| 1 | A bill to be entitled |
| 2 | An act relating to the Florida Consumer and Small Business |
| 3 | Arbitration Act; reorganizing provisions of ch. 682, F.S.; |
| 4 | amending s. 682.01, F.S.; conforming a short title |
| 5 | provision; creating s. 682.501, F.S.; providing a short |
| 6 | title; creating s. 682.502, F.S.; providing for |
| 7 | applicability; providing definitions; providing that the |
| 8 | act does not apply to certain insurance policies and |
| 9 | certain arbitrations; providing that mandatory binding |
| 10 | arbitration is void and unenforceable except as otherwise |
| 11 | provided by federal law; creating s. 682.503, F.S.; |
| 12 | providing proceedings to compel arbitration; creating s. |
| 13 | 682.504, F.S.; providing for the appointment of |
| 14 | arbitrators and umpires; prohibiting certain persons from |
| 15 | serving as an arbitrator or umpire; providing disclosure |
| 16 | requirements; requiring arbitrators and umpires to perform |
| 17 | their duties in compliance with certain standards; |
| 18 | requiring an oath; creating s. 682.505, F.S.; providing |
| 19 | procedures for an arbitration proceeding; requiring |
| 20 | arbitrators and umpires to conduct arbitration in a manner |
| 21 | that is fundamentally fair; authorizing an arbitrator or |
| 22 | umpire to issue subpoenas for the attendance of witnesses |
| 23 | and production of documents; providing for discovery and |
| 24 | procedures to be conducted by certain rules; requiring |
| 25 | that witnesses testify under oath; providing for per diem |
| 26 | and travel expenses; providing that a party has a right to |
| 27 | be represented by an attorney at an arbitration proceeding |
| 28 | or hearing; providing for venue; providing for decisions |
| 29 | to be made by majority vote in certain circumstances; |
| 30 | prohibiting the administration of an arbitration under |
| 31 | certain agreements or rules; prohibiting the award of |
| 32 | certain fees; providing recording requirements; creating |
| 33 | s. 682.506, F.S.; providing requirements for issuing an |
| 34 | arbitration award; requiring that the written award and |
| 35 | agreement or provision for arbitration be entered into the |
| 36 | court of record; requiring the court to confirm the award |
| 37 | under certain circumstances; requiring the judgment to be |
| 38 | recorded, docketed, and enforced as any other judgment in |
| 39 | a civil action; creating s. 682.507, F.S.; authorizing an |
| 40 | arbitrator or umpire to award any relief or damages |
| 41 | allowed by law; requiring the circuit court to establish |
| 42 | the amount of compensation for arbitrators and umpires if |
| 43 | the parties cannot agree; authorizing an arbitrator or |
| 44 | umpire to award attorney's fees and other expenses of |
| 45 | arbitration to the same extent as would be allowed if the |
| 46 | same claim were brought in a court of law; creating s. |
| 47 | 682.508, F.S.; providing circumstances under which a court |
| 48 | may vacate an award; prohibiting parties from narrowing or |
| 49 | expanding the grounds for vacating an award; creating s. |
| 50 | 682.509, F.S.; providing procedures for the modification |
| 51 | and correction of awards; providing that an application to |
| 52 | modify or correct an award may be joined in the |
| 53 | alternative with an application to vacate the award; |
| 54 | authorizing the court to modify or correct awards under |
| 55 | certain circumstances; providing that an application to |
| 56 | modify or correct an award may be joined in the |
| 57 | alternative with an application to vacate the award; |
| 58 | requiring a motion to modify or correct an award to be |
| 59 | filed under a certain rule; creating s. 682.510, F.S; |
| 60 | authorizing the appeal of an arbitration decision; |
| 61 | providing circumstances under which an arbitration |
| 62 | decision may be appealed; specifying rules which may be |
| 63 | reviewed by writ of certiorari; creating s. 682.511, F.S.; |
| 64 | providing information to be included in arbitration |
| 65 | agreement disclosure provisions; providing that failure to |
| 66 | make such disclosures constitutes a deceptive and unfair |
| 67 | trade practice and a waiver of rights to compel |
| 68 | arbitration; providing for the enforcement of such |
| 69 | provision by injunction; providing liability; providing an |
| 70 | effective date. |
| 71 |
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| 72 | Be It Enacted by the Legislature of the State of Florida: |
| 73 |
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| 74 | Section 1. The title of chapter 682, Florida Statutes, is |
| 75 | redesignated as "Arbitration." Chapter 682, Florida Statutes, |
| 76 | shall be divided into parts. Part I of chapter 682, Florida |
| 77 | Statutes, shall consist of sections 682.01 through 682.22, |
| 78 | Florida Statutes, and the title of that part shall be |
| 79 | "Arbitration Code." Part II of chapter 682, Florida Statutes, |
| 80 | shall consist of sections 682.501 through 682.511, Florida |
| 81 | Statutes, and the title of that part shall be "Consumer and |
| 82 | Small Business Arbitration Act." |
| 83 | Section 2. Section 682.01, Florida Statutes, is amended to |
| 84 | read: |
| 85 | 682.01 Short title Florida arbitration code.--This part |
| 86 | Sections 682.01-682.22 may be cited as the "Florida Arbitration |
| 87 | Code." |
| 88 | Section 3. Part II of chapter 682, Florida Statutes, |
| 89 | consisting of sections 682.501, 682.502, 682.503, 682.504, |
| 90 | 682.505, 682.506, 682.507, 682.508, 682.509, 682.510, and |
| 91 | 682.511, is created to read: |
| 92 | PART II |
| 93 | CONSUMER AND SMALL BUSINESS ARBITRATION ACT |
| 94 | 682.501 Short title.--This part may be cited as the |
| 95 | "Florida Consumer and Small Business Arbitration Act." |
| 96 | 682.502 Application in general; definitions.-- |
| 97 | (1) Except as otherwise provided in this part, this part |
| 98 | applies to consumer and small business arbitration agreements. |
| 99 | Notwithstanding any provision of part I of this chapter to the |
| 100 | contrary, part I of this chapter does not apply to any |
| 101 | arbitration agreement to which this part applies. |
| 102 | (2) As used in this part, the term: |
| 103 | (a) "Arbitration agreement" or "agreement" means any |
| 104 | arbitration agreement involving a consumer or small business to |
| 105 | which this part applies, except as otherwise provided in this |
| 106 | section. |
| 107 | (b) "Consumer" means an individual, including a child by |
| 108 | and through its parent or legal guardian and the personal |
| 109 | representative of the estate of a deceased individual regardless |
| 110 | of the cause of death, who seeks or acquires, including by |
| 111 | lease, any goods or services. |
| 112 | (c) "Court" means any court of competent jurisdiction of |
| 113 | this state. The making of an agreement or provision for |
| 114 | arbitration subject to this part and providing for arbitration |
| 115 | in this state shall, whether made within or outside this state, |
| 116 | confer jurisdiction on the court to enforce the agreement or |
| 117 | provision under this part, refuse to enforce the agreement, |
| 118 | enter judgment on an award duly rendered in an arbitration |
| 119 | thereunder, or vacate, modify, or correct an award rendered |
| 120 | thereunder for such cause and in the manner provided in this |
| 121 | part. |
| 122 | (d) "Small business" means an independently owned and |
| 123 | operated business concern that employs no more than 200 |
| 124 | permanent full-time employees or that, together with its |
| 125 | affiliates, has a net worth of not more than $10 million or any |
| 126 | firm based in this state which has a Small Business |
| 127 | Administration 8(a) certification. |
| 128 | (3) Every provision in an insurance policy requiring |
| 129 | arbitration or restricting a party or beneficiary from enforcing |
| 130 | any right under the policy by legal proceedings or limiting the |
| 131 | time to do so is void and unenforceable. |
| 132 | (4) This part does not apply to any arbitrator, |
| 133 | arbitration organization, or umpire in an arbitration proceeding |
| 134 | governed by rules adopted by a securities self-regulatory |
| 135 | organization and approved by the United States Securities and |
| 136 | Exchange Commission under the Securities and Exchange Act of |
| 137 | 1934, 15 U.S.C. s. 78s, as amended. |
| 138 | (5) This part does not apply to arbitrations covered under |
| 139 | chapter 718. |
| 140 | (6) Any provision for mandatory binding arbitration within |
| 141 | any pre-dispute arbitration agreement is void and unenforceable |
| 142 | except to the extent federal law provides for its |
| 143 | enforceability. |
| 144 | 682.503 Proceedings to compel arbitration.--A party to an |
| 145 | agreement or provision for arbitration which is subject to this |
| 146 | part who claims the neglect or refusal of another party to |
| 147 | comply, or who claims that the agreement or provision does not |
| 148 | apply, may make application to the court for an order |
| 149 | determining applicability, including validity, of the agreement |
| 150 | or provision to the case or controversy or the application of |
| 151 | this part. The court shall take evidence and hear and determine |
| 152 | the issue as soon as practicable and shall attempt to expedite |
| 153 | the issue on its calendar. If the court is satisfied that no |
| 154 | substantial issue exists as to the making of the agreement or |
| 155 | provision, that an arbitratable issue exists, that the |
| 156 | arbitration agreement is not void as against public policy, and |
| 157 | that the right to arbitration has not been waived, it shall |
| 158 | grant the application. |
| 159 | 682.504 Appointment of arbitrators and umpires; |
| 160 | disclosure.-- |
| 161 | (1) The parties shall select the arbitrators or umpires |
| 162 | within 30 days after the arbitration has been initiated. If the |
| 163 | parties are unable to come to an agreement, the party compelling |
| 164 | arbitration shall send the responding party a complete list of |
| 165 | certified arbitrators in the responding party's county who |
| 166 | qualify to arbitrate under s. 44.103. The responding party shall |
| 167 | choose three arbitrators from the list within 15 days. The party |
| 168 | compelling arbitration shall then select one arbitrator from the |
| 169 | list of three within 15 days. |
| 170 | (2) Before accepting appointment, an individual or |
| 171 | arbitration organization asked to serve as an arbitrator or |
| 172 | umpire, hereinafter referred to as the "prospective arbitrator," |
| 173 | shall disclose to all parties and to any other arbitrators or |
| 174 | umpires involved in the proceeding any facts that might affect, |
| 175 | or appear to affect, the impartiality of the arbitrator or |
| 176 | umpire in the arbitration proceeding, including, but not limited |
| 177 | to: |
| 178 | (a) Any personal or financial interest in the outcome of |
| 179 | the arbitration proceeding. |
| 180 | (b) Any existing or past relationship with: |
| 181 | 1. Any of the parties to the agreement to arbitrate or the |
| 182 | arbitration proceeding. |
| 183 | 2. The parties' industry. |
| 184 | 3. The parties' counsel or representatives. |
| 185 | 4. Witnesses. |
| 186 | 5. Other arbitrators. |
| 187 | (c) The number of arbitrations conducted for the past 5 |
| 188 | years involving either party, their industry, the attorneys or |
| 189 | their firms, the outcomes of those past arbitrations, and the |
| 190 | dates of decision. |
| 191 | (3) If a prospective arbitrator fails to comply with the |
| 192 | disclosure in this section within 10 days after notice of |
| 193 | appointment, the prospective arbitrator may not serve as an |
| 194 | arbitrator absent the written consent of all parties and a new |
| 195 | prospective arbitrator shall be selected. |
| 196 | (4) After receipt of the disclosures required in this |
| 197 | section, any party may object to a prospective arbitrator within |
| 198 | 10 days and the parties will then select different prospective |
| 199 | arbitrators. |
| 200 | (5) In addition to the other requirements of this section, |
| 201 | a prospective arbitrator shall comply with the standards set |
| 202 | forth in Canon 1 and Canon 3 of the Code of Judicial Conduct. |
| 203 | Failure to comply with the provisions of this part shall be |
| 204 | grounds for disqualification. |
| 205 | (6) The prospective arbitrator shall subscribe to an oath |
| 206 | that he or she has reviewed and met all of the standards in this |
| 207 | section and will continue to comply with those standards |
| 208 | throughout the arbitration proceeding. A copy of the oath shall |
| 209 | be served on each party to the arbitration and the other |
| 210 | prospective arbitrators. |
| 211 | (7) After appointment, the standards and procedure for |
| 212 | disqualification of an arbitrator or umpire shall be those |
| 213 | provided by general law, rule, and judicial precedent for the |
| 214 | disqualification of judges. |
| 215 | 682.505 Arbitration process.-- |
| 216 | (1) The purpose of this part is to secure the just, |
| 217 | speedy, inexpensive, and fair resolution of disputes between the |
| 218 | parties to consumer or small business arbitration. |
| 219 | (2) Arbitrators and umpires must conduct arbitration in a |
| 220 | manner that is fundamentally fair. Fundamental fairness includes |
| 221 | due process, adequate and appropriate notice, and the |
| 222 | opportunity to be heard, present relevant and material evidence, |
| 223 | cross-examine witnesses appearing at the hearing, present |
| 224 | arguments, and cite legal authority before unbiased |
| 225 | decisionmakers. |
| 226 | (3) The parties shall be given the opportunity to perform |
| 227 | adequate and appropriate discovery to properly present and prove |
| 228 | their case, and the arbitrators and umpires shall use rules |
| 229 | designed to secure appropriate discovery in a speedy and |
| 230 | inexpensive manner. Arbitrators and umpires may issue subpoenas |
| 231 | for the attendance of witnesses and for the production of books, |
| 232 | records, documents, and other evidence, and shall have the power |
| 233 | to administer oaths, as would otherwise be provided for in a |
| 234 | civil action. |
| 235 | (4) Unless the parties agree otherwise, the scope of |
| 236 | discovery and the procedure for any hearings and trials shall be |
| 237 | governed by Rule 7.020 of the Florida Small Claims Rules. |
| 238 | (5) All witnesses must be under oath during testimony. |
| 239 | Witnesses shall serve without compensation but shall be entitled |
| 240 | to receive reimbursement for per diem and travel expenses as |
| 241 | provided in s. 112.061. |
| 242 | (6) A party has the right to be represented by an attorney |
| 243 | at any arbitration proceeding or hearing under this part. A |
| 244 | waiver thereof before the proceeding or hearing shall be void. |
| 245 | (7) Venue shall be governed by s. 682.19. |
| 246 | (8) If the parties agree to arbitration with more than one |
| 247 | arbitrator or umpire, then all decisions shall be by majority |
| 248 | vote, unless the parties agree otherwise. |
| 249 | (9) Notwithstanding any other provision of law, an |
| 250 | arbitrator or umpire may not administer an arbitration under any |
| 251 | agreement or rule requiring that a consumer or small business |
| 252 | who is a party to the arbitration pay the fees and costs |
| 253 | incurred by any opposing party if the consumer or small business |
| 254 | does not prevail in the arbitration, including, but not limited |
| 255 | to, the fees and costs of the arbitrator, provider organization, |
| 256 | attorney, or witnesses. |
| 257 | (10) The arbitrators and umpires shall maintain a record |
| 258 | of all activity in any arbitration proceeding. |
| 259 | 682.506 Award, opinion, and judgment.-- |
| 260 | (1) An arbitrator's or umpire's award shall be in writing |
| 261 | and shall contain an opinion with findings addressing the issues |
| 262 | raised and the damages awarded, if any. The award shall be |
| 263 | issued within a reasonable time after the final hearing but not |
| 264 | more than 60 days after the date of the final hearing, unless an |
| 265 | extension is granted by the court upon a demonstration of good |
| 266 | cause. The parties may, by written agreement, extend the |
| 267 | deadline; however, in no case shall a party disclose indirectly |
| 268 | or directly to the arbitrator or umpire that the other party |
| 269 | refuses to agree to extend the deadline. The award shall be |
| 270 | signed by the arbitrators joining in the award or by the umpire |
| 271 | in the course of his or her jurisdiction. A copy of the award |
| 272 | shall be delivered to each party to the arbitration personally |
| 273 | or by registered or certified mail. |
| 274 | (2) The written award and the agreement or provision for |
| 275 | arbitration shall be entered into the court record by filing |
| 276 | them with the clerk of the court having jurisdiction over the |
| 277 | arbitration at such time as entry of judgment is sought. If a |
| 278 | court file has not been previously opened, the party seeking |
| 279 | entry of judgment shall pay the applicable filing fee and file |
| 280 | the documents specified in this section before a judgment is |
| 281 | entered. |
| 282 | (3) After a party to an arbitration proceeding receives |
| 283 | notice of the filing of the arbitration opinion as required by |
| 284 | subsection (2), the court shall confirm the award unless the |
| 285 | court modifies or vacates an award as provided in s. 682.508 or |
| 286 | s. 682.509. |
| 287 | (4) Upon the granting of an order directing a rehearing or |
| 288 | confirming, vacating, modifying, or correcting an award, the |
| 289 | judgment or decree shall be entered in conformity therewith and |
| 290 | be enforced as any other judgment or decree. |
| 291 | (5) The judgment shall be recorded, docketed, and enforced |
| 292 | as any other judgment in a civil action. |
| 293 | 682.507 Remedies; fees and expenses of arbitration.-- |
| 294 | (1) An arbitrator or umpire may award any relief or |
| 295 | damages allowed by law and otherwise awardable under the legal |
| 296 | standards that would apply to the same claim if brought in a |
| 297 | court of law. |
| 298 | (2) Arbitration fees and expenses shall be reasonable. A |
| 299 | consumer or small business may not be subject to any arbitration |
| 300 | fee or cost amounts greater than the consumer or small business |
| 301 | would be if the action were brought in a court of law. Unless |
| 302 | otherwise agreed by the parties to the arbitration after the |
| 303 | arbitration proceeding has been instituted, the circuit court |
| 304 | shall establish the amount of compensation, if any, that each |
| 305 | arbitrator or umpire shall receive. The court may order that the |
| 306 | arbitrator's and umpire's fees, the cost of facilities for the |
| 307 | arbitration, and the arbitration expenses be apportioned between |
| 308 | the parties in an equitable manner so as to make a prevailing |
| 309 | consumer or small business whole. |
| 310 | (3) An arbitrator or umpire shall award reasonable |
| 311 | attorney's fees and other reasonable expenses of arbitration to |
| 312 | the extent authorized by law in a civil action involving the |
| 313 | same claims. |
| 314 | 682.508 Vacating an award.-- |
| 315 | (1) Upon application of a party within 90 days after the |
| 316 | applicant knew or should have known, the court shall vacate an |
| 317 | award if: |
| 318 | (a) The award was procured by corruption, fraud, or other |
| 319 | undue or unjust means; or |
| 320 | (b) The arbitrator or umpire failed to meet the standards |
| 321 | in s. 682.504. |
| 322 | (2) Upon application of a party within 90 days after the |
| 323 | date of delivery of a copy of the award to the applicant, the |
| 324 | court shall vacate an award if: |
| 325 | (a) The arbitrator or umpire exceeded his or her powers; |
| 326 | (b) The arbitrator or umpire conducted the hearing |
| 327 | contrary to the provisions of this part or without proper notice |
| 328 | of the initiation of any stage of arbitration as required by |
| 329 | this part, or otherwise failed to comply with s. 682.505; |
| 330 | (c) The arbitration award is inconsistent with applicable |
| 331 | law, violates public policy, is arbitrary or capricious or lacks |
| 332 | a rational basis, or is not supported by substantial evidence as |
| 333 | reflected in the record; or |
| 334 | (d) The arbitration was conducted in a manner that was not |
| 335 | fundamentally fair. |
| 336 | (3) Parties may not narrow or expand the grounds for |
| 337 | vacating an award as provided in this section. A motion to |
| 338 | vacate an arbitration award shall be filed under Rule 1.540 of |
| 339 | the Florida Rules of Civil Procedure. |
| 340 | 682.509 Modification or correction of award.-- |
| 341 | (1) Upon application made within 90 days after the date of |
| 342 | delivery of a copy of the award to the applicant, the court |
| 343 | shall modify or correct the award if: |
| 344 | (a) There is an evident miscalculation of figures or an |
| 345 | evident mistake in the description of any person, thing, or |
| 346 | property referenced in the award; |
| 347 | (b) The arbitrator or umpire has made an award upon a |
| 348 | matter not submitted to him or her, and the award may be |
| 349 | corrected without affecting the merits of the decision upon the |
| 350 | issues actually submitted; or |
| 351 | (c) The award is imperfect as a matter of form, not |
| 352 | affecting the merits of the controversy. |
| 353 | (2) If the application is granted, the court shall modify |
| 354 | and correct the award so as to effect its intent and shall |
| 355 | confirm the award as modified and corrected. Otherwise, the |
| 356 | court shall confirm the award as made. |
| 357 | (3) An application to modify or correct an award may be |
| 358 | joined in the alternative with an application to vacate the |
| 359 | award. However, the filing of a motion to modify or correct an |
| 360 | award shall toll the time for taking any other action under this |
| 361 | part as to the award or opinion. |
| 362 | (4) A motion to modify or correct an award shall be filed |
| 363 | under Rule 1.540, Florida Rules of Civil Procedure. |
| 364 | 682.510 Appeals.-- |
| 365 | (1) A final appeal, or an interlocutory appeal if |
| 366 | appropriate, may be taken from a circuit or county court to the |
| 367 | appropriate court of appeals as a result of: |
| 368 | (a) An order denying or granting an application to compel |
| 369 | arbitration made under s. 682.503, pursuant to Rule 9.130 of the |
| 370 | Florida Rules of Appellate Procedure; |
| 371 | (b) An order denying or granting an application to stay |
| 372 | arbitration made under s. 682.503, pursuant to Rule 9.130 of the |
| 373 | Florida Rules of Appellate Procedure; |
| 374 | (c) A decision regarding the impartiality or lack of |
| 375 | conflict on the part of the arbitrator or umpire; |
| 376 | (d) An evidentiary ruling, except as provided in paragraph |
| 377 | (2)(a), after final award or decision; |
| 378 | (e) An order confirming or denying confirmation of an |
| 379 | award; |
| 380 | (f) An order modifying or correcting an award; |
| 381 | (g) An order on a motion to vacate an award; or |
| 382 | (h) A judgment or decree entered under this part. |
| 383 | (2) The following may be reviewed by writ of certiorari: |
| 384 | (a) A ruling concerning evidentiary privileges or |
| 385 | confidentiality rights of the parties; or |
| 386 | (b) A ruling concerning a protective order relating to the |
| 387 | disclosure of privileged information, confidential information, |
| 388 | or trade secrets. |
| 389 | (3) The appeal or petition for certiorari shall be taken |
| 390 | in the manner and to the same extent as from orders or judgments |
| 391 | in a civil action. |
| 392 | 682.511 Disclosure provisions.-- |
| 393 | (1) An arbitration agreement shall clearly and |
| 394 | conspicuously, in bold type no smaller than 18 point and on a |
| 395 | separate piece of paper, disclose the following: |
| 396 | (a) The filing fee for the arbitration proceeding. |
| 397 | (b) The average daily cost for an arbitrator, umpire, and |
| 398 | hearing room. |
| 399 | (c) Other charges that the arbitrator or umpire will |
| 400 | assess in conjunction with an arbitration. |
| 401 | (d) The proportion of these costs that each party bears if |
| 402 | the consumer or small business prevails or if the consumer or |
| 403 | small business does not prevail. |
| 404 | (e) A place on the consumer or agreement where a consumer |
| 405 | may choose not to arbitrate, and in that area of the agreement |
| 406 | the agreement shall prominently state that opting not to |
| 407 | arbitrate does not affect the right of the consumer or small |
| 408 | business to goods or services. |
| 409 | (f) Any and all conditions precedent that must occur |
| 410 | before any party may demand arbitration or enforce rights under |
| 411 | the contract. |
| 412 | (2) Failure to provide disclosures under subsection (1) |
| 413 | constitutes a deceptive and unfair trade practice under the |
| 414 | Florida Deceptive and Unfair Trade Practices Act as provided in |
| 415 | part II of chapter 501 and a waiver of rights to compel |
| 416 | arbitration pursuant to the arbitration agreement. Further, the |
| 417 | information provided in the disclosure may be considered in a |
| 418 | determination of whether an arbitration agreement is |
| 419 | unconscionable or is otherwise not enforceable under applicable |
| 420 | law. |
| 421 | (3) Upon a violation of this section by a party |
| 422 | responsible for providing disclosures under subsection (1), any |
| 423 | person or entity, including the Office of the Attorney General, |
| 424 | may petition a court to enjoin the party from violating this |
| 425 | section as to arbitration agreements into which it enters in the |
| 426 | future. The party violating subsection (1) is liable to the |
| 427 | person or entity bringing such an action for that person's or |
| 428 | entity's reasonable attorney's fees and costs if the court |
| 429 | issues an injunction or if, after the action is commenced, the |
| 430 | party voluntarily complies with the Florida Deceptive and Unfair |
| 431 | Trade Practices Act as provided in part II of chapter 501. |
| 432 | Section 4. This act shall take effect July 1, 2009. |