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Senate Bill 1314

Senate Bill sb1314

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 1314

    By Senator Garcia





    40-702A-04

  1                      A bill to be entitled

  2         An act relating to consumer services; amending

  3         s. 525.09, F.S.; revising reporting

  4         requirements related to remittance of petroleum

  5         fuel inspection taxes; amending s. 559.801,

  6         F.S.; redefining the term "business

  7         opportunity" for the purposes of regulating the

  8         sale or lease of business opportunities;

  9         amending s. 559.920, F.S.; redefining actions

10         by motor vehicle repair shops or employees

11         which are unlawful; amending s. 559.928, F.S.;

12         revising information to be submitted for

13         registration as a seller of travel and

14         information submitted by independent agents;

15         amending s. 616.242, F.S.; revising conditions

16         under which an amusement ride must be inspected

17         by the Department of Agriculture and Consumer

18         Services; revising schedules for such

19         inspections; amending s. 849.094, F.S.;

20         redefining the term "operator" for purposes of

21         the regulation of game promotions; increasing

22         certain filing fees for operators of game

23         promotions; revising notice requirements for

24         game promotions; providing an effective date.

25  

26  Be It Enacted by the Legislature of the State of Florida:

27  

28         Section 1.  Section 525.09, Florida Statutes, is

29  amended to read:

30         525.09  Inspection fee.--

31  

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    Florida Senate - 2004                                  SB 1314
    40-702A-04




 1         (1)  For the purpose of defraying the expenses incident

 2  to inspecting, testing, and analyzing petroleum fuels in this

 3  state, there shall be paid to the department a charge of

 4  one-eighth cent per gallon on all gasoline, kerosene (except

 5  when used as aviation turbine fuel), and #1 fuel oil for sale

 6  or use in this state.  This inspection fee shall be imposed in

 7  the same manner as the motor fuel tax pursuant to s. 206.41.

 8  Payment shall be made on or before the 25th day of each month.

 9         (2)  If any company fails to make the payment herein

10  provided on or before the 25th day of each month, the

11  department may add 10 percent to the amount of such taxes

12  already due as a penalty for failure of the company to make

13  the report and payment by the 25th day of each month.  The

14  department shall proceed to collect the tax, together with all

15  costs incident to collection by the same methods as other

16  delinquent taxes are collected by law.

17         (3)  All remittances to the department for the

18  inspection tax herein provided shall be accompanied by a

19  detailed report under oath showing the number of gallons of

20  gasoline, kerosene, or fuel oil sold and delivered in each

21  county.

22         (4)  No inspection fee shall be charged on petroleum

23  fuels unloaded in any of the Florida ports for shipment into

24  other states.

25         Section 2.  Subsection (1) of section 559.801, Florida

26  Statutes, is amended to read:

27         559.801  Definitions.--For the purpose of ss.

28  559.80-559.815, the term:

29         (1)(a)  "Business opportunity" means the sale or lease

30  of any products, equipment, supplies, or services which are

31  sold or leased to a purchaser to enable the purchaser to start

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    Florida Senate - 2004                                  SB 1314
    40-702A-04




 1  a business for which the purchaser is required to pay an

 2  initial fee or sum of money which exceeds $500 to the seller,

 3  and in which the seller represents:

 4         1.  That the seller or person or entity affiliated with

 5  or referred by the seller will provide locations, either

 6  contemporaneously at the time of the sale or lease or at a

 7  future time, or assist the purchaser in finding locations for

 8  the use or operation of vending machines, racks, display

 9  cases, currency or card operated equipment, or other similar

10  devices or currency-operated amusement machines or devices on

11  premises neither owned nor leased by the purchaser or seller;

12         2.  That the seller will purchase, either

13  contemporaneously at the time of the sale or lease or at a

14  future time, any or all products made, produced, fabricated,

15  grown, bred, or modified by the purchaser using in whole or in

16  part the supplies, services, or chattels sold to the

17  purchaser;

18         3.  That the seller guarantees that the purchaser will

19  derive income from the business opportunity which exceeds the

20  price paid or rent charged for the business opportunity or

21  that the seller will refund all or part of the price paid or

22  rent charged for the business opportunity, or will repurchase

23  any of the products, equipment, supplies, or chattels supplied

24  by the seller, if the purchaser is unsatisfied with the

25  business opportunity; or

26         4.  That the seller will provide, either

27  contemporaneously at the time of the sale or lease or at a

28  future time, a sales program or marketing program that will

29  enable the purchaser to derive income from the business

30  opportunity, except that this paragraph does not apply to the

31  sale of a sales program or marketing program made in

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    Florida Senate - 2004                                  SB 1314
    40-702A-04




 1  conjunction with the licensing of a trademark or service mark

 2  that is registered under the laws of any state or of the

 3  United States if the seller requires use of the trademark or

 4  service mark in the sales agreement.

 5  

 6  For the purpose of subparagraph 1., the term "assist the

 7  purchaser in finding locations" means, but is not limited to,

 8  supplying the purchaser with names of locator companies,

 9  contracting with the purchaser to provide assistance or supply

10  names, or collecting a fee on behalf of or for a locator

11  company.

12         (b)  "Business opportunity" does not include:

13         1.  The sale of ongoing businesses when the owner of

14  those businesses sells and intends to sell only those business

15  opportunities so long as those business opportunities to be

16  sold are no more than five in number;

17         2.  The not-for-profit sale of sales demonstration

18  equipment, materials, or samples for a price that does not

19  exceed $500 or any sales training course offered by the seller

20  the cost of which does not exceed $500; or

21         3.  The sale or lease of laundry and drycleaning

22  equipment.

23         Section 3.  Section 559.920, Florida Statutes, is

24  amended to read:

25         559.920  Unlawful acts and practices.--It shall be a

26  violation of this act for any motor vehicle repair shop or

27  employee thereof to:

28         (1)  Engage or attempt to engage in repair work for

29  compensation of any type without first being registered with

30  or having submitted an affidavit of exemption to the

31  department;

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    Florida Senate - 2004                                  SB 1314
    40-702A-04




 1         (2)  Make or charge for repairs which have not been

 2  expressly or impliedly authorized by the customer;

 3         (3)  Misrepresent that repairs have been made to a

 4  motor vehicle;

 5         (4)  Misrepresent that certain parts and repairs are

 6  necessary to repair a vehicle;

 7         (5)  Misrepresent that the vehicle being inspected or

 8  diagnosed is in a dangerous condition or that the customer's

 9  continued use of the vehicle may be harmful or cause great

10  damage to the vehicle;

11         (6)  Fraudulently alter any customer contract,

12  estimate, invoice, or other document;

13         (7)  Fraudulently misuse any customer's credit card;

14         (8)  Make or authorize in any manner or by any means

15  whatever any written or oral statement which is untrue,

16  deceptive or misleading, and which is known, or which by the

17  exercise of reasonable care should be known, to be untrue,

18  deceptive or misleading;

19         (9)  Make false promises of a character likely to

20  influence, persuade, or induce a customer to authorize the

21  repair, service, or maintenance of a motor vehicle;

22         (10)  Substitute used, rebuilt, salvaged, or

23  straightened parts for new replacement parts without notice to

24  the motor vehicle owner and to her or his insurer if the cost

25  of repair is to be paid pursuant to an insurance policy and

26  the identity of the insurer or its claims adjuster is

27  disclosed to the motor vehicle repair shop;

28         (11)  Cause or allow a customer to sign any work order

29  that does not state the repairs requested by the customer or

30  the automobile's odometer reading at the time of repair;

31  

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    Florida Senate - 2004                                  SB 1314
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 1         (12)  Fail or refuse to give to a customer a copy of

 2  any document requiring the customer's signature upon

 3  completion or cancellation of the repair work;

 4         (13)  Willfully depart from or disregard accepted

 5  practices and professional standards;

 6         (14)  Have repair work subcontracted without the

 7  knowledge or consent of the customer unless the motor vehicle

 8  repair shop or employee thereof demonstrates that the customer

 9  could not reasonably have been notified;

10         (15)  Conduct the business of motor vehicle repair in a

11  location other than that stated on the registration

12  certificate;

13         (16)  Rebuild or restore a rebuilt vehicle without the

14  knowledge of the owner in such a manner that it does not

15  conform to the original vehicle manufacturer's established

16  repair procedures or specifications and allowable tolerances

17  for the particular model and year; or

18         (17)  Perform any other act that is a violation of this

19  part or that constitutes fraud or misrepresentation.

20         Section 4.  Subsections (1) and (3) of section 559.928,

21  Florida Statutes, are amended to read:

22         559.928  Registration.--

23         (1)  Each seller of travel shall annually register with

24  the department, providing: its legal business or trade name,

25  mailing address, and business locations; the full names,

26  addresses, and telephone numbers, and social security numbers

27  of its owners or corporate officers and directors and the

28  Florida agent of the corporation; a statement whether it is a

29  domestic or foreign corporation, its state and date of

30  incorporation, its charter number, and, if a foreign

31  corporation, the date it registered with the State of Florida,

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    Florida Senate - 2004                                  SB 1314
    40-702A-04




 1  and occupational license where applicable; the date on which a

 2  seller of travel registered its fictitious name if the seller

 3  of travel is operating under a fictitious or trade name; the

 4  name of all other corporations, business entities, and trade

 5  names through which each owner of the seller of travel

 6  operated, was known, or did business as a seller of travel

 7  within the preceding 5 years; a list of all authorized

 8  independent agents, including the agent's trade name, full

 9  name, mailing address, business address, telephone numbers,

10  and social security number; the business location and address

11  of each branch office and full name and address of the manager

12  or supervisor; and proof of purchase of adequate bond or

13  establishment of a letter of credit or certificate of deposit

14  as required in this part.  A certificate evidencing proof of

15  registration shall be issued by the department and must be

16  prominently displayed in the seller of travel's primary place

17  of business.

18         (3)  Each independent agent shall annually file an

19  affidavit with the department prior to engaging in business in

20  this state. This affidavit must include the independent

21  agent's full name, legal business or trade name, mailing

22  address, business address, and telephone number, social

23  security number, and the name or names and addresses of each

24  seller of travel represented by the independent agent and must

25  be accompanied by a copy of the independent agent's current

26  contract with each seller of travel. A letter evidencing proof

27  of filing must be issued by the department and must be

28  prominently displayed in the independent agent's primary place

29  of business.  As used in this subsection, the term

30  "independent agent" means a person who represents a seller of

31  travel by soliciting persons on its behalf; who has a written

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    Florida Senate - 2004                                  SB 1314
    40-702A-04




 1  contract with a seller of travel which is operating in

 2  compliance with this part and any rules adopted thereunder;

 3  who does not receive a fee, commission, or other valuable

 4  consideration directly from the purchaser for the seller of

 5  travel; who does not at any time have any unissued ticket

 6  stock or travel documents in his or her possession; and who

 7  does not have the ability to issue tickets, vacation

 8  certificates, or any other travel document.  The term

 9  "independent agent" does not include an affiliate of the

10  seller of travel, as that term is used in s. 559.935(3), or

11  the employees of the seller of travel or of such affiliates.

12         Section 5.  Subsection (7) of section 616.242, Florida

13  Statutes, is amended to read:

14         616.242  Safety standards for amusement rides.--

15         (7)  DEPARTMENT INSPECTIONS.--

16         (a)  In order to obtain an annual permit, an amusement

17  ride must be inspected by the department in accordance with

18  subsection (11) and receive an inspection certificate. In

19  addition, each permanent amusement ride must be inspected

20  semiannually by the department in accordance with subsection

21  (11) and receive an inspection certificate and must receive an

22  inspection certificate when it is relocated;, and each

23  temporary amusement ride must be inspected by the department

24  in accordance with subsection (11), and must receive an

25  inspection certificate each time the ride is set up or moved

26  to a new location in this state unless the temporary amusement

27  ride is:

28         1.  Used at a private event;

29         2.  A simulator, the capacity of which does not exceed

30  16 persons; or

31  

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    Florida Senate - 2004                                  SB 1314
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 1         3.  A kiddie ride used at a public event, provided that

 2  there are no more than three amusement rides at the event,

 3  none of the kiddie rides at the event exceeds a capacity of 12

 4  persons, and the ride has an inspection certificate that was

 5  issued within the preceding 6 months. The capacity of a kiddie

 6  ride shall be determined by rule of the department, unless the

 7  capacity of the ride has been determined and specified by the

 8  manufacturer. Any owner of a kiddie ride operating under this

 9  exemption is responsible for ensuring that no more than three

10  amusement rides are operated at the event.

11         (b)  To obtain a department inspection for an amusement

12  ride, the owner must submit to the department on a form

13  prescribed by rule of the department a written Request for

14  Inspection. The owner must provide the following information

15  to the department:

16         1.  The legal name, address, and primary place of

17  business of the owner, the requested inspection date, the date

18  of first intended use or planned opening date, and the date of

19  arrival on site.

20         2.  A description, manufacturer's name, serial number,

21  model number, and the United States Amusement Identification

22  Number, if previously assigned, of the amusement ride.

23         3.  For a temporary amusement ride, for each time the

24  amusement ride is set up or moved to a new location, the

25  requested inspection date of first intended use at the new

26  location and the address or a description of the new location.

27         (c)  For permanent amusement rides, the request for

28  inspection must be received by the department at least 15 days

29  before the requested inspection owner's planned opening date

30  or at least 15 days before the expiration of the prior

31  inspection certificate.  If the request for inspection is

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    Florida Senate - 2004                                  SB 1314
    40-702A-04




 1  received less than 15 days before the requested inspection

 2  owner's planned opening date or less than 15 days before the

 3  expiration of the prior inspection certificate, the department

 4  may nevertheless inspect the amusement ride and charge a late

 5  fee, as set by rule of the department.

 6         (d)  For temporary amusement rides, the request for

 7  inspection must be received by the department for each time

 8  the amusement ride is set up or moved to a new location at

 9  least 14 days before the requested inspection date of first

10  intended use at the new location.  If the request for

11  inspection is received less than 14 days before the requested

12  inspection date of first intended use at the new location, the

13  department may nevertheless inspect the amusement ride and

14  charge a late fee, as set by rule of the department.

15         (e)  Inspections will be assigned on a first come,

16  first served basis, and overflow requests will be scheduled on

17  the closest date to the date for which the inspection was

18  requested.

19         (f)  Upon failure of an amusement ride to pass any

20  department inspection, the owner may request reinspection

21  which shall be submitted in writing to the department on a

22  form prescribed by rule of the department. The department

23  shall reinspect the amusement ride as soon as practical

24  following receipt of the written request for reinspection and

25  any applicable reinspection fees set by rule of the

26  department. Inspections will be assigned on a first come,

27  first served basis, and the overflow requests will be

28  scheduled on the closest date to the date for which the

29  inspection was requested.

30         (g)  If the amusement ride passes inspection and the

31  owner pays the applicable fee set by rule of the department,

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    Florida Senate - 2004                                  SB 1314
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 1  the department shall issue an inspection certificate on a form

 2  prescribed by rule of the department.

 3         (h)  The inspection certificate must contain the date

 4  of inspection, the site of the inspection, and the name of the

 5  inspector.

 6         (i)  The inspection certificate is valid only for the

 7  site stated on the inspection certificate. The inspection

 8  certificate is valid for a period of not more than 6 months

 9  from the date of issuance, and is not transferable.

10         (j)  The inspection certificate must be displayed on

11  the amusement ride at a place readily visible to patrons of

12  the amusement ride.

13         (k)  If the owner fails to timely cancel a Request for

14  Inspection, requests holiday or weekend inspections, or is

15  required to have a replacement USAID plate issued by the

16  department, the owner may be charged an appropriate fee to be

17  set by rule of the department.

18         Section 6.  Subsections (1), (3), and (5) of section

19  849.094, Florida Statutes, are amended to read:

20         849.094  Game promotion in connection with sale of

21  consumer products or services.--

22         (1)  As used in this section, the term:

23         (a)  "Game promotion" means, but is not limited to, a

24  contest, game of chance, or gift enterprise, conducted within

25  or throughout the state and other states in connection with

26  the sale of consumer products or services, and in which the

27  elements of chance and prize are present. However, "game

28  promotion" shall not be construed to apply to bingo games

29  conducted pursuant to s. 849.0931.

30         (b)  "Operator" means any person, firm, corporation, or

31  association on whose behalf a game promotion is conducted or

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    Florida Senate - 2004                                  SB 1314
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 1  agent or employee thereof who promotes, operates, or conducts

 2  a game promotion, except any charitable nonprofit

 3  organization.

 4         (3)  The operator of a game promotion in which the

 5  total announced value of the prizes offered is greater than

 6  $5,000 shall file with the Department of Agriculture and

 7  Consumer Services a copy of the rules and regulations of the

 8  game promotion and a list of all prizes and prize categories

 9  offered at least 7 days before the commencement of the game

10  promotion.  Such rules and regulations may not thereafter be

11  changed, modified, or altered.  The operator of a game

12  promotion shall conspicuously post the rules and regulations

13  of such game promotion in each and every retail outlet or

14  place where such game promotion may be played or participated

15  in by the public and shall also publish the rules and

16  regulations in all advertising copy used in connection

17  therewith.  Radio and television announcements may indicate

18  that the rules and regulations are available at retail outlets

19  or from the operator of the promotion. A nonrefundable filing

20  fee of $150 $100 shall accompany each filing and shall be used

21  to pay the costs incurred in administering and enforcing the

22  provisions of this section.

23         (5)  Every operator of a game promotion in which the

24  total announced value of the prizes offered is greater than

25  $5,000 shall provide the Department of Agriculture and

26  Consumer Services with a certified list of the names and

27  addresses of all persons, whether from this state or from

28  another state, who have won prizes which have a value of more

29  than $100 $25, the value of such prizes, and the dates when

30  the prizes were won within 60 calendar days after such winners

31  have been finally determined. If there is not a winner, the

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    Florida Senate - 2004                                  SB 1314
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 1  operator shall provide written notice to the department within

 2  60 calendar days after such determination has been made. The

 3  operator shall provide a copy of the list of winners, without

 4  charge, to any person who requests it.  In lieu of the

 5  foregoing, the operator of a game promotion may, at his or her

 6  option, publish the same information about the winners in a

 7  Florida newspaper of general circulation within 60 calendar

 8  days after such winners have been determined and shall provide

 9  to the Department of Agriculture and Consumer Services a

10  certified copy of the publication containing the information

11  about the winners.  The operator of a game promotion is not

12  required to notify a winner by mail or by telephone when the

13  winner is already in possession of a game card from which the

14  winner can determine that he or she has won a designated

15  prize.  All winning entries shall be held by the operator for

16  a period of 90 calendar days after the close or completion of

17  the game.

18         Section 7.  This act shall take effect October 1, 2004.

19  

20            *****************************************

21                          SENATE SUMMARY

22    Provides that reports accompanying fuel inspection tax
      remittances need not separately list each county's
23    deliveries. Redefines the term "business opportunity" for
      purposes of regulating the sale of such opportunities.
24    Deletes a requirement that sellers of travel and
      independent travel agents include their social security
25    numbers with information submitted in annual registration
      but requires independent agents to include copies of
26    their contracts with each seller of travel. Requires
      owners or operators of permanent amusement rides to
27    obtain an inspection certificate whenever such rides are
      relocated. Requires requests for inspection of amusement
28    rides to include a date on which the inspection is
      requested to be conducted. Increases fees for operators
29    of game promotions and requires certain notice when there
      has been no winner in a game.
30  

31  

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