FL
Florida House Bill H1095

Florida 2022 Regular Session

Florida House Bill H1095 Compare Versions

OldNewDifferences
11
22
3-CS/CS/CS/HB 1095 2022
3+CS/CS/HB 1095 2022
44
55
66
77 CODING: Words stricken are deletions; words underlined are additions.
8-hb1095-03-c3
9-Page 1 of 9
8+hb1095-02-c2
9+Page 1 of 8
1010 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
1111
1212
1313
1414 A bill to be entitled 1
1515 An act relating to telephone solicitation; amending s. 2
1616 501.059, F.S.; providing and revising definitions; 3
1717 conforming provisions; authorizing the use of 4
18-automated systems with live callers or text messages 5
19-in response to certain requests and consent; providing 6
20-a limitation and an exception; prohibiting certain 7
21-telephonic sales calls; revising provisions for the 8
22-award of attorney fees and costs; providing 9
23-retroactive applicability; providing severability; 10
24-providing an effective date. 11
25- 12
26-Be It Enacted by the Legislature of the State of Florida: 13
27- 14
28- Section 1. Subsections (9) through (13) of section 15
29-501.059, Florida Statutes, are renumbered as subsections (10) 16
30-through (14), respectively, subsections (1) and (2), paragraph 17
31-(a) of subsection (8), and paragraphs (a), (c), (d), and (e) of 18
32-present subsection (11) are amended, paragraphs (e) and (f) are 19
33-added to subsection (8), and a new subsection (9) is added to 20
34-that section, to read: 21
35- 501.059 Telephone solicitation. — 22
36- (1) As used in this section, the term: 23
37- (a) "Automated system" means a computerized, mechanical, 24
38-or other technological system or device that creates a telephone 25
18+automated systems with live messages or text messages 5
19+in response to certain inquiries; providing a 6
20+limitation; prohibiting certain telephonic sales 7
21+calls; revising provisions for the award of attorney 8
22+fees and costs; providing retroactive applicability; 9
23+providing an effective date. 10
24+ 11
25+Be It Enacted by the Legislature of the State of Florida: 12
26+ 13
27+ Section 1. Subsections (9) through (13) of section 14
28+501.059, Florida Statutes, are renumbered as subsections (10) 15
29+through (14), respectively, subsections (1) and (2), par agraph 16
30+(a) of subsection (8), and paragraphs (a), (d), and (e) of 17
31+present subsection (11) are amended, paragraph (e) is added to 18
32+subsection (8), and a new subsection (9) is added to that 19
33+section, to read: 20
34+ 501.059 Telephone solicitation. — 21
35+ (1) As used in this section, the term: 22
36+ (a) "Automated system" means a computerized, mechanical, 23
37+or other technological system or device that creates a telephone 24
38+number, stores or selects any telephone number from any database 25
3939
40-CS/CS/CS/HB 1095 2022
40+CS/CS/HB 1095 2022
4141
4242
4343
4444 CODING: Words stricken are deletions; words underlined are additions.
45-hb1095-03-c3
46-Page 2 of 9
45+hb1095-02-c2
46+Page 2 of 8
4747 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
4848
4949
5050
51-number, or stores or selects any telephon e number from any 26
52-database or list, and then causes that telephone number to be 27
53-called. The term includes any system which the live caller or 28
54-any other person operates by click -to-call. The term does not 29
55-include a live caller manually selecting and calling telephone 30
56-numbers using only a contact list or telephone log. 31
57- (b)(a) "Called party" means a person who is the regular 32
58-user of the telephone number that receives a telephonic sales 33
59-call. 34
60- (c) "Express request" means a prior oral or written 35
61-request, invitation, consent, or permission from a called party 36
62-made directly or indirectly to the live caller or telephone 37
63-solicitor for calls or text messages regarding the goods, 38
64-services, or products offered by the live caller or telephone 39
65-solicitor. 40
66- (d)(b) "Consumer" means an actual or prospective 41
67-purchaser, lessee, or recipient of consumer goods or services. 42
68- (e)(c) "Consumer goods or services" means real property or 43
69-tangible or intangible personal property or services that are is 44
70-normally used for personal, fa mily, or household purposes . The 45
71-term includes, including, but is not limited to, any such 46
72-property intended to be attached to or installed in any real 47
73-property without regard to whether it is so attached or 48
74-installed, as well as cemetery lots and timeshar e estates, and 49
75-any related services related to such property . 50
51+or list, and then causes that telephone nu mber to be called. The 26
52+term includes any system which the caller or any other person 27
53+operates by click-to-call or which the caller or any other 28
54+person selects telephone numbers from a list to call. The term 29
55+does not include a user selecting telephone numbe rs from a 30
56+contact list or telephone log on a cellular, handheld, or 31
57+landline device. 32
58+ (b)(a) "Called party" means a person who is the regular 33
59+user of the telephone number that receives a telephonic sales 34
60+call. 35
61+ (c) "Caller" means a natural person who cau ses a call to 36
62+be made and who is ready to speak to the called party at the 37
63+time the call is made. 38
64+ (d)(b) "Consumer" means an actual or prospective 39
65+purchaser, lessee, or recipient of consumer goods or services. 40
66+ (e)(c) "Consumer goods or services" means real property or 41
67+tangible or intangible personal property or services that are is 42
68+normally used for personal, family, or household purposes . The 43
69+term includes, including, but is not limited to, any such 44
70+property intended to be attached to or installed in a ny real 45
71+property without regard to whether it is so attached or 46
72+installed, as well as cemetery lots and timeshare estates, and 47
73+any related services related to such property . 48
74+ (f)(d) "Department" means the Department of Agriculture 49
75+and Consumer Services. 50
7676
77-CS/CS/CS/HB 1095 2022
77+CS/CS/HB 1095 2022
7878
7979
8080
8181 CODING: Words stricken are deletions; words underlined are additions.
82-hb1095-03-c3
83-Page 3 of 9
82+hb1095-02-c2
83+Page 3 of 8
8484 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
8585
8686
8787
88- (f)(d) "Department" means the Department of Agriculture 51
89-and Consumer Services. 52
90- (g)(e) "Doing business in this state" means businesses 53
91-that conduct telephonic sales calls from a location in F lorida 54
92-or from other states or nations to consumers located in Florida. 55
93- (h) "Live caller" means a natural person who causes a call 56
94-to be made and who is ready to speak to the called party at the 57
95-time the call is made. 58
96- (i)(f) "Merchant" means a person w ho, directly or 59
97-indirectly, offers or makes available to consumers any consumer 60
98-goods or services. 61
99- (j)(g) "Prior express written consent" means a written 62
100-agreement that: 63
101- 1. Bears the signature of the called party; 64
102- 2. Clearly authorizes the person making or allowing the 65
103-placement of a telephonic sales call by telephone call, text 66
104-message, or voicemail transmission to deliver or cause to be 67
105-delivered to the called party a telephonic sales call using an 68
106-automated system for the selection and or dialing of telephone 69
107-numbers, the playing of a recorded message when a connection is 70
108-completed to a number called, the transmission of a text 71
109-message, or the transmission of a prerecorded voicemail; 72
110- 3. Includes the telephone n umber to which the signatory 73
111-authorizes a telephonic sales call to be delivered; and 74
112- 4. Includes a clear and conspicuous disclosure informing 75
88+ (g)(e) "Doing business in this state" means businesses 51
89+that conduct telephonic sales calls from a location in Florida 52
90+or from other states or nations to consumers located in Florida. 53
91+ (h)(f) "Merchant" means a person who, directly or 54
92+indirectly, offers o r makes available to consumers any consumer 55
93+goods or services. 56
94+ (i)(g) "Prior express written consent" means a written 57
95+agreement that: 58
96+ 1. Bears the signature of the called party; 59
97+ 2. Clearly authorizes the person making or allowing the 60
98+placement of a telephonic sales call by telephone call, text 61
99+message, or voicemail transmission to deliver or cause to be 62
100+delivered to the called party a telephonic sales call using an 63
101+automated system for the selection and or dialing of telephone 64
102+numbers, the playing of a recorded message when a connection is 65
103+completed to a number called, the transmission of a text 66
104+message, or the transmission of a prerecorded voicemail; 67
105+ 3. Includes the telephone n umber to which the signatory 68
106+authorizes a telephonic sales call to be delivered; and 69
107+ 4. Includes a clear and conspicuous disclosure informing 70
108+the called party that: 71
109+ a. By executing the agreement, the called party authorizes 72
110+the person making or allowin g the placement of a telephonic 73
111+sales call to deliver or cause to be delivered a telephonic 74
112+sales call to the called party using an automated system for the 75
113113
114-CS/CS/CS/HB 1095 2022
114+CS/CS/HB 1095 2022
115115
116116
117117
118118 CODING: Words stricken are deletions; words underlined are additions.
119-hb1095-03-c3
120-Page 4 of 9
119+hb1095-02-c2
120+Page 4 of 8
121121 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
122122
123123
124124
125-the called party that: 76
126- a. By executing the agreement, the called party authorizes 77
127-the person making or allowin g the placement of a telephonic 78
128-sales call to deliver or cause to be delivered a telephonic 79
129-sales call to the called party using an automated system for the 80
130-selection and or dialing of telephone numbers or the playing of 81
131-a recorded message when a connectio n is completed to a number 82
132-called, the transmission of a text message, or the transmission 83
133-of a prerecorded voicemail ; and 84
134- b. He or she is not required to directly or indirectly 85
135-sign the written agreement or to agree to enter into such an 86
136-agreement as a condition of purchasing any property, goods, or 87
137-services. 88
138- 89
139-For purposes of subparagraph 4., a designated signature line 90
140-with the following notice, placed directly above the designated 91
141-signature line, that is prominent and robust in at least 12 -92
142-point bold font is presumptively compliant: 93
143- 94
144-By signing below, you authorize [NAME] to place a 95
145-telephonic sales call to you at [TELEPHONE NUMBER] by way 96
146-of telephone calls, text messages, or voicemail 97
147-transmissions using an automated system for the selection 98
148-and/or dialing of telephone numbers or the playing of a 99
149-recorded message when a connection is completed to your 100
125+selection and or dialing of telephone numbers or the playing of 76
126+a recorded message when a connectio n is completed to a number 77
127+called, the transmission of a text message, or the transmission 78
128+of a prerecorded voicemail ; and 79
129+ b. He or she is not required to directly or indirectly 80
130+sign the written agreement or to agree to enter into such an 81
131+agreement as a condition of purchasing any property, goods, or 82
132+services. 83
133+ 84
134+For purposes of subparagraph 4., a designated signature line 85
135+with the following notice in at least 12 -point bold font within 86
136+2 inches of the signature is presumptively satisfactory in form: 87
137+ 88
138+By signing below, you authorize [NAME] to place a 89
139+telephonic sales call to you at [TELEPHONE NUMBER] by way 90
140+of telephone calls, text messages, or voicemail 91
141+transmissions using an automated system for the selection 92
142+and/or dialing of telephone numbers or the playi ng of a 93
143+recorded message when a connection is completed to your 94
144+telephone number. YOU ARE NOT REQUIRED TO PROVIDE SUCH 95
145+AUTHORIZATION AS A CONDITION OF PURCHASING ANY PROPERTY, 96
146+GOODS, OR SERVICES. 97
147+ 98
148+ (j) "Selection" means to store or randomly produce 99
149+telephone numbers to be called and to create a list of called 100
150150
151-CS/CS/CS/HB 1095 2022
151+CS/CS/HB 1095 2022
152152
153153
154154
155155 CODING: Words stricken are deletions; words underlined are additions.
156-hb1095-03-c3
157-Page 5 of 9
156+hb1095-02-c2
157+Page 5 of 8
158158 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
159159
160160
161161
162-telephone number. YOU ARE NOT REQUIRED TO PROVIDE SUCH 101
163-AUTHORIZATION AS A CONDITION OF PURCHASING ANY PROPERTY, 102
164-GOODS, OR SERVICES. 103
165- 104
166- (k)(h) "Signature" includes an electronic or digital 105
167-signature, including agreements obtained through a compliant e -106
168-mail, website form, text message, telephone keypress, or voice 107
169-recording, or any to the extent that such form of signature that 108
170-is recognized as a valid signa ture under applicable federal law 109
171-or state contract law. 110
172- (l)(i) "Telephone solicitor" means a natural person, firm, 111
173-organization, partnership, association, or corporation, or a 112
174-subsidiary or affiliate thereof, doing business in this state, 113
175-who makes or causes to be made a telephonic sales call, 114
176-including, but not limited to, calls made by the use of 115
177-automated systems or automated dialing or recorded message 116
178-devices. 117
179- (m)(j) "Telephonic sales call" means a telephone call, 118
180-text message, or voicemail transm ission, including, but not 119
181-limited to, calls made by the use of automated systems or 120
182-automated dialing or recorded message devices, to a consumer for 121
183-the purpose of soliciting a sale , lease, or acquisition of any 122
184-consumer goods or services, soliciting an extension of credit 123
185-for consumer goods or services, or obtaining information that 124
186-will or may be used for the direct solicitation of a sale , 125
162+parties without manual intervention. 101
163+ (k)(h) "Signature" includes an electronic or digital 102
164+signature, including agreements obtained through a compliant e -103
165+mail, website form, text message, telephone k eypress, or voice 104
166+recording, to the extent that such form of signature is 105
167+recognized as a valid signature under applicable federal law or 106
168+state contract law. 107
169+ (l)(i) "Telephone solicitor" means a natural person, firm, 108
170+organization, partnership, associatio n, or corporation, or a 109
171+subsidiary or affiliate thereof, doing business in this state, 110
172+who makes or causes to be made a telephonic sales call, 111
173+including, but not limited to, calls made by use of automated 112
174+dialing or recorded message devices. 113
175+ (m)(j) "Telephonic sales call" means a telephone call, 114
176+text message, or voicemail transmission to a consumer for the 115
177+purpose of soliciting a sale or acquisition of any consumer 116
178+goods or services, soliciting an extension of credit for 117
179+consumer goods or services, or obt aining information that will 118
180+or may be used for the direct solicitation of a sale or 119
181+acquisition of consumer goods or services or an extension of 120
182+credit for such purposes. 121
183+ (n)(k) "Unsolicited telephonic sales call" means a 122
184+telephonic sales call other tha n a call made: 123
185+ 1. Within 120 days after In response to an express request 124
186+of the person called party; 125
187187
188-CS/CS/CS/HB 1095 2022
188+CS/CS/HB 1095 2022
189189
190190
191191
192192 CODING: Words stricken are deletions; words underlined are additions.
193-hb1095-03-c3
194-Page 6 of 9
193+hb1095-02-c2
194+Page 6 of 8
195195 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
196196
197197
198198
199-lease, or acquisition of consumer goods or services or an 126
200-extension of credit for such purposes. 127
201- (n)(k) "Unsolicited telephonic sales call" means a 128
202-telephonic sales call other than a call made: 129
203- 1. Within 120 days after In response to an express request 130
204-of the person called party; 131
205- 2. Primarily in connection with an existing debt or 132
206-contract, if payment or performance of such debt or contract has 133
207-not been completed at the time of such call; 134
208- 3. To a person with whom the telephone solicitor has a 135
209-prior or existing business relationship; or 136
210- 4. By a newspaper publish er or his or her agent or 137
211-employee in connection with his or her business ; 138
212- 5. To a person who has provided prior express written 139
213-consent to be contacted; or 140
214- 6. For the purpose of polling or soliciting the expression 141
215-of ideas, opinions, or votes, includ ing when such polling or 142
216-soliciting is made by text message . 143
217- (o)(l) "Voicemail transmission" means technologies that 144
218-deliver a voice message directly to a voicemail application, 145
219-service, or device. 146
220- (2) Any telephone solicitor who makes an unsolicited 147
221-telephonic sales call to a called party residential, mobile, or 148
222-telephonic paging device telephone number shall identify himself 149
223-or herself by his or her true first and last names and the 150
199+ 2. Primarily in connection with an existing debt or 126
200+contract, if payment or performance of such debt or contract has 127
201+not been completed at the time of such call; 128
202+ 3. To a person with whom the telephone solicitor has a 129
203+prior or existing business relationship; or 130
204+ 4. By a newspaper publisher or his or her agent or 131
205+employee in connection with his or her business ; 132
206+ 5. To a person who has provided prior e xpress written 133
207+consent to be contacted; or 134
208+ 6. For the purpose of polling or soliciting the expression 135
209+of ideas, opinions, or votes, including when such polling or 136
210+soliciting is made by text message . 137
211+ (o)(l) "Voicemail transmission" means technologies th at 138
212+deliver a voice message directly to a voicemail application, 139
213+service, or device. 140
214+ (2) Any telephone solicitor who makes an unsolicited 141
215+telephonic sales call to a called party residential, mobile, or 142
216+telephonic paging device telephone number shall identify himself 143
217+or herself by his or her true first and last names and the 144
218+business on whose behalf he or she is soliciting immediately 145
219+upon making contact by telephone with the called party person 146
220+who is the object of the telephone solicitation . 147
221+ (8)(a) A telephone solicitor person may not make or 148
222+knowingly allow an unsolicited a telephonic sales call to be 149
223+made if such call involves an automated system for the selection 150
224224
225-CS/CS/CS/HB 1095 2022
225+CS/CS/HB 1095 2022
226226
227227
228228
229229 CODING: Words stricken are deletions; words underlined are additions.
230-hb1095-03-c3
231-Page 7 of 9
230+hb1095-02-c2
231+Page 7 of 8
232232 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
233233
234234
235235
236-business on whose behalf he or she is soliciting immediately 151
237-upon making contact by telephone with the called party person 152
238-who is the object of the telephone solicitation . 153
239- (8)(a) A telephone solicitor or live caller person may not 154
240-make or knowingly allow an unsolicited a telephonic sales call 155
241-to be made if such call invol ves an automated system for the 156
242-selection and or dialing of telephone numbers or the playing of 157
243-a recorded message when a connection is completed to a number 158
244-called, the transmission of a text message, or the transmission 159
245-of a prerecorded voicemail without the prior express written 160
246-consent of the called party . 161
247- (e) This subsection does not prohibit the use of an 162
248-automated system for the selection and dialing of telephone 163
249-numbers with a live caller or text messages if the call or 164
250-message is made solely in r esponse to an express request 165
251-initiated by the called party or prior express written consent 166
252-by the called party and the live caller or telephone solicitor 167
253-maintains evidence of the express request or prior express 168
254-written consent. However, only three such calls or messages may 169
255-be made in response to each express request or prior express 170
256-written consent, unless the express request or prior express 171
257-written consent specifically authorizes a different number of 172
258-calls or messages or a specific time period that such calls or 173
259-messages may be made. 174
260- (f) A merchant, telephone solicitor, live caller, or other 175
236+and or dialing of telephone numbers or the playing of a recorded 151
237+message when a connectio n is completed to a number called , the 152
238+transmission of a text message, or the transmission of a 153
239+prerecorded voicemail without the prior express written consent 154
240+of the called party. 155
241+ (e) This subsection does not prohibit the use of an 156
242+automated system for the selection and dialing of telephone 157
243+numbers with live messages or text messages if the call or 158
244+message is made solely in response to an inquiry initiated by 159
245+the called party. However, only three such calls or messages may 160
246+be made in response to each inq uiry. 161
247+ (9)(a) A telephone solicitor may not cause any unsolicited 162
248+telephonic sales call to be initiated by use of any automated 163
249+system. 164
250+ (b) A telephone solicitor may not cause any telephonic 165
251+sales call to be initiated by any person other than the caller. 166
252+ (12)(11)(a) In any civil litigation resulting from a 167
253+transaction involving a violation of this section, the 168
254+prevailing party, after judgment in the trial court and 169
255+exhaustion of all appeals, if any, shall receive his or her 170
256+reasonable attorney attorney's fees and costs from the 171
257+nonprevailing party. 172
258+ (d) Any award of attorney attorney's fees or costs shall 173
259+become a part of the judgment and subject to execution as the 174
260+law allows. 175
261261
262-CS/CS/CS/HB 1095 2022
262+CS/CS/HB 1095 2022
263263
264264
265265
266266 CODING: Words stricken are deletions; words underlined are additions.
267-hb1095-03-c3
268-Page 8 of 9
267+hb1095-02-c2
268+Page 8 of 8
269269 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
270270
271271
272272
273-person may not require any consumer or called party to provide 176
274-an express request or prior express written consent as a 177
275-condition of any transaction. 178
276- (9)(a) A telephone solicitor may not cause any unsolicited 179
277-telephonic sales call to be initiated by use of any automated 180
278-system. 181
279- (b) A telephone solicitor may not cause any telephonic 182
280-sales call to be initiated by any person or device other than a 183
281-live caller. 184
282- (12)(11)(a) In any civil litigation resulting from a 185
283-transaction involving a violation of this section, the 186
284-prevailing party, after judgment in the trial court and 187
285-exhaustion of all appeals, if any, may shall receive his or her 188
286-reasonable attorney attorney's fees and costs from the 189
287-nonprevailing party. 190
288- (c) The trial judge may shall award the prevailing party 191
289-the sum of reasonable costs incurred in the action plus a 192
290-reasonable legal fee for the hours actually spent on the case as 193
291-sworn to in an affidavit . 194
292- (d) Any award of attorney attorney's fees or costs shall 195
293-become a part of the judgment and subject to execution as the 196
294-law allows. 197
295- (e) In any civil litigation initiated by the department or 198
296-the Department of Legal Affairs, the court may award to the 199
297-prevailing party reasonable attorney attorney's fees and costs 200
298-
299-CS/CS/CS/HB 1095 2022
300-
301-
302-
303-CODING: Words stricken are deletions; words underlined are additions.
304-hb1095-03-c3
305-Page 9 of 9
306-F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
307-
308-
309-
310-if the court finds that there was a complete absence of a 201
311-justiciable issue of either law or fact raised by the losing 202
312-party or if the court finds bad faith on the part of the losing 203
313-party. 204
314- Section 2. The amendments made by this act are remedial in 205
315-nature and apply retroactively to July 1, 2021, and to any 206
316-proceeding pending or commenced on or after July 1, 2021, except 207
317-that the amendments made by this act do not apply retroactively 208
318-to s. 501.059(8)(e) and (9), Florida Statutes, relating to 209
319-prohibited acts, and s. 501.059(12), Florida Statutes, relating 210
320-to attorney fees and costs. 211
321- Section 3. If any provision of this act or its application 212
322-to any person or circumstance is held invalid, the invalidity 213
323-does not affect other provisions or applications of this act 214
324-that can be given effect without the invalid provision or 215
325-application, and to this end the provisions of this act are 216
326-severable. 217
327- Section 4. This act shall take effect July 1, 2022. 218
273+ (e) In any civil litigation initiated by the department or 176
274+the Department of Legal Affairs, the court may award to the 177
275+prevailing party reasonable attorney attorney's fees and costs 178
276+if the court finds that there was a complete absence of a 179
277+justiciable issue of either law or fact raised by the losing 180
278+party or if the court finds bad faith on the part of the losing 181
279+party. 182
280+ Section 2. The amendments made by this act are remedial in 183
281+nature and apply retroactively to July 1, 2021, and to any 184
282+proceeding pending or commenced on or after July 1, 2021, except 185
283+that the amendments made by this act to s. 501.059(12), Florida 186
284+Statutes, relating to attorney fees and costs, do not apply 187
285+retroactively. 188
286+ Section 3. This act shall take effect July 1, 2022. 189