicitation sale; buyer's right to

20  cancel.--In addition to any other right to revoke an offer,

21  the buyer has the right to cancel a home solicitation sale

22  until midnight of the third business day after the day on

23  which the buyer signs an agreement or offer to purchase.

24  Cancellation is evidenced by the buyer giving written notice

25  of cancellation in person, by telegram, or by mail to the

26  seller at the address stated in the agreement or offer to

27  purchase.  The written notice of cancellation given by mail

28  shall be effective upon postmarking. The notice of

29  cancellation need not take a particular form and is sufficient

30  if it indicates by any form of written expression the

31  intention of the buyer not to be bound by the home

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  1  solicitation sale.  Notice of a buyer's right to cancel must

  2  appear on every note or other evidence of indebtedness given

  3  pursuant to any home solicitation sale. For the purposes of

  4  this section, unless a mortgage also creates the buyer's

  5  promise to pay the secured debt, it is not an evidence of

  6  indebtedness.

  7         Section 7.  Section 501.604, Florida Statutes, is

  8  amended to read:

  9         501.604  Exemptions.--The provisions of this part,

10  except s. 501.608 and s. 501.616(6) and (7), do not apply to:

11         (1)  A person engaging in commercial telephone

12  solicitation where the solicitation is an isolated transaction

13  and not done in the course of a pattern of repeated

14  transactions of like nature.

15         (2)  A person soliciting for religious, charitable,

16  political, or educational purposes.  A person soliciting for

17  other noncommercial purposes is exempt only if that person is

18  soliciting for a nonprofit corporation and if that corporation

19  is properly registered as such with the Secretary of State and

20  is included within the exemption of s. 501(c)(3) or (6) of the

21  Internal Revenue Code.

22         (3)  A person who does not make the major sales

23  presentation during the telephone solicitation and who does

24  not intend to, and does not actually, complete or obtain

25  provisional acceptance of a sale during the telephone

26  solicitation, but who makes the major sales presentation and

27  completes the sale at a later face-to-face meeting between the

28  seller and the prospective purchaser in accordance with the

29  home solicitation provisions in this chapter. However, if a

30  seller, directly following a telephone solicitation, causes an

31  individual whose primary purpose it is to go to the

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  1  prospective purchaser to collect the payment or deliver any

  2  item purchased, this exemption does not apply.

  3         (4)  Any licensed securities, commodities, or

  4  investment broker, dealer, or investment adviser, when

  5  soliciting within the scope of his or her license, or any

  6  licensed associated person of a securities, commodities, or

  7  investment broker, dealer, or investment adviser, when

  8  soliciting within the scope of his or her license.  As used in

  9  this section, "licensed securities, commodities, or investment

10  broker, dealer, or investment adviser" means a person subject

11  to license or registration as such by the Securities and

12  Exchange Commission, by the National Association of Securities

13  Dealers or other self-regulatory organization as defined by

14  the Securities Exchange Act of 1934, 15 U.S.C. s. 78l, or by

15  an official or agency of this state or of any state of the

16  United States.  As used in this section, "licensed associated

17  person of a securities, commodities, or investment broker,

18  dealer, or investment adviser" means any associated person

19  registered or licensed by the National Association of

20  Securities Dealers or other self-regulatory organization as

21  defined by the Securities Exchange Act of 1934, 15 U.S.C. s.

22  78l, or by an official or agency of this state or of any state

23  of the United States.

24         (5)  A person primarily soliciting the sale of a

25  newspaper of general circulation.

26         (6)  A book, video, or record club or contractual plan

27  or arrangement:

28         (a)  Under which the seller provides the consumer with

29  a form which the consumer may use to instruct the seller not

30  to ship the offered merchandise.

31

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  1         (b)  Which is regulated by the Federal Trade Commission

  2  trade regulation concerning "use of negative option plans by

  3  sellers in commerce."

  4         (c)  Which provides for the sale of books, records, or

  5  videos which are not covered under paragraph (a) or paragraph

  6  (b), including continuity plans, subscription arrangements,

  7  standing order arrangements, supplements, and series

  8  arrangements under which the seller periodically ships

  9  merchandise to a consumer who has consented in advance to

10  receive such merchandise on a periodic basis.

11         (7)  Any supervised financial institution or parent,

12  subsidiary, or affiliate thereof. As used in this section,

13  "supervised financial institution" means any commercial bank,

14  trust company, savings and loan association, mutual savings

15  bank, credit union, industrial loan company, consumer finance

16  lender, commercial finance lender, or insurer, provided that

17  the institution is subject to supervision by an official or

18  agency of this state, of any state, or of the United States.

19  For the purposes of this exemption, "affiliate" means a person

20  who directly, or indirectly through one or more

21  intermediaries, controls or is controlled by, or is under

22  common control with, a supervised financial institution.

23         (8)  Any licensed insurance broker, agent, customer

24  representative, or solicitor when soliciting within the scope

25  of his or her license. As used in this section, "licensed

26  insurance broker, agent, customer representative, or

27  solicitor" means any insurance broker, agent, customer

28  representative, or solicitor licensed by an official or agency

29  of this state or of any state of the United States.

30

31

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  1         (9)  A person soliciting the sale of services provided

  2  by a cable television system operating under authority of a

  3  franchise or permit.

  4         (10)  A business-to-business sale where:

  5         (a)  The commercial telephone seller has been operating

  6  continuously for at least 3 years under the same business name

  7  and has at least 50 percent of its dollar volume consisting of

  8  repeat sales to existing businesses;

  9         (b)  The purchaser business intends to resell or offer

10  for purposes of advertisement or as a promotional item the

11  property or goods purchased; or

12         (c)  The purchaser business intends to use the property

13  or goods purchased in a recycling, reuse, remanufacturing, or

14  manufacturing process.

15         (11)  A person who solicits sales by periodically

16  publishing and delivering a catalog of the seller's

17  merchandise to prospective purchasers, if the catalog:

18         (a)  Contains a written description or illustration of

19  each item offered for sale.

20         (b)  Includes the business address or home office

21  address of the seller.

22         (c)  Includes at least 20 pages of written material and

23  illustrations and is distributed in more than one state.

24         (d)  Has an annual circulation by mailing of not less

25  than 150,000.

26         (12)  A person who solicits contracts for the

27  maintenance or repair of goods previously purchased from the

28  person making the solicitation or on whose behalf the

29  solicitation is made.

30         (13)  A commercial telephone seller licensed pursuant

31  to chapter 516 or part II of chapter 520. For purposes of this

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  1  exemption, the seller must solicit to sell a consumer good or

  2  service within the scope of his or her license and the

  3  completed transaction must be subject to the provisions of

  4  chapter 516 or part II of chapter 520.

  5         (14)  A telephone company subject to the provisions of

  6  chapter 364, or affiliate thereof or its agents, or a business

  7  which is regulated by the Florida Public Service Commission,

  8  or a Federal Communications Commission licensed cellular

  9  telephone company or other bona fide radio telecommunication

10  services provider. For the purposes of this exemption,

11  "affiliate" means a person who directly, or indirectly through

12  one or more intermediaries, controls or is controlled by, or

13  is under common control with, a telephone company subject to

14  the provisions of chapter 364.

15         (15)  A person who is licensed pursuant to chapter 470

16  or chapter 497 and who is soliciting within the scope of the

17  license.

18         (16)  An issuer or a subsidiary of an issuer that has a

19  class of securities which is subject to s. 12 of the

20  Securities Exchange Act of 1934, 15 U.S.C. s. 78l, and which

21  is either registered or exempt from registration under

22  paragraph (A), paragraph (B), paragraph (C), paragraph (E),

23  paragraph (F), paragraph (G), or paragraph (H) of subsection

24  (g)(2) of that section.

25         (17)  A business soliciting exclusively the sale of

26  telephone answering services provided that the telephone

27  answering services will be supplied by the solicitor.

28         (18)  A person soliciting a transaction regulated by

29  the Commodity Futures Trading Commission if the person is

30  registered or temporarily licensed for this activity with the

31  Commodity Futures Trading Commission under the Commodity

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  1  Exchange Act, 7 U.S.C. ss. 1 et seq., and the registration or

  2  license has not expired or been suspended or revoked.

  3         (19)  A person soliciting the sale of food or produce

  4  as defined in chapter 500 or chapter 504 if the solicitation

  5  neither intends to result in, or actually results in, a sale

  6  which costs the purchaser in excess of $500.

  7         (20)  A person who is registered pursuant to part XI of

  8  chapter 559 and who is soliciting within the scope of the

  9  registration.

10         (21)  A person soliciting business from prospective

11  consumers who have an existing business relationship with or

12  who have previously purchased from the business enterprise for

13  which the solicitor is calling, if the solicitor is operating

14  under the same exact business name.

15         (22)  A person who has been operating, for at least 1

16  year, a retail business establishment under the same name as

17  that used in connection with telemarketing, and both of the

18  following occur on a continuing basis:

19         (a)  Either products are displayed and offered for sale

20  or services are offered for sale and provided at the business

21  establishment.

22         (b)  A majority of the seller's business involves the

23  buyer obtaining such products or services at the seller's

24  location.

25         (23)  A person who is a registered developer or

26  exchange company pursuant to chapter 721 and who is soliciting

27  within the scope of the chapter.

28         (24)  Any person which has been providing telemarketing

29  sales services continuously for at least 5 years under the

30  same ownership and control and which derives 75 percent of its

31

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  1  gross telemarketing sales revenues from contracts with persons

  2  exempted in this section.

  3         (25)  A person who is a licensed real estate

  4  salesperson or broker pursuant to chapter 475 and who is

  5  soliciting within the scope of the chapter.

  6         (26)  A publisher, or an agent of a publisher by

  7  written agreement, who solicits the sale of his or her

  8  periodical or magazine of general, paid circulation.  The term

  9  "paid circulation" shall not include magazines that are only

10  circulated as part of a membership package or that are given

11  as a free gift or prize from the publisher or agent of the

12  publisher by written agreement.

13         (27)  A person who is a licensed operator or an

14  identification cardholder as defined in chapter 482, and who

15  is soliciting within the scope of the chapter.

16         (28)  A licensee, or an affiliate of a licensee,

17  regulated under chapter 560, the Money Transmitters' Code, for

18  foreign currency exchange services.

19         Section 8.  Subsections (6) and (7) are added to

20  section 501.616, Florida Statutes, to read:

21         501.616  Unlawful acts and practices.--

22         (6)  It is unlawful for any commercial telephone seller

23  or salesperson to make a commercial telephone solicitation

24  phone call before 8 a.m. or after 9 p.m. local time at the

25  called person's location.

26         (7)  It is unlawful for any commercial telephone seller

27  or salesperson making telephonic solicitations to take any

28  intentional action to prevent transmission of the telephone

29  solicitor's name or telephone number to the party called when

30  the equipment or service used by the telephone solicitor is

31

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  1  capable of creating and transmitting the telephone solicitor's

  2  name or telephone number.

  3         Section 9.  Paragraph (c) of subsection (3), subsection

  4  (4), paragraph (c) of subsection (5), and paragraph (a) of

  5  subsection (6), and subsection (17) of section 539.001,

  6  Florida Statutes, are amended to read:

  7         539.001  The Florida Pawnbroking Act.--

  8         (3)  LICENSE REQUIRED.--

  9         (c)  Each license is valid for a period of 1 year

10  unless remains in effect until it is earlier relinquished,

11  suspended, or revoked, or expires. Each license shall be

12  renewed annually, and each licensee shall, initially and

13  annually thereafter, pay to the agency a license fee of not to

14  exceed $300 for each license held. If the annual license fee

15  remains unpaid 30 days after written notice of delinquency has

16  been given to the licensee by the agency, the license shall

17  thereupon expire on the expiration date specified in the

18  registration certificate.

19         (4)  ELIGIBILITY FOR LICENSE.--

20         (a)  To be eligible for a pawnbroker's license, an

21  applicant must:

22         1.  Be of good moral character;

23         2.  Have a net worth of at least $50,000 or file with

24  the agency a bond issued by a surety company qualified to do

25  business in this state in the amount of $10,000 for each

26  license. In lieu of the bond required in this section, the

27  applicant may establish a certificate of deposit or an

28  irrevocable letter of credit in a Florida banking institution

29  in the amount of the bond. The original bond, certificate of

30  deposit, or letter of credit shall be filed with the agency,

31  and the agency shall be the beneficiary to said document. The

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  1  bond, certificate of deposit, or letter of credit shall be in

  2  favor of the agency for the use and benefit of any consumer

  3  who is injured by the fraud, misrepresentation, breach of

  4  contract, financial failure, or violation of any provision of

  5  this section by the pawnbroker. Such liability may be enforced

  6  either by proceeding in an administrative action or by filing

  7  a judicial suit at law in a court of competent jurisdiction.

  8  However, in such court suit, the bond, certificate of deposit,

  9  or letter of credit posted with the agency shall not be

10  amenable or subject to any judgment or other legal process

11  issuing out of or from such court in connection with such

12  lawsuit, but such bond, certificate of deposit, or letter of

13  credit shall be amenable to and enforceable only by and

14  through administrative proceedings before the agency. It is

15  the intent of the Legislature that such bond, certificate of

16  deposit, or letter of credit shall be applicable and liable

17  only for the payment of claims duly adjudicated by order of

18  the agency. The bond, certificate of deposit, or letter of

19  credit shall be payable on a pro rata basis as determined by

20  the agency, but the aggregate amount may not exceed the amount

21  of the bond, certificate of deposit, or letter of credit;

22         3.  Not have been convicted of, or found guilty of, or

23  pled guilty or nolo contendere to, regardless of adjudication,

24  a felony within the last 10 years, or not have been

25  incarcerated within the last 10 years as a result of having

26  previously been convicted of, or found guilty of, or pled

27  guilty or nolo contendere to a felony, and not be acting as a

28  beneficial owner for someone who has been convicted of, or

29  found guilty of, or pled guilty or nolo contendere to,

30  regardless of adjudication, a felony within the last 10 years;

31  and

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  1         4.  Not have been convicted of, or found guilty of, or

  2  pled guilty or nolo contendere to, or not have been

  3  incarcerated within the last 10 years as a result of having

  4  previously been convicted of, or found guilty of, or pled

  5  guilty or nolo contendere to, regardless of adjudication, a

  6  crime involving theft, larceny, dealing in stolen property,

  7  receiving stolen property, burglary, embezzlement, obtaining

  8  property by false pretenses, possession of altered property,

  9  or any other fraudulent or dishonest dealing that the agency

10  finds directly relates to the duties and responsibilities of a

11  pawnbroker within the last 10 years, and not be acting as a

12  beneficial owner for someone who has been convicted, of, or

13  found guilty of, or pled guilty or nolo contendere to, or has

14  been incarcerated within the last 10 years as a result of

15  having previously been convicted of, or found guilty of, or

16  pled guilty or nolo contendere to, regardless of adjudication,

17  a crime involving theft, larceny, dealing in stolen property,

18  receiving stolen property, burglary, embezzlement, obtaining

19  property by false pretenses, possession of altered property,

20  or any other fraudulent or dishonest dealing that the agency

21  finds directly relates to the duties and responsibilities of a

22  pawnbroker within the last 10 years.

23         (b)  Any applicant claiming to have a net worth of

24  $50,000 or more shall file with the department, at the time of

25  applying for a license, the following documentation:

26         1.  A current financial statement prepared by a Florida

27  certified public accountant; or

28         2.  An affidavit stating that the applicant's net worth

29  is at least $50,000, accompanied by supporting documentation;

30  or

31

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  1         3.  If the applicant is a corporation, a copy of the

  2  applicant's most recently filed federal tax return.

  3

  4  If the agency cannot verify that the applicant meets the net

  5  worth requirement for a license, the agency may require a

  6  finding, including the presentation of a current balance

  7  sheet, by an accounting firm or individual holding a permit to

  8  practice public accounting in this state, that the accountant

  9  has reviewed the books and records of the applicant and that

10  the applicant meets the net worth requirement.

11         (c)  If an applicant for a pawnbroker's license is not

12  an individual, the eligibility requirements of this

13  subsection, other than the requirements of subparagraph (a)2.,

14  apply to each operator of the pawnshop and to each direct or

15  beneficial owner of at least 10 percent of the outstanding

16  equity interest of the pawnshop and, if the applicant is a

17  corporation, to each officer and director of the corporation.

18         (5)  APPLICATION FOR LICENSE.--

19         (c)  Each initial application for a license must be

20  accompanied by a complete set of fingerprints taken by an

21  authorized law enforcement officer, an application fee set by

22  the agency not to exceed $300 for, which shall include the

23  first year's license fee, and for the first year's operation,

24  plus the actual cost to the department for fingerprint

25  analysis for each person subject to the eligibility

26  requirements. The agency shall submit the fingerprints to the

27  Department of Law Enforcement for state processing and the

28  Department of Law Enforcement shall forward the fingerprints

29  to the Federal Bureau of Investigation for a national criminal

30  history check owner application, to cover the costs of

31

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  1  investigating the applicant. These fees and costs are not

  2  refundable.

  3         (6)  SUSPENSION, REVOCATION, AND SURRENDER OF LICENSE;

  4  NET WORTH REQUIREMENT.--

  5         (a)  The agency may, after notice and a hearing,

  6  suspend or revoke any license upon a finding that:

  7         1.  The licensee, either knowingly or without the

  8  exercise of due care, has violated this section or has aided

  9  or conspired with another person to violate this section;

10         2.  A condition exists that, had it existed when the

11  original license was issued, would have justified the agency's

12  refusal to issue a license; or

13         3.  The licensee or its applicable agents or employees

14  who are subject to the eligibility requirements no longer meet

15  the eligibility requirements to hold a pawnbroker's license;

16  or

17         4.3.  The licensee has through gross negligence or

18  willful noncompliance failed to comply with a written hold

19  order.

20         (17)  CRIMINAL PENALTIES.--

21         (a)  Any person who engages in business as a pawnbroker

22  without first securing a license commits a felony of the third

23  degree, punishable as provided in s. 775.082, s. 775.083, or

24  s. 775.084.

25         (b)  In addition to any other penalty, any person, who

26  willfully violates this section or who willfully makes a false

27  entry in any record specifically required by this section

28  commits a misdemeanor of the first degree, punishable as

29  provided in s. 775.082 or s. 775.083. Clerical or

30  recordkeeping errors, such as typographical errors or

31  scrivener errors, regarding any document or record required by

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  1  this section do not constitute a willful violation of this

  2  section, and are not subject to criminal penalties. Clerical

  3  or recordkeeping errors are subject to administrative

  4  remedies, as provided in this section.

  5         Section 10.  Paragraph (a) of subsection (11) of

  6  section 559.803, Florida Statutes, is amended to read:

  7         559.803  Disclosure statement.--At least 3 working days

  8  prior to the time the purchaser signs a business opportunity

  9  contract, or at least 3 working days prior to the receipt of

10  any consideration by the seller, whichever occurs first, the

11  seller must provide the prospective purchaser a written

12  document, the cover sheet of which is entitled in at least

13  12-point boldfaced capital letters "DISCLOSURES REQUIRED BY

14  FLORIDA LAW."  Under this title shall appear the following

15  statement in at least 10-point type:  "The State of Florida

16  has not reviewed and does not approve, recommend, endorse, or

17  sponsor any business opportunity.  The information contained

18  in this disclosure has not been verified by the state.  If you

19  have any questions about this investment, see an attorney

20  before you sign a contract or agreement."  Nothing except the

21  title and required statement shall appear on the cover sheet.

22  Immediately following the cover sheet, the seller must provide

23  an index page that briefly lists the contents of the

24  disclosure document as required in this section and any pages

25  on which the prospective purchaser can find each required

26  disclosure.  At the top of the index page, the following

27  statement must appear in at least 10-point type: "The State of

28  Florida requires sellers of business opportunities to disclose

29  certain information to prospective purchasers.  This index is

30  provided to help you locate this information."  If the index

31  contains other information not required by this section, the

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  1  seller shall place a designation beside each of the

  2  disclosures required by this section and provide an

  3  explanation of the designation at the end of the statement at

  4  the top of the index page.  The disclosure document shall

  5  contain the following information:

  6         (11)  A statement disclosing who, if any, of the

  7  persons listed in subsections (1) and (2):

  8         (a)  Has, at any time during the previous 10 7 fiscal

  9  years, regardless of adjudication, been convicted of, or found

10  guilty of, or pled guilty or nolo contendere to, or has been

11  incarcerated within the last 10 years as a result of having

12  previously been convicted of, or found guilty of, or pled

13  guilty or nolo contendere to, a felony or a crime involving a

14  felony or pleaded nolo contendere to a felony charge if the

15  felony involved fraud, theft, larceny, (including violation of

16  any franchise or business opportunity law or unfair or

17  deceptive practices law), embezzlement, fraudulent conversion,

18  misappropriation of property, or restraint of trade.

19         Section 11.  Present subsections (2), (3), and (4) of

20  section 559.805, Florida Statutes, 1998 Supplement, are

21  renumbered as subsections (3), (4), and (5), respectively, and

22  a new subsection (2) is added to that section to read:

23         559.805  Filings with the department; disclosure of

24  advertisement identification number.--

25         (2)  Every seller of a business opportunity shall file

26  with the department a list of the seller's officers,

27  directors, trustees, general partners, general managers,

28  principal executives, and any other persons charged with the

29  responsibility for the seller's business activities relating

30  to the sale of business opportunities. This list must be kept

31  current and shall include the following information:  name,

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  1  home and business address, telephone number, driver's license

  2  number, the state in which the driver's license is issued, and

  3  birth date.

  4         Section 12.  Section 559.815, Florida Statutes, is

  5  reenacted to read:

  6         559.815  Penalties.--Any person who fails to file with

  7  the department as required by s. 559.805 or who commits an act

  8  described in s. 559.809 is guilty of a felony of the third

  9  degree, punishable as provided in s. 775.082, s. 775.083, or

10  s. 775.084.

11         Section 13.  Subsection (6) of section 559.903, Florida

12  Statutes, is amended to read:

13         559.903  Definitions.--As used in this act:

14         (6)  "Motor vehicle" means any automobile, truck, bus,

15  recreational vehicle, motorcycle, motor scooter, or other

16  motor powered vehicle, but does not include trailers, mobile

17  homes, travel trailers, or trailer coaches without independent

18  motive power, or watercraft or aircraft, or special mobile

19  equipment as defined in s. 316.003(48).

20         Section 14.  Subsection (11) is added to section

21  559.904, Florida Statutes, 1998 Supplement, to read:

22         559.904  Motor vehicle repair shop registration;

23  application; exemption.--

24         (11)  The department shall post a prominent "Closed by

25  Order of the Department" sign on any motor vehicle repair shop

26  that has had its registration suspended or revoked. The

27  department shall also post a sign on any motor vehicle repair

28  shop that has been judicially or administratively determined

29  to be operating without a registration. It is a misdemeanor of

30  the second degree, punishable as provided in s. 775.082 or s.

31  775.083, for any person to deface such sign or remove such

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  1  sign without written authorization by the department or for

  2  any motor vehicle repair shop to open for operation without a

  3  registration or to open for operation as a motor vehicle

  4  repair shop while its registration is suspended or revoked.

  5  The department may impose administrative sanctions provided

  6  for in s. 559.921(4) for violations of this subsection.

  7         Section 15.  Paragraph (a) of subsection (3) of section

  8  741.0305, Florida Statutes, is amended to read:

  9         741.0305  Marriage fee reduction for completion of

10  premarital preparation course.--

11         (3)(a)  All individuals electing to participate in a

12  premarital preparation course shall choose from the following

13  list of qualified instructors:

14         1.  A psychologist licensed under chapter 490.

15         2.  A clinical social worker licensed under chapter

16  491.

17         3.  A marriage and family therapist licensed under

18  chapter 491.

19         4.  A mental health counselor licensed under chapter

20  491.

21         5.  An official representative of a religious

22  institution which is recognized under s. 496.404(19)(20), if

23  the representative has relevant training.

24         6.  Any other provider designated by a judicial

25  circuit, including, but not limited to, school counselors who

26  are certified to offer such courses. Each judicial circuit may

27  establish a roster of area course providers, including those

28  who offer the course on a sliding fee scale or for free.

29         Section 16.  This act shall take effect upon becoming a

30  law.

31

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1712

  3

  4  Amends s. 501.025, F.S., to clarify that a mortgage is not
    evidence of indebtedness and not required to contain language
  5  as a notice of the buyer's right to cancel a home solicitation
    sale, unless it also creates the buyer's promise to pay the
  6  secured debt.

  7  Makes it unlawful for any commercial telephone seller or
    salesperson to take intentional action to prevent transmission
  8  of the telephone solicitor's name or telephone number to the
    party called when the equipment or service used by the
  9  telephone solicitor is capable of creating and transmitting
    the telephone solicitor's name or telephone number.
10
    Provides that clerical or recordkeeping errors regarding any
11  document or record required by the Florida Pawnbroking Act do
    not constitute a willful violation and are not subject to
12  criminal penalties.  Clerical or recordkeeping errors are
    subject to administrative remedies.
13

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