Senate Bill sb0784

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    Florida Senate - 2001                                   SB 784

    By Senator Geller





    29-714-01                                               See HB

  1                      A bill to be entitled

  2         An act relating to consumer protection;

  3         amending s. 496.411, F.S.; requiring charitable

  4         organizations or sponsors to display certain

  5         information on certain solicitation materials;

  6         amending s. 501.017, F.S.; requiring certain

  7         health studio contract refunds to be issued

  8         within a time certain; amending s. 501.019,

  9         F.S.; expanding application of felony penalties

10         for knowingly making false representations for

11         certain purposes; creating s. 501.171, F.S.;

12         providing definitions; requiring certain credit

13         reporting agencies to provide reports to

14         consumers; amending s. 539.001, F.S.;

15         prohibiting pawnbrokers from knowingly

16         accepting stolen property; correcting

17         terminology; amending s. 559.801, F.S.;

18         revising a definition; amending s. 559.803,

19         F.S.; specifying additional information

20         required in certain business opportunity

21         contract disclosure statements; amending s.

22         559.807, F.S.; revising application of

23         requirements for certain securities relating to

24         selling business opportunities; amending s.

25         559.809, F.S.; specifying an additional

26         prohibited act by business opportunity sellers;

27         amending s. 559.902, F.S.; providing an

28         additional exception for certain schools to

29         application of certain motor vehicle repair

30         shop provisions; amending s. 559.904, F.S.;

31         revising certain requirements for motor vehicle

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1         repair shop registrations; amending s. 559.905,

  2         F.S.; providing additional estimated cost of

  3         repair requirements for written repair

  4         estimates; amending s. 559.9221, F.S.; revising

  5         Motor Vehicle Repair Advisory Council

  6         membership requirements; repealing s.

  7         559.903(5), F.S., relating to a definition of

  8         minor repair service; providing an effective

  9         date.

10

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

12

13         Section 1.  Subsection (6) is added to section 496.411,

14  Florida Statutes, to read:

15         496.411  Disclosure requirements and duties of

16  charitable organizations and sponsors.--

17         (6)  Each charitable organization or sponsor that is

18  required to register under s. 496.405 shall conspicuously

19  display the following information on every printed

20  solicitation, written confirmation, receipt, or reminder of a

21  contribution:

22         (a)  The organization's or sponsor's registration

23  number issued by the department under this chapter.

24         (b)  The percentage, if any, of each contribution that

25  is retained by any professional solicitor that has contracted

26  with the organization or sponsor.

27         (c)  The percentage of each contribution that is

28  received by the organization or sponsor.

29

30

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1  If the solicitation consists of more than a single item, the

  2  statement shall be displayed prominently in the solicitation

  3  materials.

  4         Section 2.  Paragraphs (b) and (d) of subsection (1) of

  5  section 501.017, Florida Statutes, are amended to read:

  6         501.017  Health studios; contracts.--

  7         (1)  Every contract for the sale of future health

  8  studio services which is paid for in advance or which the

  9  buyer agrees to pay for in future installment payments shall

10  be in writing and shall contain, contractual provisions to the

11  contrary notwithstanding, in immediate proximity to the space

12  reserved in the contract for the signature of the buyer, and

13  in 10-point boldfaced type, language substantially equivalent

14  to the following:

15         (b)1.  A provision for the cancellation and refund of

16  the contract if the contracting business location of the

17  health studio goes out of business, or moves its facilities

18  more than 5 driving miles from the business location

19  designated in such contract and fails to provide, within 30

20  days, a facility of equal quality located within 5 driving

21  miles of the business location designated in such contract at

22  no additional cost to the buyer.

23         2.  A provision that notice of intent to cancel by the

24  buyer shall be given in writing to the health studio.  Such a

25  notice of cancellation from the consumer shall also terminate

26  automatically the consumer's obligation to any entity to whom

27  the health studio has subrogated or assigned the consumer's

28  contract. If the health studio wishes to enforce such contract

29  after receipt of such showing, it may request the department

30  to determine the sufficiency of the showing.

31

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1         3.  A provision that if the department determines that

  2  a refund is due the buyer, the refund shall be an amount

  3  computed by dividing the contract price by the number of weeks

  4  in the contract term and multiplying the result by the number

  5  of weeks remaining in the contract term.  The business

  6  location of a health studio shall not be deemed out of

  7  business when temporarily closed for repair and renovation of

  8  the premises:

  9         a.  Upon sale, for not more than 14 consecutive days;

10  or

11         b.  During ownership, for not more than 7 consecutive

12  days and not more than two periods of 7 consecutive days in

13  any calendar year.

14

15  A refund shall be issued within 30 days after receipt of the

16  notice of cancellation made pursuant to this paragraph.

17         (d)  A provision for the cancellation of the contract

18  if the buyer dies or becomes physically unable to avail

19  himself or herself of a substantial portion of those services

20  which he or she used from the commencement of the contract

21  until the time of disability, with refund of funds paid or

22  accepted in payment of the contract in an amount computed by

23  dividing the contract price by the number of weeks in the

24  contract term and multiplying the result by the number of

25  weeks remaining in the contract term.  The contract may

26  require a buyer or the buyer's estate seeking relief under

27  this paragraph to provide proof of disability or death.  A

28  physical disability sufficient to warrant cancellation of the

29  contract by the buyer shall be established if the buyer

30  furnishes to the health studio a certification of such

31  disability by a physician licensed under chapter 458, chapter

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1  459, chapter 460, or chapter 461 to the extent the diagnosis

  2  or treatment of the disability is within the physician's scope

  3  of practice. A refund shall be issued within 30 days after

  4  receipt of the notice of cancellation made pursuant to this

  5  paragraph.

  6         Section 3.  Subsection (2) of section 501.019, Florida

  7  Statutes, is amended to read:

  8         501.019  Health studios; penalties.--

  9         (2)  Any person health studio owner or, in the case of

10  corporate ownership, any officer of the corporation, or any

11  manager of a health studio or health studio's business

12  location, who knowingly makes a false representation to the

13  department with the intent to obtain an exemption of any kind

14  from the requirements of s. 501.016 commits a felony of the

15  third degree, punishable as provided in s. 775.082, s.

16  775.083, or s. 775.084.

17         Section 4.  Section 501.171, Florida Statutes, is

18  created to read:

19         501.171  Consumer reporting agency consumer reports.--

20         (1)  For purposes of this section:

21         (a)  "Consumer report" means any written or other

22  communication of any information by a consumer reporting

23  agency bearing on a consumer's creditworthiness, credit

24  standing, or credit capacity which is used or intended to be

25  used or collected in whole or in part for the purpose of

26  serving as a factor in establishing the consumer's eligibility

27  for employment purposes or for credit or insurance to be used

28  primarily for personal, family, or household purposes.

29         (b)  "Consumer reporting agency" means any person who,

30  for monetary fees or dues or on a cooperative nonprofit basis,

31  regularly engages in whole or in part in the practice of

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1  assembling or evaluating consumer credit information or other

  2  information relating to consumers for the purpose of

  3  furnishing consumer reports to third parties.

  4         (2)  Each consumer reporting agency that compiles and

  5  maintains files on consumers on a nationwide basis shall

  6  furnish to any consumer who has provided appropriate

  7  verification of his or her identity a single complete consumer

  8  report per calendar year, upon request and without charge.

  9         Section 5.  Paragraph (n) is added to subsection (12)

10  of section 539.001, Florida Statutes, and subsection (21) of

11  that section is amended, to read:

12         539.001  The Florida Pawnbroking Act.--

13         (12)  PROHIBITED ACTS.--A pawnbroker, or an employee or

14  agent of a pawnbroker, may not:

15         (n)  Knowingly accept or receive misappropriated

16  property from a conveying customer in a pawn or purchase

17  transaction.

18         (21)  RULEMAKING AUTHORITY.--The agency department has

19  authority to adopt rules pursuant to chapter 120 to implement

20  the provisions of this section.

21         Section 6.  Paragraph (a) of subsection (1) of section

22  559.801, Florida Statutes, is amended to read:

23         559.801  Definitions.--For the purpose of ss.

24  559.80-559.815, the term:

25         (1)(a)  "Business opportunity" means the sale or lease

26  of any products, equipment, supplies, or services which are

27  sold or leased to a purchaser to enable the purchaser to start

28  a business for which the purchaser is required to pay an

29  initial fee or sum of money which exceeds $500 to the seller,

30  and in which the seller represents:

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1         1.  That the seller or person or entity affiliated with

  2  or referred by the seller will provide locations or assist the

  3  purchaser in finding locations for the use or operation of

  4  vending machines, racks, display cases, currency or card

  5  operated equipment, or other similar devices or

  6  currency-operated amusement machines or devices on premises

  7  neither owned nor leased by the purchaser or seller;

  8         2.  That the seller will purchase any or all products

  9  made, produced, fabricated, grown, bred, or modified by the

10  purchaser using in whole or in part the supplies, services, or

11  chattels sold to the purchaser;

12         3.  That the seller guarantees in writing that the

13  purchaser will derive income from the business opportunity

14  which exceeds the price paid or rent charged for the business

15  opportunity or that the seller will refund all or part of the

16  price paid or rent charged for the business opportunity, or

17  will repurchase any of the products, equipment, supplies, or

18  chattels supplied by the seller, if the purchaser is

19  unsatisfied with the business opportunity; or

20         4.  That the seller will provide a sales program or

21  marketing program that will enable the purchaser to derive

22  income from the business opportunity, except that this

23  paragraph does not apply to the sale of a sales program or

24  marketing program made in conjunction with the licensing of a

25  trademark or service mark that is registered under the laws of

26  any state or of the United States if the seller requires use

27  of the trademark or service mark in the sales agreement.

28

29  For the purpose of subparagraph 1., the term "assist the

30  purchaser in finding locations" means, but is not limited to,

31  supplying the purchaser with names of locator companies,

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1  contracting with the purchaser to provide assistance or supply

  2  names, or collecting a fee on behalf of or for a locator

  3  company.

  4         Section 7.  Present subsections (11), (12), and (13) of

  5  section 559.803, Florida Statutes, are renumbered as

  6  subsections (12), (13), and (14), respectively, and a new

  7  subsection (11) is added to that section to read:

  8         559.803  Disclosure statement.--At least 3 working days

  9  prior to the time the purchaser signs a business opportunity

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

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

12  seller must provide the prospective purchaser a written

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

14  12-point boldfaced capital letters "DISCLOSURES REQUIRED BY

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

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

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

18  sponsor any business opportunity.  The information contained

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

20  have any questions about this investment, see an attorney

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

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

23  Immediately following the cover sheet, the seller must provide

24  an index page that briefly lists the contents of the

25  disclosure document as required in this section and any pages

26  on which the prospective purchaser can find each required

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

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

29  Florida requires sellers of business opportunities to disclose

30  certain information to prospective purchasers.  This index is

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

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1  contains other information not required by this section, the

  2  seller shall place a designation beside each of the

  3  disclosures required by this section and provide an

  4  explanation of the designation at the end of the statement at

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

  6  contain the following information:

  7         (11)(a)  The total number of persons who purchased the

  8  business opportunity being offered by the seller within the

  9  past 3 years.

10         (b)  The names, addresses, and telephone numbers of the

11  10 persons who previously purchased the business opportunity

12  from the seller and who are geographically closest to the

13  potential purchaser.

14

15  Should any seller of business opportunities prepare a

16  disclosure statement pursuant to 16 C.F.R. ss. 436.1 et seq.,

17  a Trade Regulation Rule of the Federal Trade Commission

18  regarding Disclosure Requirements and Prohibitions Concerning

19  Franchising and Business Opportunity Ventures, the seller may

20  file that disclosure statement in lieu of the document

21  required pursuant to this section.  Should the seller be

22  required pursuant to 16 C.F.R. to prepare any other documents

23  to be presented to the prospective purchaser, those documents

24  shall also be filed with the department.

25         Section 8.  Section 559.807, Florida Statutes, is

26  amended to read:

27         559.807  Bond or other security trust account

28  required.--

29         (1)  If the business opportunity seller makes any

30  representations set forth in s. 559.801(1)(a)3., the seller

31  must either have obtained a surety bond issued by a surety

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1  company authorized to do business in this state or have

  2  established a certificate of deposit trust account or a

  3  guaranteed letter of credit with a licensed and insured bank

  4  or savings institution located in the state.  The amount of

  5  the bond, certificate of deposit trust account, or guaranteed

  6  letter of credit shall be an amount not less than $50,000.

  7         (2)  The bond, certificate of deposit, or guaranteed

  8  letter of credit trust account shall be in the favor of the

  9  department for the use and benefit of. any person who is

10  injured by the fraud, misrepresentation, damaged by any

11  violation of ss. 559.80-559.815, or by the seller's breach of

12  the contract, financial failure, or violation of any provision

13  of this part by the seller.  Such liability may be enforced by

14  filing an action at law in a court of competent jurisdiction

15  without precluding enforcement in an administrative action

16  pursuant to chapter 120.  However, the bond, certificate of

17  deposit, or guaranteed letter of credit shall be amenable and

18  enforceable only by and through administrative proceedings

19  before the department.  A money judgment resulting from an

20  action at law, less any award for costs and attorney's fees,

21  shall be prima facie evidence sufficient to establish the

22  value of the claim in an administrative action.  It is the

23  intent of the Legislature that such bond, certificate of

24  deposit, or guaranteed letter of credit shall be applicable

25  and liable only for payment of claims duly adjudicated by

26  order of the department.  The bond, certificate of deposit, or

27  guaranteed letter of credit shall be open to successive claims

28  but for the business opportunity sale or of any obligation

29  arising therefrom, may bring an action against the bond, trust

30  account, or guaranteed letter of credit to recover damages

31  suffered; however, the aggregate amount may not liability of

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1  the surety or trustee shall be only for actual damages and in

  2  no event shall exceed the amount of the bond, certificate of

  3  deposit trust account, or guaranteed letter of credit.

  4         Section 9.  Subsection (14) is added to section

  5  559.809, Florida Statutes, to read:

  6         559.809  Prohibited acts.--Business opportunity sellers

  7  shall not:

  8         (14)  Fail to provide or deliver the products,

  9  equipment, supplies, or services as specified in the written

10  contract required under s. 559.811.

11         Section 10.  Subsection (5) is added to section

12  559.902, Florida Statutes, to read:

13         559.902  Scope and application.--This act shall apply

14  to all motor vehicle repair shops in Florida, except:

15         (5)  Those located in public schools as defined in s.

16  228.041 or charter technical career centers as defined in s.

17  228.505.

18

19  However, such person may voluntarily register under this act.

20         Section 11.  Subsections (3), (4), (5), (6), and (10)

21  of section 559.904, Florida Statutes, are amended to read:

22         559.904  Motor vehicle repair shop registration;

23  application; exemption.--

24         (3)  Each application for registration must be

25  accompanied by a registration fee set forth as follows:

26         (a)  If the place of business only performed "minor

27  repair service": $25.

28         (a)(b)  If the place of business has 1 to 5 employees:

29  $50.

30         (b)(c)  If the place of business has 6 to 10 employees:

31  $150.

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1         (c)(d)  If the place of business has 11 or more

  2  employees: $300.

  3         (4)  Each initial and renewal application for

  4  registration must be accompanied by copies of the applicant's

  5  estimate and invoice forms. Such forms must comply with the

  6  applicable provisions of this act before a registration may be

  7  issued.

  8         (5)(4)  No annual registration fee is required for any

  9  motor vehicle repair shop which has a local municipal or

10  county license issued pursuant to an ordinance containing

11  standards which the department determines are at least equal

12  to the requirements of this part, or for any motor vehicle

13  dealer licensed pursuant to chapter 320.

14         (6)(5)  The department shall issue to each applicant a

15  registration certificate in the form and size as prescribed by

16  the department in accordance with s. 120.60.  In the case of

17  an applicant with more than one place of business, the

18  department shall issue a registration certificate for each

19  place of business. The certificate must show at least the name

20  and address of the motor vehicle repair shop and the

21  registration number for that place of business. In the case of

22  a mobile motor vehicle repair shop, the certificate must show

23  the home address of the owner, if different from the business

24  address.

25         (6)  Any affidavit of exemption proof of filing

26  certificate, issued by the department prior to July 1, 1997,

27  to a motor vehicle repair shop conducting only minor repair

28  services shall be valid until its expiration.

29         (10)  The department may deny, revoke, or refuse to

30  renew the registration of a motor vehicle repair shop based

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1  upon a determination that the motor vehicle repair shop, or

  2  any of its directors, officers, owners, or general partners:

  3         (a)  Have failed to meet the requirements for

  4  registration as provided in this part;

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

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

  7  enforcement action brought by any governmental agency based

  8  upon conduct involving fraud, dishonest dealing, or any

  9  violation of this part;

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

11  administrative adjudication in any jurisdiction, based upon

12  conduct involving fraud, dishonest dealing, or any violation

13  of this part; or

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

15  action brought by the department or the state attorney

16  pursuant to ss. 501.201-501.213 or this part.

17         Section 12.  Paragraph (h) of subsection (1) of section

18  559.905, Florida Statutes, is amended to read:

19         559.905  Written motor vehicle repair estimate and

20  disclosure statement required.--

21         (1)  When any customer requests a motor vehicle repair

22  shop to perform repair work on a motor vehicle, the cost of

23  which repair work will exceed $100 to the customer, the shop

24  shall prepare a written repair estimate, which is a form

25  setting forth the estimated cost of repair work, including

26  diagnostic work, before effecting any diagnostic work or

27  repair.  The written repair estimate shall also include the

28  following items:

29         (h)  The estimated cost of repair which shall include

30  any charge for shop supplies or for hazardous or other waste

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    Florida Senate - 2001                                   SB 784
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  1  removal and, if a charge is included, the estimate shall

  2  include the following statement:

  3         "This charge represents costs and profits to

  4         the motor vehicle repair facility for

  5         miscellaneous shop supplies or waste disposal."

  6  If a charge is mandated by state or federal law, the estimate

  7  shall contain a statement identifying the law and the specific

  8  amount charged under the law.

  9         Section 13.  Subsection (1) of section 559.9221,

10  Florida Statutes, is amended to read:

11         559.9221  Motor Vehicle Repair Advisory Council.--The

12  Motor Vehicle Repair Advisory Council is created to advise and

13  assist the department in carrying out this part.

14         (1)  The membership of the council may not exceed 11

15  members appointed by the Commissioner of Agriculture.

16         (a)  Eight industry members of the council must be

17  chosen from individuals already engaged in the motor vehicle

18  repair business who are eligible to be registered under this

19  part.  Such members must become registered by October 1, 1993.

20  Thereafter, The professional members of this council must be

21  licensed under this part.  The commissioner shall select one

22  industry member from each of the following categories:

23         1.  Independent automotive mechanics shops.

24         2.  Franchise or company-owned automotive mechanics

25  shops.

26         3.  Independent automotive collision shops.

27         4.  Franchise or company-owned automotive collision

28  shops.

29         5.  Independent tire dealer.

30         6.  Franchise or company-owned tire dealer.

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    Florida Senate - 2001                                   SB 784
    29-714-01                                               See HB




  1         7.  Independent motor vehicle dealer licensed under s.

  2  320.27.

  3         8.  Franchise motor vehicle dealer licensed under s.

  4  320.27.

  5         (b)  One member of the council may must be chosen from

  6  persons already engaged solely in motor vehicle minor repair

  7  service.

  8         (c)  Two consumer members of the council must be

  9  residents of this state and must not be connected with the

10  motor vehicle repair business.

11         (d)  Within 30 days after July 1, 1993, the

12  commissioner shall appoint one consumer member and four

13  industry members for terms of 2 years and one consumer member,

14  one minor repair shop member, and four industry members for

15  terms of 4 years.  As terms of the members expire, the

16  commissioner shall appoint successors for terms of 4 years.

17  Members shall serve from the time of their appointment until

18  their successors are appointed.

19         Section 14.  Subsection (5) of section 559.903, Florida

20  Statutes, is repealed.

21         Section 15.  This act shall take effect October 1,

22  2001.

23

24            *****************************************

25                       LEGISLATURE SUMMARY

26    Revises various consumer protection provisions relating
      to charitable organization disclosure requirements,
27    consumer credit reporting agencies, health studio
      contracts, pawnbrokers, sales of business opportunities,
28    motor vehicle repair shop registrations and repair
      estimates, and Motor Vehicle Repair Advisory Council
29    membership requirements. Repeals a definition. (See bill
      for details.)
30

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