Florida Senate - 2022                      CS for CS for SB 1564
       
       
        
       By the Committees on Regulated Industries; and Commerce and
       Tourism; and Senator Hutson
       
       
       
       
       580-02820-22                                          20221564c2
    1                        A bill to be entitled                      
    2         An act relating to telephone solicitation; amending s.
    3         501.059, F.S.; redefining terms; conforming a
    4         provision to changes made by the act; prohibiting the
    5         use of automated telephone dialing systems using
    6         certain types of messages under certain circumstances;
    7         authorizing such use in response to certain inquiries;
    8         providing a limitation; revising provisions for the
    9         award of attorney fees and costs; providing for
   10         retroactive application; providing an effective date.
   11          
   12  Be It Enacted by the Legislature of the State of Florida:
   13  
   14         Section 1. Paragraphs (g) and (k) of subsection (1),
   15  paragraph (a) of subsection (8), and subsection (11) of section
   16  501.059, Florida Statutes, are amended, and paragraph (e) is
   17  added to subsection (8) of that section, to read:
   18         501.059 Telephone solicitation.—
   19         (1) As used in this section, the term:
   20         (g) “Prior express written consent” means a written
   21  agreement that:
   22         1. Bears the signature of the called party;
   23         2. Clearly authorizes the person making or allowing the
   24  placement of a telephonic sales call by telephone call, text
   25  message, or voicemail transmission to deliver or cause to be
   26  delivered to the called party a telephonic sales call using an
   27  automated system for the selection and or dialing of telephone
   28  numbers, the playing of a recorded message when a connection is
   29  completed to a number called, the transmission of a text
   30  message, or the transmission of a prerecorded voicemail;
   31         3. Includes the telephone number to which the signatory
   32  authorizes a telephonic sales call to be delivered; and
   33         4. Includes a clear and conspicuous disclosure informing
   34  the called party that:
   35         a. By executing the agreement, the called party authorizes
   36  the person making or allowing the placement of a telephonic
   37  sales call to deliver or cause to be delivered a telephonic
   38  sales call to the called party using an automated system for the
   39  selection and or dialing of telephone numbers, or the playing of
   40  a recorded message when a connection is completed to a number
   41  called, the transmission of a text message, or the transmission
   42  of a prerecorded voicemail; and
   43         b. He or she is not required to directly or indirectly sign
   44  the written agreement or to agree to enter into such an
   45  agreement as a condition of purchasing any property, goods, or
   46  services.
   47         (k) “Unsolicited telephonic sales call” means a telephonic
   48  sales call other than a call made:
   49         1. Within 120 days after In response to an express request
   50  of the person called party;
   51         2. Primarily in connection with an existing debt or
   52  contract, if payment or performance of such debt or contract has
   53  not been completed at the time of such call;
   54         3. To a person with whom the telephone solicitor has a
   55  prior or existing business relationship; or
   56         4. By a newspaper publisher or his or her agent or employee
   57  in connection with his or her business; or
   58         5.For the purpose of polling or soliciting the expression
   59  of ideas, opinions, or votes, including when such polling or
   60  soliciting is made by text message.
   61         (8)(a) A person may not make or knowingly allow a
   62  telephonic sales call to be made if such call involves an
   63  automated system for the selection and or dialing of telephone
   64  numbers, or the playing of a recorded message when a connection
   65  is completed to a number called, the transmission of a text
   66  message, or the transmission of a prerecorded voicemail without
   67  the prior express written consent of the called party.
   68         (e)This subsection does not prohibit the use of an
   69  automated system for the selection and dialing of telephone
   70  numbers with live messages or text messages if the call or
   71  message is made solely in response to an inquiry initiated by
   72  the called party. However, only three such calls or messages may
   73  be made in response to each inquiry.
   74         (11)(a) In any civil litigation resulting from a
   75  transaction involving a violation of this section, the
   76  prevailing party, after judgment in the trial court and
   77  exhaustion of all appeals, if any, shall receive his or her
   78  reasonable attorney attorney’s fees and costs from the
   79  nonprevailing party.
   80         (b) The attorney for the prevailing party shall submit a
   81  sworn affidavit of his or her time spent on the case and his or
   82  her costs incurred for all the motions, hearings, and appeals to
   83  the trial judge who presided over the civil case.
   84         (c) The trial judge shall award the prevailing party the
   85  sum of reasonable costs incurred in the action plus a reasonable
   86  legal fee for the hours actually spent on the case as sworn to
   87  in an affidavit.
   88         (d) Any award of attorney attorney’s fees or costs shall
   89  become a part of the judgment and subject to execution as the
   90  law allows.
   91         (e) In any civil litigation initiated by the department or
   92  the Department of Legal Affairs, the court may award to the
   93  prevailing party reasonable attorney attorney’s fees and costs
   94  if the court finds that there was a complete absence of a
   95  justiciable issue of either law or fact raised by the losing
   96  party or if the court finds bad faith on the part of the losing
   97  party.
   98         Section 2. The amendments made by this act to s. 501.059,
   99  Florida Statutes, are remedial in nature and apply retroactively
  100  to July 1, 2021, and to any proceeding pending or commenced on
  101  or after July 1, 2021.
  102         Section 3. This act shall take effect July 1, 2022.