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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
A bill to be entitled 1
An act relating to telephone solicitation; amending s. 2
501.059, F.S.; providing and revising definitions; 3
conforming provisions; authorizing the use of 4
automated systems with live callers or text messages 5
in response to certain requests and consent; providing 6
a limitation and an exception; prohibiting certain 7
telephonic sales calls; revising provisions for the 8
award of attorney fees and costs; providing 9
retroactive applicability; providing severability; 10
providing an effective date. 11
12
Be It Enacted by the Legislature of the State of Florida: 13
14
Section 1. Subsections (9) through (13) of section 15
501.059, Florida Statutes, are renumbered as subsections (10) 16
through (14), respectively, subsections (1) and (2), paragraph 17
(a) of subsection (8), and paragraphs (a), (c), (d), and (e) of 18
present subsection (11) are amended, paragraphs (e) and (f) are 19
added to subsection (8), and a new subsection (9) is added to 20
that section, to read: 21
501.059 Telephone solicitation. — 22
(1) As used in this section, the term: 23
(a) "Automated system" means a computerized, mechanical, 24
or other technological system or device that creates a telephone 25
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number, or stores or selects any telephon e number from any 26
database or list, and then causes that telephone number to be 27
called. The term includes any system which the live caller or 28
any other person operates by click -to-call. The term does not 29
include a live caller manually selecting and calling telephone 30
numbers using only a contact list or telephone log. 31
(b)(a) "Called party" means a person who is the regular 32
user of the telephone number that receives a telephonic sales 33
call. 34
(c) "Express request" means a prior oral or written 35
request, invitation, consent, or permission from a called party 36
made directly or indirectly to the live caller or telephone 37
solicitor for calls or text messages regarding the goods, 38
services, or products offered by the live caller or telephone 39
solicitor. 40
(d)(b) "Consumer" means an actual or prospective 41
purchaser, lessee, or recipient of consumer goods or services. 42
(e)(c) "Consumer goods or services" means real property or 43
tangible or intangible personal property or services that are is 44
normally used for personal, fa mily, or household purposes . The 45
term includes, including, but is not limited to, any such 46
property intended to be attached to or installed in any real 47
property without regard to whether it is so attached or 48
installed, as well as cemetery lots and timeshar e estates, and 49
any related services related to such property . 50
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(f)(d) "Department" means the Department of Agriculture 51
and Consumer Services. 52
(g)(e) "Doing business in this state" means businesses 53
that conduct telephonic sales calls from a location in F lorida 54
or from other states or nations to consumers located in Florida. 55
(h) "Live caller" means a natural person who causes a call 56
to be made and who is ready to speak to the called party at the 57
time the call is made. 58
(i)(f) "Merchant" means a person w ho, directly or 59
indirectly, offers or makes available to consumers any consumer 60
goods or services. 61
(j)(g) "Prior express written consent" means a written 62
agreement that: 63
1. Bears the signature of the called party; 64
2. Clearly authorizes the person making or allowing the 65
placement of a telephonic sales call by telephone call, text 66
message, or voicemail transmission to deliver or cause to be 67
delivered to the called party a telephonic sales call using an 68
automated system for the selection and or dialing of telephone 69
numbers, the playing of a recorded message when a connection is 70
completed to a number called, the transmission of a text 71
message, or the transmission of a prerecorded voicemail; 72
3. Includes the telephone n umber to which the signatory 73
authorizes a telephonic sales call to be delivered; and 74
4. Includes a clear and conspicuous disclosure informing 75
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the called party that: 76
a. By executing the agreement, the called party authorizes 77
the person making or allowin g the placement of a telephonic 78
sales call to deliver or cause to be delivered a telephonic 79
sales call to the called party using an automated system for the 80
selection and or dialing of telephone numbers or the playing of 81
a recorded message when a connectio n is completed to a number 82
called, the transmission of a text message, or the transmission 83
of a prerecorded voicemail ; and 84
b. He or she is not required to directly or indirectly 85
sign the written agreement or to agree to enter into such an 86
agreement as a condition of purchasing any property, goods, or 87
services. 88
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For purposes of subparagraph 4., a designated signature line 90
with the following notice, placed directly above the designated 91
signature line, that is prominent and robust in at least 12 -92
point bold font is presumptively compliant: 93
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By signing below, you authorize [NAME] to place a 95
telephonic sales call to you at [TELEPHONE NUMBER] by way 96
of telephone calls, text messages, or voicemail 97
transmissions using an automated system for the selection 98
and/or dialing of telephone numbers or the playing of a 99
recorded message when a connection is completed to your 100
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telephone number. YOU ARE NOT REQUIRED TO PROVIDE SUCH 101
AUTHORIZATION AS A CONDITION OF PURCHASING ANY PROPERTY, 102
GOODS, OR SERVICES. 103
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(k)(h) "Signature" includes an electronic or digital 105
signature, including agreements obtained through a compliant e -106
mail, website form, text message, telephone keypress, or voice 107
recording, or any to the extent that such form of signature that 108
is recognized as a valid signa ture under applicable federal law 109
or state contract law. 110
(l)(i) "Telephone solicitor" means a natural person, firm, 111
organization, partnership, association, or corporation, or a 112
subsidiary or affiliate thereof, doing business in this state, 113
who makes or causes to be made a telephonic sales call, 114
including, but not limited to, calls made by the use of 115
automated systems or automated dialing or recorded message 116
devices. 117
(m)(j) "Telephonic sales call" means a telephone call, 118
text message, or voicemail transm ission, including, but not 119
limited to, calls made by the use of automated systems or 120
automated dialing or recorded message devices, to a consumer for 121
the purpose of soliciting a sale , lease, or acquisition of any 122
consumer goods or services, soliciting an extension of credit 123
for consumer goods or services, or obtaining information that 124
will or may be used for the direct solicitation of a sale , 125
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lease, or acquisition of consumer goods or services or an 126
extension of credit for such purposes. 127
(n)(k) "Unsolicited telephonic sales call" means a 128
telephonic sales call other than a call made: 129
1. Within 120 days after In response to an express request 130
of the person called party; 131
2. Primarily in connection with an existing debt or 132
contract, if payment or performance of such debt or contract has 133
not been completed at the time of such call; 134
3. To a person with whom the telephone solicitor has a 135
prior or existing business relationship; or 136
4. By a newspaper publish er or his or her agent or 137
employee in connection with his or her business ; 138
5. To a person who has provided prior express written 139
consent to be contacted; or 140
6. For the purpose of polling or soliciting the expression 141
of ideas, opinions, or votes, includ ing when such polling or 142
soliciting is made by text message . 143
(o)(l) "Voicemail transmission" means technologies that 144
deliver a voice message directly to a voicemail application, 145
service, or device. 146
(2) Any telephone solicitor who makes an unsolicited 147
telephonic sales call to a called party residential, mobile, or 148
telephonic paging device telephone number shall identify himself 149
or herself by his or her true first and last names and the 150
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business on whose behalf he or she is soliciting immediately 151
upon making contact by telephone with the called party person 152
who is the object of the telephone solicitation . 153
(8)(a) A telephone solicitor or live caller person may not 154
make or knowingly allow an unsolicited a telephonic sales call 155
to be made if such call invol ves an automated system for the 156
selection and or dialing of telephone numbers or the playing of 157
a recorded message when a connection is completed to a number 158
called, the transmission of a text message, or the transmission 159
of a prerecorded voicemail without the prior express written 160
consent of the called party . 161
(e) This subsection does not prohibit the use of an 162
automated system for the selection and dialing of telephone 163
numbers with a live caller or text messages if the call or 164
message is made solely in r esponse to an express request 165
initiated by the called party or prior express written consent 166
by the called party and the live caller or telephone solicitor 167
maintains evidence of the express request or prior express 168
written consent. However, only three such calls or messages may 169
be made in response to each express request or prior express 170
written consent, unless the express request or prior express 171
written consent specifically authorizes a different number of 172
calls or messages or a specific time period that such calls or 173
messages may be made. 174
(f) A merchant, telephone solicitor, live caller, or other 175
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person may not require any consumer or called party to provide 176
an express request or prior express written consent as a 177
condition of any transaction. 178
(9)(a) A telephone solicitor may not cause any unsolicited 179
telephonic sales call to be initiated by use of any automated 180
system. 181
(b) A telephone solicitor may not cause any telephonic 182
sales call to be initiated by any person or device other than a 183
live caller. 184
(12)(11)(a) In any civil litigation resulting from a 185
transaction involving a violation of this section, the 186
prevailing party, after judgment in the trial court and 187
exhaustion of all appeals, if any, may shall receive his or her 188
reasonable attorney attorney's fees and costs from the 189
nonprevailing party. 190
(c) The trial judge may shall award the prevailing party 191
the sum of reasonable costs incurred in the action plus a 192
reasonable legal fee for the hours actually spent on the case as 193
sworn to in an affidavit . 194
(d) Any award of attorney attorney's fees or costs shall 195
become a part of the judgment and subject to execution as the 196
law allows. 197
(e) In any civil litigation initiated by the department or 198
the Department of Legal Affairs, the court may award to the 199
prevailing party reasonable attorney attorney's fees and costs 200
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if the court finds that there was a complete absence of a 201
justiciable issue of either law or fact raised by the losing 202
party or if the court finds bad faith on the part of the losing 203
party. 204
Section 2. The amendments made by this act are remedial in 205
nature and apply retroactively to July 1, 2021, and to any 206
proceeding pending or commenced on or after July 1, 2021, except 207
that the amendments made by this act do not apply retroactively 208
to s. 501.059(8)(e) and (9), Florida Statutes, relating to 209
prohibited acts, and s. 501.059(12), Florida Statutes, relating 210
to attorney fees and costs. 211
Section 3. If any provision of this act or its application 212
to any person or circumstance is held invalid, the invalidity 213
does not affect other provisions or applications of this act 214
that can be given effect without the invalid provision or 215
application, and to this end the provisions of this act are 216
severable. 217
Section 4. This act shall take effect July 1, 2022. 218