Senate Bill sb1272c2

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    Florida Senate - 2001                    CS for CS for SB 1272

    By the Committees on Health, Aging and Long-Term Care;
    Regulated Industries; and Senators Burt and Crist




    317-1821-01

  1                      A bill to be entitled

  2         An act relating to consumer services; amending

  3         s. 455.228, F.S.; authorizing the Department of

  4         Business and Professional Regulation to seek

  5         restitution in a civil action for an injured

  6         consumer; creating s. 468.90, F.S.; prohibiting

  7         employment agencies and assistance referral

  8         services from charging advance fees and not

  9         providing the promised services; defining

10         terms; providing a criminal penalty; amending

11         s. 484.0512, F.S.; providing a criminal penalty

12         for sellers of hearing aids who fail to make

13         required refunds; defining the terms "seller"

14         and "person selling a hearing aid"; amending s.

15         501.160, F.S.; redefining the term "commodity";

16         prohibiting unconscionable pricing during an

17         ordered evacuation as well as a declared state

18         of emergency; providing an exception to the

19         exemption for government-approved price

20         increases for posted room rates; providing that

21         the prohibition against unconscionable pricing

22         during an emergency or ordered evacuation does

23         not preempt local governments from enacting

24         similar provisions; creating s. 501.162, F.S.;

25         providing a criminal penalty for a violation of

26         s. 501.160, F.S.; amending ss. 817.7005,

27         817.701, 817.702, 817.703, F.S.; prohibiting

28         credit service organizations from accepting

29         money in advance of performing services;

30         revising requirements for surety bonds;

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  1         conforming other provisions to this

  2         prohibition; providing an effective date.

  3

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

  5

  6         Section 1.  Subsection (2) of section 455.228, Florida

  7  Statutes, is amended to read:

  8         455.228  Unlicensed practice of a profession; cease and

  9  desist notice; civil penalty; enforcement; citations;

10  allocation of moneys collected.--

11         (2)  The Legislature finds that consumers often suffer

12  damages as a result of the practices of unlicensed persons

13  whose professions are regulated by the department and that

14  such consumers are not always aware of their right to seek

15  redress in the courts and often do not have resources to hire

16  legal counsel. Therefore, in addition to or in lieu of any

17  remedy provided in subsection (1), the department may seek the

18  imposition of a civil penalty, including restitution, through

19  the circuit court for any violation for which the department

20  may issue a notice to cease and desist under subsection (1).

21  The civil penalty shall be no less than $500 and no more than

22  $5,000 for each offense. The court may also award to the

23  prevailing party court costs and reasonable attorney fees and,

24  in the event the department prevails, may also award

25  reasonable costs of investigation.

26         Section 2.  Section 468.90, Florida Statutes, is

27  created to read:

28         468.90  Employment agencies and assistance referral

29  services.--

30         (1)  INTENT.--It is the purpose of this section to curb

31  abusive business practices by employment agencies or

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  1  assistance referral services which endanger the economic

  2  welfare of the public.

  3         (2)  DEFINITIONS.--As used in this section, the term:

  4         (a)  "Employment agency or assistance referral service"

  5  means an individual, a sole proprietorship, a partnership, a

  6  corporation, or another business entity that, for

  7  compensation, engages in the business of procuring or

  8  attempting to procure employment for an applicant.

  9         (b)  "Applicant" means a person seeking employment

10  through an employment agency or an assistance referral

11  service.

12         (c)  "Advance fee" means money or other valuable

13  consideration, including registration fees and interview fees,

14  which is assessed or collected by any employment agency or

15  assistance referral service prior to an applicant being

16  employed through its efforts.

17         (3)  PROHIBITIONS.--

18         (a)  An employment agency or assistance referral

19  service may not charge, collect, or receive an advance fee

20  from an applicant for any services incidental to securing

21  employment for the applicant until services are actually

22  provided.

23         (b)  An employment agency or assistance referral

24  service may not falsely portray the existence of employment

25  opportunities or falsely guarantee employment or interviews

26  either verbally or in writing.

27         (4)  PENALTY.--A person who violates this section is

28  guilty of a misdemeanor of the first degree, punishable as

29  provided in s. 775.082 or s. 775.083.

30         Section 3.  Section 484.0512, Florida Statutes, is

31  amended to read:

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  1         484.0512  Thirty-day trial period; purchaser's right to

  2  cancel; notice; refund; cancellation fee.--

  3         (1)  A person selling a hearing aid in this state must

  4  provide the buyer with written notice of a 30-day trial period

  5  and money-back guarantee. The guarantee must permit the

  6  purchaser to cancel the purchase for a valid reason as defined

  7  by rule of the board within 30 days after receiving the

  8  hearing aid, by returning the hearing aid or mailing written

  9  notice of cancellation to the seller. If the hearing aid must

10  be repaired, remade, or adjusted during the 30-day trial

11  period, the running of the 30-day trial period is suspended 1

12  day for each 24-hour period that the hearing aid is not in the

13  purchaser's possession. A repaired, remade, or adjusted

14  hearing aid must be claimed by the purchaser within 3 working

15  days after notification of availability. The running of the

16  30-day trial period resumes on the day the purchaser reclaims

17  the repaired, remade, or adjusted hearing aid or on the fourth

18  day after notification of availability.

19         (2)  The board, in consultation with the Board of

20  Speech-Language Pathology and Audiology, shall prescribe by

21  rule the terms and conditions to be contained in the

22  money-back guarantee and any exceptions thereto. Such rule

23  shall provide, at a minimum, that the charges for earmolds and

24  service provided to fit the hearing aid may be retained by the

25  licensee. The rules shall also set forth any reasonable

26  charges to be held by the licensee as a cancellation fee. Such

27  rule shall be effective on or before December 1, 1994. Should

28  the board fail to adopt such rule, a licensee may not charge a

29  cancellation fee which exceeds 5 percent of the total charge

30  for a hearing aid alone. The terms and conditions of the

31  guarantee, including the total amount available for refund,

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    Florida Senate - 2001                    CS for CS for SB 1272
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  1  shall be provided in writing to the purchaser prior to the

  2  signing of the contract.

  3         (3)  Within 30 days after the return or attempted

  4  return of the hearing aid, the seller shall refund all moneys

  5  that must be refunded to a purchaser pursuant to this section.

  6  A violation of this subsection is a misdemeanor of the first

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

  8         (4)  For purposes of this section, the term "seller" or

  9  "person selling a hearing aid" includes:

10         (a)  Any natural person licensed under this chapter or

11  any other natural person who signs a sales receipt required by

12  s. 484.051(2) or s. 468.1245(2) or who otherwise fits,

13  delivers, or dispenses a hearing aid.

14         (b)  Any business organization, whether a sole

15  proprietorship, partnership, corporation, professional

16  association, joint venture, business trust, or other legal

17  entity, which dispenses a hearing aid or enters into an

18  agreement to dispense a hearing aid.

19         (c)  Any person who controls, manages, or operates an

20  establishment or business that dispenses a hearing aid or

21  enters into an agreement to dispense a hearing aid.

22         Section 4.  Section 501.160, Florida Statutes, is

23  amended to read:

24         501.160  Rental or sale of essential commodities during

25  a declared state of emergency or ordered evacuation;

26  prohibition against unconscionable prices.--

27         (1)  As used in this section:

28         (a)  "Commodity" means any goods, services, materials,

29  merchandise, supplies, equipment, resources, or other article

30  of commerce, and includes, without limitation, food, water,

31  ice, chemicals, petroleum products, and building materials

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  1  lumber necessary for consumption or use as a direct result of

  2  the emergency.

  3         (b)  It is prima facie evidence that a price is

  4  unconscionable if:

  5         1.  The amount charged represents a gross disparity

  6  between the price of the commodity or rental or lease of any

  7  dwelling unit or self-storage facility that is the subject of

  8  the offer or transaction and the average price at which that

  9  commodity or dwelling unit or self-storage facility was

10  rented, leased, sold, or offered for rent or sale in the usual

11  course of business during the 30 days immediately prior to a

12  declaration of a state of emergency or ordered evacuation, and

13  the increase in the amount charged is not attributable to

14  additional costs incurred in connection with the rental or

15  sale of the commodity or rental or lease of any dwelling unit

16  or self-storage facility, or national or international market

17  trends; or

18         2.  The amount charged grossly exceeds the average

19  price at which the same or similar commodity was readily

20  obtainable in the trade area during the 30 days immediately

21  prior to a declaration of a state of emergency, and the

22  increase in the amount charged is not attributable to

23  additional costs incurred in connection with the rental or

24  sale of the commodity or rental or lease of any dwelling unit

25  or self-storage facility, or national or international market

26  trends.

27         (2)  Upon a declaration of a state of emergency by the

28  Governor or ordered evacuation, it is unlawful and a violation

29  of s. 501.204 for a person or her or his agent or employee to

30  rent or sell or offer to rent or sell at an unconscionable

31  price within the area for which the state of emergency is

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  1  declared, any essential commodity including, but not limited

  2  to, supplies, services, provisions, or equipment that is

  3  necessary for consumption or use as a direct result of the

  4  emergency.  This prohibition remains in effect until the

  5  declaration expires or is terminated.

  6         (3)  It is unlawful and a violation of s. 501.204 for

  7  any person to impose unconscionable prices for the rental or

  8  lease of any dwelling unit or self-storage facility during a

  9  period of declared state of emergency or ordered evacuation.

10         (4)  A price increase approved by an appropriate

11  government agency shall not be a violation of this section.

12  This exemption does not apply to room rates posted in

13  accordance with s. 509.201.

14         (5)  This section shall not apply to sales by growers,

15  producers, or processors of raw or processed food products,

16  except for retail sales of such products to the ultimate

17  consumer within the area of the declared state of emergency.

18         (6)  Nothing in this section herein shall be

19  interpreted to preempt the powers of local government  except

20  that the evidentiary standards and defenses contained in this

21  section shall be the only evidentiary standards and defenses

22  used in any ordinance adopted by local government to restrict

23  price gouging during a declared state of emergency.

24         (7)  Section 501.211 notwithstanding, nothing in this

25  section creates a private cause of action in favor of any

26  person damaged by a violation of this section.

27         Section 5.  Section 501.162, Florida Statutes, is

28  created to read:

29         501.162  Criminal penalties.--A person who violates the

30  provisions of s. 501.160 is guilty of a misdemeanor of the

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  1  first degree, punishable as provided in s. 775.082 or s.

  2  775.083.

  3         Section 6.  Section 817.7005, Florida Statutes, is

  4  amended to read:

  5         817.7005  Prohibited acts.--A credit service

  6  organization, its salespersons, agents, and representatives,

  7  and independent contractors who sell or attempt to sell the

  8  services of a credit service organization shall not do any of

  9  the following:

10         (1)  Charge or receive any money or other valuable

11  consideration prior to full and complete performance of the

12  services the credit service organization has agreed to perform

13  for the buyer, unless the credit service organization has

14  obtained a surety bond of $10,000 issued by a surety company

15  admitted to do business in this state and has established a

16  trust account at a federally insured bank or savings and loan

17  association located in this state; however, where a credit

18  service organization has obtained a surety bond and

19  established a trust account as provided herein, the credit

20  service organization may charge or receive money or other

21  valuable consideration prior to full and complete performance

22  of the services it has agreed to perform for the buyer but

23  shall deposit all money or other valuable consideration

24  received in its trust account until the full and complete

25  performance of the services it has agreed to perform for the

26  buyer;

27         (2)  Charge or receive any money or other valuable

28  consideration solely for referral of the buyer to a retail

29  seller or to any other credit grantor, who will or may extend

30  credit to the buyer if the credit that is or will be extended

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  1  to the buyer is upon substantially the same terms as those

  2  available to the general public;

  3         (3)  Make, or counsel or advise any buyer to make, any

  4  statement that is false or misleading or that should be known

  5  by the exercise of reasonable care to be false or misleading,

  6  or omit any material fact to a consumer reporting agency or to

  7  any person who has extended credit to a buyer or to whom a

  8  buyer is applying for an extension of credit with respect to a

  9  buyer's credit worthiness, credit standing, or credit

10  capacity; or

11         (4)  Make or use any false or misleading

12  representations or omit any material fact in the offer or sale

13  of the services of a credit service organization or engage,

14  directly or indirectly, in any act, practice, or course of

15  business that operates or would operate as fraud or deception

16  upon any person in connection with the offer or sale of the

17  services of a credit service organization, notwithstanding the

18  absence of reliance by the buyer.

19         Section 7.  Section 817.701, Florida Statutes, is

20  amended to read:

21         817.701  Surety bonds; exemption.--

22         (1)  The credit service organization or any

23  salesperson, agent, or representative of the credit service

24  organization must obtain a surety bond in the amount of

25  $10,000 which is issued by a surety company admitted to do

26  business in this state.

27         (2)  Notwithstanding subsection (1), the requirement to

28  obtain a surety bond and establish a trust account as provided

29  in s. 817.7005(1) shall be waived for any salesperson, agent,

30  or representative of a credit service organization if where

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  1  the credit service organization obtains such a surety bond and

  2  establishes such trust account.

  3         Section 8.  Section 817.702, Florida Statutes, is

  4  amended to read:

  5         817.702  Statement to buyer.--Upon execution of the

  6  contract as provided in s. 817.704 or agreement between the

  7  buyer and a credit service organization and before the receipt

  8  by the credit service organization of any money or other

  9  valuable consideration, whichever occurs first, the credit

10  service organization shall provide the buyer with a statement,

11  in writing, containing all the information required by s.

12  817.703.  The credit service organization shall maintain on

13  file for a period of 5 years an exact copy of the statement,

14  personally signed by the buyer, acknowledging receipt of a

15  copy of the statement.

16         Section 9.  Subsections (5) and (6) of section 817.703,

17  Florida Statutes, are amended to read:

18         817.703  Information statement.--The information

19  statement required under s. 817.702 shall include all of the

20  following:

21         (5)  A statement notifying the buyer of his or her

22  right to proceed against the bond or trust account required

23  under s. 817.701 s. 817.7005.

24         (6)  The name and address of the surety company that

25  which issued the bond, or the name and address of the

26  depository and the trustee and the account number of the trust

27  account.

28         Section 10.  This act shall take effect July 1, 2001.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                          CS for SB 1272

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  4  CS/CS/SB 1272 prohibits sellers of building materials, rather
    than just lumber, from raising and charging higher prices
  5  during an emergency and extends the prohibition against
    raising and charging higher prices for commodities to include
  6  during an evacuation ordered by the Governor in addition to a
    declared state of emergency.
  7
    CS/CS/SB 1272 prohibits credit service organizations from
  8  accepting money in advance of performing services and revises
    surety bond requirements to require credit service
  9  organizations to maintain the surety bond as condition of
    doing business. The bill revises disclosure requirements for
10  credit service organizations.

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