Florida Senate - 2011                                    SB 2122
       By the Committee on Budget
       576-03485-11                                          20112122__
    1                        A bill to be entitled                      
    2         An act relating to consumer protection; amending s.
    3         20.14, F.S.; removing the Division of Dairy Industry
    4         within the department; amending s. 320.90, F.S.;
    5         requiring the Department of Legal Affairs, rather than
    6         the Department of Agriculture and Consumer Services,
    7         to distribute free of charge a motor vehicle
    8         consumer’s rights pamphlet; amending s. 501.160, F.S.;
    9         providing for the state attorneys and the Department
   10         of Legal Affairs, rather than the Department of
   11         Agriculture and Consumer Services, to enforce the law
   12         prohibiting price gouging; reenacting s. 570.18, F.S.,
   13         relating to the organization of the Department of
   14         Agriculture and Consumer Services, to incorporate the
   15         amendment made to s. 570.29, F.S., in a reference
   16         thereto; amending s. 570.20, F.S.; removing the time
   17         limitations on provisions authorizing moneys in the
   18         General Inspection Trust Fund to be used for programs
   19         operated by the Department of Agriculture and Consumer
   20         Services; amending s. 570.29, F.S.; removing the
   21         Division of Dairy Industry, to conform, and adding the
   22         Division of Licensing as a division within the
   23         department; repealing ss. 570.40 and 570.41, F.S.,
   24         relating to the powers and duties of the Division of
   25         Dairy Industry; amending s. 570.50, F.S.; adding the
   26         inspection of dairy farms, milk plants, and milk
   27         product plants and other specified functions to the
   28         duties of the Division of Food Safety within the
   29         department; amending s. 601.15, F.S.; requiring review
   30         and approval by the Legislative Budget Commission of
   31         any proposal by the Citrus Commission to increase the
   32         box tax rate; repealing s. 681.102(7), F.S., relating
   33         to the definition of the term “division”; amending ss.
   34         681.103, 681.108, 681.109, 681.1095, 681.1096,
   35         681.110, 681.112, 681.114, 681.117, and 681.118, F.S.;
   36         providing for the Department of Legal Affairs, rather
   37         than the Division of Consumer Services of the
   38         Department of Agriculture and Consumer Services, to
   39         enforce the state Lemon Law; consolidating enforcement
   40         duties under the Motor Vehicle Warranty Enforcement
   41         Act within the Department of Legal Affairs; conforming
   42         provisions to changes made by the act; providing an
   43         effective date.
   45  Be It Enacted by the Legislature of the State of Florida:
   47         Section 1. Subsection (2) of section 20.14, Florida
   48  Statutes, is amended to read:
   49         20.14 Department of Agriculture and Consumer Services.
   50  There is created a Department of Agriculture and Consumer
   51  Services.
   52         (2) The following divisions of the Department of
   53  Agriculture and Consumer Services are established:
   54         (a) Administration.
   55         (b) Agricultural Environmental Services.
   56         (c) Animal Industry.
   57         (d) Aquaculture.
   58         (e) Consumer Services.
   59         (f) Dairy Industry.
   60         (f)(g) Food Safety.
   61         (g)(h) Forestry.
   62         (h)(i) Fruit and Vegetables.
   63         (i)(j) Licensing.
   64         (j)(k) Marketing and Development.
   65         (k)(l) Plant Industry.
   66         (l)(m) Standards.
   67         Section 2. Section 320.90, Florida Statutes, is amended to
   68  read:
   69         320.90 Notification of consumer’s rights.—The department
   70  shall develop a motor vehicle consumer’s rights pamphlet which
   71  shall be distributed free of charge by the Department of Legal
   72  Affairs Agriculture and Consumer Services to the motor vehicle
   73  owner upon request. Such pamphlet must contain information
   74  relating to odometer fraud and provide a summary of the rights
   75  and remedies available to all purchasers of motor vehicles.
   76         Section 3. Subsection (8) of section 501.160, Florida
   77  Statutes, is amended to read:
   78         501.160 Rental or sale of essential commodities during a
   79  declared state of emergency; prohibition against unconscionable
   80  prices.—
   81         (8) Any violation of this section may be enforced by the
   82  Department of Agriculture and Consumer Services, the office of
   83  the state attorney, or the Department of Legal Affairs.
   84         Section 4. For the purpose of incorporating the amendment
   85  made by this act to section 570.29, Florida Statutes, in a
   86  reference thereto, section 570.18, Florida Statutes, is
   87  reenacted to read:
   88         570.18 Organization of departmental work.—In the assignment
   89  of functions to the 12 divisions of the department created in s.
   90  570.29, the department shall retain within the Division of
   91  Administration, in addition to executive functions, those powers
   92  and duties enumerated in s. 570.30. The department shall
   93  organize the work of the other 11 divisions in such a way as to
   94  secure maximum efficiency in the conduct of the department. The
   95  divisions created in s. 570.29 are solely to make possible the
   96  definite placing of responsibility. The department shall be
   97  conducted as a unit in which every employee, including each
   98  division director, is assigned a definite workload, and there
   99  shall exist between division directors a spirit of cooperative
  100  effort to accomplish the work of the department.
  101         Section 5. Subsection (2) of section 570.20, Florida
  102  Statutes, is amended to read:
  103         570.20 General Inspection Trust Fund.—
  104         (2) For the 2010-2011 fiscal year only and Notwithstanding
  105  any other provision of law to the contrary, in addition to the
  106  spending authorized in subsection (1), moneys in the General
  107  Inspection Trust Fund may be appropriated for programs operated
  108  by the department which are related to the programs authorized
  109  by this chapter in addition to the spending authorized in
  110  subsection (1). This subsection expires July 1, 2011.
  111         Section 6. Section 570.29, Florida Statutes, is amended to
  112  read:
  113         570.29 Departmental divisions.—The department shall include
  114  the following divisions:
  115         (1) Administration.
  116         (2) Agricultural Environmental Services.
  117         (3) Animal Industry.
  118         (4) Aquaculture.
  119         (5) Consumer Services.
  120         (6) Dairy Industry.
  121         (6)(7) Food Safety.
  122         (7)(8) Forestry.
  123         (8)(9) Fruit and Vegetables.
  124         (9) Licensing.
  125         (10) Marketing and Development.
  126         (11) Plant Industry.
  127         (12) Standards.
  128         Section 7. Sections 570.40 and 570.41, Florida Statutes,
  129  are repealed.
  130         Section 8. Subsections (6) and (7) are added to section
  131  570.50, Florida Statutes, to read:
  132         570.50 Division of Food Safety; powers and duties.—The
  133  duties of the Division of Food Safety include, but are not
  134  limited to:
  135         (6) Inspecting dairy farms of the state and enforcing those
  136  provisions of chapter 502 as are authorized by the department
  137  relating to the supervision of milking operations and the rules
  138  adopted pursuant to such law.
  139         (7) Inspecting milk plants, milk product plants, and plants
  140  engaged in the manufacture and distribution of frozen desserts
  141  and frozen dessert mixes; analyzing and testing samples of milk,
  142  milk products, frozen desserts, and frozen dessert mixes which
  143  are collected by the division; and enforcing those provisions of
  144  chapter 502 or chapter 503 as are authorized by the department.
  145         Section 9. Paragraph (e) of subsection (3) of section
  146  601.15, Florida Statutes, is amended to read:
  147         601.15 Advertising campaign; methods of conducting; excise
  148  tax; emergency reserve fund; citrus research.—
  149         (3)
  150         (e) The commission, upon an affirmative vote of a majority
  151  of its members and by an order entered by it prior to November 1
  152  of any year, may set the tax rates up to the maximum rates
  153  specified in this subsection. The tax rate shall apply only to
  154  the citrus season which began on August 1 of the same calendar
  155  year. Such tax rate may be applied by variety and on the basis
  156  of whether the fruit enters the primary channel of trade for use
  157  in fresh or processed form. If the commission cannot agree on a
  158  box tax rate, the tax rate for the previous year shall remain in
  159  effect until the commission approves a new rate. Any proposal by
  160  the commission to increase the box tax rate from the previous
  161  year’s rate is subject to review and approval by the Legislative
  162  Budget Commission.
  163         Section 10. Subsection (7) of section 681.102, Florida
  164  Statutes, is repealed.
  165         Section 11. Subsections (2) and (3) of section 681.103,
  166  Florida Statutes, are amended to read:
  167         681.103 Duty of manufacturer to conform a motor vehicle to
  168  the warranty.—
  169         (2) Each manufacturer shall provide to its consumers
  170  conspicuous notice of the address and phone number for its zone,
  171  district, or regional office for this state in the written
  172  warranty or owner’s manual. By January 1 of each year, each
  173  manufacturer shall forward to the department of Legal Affairs a
  174  copy of the owner’s manual and any written warranty for each
  175  make and model of motor vehicle that it sells in this state.
  176         (3) At the time of acquisition, the manufacturer shall
  177  inform the consumer clearly and conspicuously in writing how and
  178  where to file a claim with a certified procedure if such
  179  procedure has been established by the manufacturer pursuant to
  180  s. 681.108. The nameplate manufacturer of a recreational vehicle
  181  shall, at the time of vehicle acquisition, inform the consumer
  182  clearly and conspicuously in writing how and where to file a
  183  claim with a program pursuant to s. 681.1096. The manufacturer
  184  shall provide to the dealer and, at the time of acquisition, the
  185  dealer shall provide to the consumer a written statement that
  186  explains the consumer’s rights under this chapter. The written
  187  statement shall be prepared by the department of Legal Affairs
  188  and shall contain a toll-free number for the department which
  189  division that the consumer can contact to obtain information
  190  regarding the consumer’s rights and obligations under this
  191  chapter or to commence arbitration. If the manufacturer obtains
  192  a signed receipt for timely delivery of sufficient quantities of
  193  this written statement to meet the dealer’s vehicle sales
  194  requirements, it shall constitute prima facie evidence of
  195  compliance with this subsection by the manufacturer. The
  196  consumer’s signed acknowledgment of receipt of materials
  197  required under this subsection shall constitute prima facie
  198  evidence of compliance by the manufacturer and dealer. The form
  199  of the acknowledgments shall be approved by the department of
  200  Legal Affairs, and the dealer shall maintain the consumer’s
  201  signed acknowledgment for 3 years.
  202         Section 12. Subsections (1), (2), (3), (4), (5), and (8) of
  203  section 681.108, Florida Statutes, are amended to read:
  204         681.108 Dispute-settlement procedures.—
  205         (1) If a manufacturer has established a procedure, which
  206  the department division has certified as substantially complying
  207  with the provisions of 16 C.F.R. part 703, in effect October 1,
  208  1983, and with the provisions of this chapter and the rules
  209  adopted under this chapter, and has informed the consumer how
  210  and where to file a claim with such procedure pursuant to s.
  211  681.103(3), the provisions of s. 681.104(2) apply to the
  212  consumer only if the consumer has first resorted to such
  213  procedure. The decisionmakers for a certified procedure shall,
  214  in rendering decisions, take into account all legal and
  215  equitable factors germane to a fair and just decision,
  216  including, but not limited to, the warranty; the rights and
  217  remedies conferred under 16 C.F.R. part 703, in effect October
  218  1, 1983; the provisions of this chapter; and any other equitable
  219  considerations appropriate under the circumstances.
  220  Decisionmakers and staff of a procedure shall be trained in the
  221  provisions of this chapter and in 16 C.F.R. part 703, in effect
  222  October 1, 1983. In an action brought by a consumer concerning
  223  an alleged nonconformity, the decision that results from a
  224  certified procedure is admissible in evidence.
  225         (2) A manufacturer may apply to the department division for
  226  certification of its procedure. After receipt and evaluation of
  227  the application, the department division shall certify the
  228  procedure or notify the manufacturer of any deficiencies in the
  229  application or the procedure.
  230         (3) A certified procedure or a procedure of an applicant
  231  seeking certification shall submit to the department division a
  232  copy of each settlement approved by the procedure or decision
  233  made by a decisionmaker within 30 days after the settlement is
  234  reached or the decision is rendered. The decision or settlement
  235  must contain at a minimum the:
  236         (a) Name and address of the consumer;
  237         (b) Name of the manufacturer and address of the dealership
  238  from which the motor vehicle was purchased;
  239         (c) Date the claim was received and the location of the
  240  procedure office that handled the claim;
  241         (d) Relief requested by the consumer;
  242         (e) Name of each decisionmaker rendering the decision or
  243  person approving the settlement;
  244         (f) Statement of the terms of the settlement or decision;
  245         (g) Date of the settlement or decision; and
  246         (h) Statement of whether the decision was accepted or
  247  rejected by the consumer.
  248         (4) Any manufacturer establishing or applying to establish
  249  a certified procedure must file with the department division a
  250  copy of the annual audit required under the provisions of 16
  251  C.F.R. part 703, in effect October 1, 1983, together with any
  252  additional information required for purposes of certification,
  253  including the number of refunds and replacements made in this
  254  state pursuant to the provisions of this chapter by the
  255  manufacturer during the period audited.
  256         (5) The department division shall review each certified
  257  procedure at least annually, prepare an annual report evaluating
  258  the operation of certified procedures established by motor
  259  vehicle manufacturers and procedures of applicants seeking
  260  certification, and, for a period not to exceed 1 year, shall
  261  grant certification to, or renew certification for, those
  262  manufacturers whose procedures substantially comply with the
  263  provisions of 16 C.F.R. part 703, in effect October 1, 1983, and
  264  with the provisions of this chapter and rules adopted under this
  265  chapter. If certification is revoked or denied, the department
  266  division shall state the reasons for such action. The reports
  267  and records of actions taken with respect to certification shall
  268  be public records.
  269         (8) The department division shall adopt rules to implement
  270  this section.
  271         Section 13. Subsections (1), (2), (3), (5), (6), and (7) of
  272  section 681.109, Florida Statutes, are amended to read:
  273         681.109 Florida New Motor Vehicle Arbitration Board;
  274  dispute eligibility.—
  275         (1) If a manufacturer has a certified procedure, a consumer
  276  claim arising during the Lemon Law rights period must be filed
  277  with the certified procedure no later than 60 days after the
  278  expiration of the Lemon Law rights period. If a decision is not
  279  rendered by the certified procedure within 40 days after of
  280  filing, the consumer may apply to the department division to
  281  have the dispute removed to the board for arbitration.
  282         (2) If a manufacturer has a certified procedure, a consumer
  283  claim arising during the Lemon Law rights period must be filed
  284  with the certified procedure no later than 60 days after the
  285  expiration of the Lemon Law rights period. If a consumer is not
  286  satisfied with the decision or the manufacturer’s compliance
  287  therewith, the consumer may apply to the department division to
  288  have the dispute submitted to the board for arbitration. A
  289  manufacturer may not seek review of a decision made under its
  290  procedure.
  291         (3) If a manufacturer has no certified procedure or if a
  292  certified procedure does not have jurisdiction to resolve the
  293  dispute, a consumer may apply directly to the department
  294  division to have the dispute submitted to the board for
  295  arbitration.
  296         (5) The department division shall screen all requests for
  297  arbitration before the board to determine eligibility. The
  298  consumer’s request for arbitration before the board shall be
  299  made on a form prescribed by the department. The department
  300  division shall forward to the board all disputes that the
  301  department division determines are potentially entitled to
  302  relief under this chapter.
  303         (6) The department division may reject a dispute that it
  304  determines to be fraudulent or outside the scope of the board’s
  305  authority. Any dispute deemed by the department division to be
  306  ineligible for arbitration by the board due to insufficient
  307  evidence may be reconsidered upon the submission of new
  308  information regarding the dispute. Following a second review,
  309  the department division may reject a dispute if the evidence is
  310  clearly insufficient to qualify for relief. If a Any dispute is
  311  rejected by the department, the department shall send division
  312  shall be forwarded to the department and a copy shall be sent by
  313  registered mail to the consumer and the manufacturer, containing
  314  a brief explanation as to the reason for rejection.
  315         (7) If the department division rejects a dispute, the
  316  consumer may file a lawsuit to enforce the remedies provided
  317  under this chapter. In any civil action arising under this
  318  chapter and relating to a matter considered by the department
  319  division, any determination made to reject a dispute is
  320  admissible in evidence.
  321         Section 14. Subsections (1) through (6) and subsection (11)
  322  of section 681.1095, Florida Statutes, are amended to read:
  323         681.1095 Florida New Motor Vehicle Arbitration Board;
  324  creation and function.—
  325         (1) There is established within the department of Legal
  326  Affairs, the Florida New Motor Vehicle Arbitration Board,
  327  consisting of members appointed by the Attorney General for an
  328  initial term of 1 year. Board members may be reappointed for
  329  additional terms of 2 years. Each board member is accountable to
  330  the Attorney General for the performance of the member’s duties
  331  and is exempt from civil liability for any act or omission that
  332  which occurs while acting in the member’s official capacity. The
  333  department of Legal Affairs shall defend a member in any action
  334  against the member or the board which arises from any such act
  335  or omission. The Attorney General may establish as many regions
  336  of the board as necessary to carry out the provisions of this
  337  chapter.
  338         (2) The boards shall hear cases in various locations
  339  throughout the state so any consumer whose dispute is approved
  340  for arbitration by the department division may attend an
  341  arbitration hearing at a reasonably convenient location and
  342  present a dispute orally. Hearings shall be conducted by panels
  343  of three board members assigned by the department. A majority
  344  vote of the three-member board panel shall be required to render
  345  a decision. Arbitration proceedings under this section shall be
  346  open to the public on reasonable and nondiscriminatory terms.
  347         (3) Each region of the board shall consist of up to eight
  348  members. The members of the board shall construe and apply the
  349  provisions of this chapter, and rules adopted thereunder, in
  350  making their decisions. An administrator and a secretary shall
  351  be assigned to each board by the department of Legal Affairs. At
  352  least one member of each board must be a person with expertise
  353  in motor vehicle mechanics. A member must not be employed by a
  354  manufacturer or a franchised motor vehicle dealer or be a staff
  355  member, a decisionmaker, or a consultant for a procedure. Board
  356  members shall be trained in the application of this chapter and
  357  any rules adopted under this chapter, shall be reimbursed for
  358  travel expenses pursuant to s. 112.061, and shall be compensated
  359  at a rate or wage prescribed by the Attorney General.
  360         (4) Before filing a civil action on a matter subject to s.
  361  681.104, the consumer must first submit the dispute to the
  362  department division, and to the board if such dispute is deemed
  363  eligible for arbitration.
  364         (5) Manufacturers shall submit to arbitration conducted by
  365  the board if such arbitration is requested by a consumer and the
  366  dispute is deemed eligible for arbitration by the department
  367  division pursuant to s. 681.109.
  368         (6) The board shall hear the dispute within 40 days and
  369  render a decision within 60 days after the date the request for
  370  arbitration is approved. The board may continue the hearing on
  371  its own motion or upon the request of a party for good cause
  372  shown. A request for continuance by the consumer constitutes
  373  waiver of the time periods set forth in this subsection. The
  374  department of Legal Affairs, at the board’s request, may
  375  investigate disputes, and may issue subpoenas for the attendance
  376  of witnesses and for the production of records, documents, and
  377  other evidence before the board. The failure of the board to
  378  hear a dispute or render a decision within the prescribed
  379  periods does not invalidate the decision.
  380         (11) All provisions in this section and s. 681.109
  381  pertaining to compulsory arbitration before the board, the
  382  dispute eligibility screening by the department division, the
  383  proceedings and decisions of the board, and any appeals thereof,
  384  are exempt from the provisions of chapter 120.
  385         Section 15. Subsections (2) and (4) of section 681.1096,
  386  Florida Statutes, are amended to read:
  387         681.1096 RV Mediation and Arbitration Program; creation and
  388  qualifications.—
  389         (2) Each manufacturer of a recreational vehicle involved in
  390  a dispute that is determined eligible under this chapter,
  391  including chassis and component manufacturers which separately
  392  warrant the chassis and components and which otherwise meet the
  393  definition of manufacturer set forth in s. 681.102(13)
  394  681.102(14), shall participate in a mediation and arbitration
  395  program that is deemed qualified by the department.
  396         (4) The department shall monitor the program for compliance
  397  with this chapter. If the program is determined not qualified or
  398  if qualification is revoked, then disputes shall be subject to
  399  the provisions of ss. 681.109 and 681.1095. If the program is
  400  determined not qualified or if qualification is revoked as to a
  401  manufacturer, all those manufacturers potentially involved in
  402  the eligible consumer dispute shall be required to submit to
  403  arbitration conducted by the board if such arbitration is
  404  requested by a consumer and the dispute is deemed eligible for
  405  arbitration by the department division pursuant to s. 681.109. A
  406  consumer having a dispute involving one or more manufacturers
  407  for which the program has been determined not qualified, or for
  408  which qualification has been revoked, is not required to submit
  409  the dispute to the program irrespective of whether the program
  410  may be qualified as to some of the manufacturers potentially
  411  involved in the dispute.
  412         Section 16. Section 681.110, Florida Statutes, is amended
  413  to read:
  414         681.110 Compliance and disciplinary actions.—The department
  415  of Legal Affairs may enforce and ensure compliance with the
  416  provisions of this chapter and rules adopted thereunder, may
  417  issue subpoenas requiring the attendance of witnesses and
  418  production of evidence, and may seek relief in the circuit court
  419  to compel compliance with such subpoenas. The department of
  420  Legal Affairs may impose a civil penalty against a manufacturer
  421  not to exceed $1,000 for each count or separate offense. The
  422  proceeds from the fine imposed herein shall be placed in the
  423  Motor Vehicle Warranty Trust Fund in the department Department
  424  of Legal Affairs for implementation and enforcement of this
  425  chapter.
  426         Section 17. Subsection (2) of section 681.112, Florida
  427  Statutes, is amended to read:
  428         681.112 Consumer remedies.—
  429         (2) An action brought under this chapter must be commenced
  430  within 1 year after the expiration of the Lemon Law rights
  431  period, or, if a consumer resorts to an informal dispute
  432  settlement procedure or submits a dispute to the department
  433  division or board, within 1 year after the final action of the
  434  procedure, department division, or board.
  435         Section 18. Subsection (2) of section 681.114, Florida
  436  Statutes, is amended to read:
  437         681.114 Resale of returned vehicles.—
  438         (2) A person shall not knowingly lease, sell at wholesale
  439  or retail, or transfer a title to a motor vehicle returned by
  440  reason of a settlement, determination, or decision pursuant to
  441  this chapter or similar statute of another state unless the
  442  nature of the nonconformity is clearly and conspicuously
  443  disclosed to the prospective transferee, lessee, or buyer, and
  444  the manufacturer warrants to correct such nonconformity for a
  445  term of 1 year or 12,000 miles, whichever occurs first. The
  446  department of Legal Affairs shall prescribe by rule the form,
  447  content, and procedure pertaining to such disclosure statement.
  448         Section 19. Subsection (1) of section 681.117, Florida
  449  Statutes, is amended to read:
  450         681.117 Fee.—
  451         (1) A $2 fee shall be collected by a motor vehicle dealer,
  452  or by a person engaged in the business of leasing motor
  453  vehicles, from the consumer at the consummation of the sale of a
  454  motor vehicle or at the time of entry into a lease agreement for
  455  a motor vehicle. Such fees shall be remitted to the county tax
  456  collector or private tag agency acting as agent for the
  457  Department of Revenue. If the purchaser or lessee removes the
  458  motor vehicle from the state for titling and registration
  459  outside this state, the fee shall be remitted to the Department
  460  of Revenue. All fees, less the cost of administration, shall be
  461  transferred monthly to the department of Legal Affairs for
  462  deposit into the Motor Vehicle Warranty Trust Fund. The
  463  Department of Legal Affairs shall distribute monthly an amount
  464  not exceeding one-fourth of the fees received to the Division of
  465  Consumer Services of the Department of Agriculture and Consumer
  466  Services to carry out the provisions of ss. 681.108 and 681.109.
  467  The Department of Legal Affairs shall contract with the Division
  468  of Consumer Services for payment of services performed by the
  469  division pursuant to ss. 681.108 and 681.109.
  470         Section 20. Section 681.118, Florida Statutes, is amended
  471  to read:
  472         681.118 Rulemaking authority.—The department of Legal
  473  Affairs shall adopt rules pursuant to ss. 120.536(1) and 120.54
  474  to implement the provisions of this chapter.
  475         Section 21. This act shall take effect July 1, 2011.