Florida Senate Commerce and Tourism Committee post-meeting packet, April 4, 2023
Summary
The post-meeting packet for the Florida Senate Committee on Commerce and Tourism meeting of 04/04/2023 at 8:30 AM, 2023 Regular Session. The agenda order lists SB 262 by Bradley on technology transparency, SB 1648 by Bradley on public records of Department of Legal Affairs investigations, CS/SB 628 by Grall on debt management services, CS/SB 712 by Avila on motor vehicle sales and CS/SB 752 by Calatayud on temporary commercial kitchens, among others. It records amendment actions on several of the bills, and carries the expanded agenda, bills and staff analyses.
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Commerce and Tourism - 04/04/2023 8:30 AM 2023 Regular Session
Customized 04/05/2023 2:11 PM
Agenda Order
Tab 1 SB 262 by Bradley; (Similar to CS/H 01547) Technology Transparency
164120 A S RCS CM, Bradley Delete L.92 - 108: 04/04 12:49 PM
Tab 2 SB 1648 by Bradley; (Similar to CS/H 01549) Public Records/Investigations by the Department of Legal Affairs
963930 A S RCS CM, Bradley Delete L.110 - 119: 04/04 12:50 PM
Tab 3 CS/SB 628 by BI, Grall; (Similar to H 00599) Debt Management Services
Tab 4 CS/SB 712 by TR, Avila (CO-INTRODUCERS) Garcia; (Compare to CS/H 00637) Motor Vehicle Sales
224252 D S RCS CM, Avila Delete everything after 04/04 12:51 PM
335364 AA S L FAV CM, Avila Delete L.19 - 194: 04/04 12:51 PM
Tab 5 CS/SB 752 by RI, Calatayud; (Identical to CS/H 00415) Temporary Commercial Kitchens
892746 A S WD CM, Calatayud Delete L.77: 04/03 12:58 PM
358156 A S L RCS CM, Calatayud Delete L.77: 04/04 12:52 PM
CS/SB 940 by BI, Calatayud (CO-INTRODUCERS) Rodriguez; (Similar to CS/H 00897) Multiple-employer
Tab 6
Welfare Arrangements
SB 1242 by Boyd; (Compare to CS/H 01203) Registrations and Transfers of Heating, Ventilation, and Air-
Tab 7
conditioning System Manufacturer Warranties
852154 A S RCS CM, Boyd Delete L.18 - 28: 04/04 12:54 PM
Tab 8 SB 1246 by Yarborough; (Identical to CS/H 01205) Truth in Legal Advertising
Tab 9 SB 1308 by Yarborough (CO-INTRODUCERS) Rodriguez; (Similar to CS/H 00761) Telephone Solicitation
805210 D S RCS CM, Yarborough Delete everything after 04/04 12:56 PM
817718 AA S L FAV CM, Gruters Delete L.48 - 57: 04/04 12:56 PM
Tab 10 CS/SB 564 by BI, Hutson; (Similar to CS/H 00677) Interchange Fees on Taxes
648060 A S L RCS CM, Hutson Delete L.26 - 105: 04/04 04:48 PM
Tab 11 CS/SB 1636 by TR, Wright; (Similar to CS/CS/H 00973) Rescission or Cancellation of a Motor Vehicle Sale
Page 1 of 1
2023 Regular Session The Florida Senate
COMMITTEE MEETING EXPANDED AGENDA
COMMERCE AND TOURISM
Senator Trumbull, Chair
Senator Wright, Vice Chair
MEETING DATE: Tuesday, April 4, 2023
TIME: 8:30—10:30 a.m.
PLACE: Toni Jennings Committee Room, 110 Senate Building
MEMBERS: Senator Trumbull, Chair; Senator Wright, Vice Chair; Senators DiCeglie, Gruters, Hooper, Hutson,
Jones, Rodriguez, Stewart, and Torres
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
1 SB 262 Technology Transparency; Prohibiting officers or Fav/CS
Bradley salaried employees of governmental entities from Yeas 9 Nays 0
(Similar CS/H 1547, Compare using their positions or state resources to make
CS/H 1549, Linked S 1648) certain requests of social media platforms; prohibiting
governmental entities from initiating or maintaining
agreements or working relationships with social
media platforms under a specified circumstance;
prohibiting a controller from collecting certain
consumer information without the consumer’s
authorization; requiring controllers that collect
personal information to implement reasonable
security procedures and practices to protect such
information, etc.
CM 03/13/2023 Not Considered
CM 04/04/2023 Fav/CS
JU
RC
2 SB 1648 Public Records/Investigations by the Department of Fav/CS
Bradley Legal Affairs; Providing an exemption from public Yeas 9 Nays 0
(Similar CS/H 1549, Compare records requirements for information relating to
CS/H 1547, Linked S 262) investigations by the Department of Legal Affairs and
law enforcement agencies of certain data privacy
violations; providing for future legislative review and
repeal of the exemption; providing a statement of
public necessity, etc.
CM 03/13/2023 Not Considered
CM 04/04/2023 Fav/CS
JU
RC
3 CS/SB 628 Debt Management Services; Increasing the maximum Favorable
Banking and Insurance / Grall fee that may be charged for debt management Yeas 9 Nays 0
(Similar H 599) services, etc.
BI 03/22/2023 Fav/CS
CM 04/04/2023 Favorable
RC
S-036 (10/2008)
04042023.1114 Page 1 of 4
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Tuesday, April 4, 2023, 8:30—10:30 a.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
4 CS/SB 712 Motor Vehicle Sales; Prohibiting an applicant or a Fav/CS
Transportation / Avila licensee from certain actions in the allocation or Yeas 8 Nays 0
(Compare CS/H 637) distribution of motor vehicles to franchised motor
vehicle dealers; prohibiting applicants and licensees
from engaging in certain activities of motor vehicle
dealers; revising provisions prohibiting a
manufacturer, a distributor, or an importer from
owning, operating, or controlling a motor vehicle
dealership in this state; requiring the Department of
Highway Safety and Motor Vehicles to conduct an
inquiry relating to certain written complaints, etc.
TR 03/20/2023 Fav/CS
CM 04/04/2023 Fav/CS
RC
5 CS/SB 752 Temporary Commercial Kitchens; Requiring operators Fav/CS
Regulated Industries / Calatayud of public food service establishments who provide Yeas 9 Nays 0
(Identical CS/H 415) commissary services to maintain a temporary
commercial kitchen registry; defining the term
“temporary commercial kitchen”; preempting
regulation of temporary commercial kitchens to the
state; authorizing mobile food dispensing vehicles
and temporary commercial kitchens in specified
locations to operate during certain hours, etc.
RI 03/07/2023 Fav/CS
CM 03/27/2023 Temporarily Postponed
CM 04/04/2023 Fav/CS
RC
6 CS/SB 940 Multiple-employer Welfare Arrangements; Revising Favorable
Banking and Insurance / eligibility requirements for a bona fide group to qualify Yeas 9 Nays 0
Calatayud as a multiple-employer welfare arrangement, etc.
(Similar CS/H 897)
BI 03/29/2023 Fav/CS
CM 04/04/2023 Favorable
RC
7 SB 1242 Registrations and Transfers of Heating, Ventilation, Fav/CS
Boyd and Air-conditioning System Manufacturer Yeas 9 Nays 0
(Compare CS/H 1203) Warranties; Requiring manufacturer warranties for
heating, ventilation, and air-conditioning (HVAC)
systems to be registered to the home or building and
not to the owner of the home or building; providing for
the automatic effectiveness of such warranties at a
specified time; requiring contractors installing HVAC
systems to provide certain documentation, etc.
CM 04/04/2023 Fav/CS
JU
RC
S-036 (10/2008)
04042023.1114 Page 2 of 4
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Tuesday, April 4, 2023, 8:30—10:30 a.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
8 SB 1246 Truth in Legal Advertising; Specifying prohibited Favorable
Yarborough practices relating to advertisements for legal services; Yeas 9 Nays 0
(Similar H 1205) requiring persons and entities that issue
advertisements to solicit certain clients to include
specified information and statements in such
advertisements; providing that the person or entity
that issues an advertisement is solely responsible for
ensuring its compliance with specified provisions;
prohibiting the use, obtaining, sale, transfer, or
disclosure of a consumer’s protected health
information for a specified purpose without written
authorization, etc.
JU 03/29/2023 Favorable
CM 04/04/2023 Favorable
RC
9 SB 1308 Telephone Solicitation; Prohibiting certain telephonic Fav/CS
Yarborough sales calls; providing retroactive applicability, etc. Yeas 9 Nays 0
(Similar CS/H 761)
CM 04/04/2023 Fav/CS
RI
RC
10 CS/SB 564 Interchange Fees on Taxes; Prohibiting issuers, Fav/CS
Banking and Insurance / Hutson payment card networks, acquirer banks, and Yeas 7 Nays 2
(Similar CS/H 677) processors from receiving or charging merchants
interchange fees on the tax amounts of electronic
payment transactions if the merchant provides certain
information in a specified manner; requiring an issuer
to credit a merchant the amount of interchange fees
on taxes within a certain timeframe if the merchant
meets certain conditions; providing a civil penalty, etc.
BI 03/15/2023 Fav/CS
CM 04/04/2023 Fav/CS
RC
S-036 (10/2008)
04042023.1114 Page 3 of 4
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Tuesday, April 4, 2023, 8:30—10:30 a.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
11 CS/SB 1636 Rescission or Cancellation of a Motor Vehicle Sale; Favorable
Transportation / Wright Requiring a motor vehicle dealer who rescinds, Yeas 9 Nays 0
(Similar CS/CS/H 973) cancels, or revokes a sale or an application for a
certificate of title to be reimbursed by the Department
of Revenue for the amount of tax collected or charged
for such sale or application; authorizing a motor
vehicle dealer, a motor vehicle purchaser, and any
person claiming a lien on a motor vehicle to rescind or
cancel a motor vehicle sale before an application for a
certificate of title is submitted; providing for
invalidation of certain subsequent requirements
imposed on a motor vehicle dealer under certain
circumstances; authorizing the motor vehicle dealer to
obtain a duplicate certificate of origin, duplicate
certificate of title, or new certificate of title, etc.
TR 03/27/2023 Fav/CS
CM 04/04/2023 Favorable
FP
Other Related Meeting Documents
S-036 (10/2008)
04042023.1114 Page 4 of 4
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 262
INTRODUCER: Commerce and Tourism Committee and Senator Bradley
SUBJECT: Technology Transparency
DATE: April 5, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Fav/CS
2. JU
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 262 prohibits employees of a governmental entity from using their position or any state
resources to communicate with a social media platform to request that it remove content or
accounts. Additionally, a government entity cannot initiate or maintain any agreements with a
social media platform for the purpose of content moderation. The bill provides certain
exceptions.
The bill creates a unified scheme to allow Florida’s consumers to control the digital flow of their
personal information. Specifically, it gives consumers the right to:
Access their personal information;
Delete or correct that personal information; and
Opt out of the sale or sharing of their personal information.
The Act generally applies to businesses that collect Florida consumers’ personal information,
make in excess of $1 billion in gross revenues, and meet one of the following thresholds:
Derives 50 percent or more if its global annual revenues from providing targeted advertising
or the sale of ads online; or
Operated a consumer smart speaker and voice command component service with an
integrated virtual assistant connected to a cloud computing service that uses hands-free
verbal activation.
BILL: CS/SB 262 Page 2
The bill prohibits the collection of a consumer’s precise geolocation data or personal information
through the operation of a voice recognition feature, unless the consumer provides authorization.
The bill requires a search engine to provide a consumer with information on how the search
engine algorithm prioritizes or deprioritizes political partisanship or political ideology in its
search results.
The Florida Department of Legal Affairs has authority to enforce the bill.
The bill also adds “biometric data,” “genetic information,” and “geolocation data” to the
definition of “personal information” under the Florida Information Protection Act. As such,
entities that possess fingerprints, DNA, and other biological or physiological identifying
information must take reasonable measures to protect that data and report data breaches.
The bill takes effect on July 1, 2023.
II. Present Situation:
Internet and Social Media Platforms
There are many ways in which individuals access computer systems and interact with systems
and other individuals on the Internet. Examples include:
Social media sites, which are websites and applications, that allow users to communicate
informally with others, find people, and share similar interests;1
Internet platforms, which are servers used by an Internet provider to support Internet access
by their customers;2
Internet search engines, which are computer software used to search data (such as text or a
database) for specified information;3 and
Access software providers, which are providers of software (including client or server
software) or enabling tools for content processing.4
Such platforms earn revenue through various modes and models. Examples include:
Data monetization.5 This uses data that is gathered and stored on the millions of users that
spend time on free content sites, including specific user location, browsing habits, buying
behavior, and unique interests. This data can be used to help e-commerce companies tailor
1
DelValle Institute Learning Center, Social Media Platforms, available at
https://delvalle.bphc.org/mod/wiki/view.php?pageid=65 (last visited April 5, 2023).
2
IGI Global, Internet Platform, available at https://www.igi-global.com/dictionary/internet-platform/15441 (last visited
April 5, 2023).
3
Merriam Webster, Search Engine, available at https://www.merriam-webster.com/dictionary/search%20engine (last visited
April 5, 2023).
4
47 U.S.C. § 230(f)(4) defining “access software provider to mean a provider of software (including client or server
software), or enabling tools that do any one or more of the following: (i) filter, screen, allow, or disallow content; (ii) pick,
choose, analyze, or digest content; or (iii) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or
translate content.
5
The Alexander von Humboldt Institute for Internet and Society, How do digital platforms make their money?, July 29,
2019, available at https://www.hiig.de/en/how-do-digital-platforms-make-their-money/ (last visited April 5, 2023).
BILL: CS/SB 262 Page 3
their marketing campaigns to a specific set of online consumers. Platforms that use this
model are typically free for users to use.6
Subscription or membership fees. This model requires users pay for a particular or unlimited
use of the platform infrastructure.7
Transaction fees. This model allows platforms to benefit from every transaction that is
enabled between two or more actors. An example is AirBnB, where users transacting on the
site are charged a fee.8
Freedom of Speech and Internet Platforms
Section 230
The federal Communications Decency Act (CDA) was passed in 1996 “to protect children from
sexually explicit Internet content.”9 47 U.S. Code § 230 (Section 230) was added as an
amendment to the CDA to maintain the robust nature of Internet communication and,
accordingly, to keep government interference in the medium to a minimum.”10
Congress stated in Section 230 that “[i]t is the policy of the United States—(1) to promote the
continued development of the Internet and other interactive computer services and other
interactive media; [and] (2) to preserve the vibrant and competitive free market that presently
exists for the Internet and other interactive computer services, unfettered by Federal or State
regulation.”11
Specifically, Section 230 states that no provider or user of an interactive computer service may
be held liable on account of:12
Any action voluntarily taken in good faith to restrict access to or availability of material that
the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such material is constitutionally
protected; or
Any action taken to enable or make available to information content providers or others the
technical means to restrict access to material from any person or entity that is responsible for
the creation or development of information provided through any interactive computer
service.
6
Investopedia, How Do Internet Companies Profit with Free Services?, available at
https://www.investopedia.com/ask/answers/040215/how-do-internet-companies-profit-if-they-give-away-their-services-
free.asp#:~:text=Profit%20Through%20Advertising,content%20is%20through%20advertising%20revenue.&text=Each%20o
f%20these%20users%20represents,and%20services%20via%20the%20Internet (last visited April 5, 2023).
7
HIIS, supra note 5.
8
Id.
9
Force v. Facebook, Inc., 934 F.3d 53, 63 (2d Cir. 2019) (citing FTC v. LeadClick Media, LLC, 838 F.3d 158, 173 (2d Cir.
2016) (citing 141 Cong. Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon))).
10
Force, 934 F.3d at 63 (quoting Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015) (quoting Zeran v. Am.
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).
11
47 U.S.C. § 230(b)(1)–(2).
12
47 U.S.C. § 230(c).
BILL: CS/SB 262 Page 4
Section 230 “assuaged Congressional concern regarding the outcome of two inconsistent judicial
decisions,13 both of which “appl[ied] traditional defamation law to internet providers.”14 The first
decision held that an interactive computer service provider could not be liable for a third party's
defamatory statement ... but the second imposed liability where a service provider filtered
content in an effort to block obscene material.”15 To provide clarity, Section 230 provides that
“[n]o provider ... of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider.16 In light of Congress's
objectives, the Circuits are in general agreement that the text of Section 230(c)(1) should be
construed broadly in favor of immunity.17
Section 230 specifically addresses how the federal law affects other laws. Section 230 prohibits
all inconsistent causes of action and prohibits liability imposed under any State or local law.18
Section 230 does not affect federal criminal law, intellectual property law, the Electronic
Communications Privacy Act of 1986, or sex trafficking law.
There have been criticisms of the broad immunity provisions or liability shields which force
individuals unhappy with third-party content to sue the user who posted it. While this immunity
has fostered the free flow of ideas on the Internet, critics have argued that Section 230 shields
publishers from liability for allowing harmful content.19 Congressional and executive proposals
to limit immunity for claims relating to platforms purposefully hosting content from those
engaging in child exploitation, terrorism, and cyber-stalking have been introduced.20 Bills have
been filed that would require internet platforms to have clear content moderation policies, submit
detailed transparency reports, and remove immunity for platforms that engage in certain
behavioral advertising practices.21 Proposals have also been offered to limit the liability shield
for internet providers who restrict speech based on political viewpoints.22
Recently, the Supreme Court heard oral arguments in Gonzalez v. Google LLC, to determine
whether online platforms should be held accountable when their algorithms prioritize or
recommend certain content to its users.23 The plaintiff in the case argues that Google aided and
abetted international terrorism because its computer algorithms suggest certain content to its
13
Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Servs. Co., No.
31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
14
Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173).
15
Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173 (citing 141 Cong. Rec. H8469-70 (daily ed. Aug. 4, 1995)
(statement of Rep. Cox))).
16
47 U.S.C. § 230(c)(1).
17
Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173).
18
47 U.S.C. § 230(e).
19
Zoe Bedell and John Major, What’s Next for Section 230? A Roundup of Proposals Lawfare, (July 29, 2020)
https://www.lawfareblog.com/whats-next-section-230-roundup-proposals (last visited Feb. 25, 2021).
20
Id; United States Department of Justice, Department of Justice’s Review of Section 230 of the Communications Decency
Act of 1996, https://www.justice.gov/archives/ag/department-justice-s-review-section-230-communications-decency-act-
1996 (last visited Feb. 25, 2021); EARN IT Act of 2020, S.3398, 116th Cong. (2020).
21
Bedell, supra note 27; PACT Act, S.4066, 116th Cong. (2020); BAD ADS Act, S.4337, 116th Cong. (2020).
22
Bedell, supra note 27; Limiting Section 230 Immunity to Good Samaritans Act, S.3983, 116th Cong. (2020)
23
See Kaitlyn Tiffany, The Supreme Court Considers the Algorithm (Feb. 1, 2023)
https://www.theatlantic.com/technology/archive/2023/02/supreme-court-section-230-twitter-google-algorithm/672915/ (last
visited April 5, 2023).
BILL: CS/SB 262 Page 5
users based on their viewing history.24 The district court granted Google’s motion to dismiss
based on Section 230, and the U.S. Court of Appeals for the Ninth Circuit affirmed.25
Search Engines
Search engines work by crawling billions of webpages, indexing the webpages, and then
providing them to the person typing a query into the search engine.26 A web crawler, also known
as a bot, is a program that systematically browses the web to copy pages that are then processed
by a search engine.27 Next, the pages are indexed for easy retrieval.28
Each search engine uses their own algorithm, which determines the order pages appear.29 Some
choose to put emphasis on things like user experience, while others focus on content quality or
link building.30 Then a series of equations are used to determine where each piece of content
should rank.31
Trade Secrets
Generally, trade secrets are intellectual property rights on confidential information that are used
by a business and provide an economic advantage to that business.32
Section 812.081, F.S., defines a “trade secret” as information33 used in the operation of a
business, which provides the business an advantage or an opportunity to obtain an advantage,
over those who do not know or use it. The test provided for in statute, and adopted by Florida
courts,34 requires that a trade secret be actively protected from loss or public availability to any
person not selected by the secret’s owner to have access thereto, and be:
Secret;
Of value;
For use or in use by the business; and
Of advantage to the business, or providing an opportunity to obtain an advantage, over those
who do not know or use it. 35
24
See Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021).
25
Id.
26
See Anthony Schultes, How Do Search Engines Work (Sep. 9, 2021) available at
https://www.seerinteractive.com/insights/how-do-search-engines-work (last visited April 5, 2023).
27
See Cem Dilmegani, Web Crawler: What it is, How it works & Applications in 2023 (March 6, 2023) available at
https://research.aimultiple.com/web-crawler/ (last visited April 5, 2023).
28
Id.
29
See Anthony Schultes, How Do Search Engines Work (Sep. 9, 2021) http://www.seerinteractive,cin/insights/how-do-
search-engines-work (last visited April 5, 2023).
30
Id.
31
Id.
32
See The Florida Bar, Trade Secret (Dec. 14, 2022) https://www.floridabar.org/practice-areas/trade-secrets/ (last visited
April 5, 2023).
33
A trade secret may manifest as any scientific, technical, or commercial information, including any design, process,
procedure, list of suppliers, list of customers, business code, or improvement thereof. Section 812.081, F.S.
34
See, e.g., Sepro Corp. v. Dep’t. of Envt’l. Prot., 839 So. 2d 781 (Fla. 1st DCA 2003).
35
Section 812.081(1)(c), F.S.
BILL: CS/SB 262 Page 6
Penalties
Florida law criminalizes the disclosure or theft of trade secrets. For example:
Section 815.04, F.S., makes it a third degree felony36 for a person to willfully, knowingly,
and without authorization disclose or take data, programs, or supporting documentation that
are trade secrets that reside or exist internal or external to a computer, computer system,
computer network, or electronic device.37
Section 812.081, F.S., makes it a third degree felony for a person to steal, embezzle, or copy
without authorization an article that represents a trade secret, when done with an intent to:
o Deprive or withhold from the trade secret’s owner the control of a trade secret, or
o Appropriate a trade secret to his or her own use or to the use of another.
A number of statutes also provide non-criminal protections for trade secrets. The majority of
these statutes provide public record exemptions for trade secrets,38 but others provide procedural
safeguards or civil remedies instead.39
Consumer Data Privacy Overview
Around 84 percent of Americans say they feel very little or no control over the data that is
collected about them by both the government and private companies.40 Business technology to
collect and analyze data has grown, and companies regularly capture, store, and analyze data on
their consumers.41 While consumers often willingly agree to terms-of-service agreements to
provide their data in exchange for free services, they are unaware of the extent to which that data
is then used because the agreements are lengthy, overly-complicated, or simply not read by the
consumer.42
Consumer data is most commonly tracked through the placement of ‘cookies’—files that a
website places in the user’s device that allow for tracking across websites.43 Another common
tracker is a “fingerprinter,” which creates a unique profile of the device, and allows the collector
to gather information tied to that device.44 These technologies allow websites to store a password
36
A third degree felony is punishable by up to 5 years imprisonment and a $5,000 fine. (ss. 775.082 and 775.083, F.S.)
37
The offense is a second degree felony if committed for the purpose of creating or executing any scheme or artifice to
defraud or to obtain property.
38
Sections 119.071(1)(f), 125.0104(9)(d), 288.1226(8), 331.326, 365.174, 381.83, 403.7046(2)-(3), 403.73, 499.012(g), (m),
499.0121(7), 499.051(7), 499.931, 502.222, 570.48(3), 573.123(2), 581.199, 601.10(8)(a), 601.15(7)(d), 601.152(8)(c),
601.76, and 815.045, F.S.
39
Sections 721.071 and 812.035, F.S.
40
Brooke Auxier, Lee Rainie, Monica Anderson, Andrew Perrin, Madhu Kumar, and Erica Turner, PEW RESEARCH CENTER,
Americans and Privacy: Concerned, Confused and Feeling Lack of Control Over their Personal Information at 7 (Nov. 15,
2019), available at https://www.pewresearch.org/internet/wp-content/uploads/sites/9/2019/11/Pew-Research-
Center_PI_2019.11.15_Privacy_FINAL.pdf (last visited April 5, 2023).
41
Max Freedman, BUSINESS NEWS DAILY, How Businesses are Collecting Data (and What They’re Doing With It) (Jun. 17,
2020), available at https://www.businessnewsdaily.com/10625-businesses-collecting-data.html (last visited April 5, 2023).
42
Jessica Guynn, USA TODAY, What Your Need to Know Before Clicking ‘I Agree’ on That Terms of Service Agreement or
Privacy Policy (Jan. 28, 2020),available at https://www.usatoday.com/story/tech/2020/01/28/not-reading-the-small-print-is-
privacy-policy-fail/4565274002/ (last visited April 5, 2023).
43
NPR.org, Online Trackers Follow our Digital Shadow by ‘Fingerprinting’ Browsers, Devices (Sep. 26, 2016), available at
https://www.npr.org/sections/alltechconsidered/2016/09/26/495502526/online-trackers-follow-our-digital-shadow-by-
fingerprinting-browsers-devices (last visited April 5, 2023).
44
Id.
BILL: CS/SB 262 Page 7
that a consumer previously entered, and to follow the consumer’s use patterns at other websites
and to tailor their activities and advertisements to the consumer as a result of information it
gleans.45 Certain commercial businesses collect this information and create a consumer profile
that describes possible interests or characteristics, and ultimately target ads for their products at
the consumer.46 Other companies—data brokers—collect and sell or share consumer data as their
main business operation.47
Generally, the types of consumer data that businesses collect are:48
Personal data, which includes personally identifiable information, such as Social Security
numbers and gender, as well as identifiable information, including IP addresses, web browser
cookies, and device IDs;
Engagement data, which details how consumers interact with a business’ website, mobile
apps, social media pages, emails, paid ads, and customer service routes;
Behavioral data, which includes transactional details such as purchase histories, product
usage information, and qualitative data; and
Attitudinal data, which encompasses metrics on consumer satisfaction, purchase criteria,
product desirability, and more.
Federal and state governments have addressed data privacy and security to a certain extent,
largely by targeting specific industries (e.g., healthcare and financial institutions) or types of data
(such as children’s personal information).49 However, no federal law exists that comprehensively
regulates how entities across all industries collect and use consumer data.50 States have recently
begun to legislate more comprehensively to protect data privacy.51
General Data Protection Regulation (GDPR)—European Union
The GDPR protects individual personal data and restricts entities’ use of personal data,
especially those that exercise overall control over the purpose and means of processing personal
data (controllers) or that process data on behalf of, or at the instruction of controllers
45
Wharton School of Business, University of Pennsylvania, Your Data is Shared and Sold…What’s Being Done About It?
(Oct. 28, 2019), available at https://knowledge.wharton.upenn.edu/article/data-shared-sold-whats-done/ (last visited April 5,
2023).
46
See supra, note 10
47
Lois Beckett, PROPUBLICA, Everything We Know About What Data Brokers Know About You (June 13, 2014), available at
https://www.propublica.org/article/everything-we-know-about-what-data-brokers-know-about-you (last visited April 3,
2023). See also Louise Matsakis, Wired, The WIRED Guide to Your Personal Data (and Who is Using It), (Feb. 15, 2019),
available at https://www.wired.com/story/wired-guide-personal-data-collection/ (last visited April 5, 2023).
48
Freedman, supra, note 10.
49
Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection Law: An
Overview at 7-8 (Mar. 25, 2019), available at https://crsreports.congress.gov/product/pdf/R/R45631 (last visited April 5,
2023).
50
Wilson Freeman, Congressional Research Service, California Dreamin’ of Privacy Regulation: The California Consumer
Privacy Act and Congress (Nov. 1, 2018), available at https://crsreports.congress.gov/product/pdf/LSB/LSB10213/3 (last
visited April 5, 2023).
51
NCSL, 2021 Consumer Data Privacy Legislation (Dec. 27, 2021),available at
https://www.ncsl.org/research/telecommunications-and-information-technology/2021-consumer-data-privacy-legislation.aspx
(last visited April 5, 2023).
BILL: CS/SB 262 Page 8
(processors).52 A controller or processor is required to comply with the GDPR if it has activity in
the European Union—even a minimal one, and regardless of where the data processing occurs.53
Personal data is defined as any information that relates to an identified or identifiable person, and
can include names, identification numbers, location data, cookies, and any other information
through which an individual can be directly or indirectly identified.54 A processor and controller
must receive express consent from an individual before they can collect or process his or her
personal data. The language must give a clear choice that is not based on an overbroad or overly
complex question.55
The GDPR requires entities subject to the GDPR to provide individuals with a report of their
data that is processed, where it is processed, and why it is being processed.56 This report must be
provided to the individual within one month of his or her request.57 If an individual makes a
request that an entity correct or delete his or her personal data held by an entity, the entity must
do so.58
State Data Privacy Regulations
California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA)
The CCPA (2018) defines personal information as that which identifies, relates to, describes, or
is capable of being associated with or could reasonably be linked, directly or indirectly, with a
particular consumer or household.59 The CCPA grants consumers greater control over their
personal information by, among other provisions, creating the following consumer rights, to:60
Know about the personal information that a business collects, specifically about the
consumer, and how it is used and shared;
Delete collected personal information with some exceptions;
Opt out of the sale of personal information; and
Be treated equally by covered businesses, whether or not an individual has exercised a right
granted by the CCPA.
Additionally, the CCPA requires business to give consumers certain notices that explain their
52
See generally, Stephen Mulligan, Wilson Freeman, Chris Linebaugh, CONGRESSIONAL RESEARCH SERVICE, Data
Protection Law: An Overview p. 42 (Mar. 25, 2019), available at https://crsreports.congress.gov/product/pdf/R/R45631 (last
visited April 5, 2023).
53
GDPR, art. 3.
54
GDPR, art. 4(1). See, U.K. Information Commissioner’s Office, Guide to General Data Protection Regulation: What is
Personal Data? available at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-
protection-regulation-gdpr/key-definitions/what-is-personal-data/ (last visited April 5, 2023).
55
U.K. Information Commissioner’s Office, Guide to General Data Protection Regulation: Consent, available at
https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-
basis-for-processing/consent/ (last visited April 5, 2023).
56
Mark Kaelin, TECHREPUBLIC, GDPR: A Cheat Sheet (May 23, 2019), available at
https://www.techrepublic.com/article/the-eu-general-data-protection-regulation-gdpr-the-smart-persons-guide/ (last visited
April 5, 2023).
57
GDPR, arts. 12(3), 15.
58
U.K. Information Commissioner’s Office, Guide to General Data Protection Regulation: Right to Erasure, available at
Right to erasure | ICO (last visited April 5, 2023).
59
Cal. Civ. Code § 1798.140(v)(1).
60
California Department of Justice, Office of the Attorney General, California Consumer Privacy Act (CCPA), available at
https://oag.ca.gov/privacy/ccpa (last visited April 5, 2023).
BILL: CS/SB 262 Page 9
privacy practices and provide certain mechanisms to allow consumers to opt-out or exercise
other rights regarding their personal information.
The CCPA applies to for-profit businesses that do business in California and that meet any of the
following requirements:61
Have a gross annual revenue of over $25 million;
Buy, receive, or sell the personal information of 100,000 or more California residents,
households, or devices; or
Derive 50 percent or more of their annual revenue from selling California residents’ personal
information.
The law is largely enforced by the Attorney General, and businesses are subject to fines for
violating the law. A consumer may only bring a cause of action against a business if certain
categories of personal information tied to his or her name have been stolen in a nonencrypted and
nonredacted form.62
The CPRA, which was approved by voters in a 2020 statewide ballot measure and took effect on
January 1, 2023, amends and expands upon the CCPA.
The CPRA broadens consumers’ rights by allowing them to:63
Prevent businesses from sharing their personal information (CCPA prevents businesses from
selling it);
Correct their inaccurate personal information; and
Limit a business’ use of their sensitive personal information, which includes information
such as a consumer’s geolocation, race, ethnicity, religion, genetic data, private
communications, sexual orientation, and specific health information.
The CPRA now applies to businesses that not only sell personal information, but also ones that
share it. Additionally, the CPRA now prohibits sharing of data between different entities that
make up a joint venture.64
The CPRA also provides that a business that collects personal information cannot retain a
consumer’s personal information or sensitive personal information for longer than is reasonably
necessary.65
Virginia Consumer Data Protection Act
The Virginia Consumer Data Protection Act (Virginia Act) takes effect on January 1, 2023. The
Virginia act grants consumers the right to access, correct, delete, obtain a copy of, and opt out of
61
Cal. Civ. Code § 1798.140.
62
Cal. Civ. Code ss. 1798.130, 1798.135.
63
Elizabeth Shirley, Overview of Applicability and Updated Privacy Provisions in the California Privacy Rights and
Enforcement Act of 2020 (CPRA) (Jun. 10, 2021), available at https://www.jdsupra.com/legalnews/overview-of-
applicability-and-updated-5551553/ (last visited April 5, 2023).
64
Id.
65
Mario Meeks, JDSUPRA, The CPRA’s Storage Limitation Requirement is Coming—Practical Tips for Shoring Up Your
Record Retention Practices to Comply (Feb. 18, 2021), available at https://www.jdsupra.com/legalnews/the-cpra-s-storage-
limitation-9898179/ (last visited April 5, 2023).
BILL: CS/SB 262 Page 10
the processing of their personal data for the purposes of targeted advertising.66 The Virginia Act
defines “consumer” only as a natural person who is a resident of Virginia and acts only in an
individual or household context.67
Businesses are subject to the Virginia Act if they operate in Virginia and either (1) control or
process personal data of 100,000 or more consumers or (2) derive over 50 percent of their gross
revenue from the sale of personal data and control or process personal data of at least 25,000
consumers.68
The Virginia Act exempts specific entities that are otherwise regulated by specific federal law,
including those regulated by the GLBA and HIPAA. The Virginia Act also exempts Virginia
public entities, nonprofit organizations, and higher education institutions.69 In a similar vein, the
Virginia Act exempts specific personal information, where the collection and use thereof is
otherwise regulated by FCRA, FERPA, and COPPA.70
The Virginia Attorney General has exclusive authority to enforce the Virginia Act.71
Colorado Privacy Act
The Colorado Privacy Act (Colorado Act) will take effect on July 1, 2023.72 Generally, with
regard to personal data, the Colorado Act grants a consumer the right to:73
Access data;
Correct data;
Delete data;
Data portability;
Opt out of the sale of personal information, targeted advertising, and profiling;
Appeal; and
Non-discrimination.
Like the CCPA and Virginia Act, the Colorado Act contains exceptions for certain types of data
and information governed by federal law. It provides that the Attorney General has exclusive
66
Va. Code Ann. § 59.1-573 (2020). See also, Colleen Brown, Alan Raul, Lauren Kitces, Sidley LLP, East Coast Meet West
Coast: Enter the Virginia Consumer Data Privacy Protection Act (Mar. 5, 2021), available at
https://www.sidley.com/en/insights/newsupdates/2021/03/east-coast-meets-west-coast-enter-the-virginia-consumer-data-
protection-act (last visited April 5, 2023).
67
Va. Code Ann. § 59.1-571 (2020).
68
Va. Code Ann. § 59.1-572 A (2020).
69
Va. Code Ann. § 59.1-572 B (2020).
70
Va. Code Ann. § 59.1-572 C (2020).
71
See generally, Kurt Hunt and Matthew Diaz, JDSUPRA, Virginia Becomes 2nd State to Adopt a Comprehensive Consumer
Data Privacy Law (Mar. 4, 2022), available at https://www.natlawreview.com/article/virginia-becomes-2nd-state-to-adopt-
comprehensive-consumer-data-privacy-law (last visited April 5, 2023).
72
C.R.S. 1-6-1301-1313, available at https://leg.colorado.gov/sites/default/files/2021a_190_signed.pdf (last visited April 5,
2023).
73
The National Law Review, And Now There are Three…The Colorado Privacy Act, July 16, 2021, available at
https://www.natlawreview.com/article/and-now-there-are-three-colorado-privacy-
act#:~:text=Colorado%20has%20now%20joined%20California,effect%20on%20July%201%2C%202023. (last visited April
5, 2023).
BILL: CS/SB 262 Page 11
authority to enforce violations of the law, and does not provide a private cause of action to a
consumer. The Colorado Act applies to persons conducting business in the state that either:74
Control or process personal data of 100,000 or more consumers during a calendar year; or
Derive revenue or receive discounts from the sale of personal data and control or process
data of at least 25,000 consumers.
The Colorado Act does not bestow a private right of action. The Colorado Attorney General has
exclusive enforcement authority to prosecute violations as deceptive trade practices.75
Utah Consumer Privacy Act
The Utah Consumer Privacy Act (UCPA) will take effect on December 31, 2023.76 Generally,
with regard to personal data, the UCPA grants a consumer the right to:
Access data;
Delete data;
Obtain a copy of data;
Opt out of the sale of data; and
Opt out of targeted advertising.77
Unlike the CCPA, the Colorado Act, and the Virginia Act, the UCPA does not provide
consumers with the ability to correct personal data.78 The UCPA applies to a controller or
processor that conducts business in Utah or produces a product or service targeted to Utah
residents, has annual revenues of $25,000,000 or more, and satisfies at least one of the following
thresholds:
During a calendar year, controls or processes the personal data of 100,000 or more Utah
residents; or
Derives over 50% of its gross revenue from the sale of personal data, and controls or
processes the personal data of 25,000 or more consumers.79
The UCPA does not provide a private right of action. The Utah Attorney General will enforce
the law.80
Florida Information Protection Act (FIPA)81
FIPA is a data security measure that requires governmental entities, specific business entities,
and any third-party agent that holds or processes personal information on behalf of these entities
to take reasonable measures to protect a consumer’s personal information. Additionally, FIPA
74
Id.
75
Weiner Brodsky Kider, PC, Colorado Enhances Data Privacy for Consumers (Aug. 10, 2021), available at
https://www.jdsupra.com/legalnews/colorado-enhances-data-privacy-for-7292123/ (last visited April 5, 2023).
76
The National Law Review, Utah Becomes Fourth U.S. State to Enact Consumer Privacy Law (March 24, 2022), available
at Utah Consumer Privacy Act Passed - UCPA Legislation (natlawreview.com) (last visited April 5, 2023).
77
Id.
78
Id.
79
Id.
80
Id.
81
Section 501.171, F.S.; Chapter 2014-189, Laws of Fla. (FIPA expanded and updated Florida’s data breach disclosure laws
contained in s. 817.5681, F.S. (2013), which was adopted in 2005 and repealed in 2014).
BILL: CS/SB 262 Page 12
requires covered business entities82 that are subject to data breaches to attempt to remediate the
breach by notification to affected consumers in Florida, and in cases where more than 500
individual’s information was breached—by additional notification to the Department of Legal
Affairs (DLA).83 If the breach affected more than 1,000 individuals in Florida, the entity must
also notify credit reporting agencies, with certain exceptions.84
FIPA defines “personal information” as:
Online account information, such as security questions and answers, email addresses, and
passwords; and
An individual’s first name or first initial and last name, in combination with any one or more
of the following information regarding him or her:
o A social security number;
o A driver license or similar identity verification number issued on a government
document;
o A financial account number or credit or debit card number, in combination with any
required security code, access code, or password that is necessary to permit access to an
individual’s financial account;
o Medical history information or health insurance identification numbers; or
o An individual’s health insurance identification numbers.85
Personal information does not include information:
About an individual that a federal, state, or local governmental entity has made publicly
available; or
That is encrypted, secured, or modified to remove elements that personally identify an
individual or that otherwise renders the information unusable.86
FIPA does not provide a private cause of action, but authorizes the DLA to file charges against
covered entities under Florida’s Unfair and Deceptive Trade Practices Act (FDUTPA). 87
In addition to the remedies provided for under FDUTPA, a covered entity that fails to notify
DLA, or an individual whose personal information was accessed, of the data breach is liable for a
civil penalty of $1,000 per day for the first 30 days of any violation; $50,000 for each subsequent
30-day period of violation; and up to $500,000 for any violation that continues more than 180
days. These civil penalties apply per breach, not per individual affected by the breach.
Illinois Biometric Information Privacy Act
In 2008, Illinois became the first state to specifically regulate biometric data with the passage of
the Biometric Information Privacy Act (BIPA). BIPA puts in place safeguards and procedures
82
A “covered entity” is a sole proprietorship, partnership, corporation, trust, estate, cooperative, association, or other
commercial entity that acquires, maintains, stores, or uses personal information. Section 501.171(1)(b), F.S.
83 Florida Office of the Attorney General (OAG), How to Protect Yourself: Data Security, available at
http://myfloridalegal.com/pages.nsf/Main/53D4216591361BCD85257F77004BE16C (last visited April 5, 2023). Section
501.171(3)-(4), F.S.
84 Section 501.171(3)-(6), F.S.
85 Section 501.171(1)(g)1., F.S.; OAG supra note 41.
86 Section 501.171(1)(g)2., F.S.
87 Section 501.171(9), (10), F.S.; OAG supra note 41.
BILL: CS/SB 262 Page 13
that relate to the retention, collection, disclosure, and destruction of biometric information and
specifically protects the biometric information of those in Illinois.
BIPA defines biometric data as a retina or iris scan, fingerprint, voiceprint, or scan of hand or
face geometry.
Under BIPA, a private entity:88
That possesses biometric data must have a written policy that establishes a retention schedule
and guidelines for permanently destruction of such data;
Cannot collect, capture, purchase, receive through trade, or otherwise obtain biometric data
unless it receives an informed release from the subject;
Cannot profit from a person’s biometric data;
Cannot disseminate a person’s biometric data unless the subject consents or provides
authorization, or the entity is required by law or a valid warrant or subpoena; and
Must store, transmit, and protect biometric data with a reasonable standard of care and in a
manner as or more protective as other confidential and sensitive information.
BIPA provides a private cause of action, with relief including liquidated damages, ranging from
$1,000 to $5,000 or actual damages (whichever is greater), attorney’s fees and costs, and other
relief deemed appropriate by a court.89
The Illinois Supreme Court found that an individual does not need to allege an actual injury or
adverse effect, beyond violation of their rights under BIPA, to qualify as an aggrieved party.
Therefore, anyone whose biometric data is affected by a violation of BIPA may seek liquidated
damages or injunctive relief under BIPA.90 Court documents also tend to support the notion that
an individual in Illinois has a valid cause of action if their biometric data is taken without
consent by a private entity, including out-of-state entities, but it is subject to a finding of fact.91
Federal Privacy Regulations
Health Insurance Portability and Accountability Act (HIPAA)92 and its Related Rules
HIPPA requires federal agencies to create national standards to protect sensitive patient health
information from disclosure without the patient’s consent or knowledge. HIPPA’s two pertinent
implementing rules are the Privacy Rule and the Security Rule.93
88 740 Ill. Comp. Stat. 14/10, 14/15 (2008).
89
740 Ill. Comp. Stat. 14/20 (2008).
90
See Rosenbach v. Six Flags Entertainment Corporation, 2019 IL 123186.
91
See Rivera v. Google, Inc., 238 F.Supp.3d 1088 (N.D. Ill. 2017); See also In re Facebook Biometric Information Privacy
Litigation, 185 F.Supp.3d 1155 (N.D. Cal. (2016).; See also Norberg v. Shutterfly, Inc., 152 F.Supp.3d 1103 (N.D. Ill. 2015).
92
42 U.S.C. § 1320.
93
See generally, Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection
Law: An Overview pp. 10-12 (Mar. 25, 2019), available at https://crsreports.congress.gov/product/pdf/R/R45631 (last visited
April 5, 2023).
BILL: CS/SB 262 Page 14
The Privacy Rule addresses the use and disclosure of individual’s protected health information
(PHI) by covered entities.94, 95 PHI is information, including demographic data, that can be used
to identify the individual, and that relates to the individual’s:
Past, present, or future physical or mental health or physical condition;
Health care; or
Payment for past, present, or future health care.
A common example of PHI is a patient’s name, address, birth date, or social security number.
However, PHI does not include deidentified health information or employment-related records.
The Privacy Rule protects PHI that is held or transmitted by a covered entity or its business
associate by preventing covered entities from disclosing PHI without the patient’s consent or
knowledge unless it is being used or shared for treatment, payment, or healthcare operations or
for another exempt purpose.
These covered entities must prominently post an electronic notice and give notice upon a specific
request to patients regarding the manners in which they use and disclose PHI. A covered entity
must also provide an accounting of disclosures it has made of a patient’s PHI upon his or her
request as well as a copy of his or her PHI.
The Security Rule applies to the subset of identifiable health information that a covered entity
creates, receives, maintains, or transmits in electronic form called “electronic protected health
information” (e-PHI).96 The Security Rule does not apply to PHI that is transmitted orally or in
writing. A covered entity must comply with the Security Rule by:
Ensuring the confidentiality, integrity, and availability of all e-PHI;
Detecting and safeguarding against anticipated threats to the security of the information;
Protecting against anticipated uses or disclosures; and
Certifying compliance by their workforce.
The Department of Health and Human Services may institute a civil enforcement under HIPPA
and may seek civil penalties. The Department of Justice may institute criminal proceedings
against a violator who knowingly obtained or disclosed PHI. There is no private cause of action
under HIPPA.
Federal Policy for the Protection of Human Subjects (“Common Rule”)
The Common Rule is promulgated by the U.S. Food and Drug Administration (FDA) and
governs the ethical conduct of research involving human subjects.97 Fifteen federal agencies and
departments are party to this rule. The Common Rule mandates that researchers protect the
94
45 C.F.R. §160 and 164. See also, Department of Health and Human Services, Summary of the HIPPA Privacy Rule, (Jul.
26, 2013) available at https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html (last visited April 5,
2023).
95
A covered entity is a health plan, health care clearinghouse, health care provider who transmits health information in
electronic form, and these entities’ business associates.
96
45 C.F.R. §164.302-318.
97
21 C.F.R. §§ 50, 60.
BILL: CS/SB 262 Page 15
privacy of subjects and maintain confidentiality of human subject data, among other
requirements.98
The FDA is a member of the International Council for Harmonisation of Technical Requirements
for Pharmaceuticals for Human Use, which brings together the regulatory authorities and the
pharmaceutical industry to develop guidelines for pharmaceutical trials.99
Fair Credit Reporting Act (FCRA)100
The FCRA promotes the accuracy, fairness, and privacy of information that consumer reporting
agencies and their related entities collect.101 The FCRA governs the acts of credit reporting
agencies (CRAs), entities that furnish information to CRAs (furnishers), and individuals who use
credit reports issued by CRAs. Specifically, CRAs and their furnishers must adopt methods to
ensure the information they collect and report is accurate.
Individuals can review the information a CRA has collected on them to ensure that it is accurate,
and may dispute its accuracy—which triggers a CRA’s and furnisher’s duty to reinvestigate the
information. Individuals may also request to review the information a CRA has in his or her file,
the sources of the information, and the identity of those to whom the information was disclosed.
A CRA cannot provide information in a consumer report to anyone who does not have a
specified purpose in the FCRA.102
The FTC and Consumer Finance Protection Bureau share civil enforcement authority of the
FCRA. A person who willfully obtains consumer information from a CRA under false pretenses
is subject to criminal prosecution. An individual may also pursue a private right of action if he or
she was injured by willful or negligent actions.103
98
See generally, Health and Human Services, Federal Policy for the Protection of Human Subjects (‘Common Rule’) (Mar.
18, 2016), available at https://www.hhs.gov/ohrp/regulations-and-policy/regulations/common-rule/index.html (last visited
April 5, 2023).
99
International Council for Harmonisation, available at https://www.ich.org/ (last visited April 5, 2023).
100
15 U.S.C. §1681.
101
Consumer Finance Bureau, A Summary of Your Rights Under the Fair Credit Reporting Act (Sept. 18, 2018), 12 CFR
1022, available at A Summary of Your Rights Under the Fair Credit Reporting Act (ftc.gov) (last visited April 5, 2023). See
also, Federal Trade Commission, Fair Credit Reporting Act, available at https://www.ftc.gov/enforcement/statutes/fair-
credit-reporting-act (last visited April 5, 2023).
102
Permissible purposes include employment, insurance underwriting that involves the consumer, evaluating the consumer’s
eligibility for licensure or other governmental benefit that considers the applicants financial responsibility or status, or a
legitimate business need. 15 U.S.C. § 1681b(a).
103
An individual may record actual damages, attorney’s fees, litigation costs, and in the case of willful violations—statutory
damages ranging from $100 to $1,000 and punitive costs as the court deems appropriate. 15 U.S.C. § 1681n(a).
BILL: CS/SB 262 Page 16
Gramm-Leach Bliley Act (GLBA)104
The GLBA governs financial institutions’ use and protection of nonpublic personal information
(NPI).105 A financial institution is any institution that engages in financial activities, such as
banks, real estate appraisers and title companies, consumer-financing companies, insurance
underwriters and agents, wire transfer agencies, check cashing stores, and mortgage brokers.106
A financial institution cannot share (1) NPI with non-affiliated third parties unless they notify the
consumer of their intent to do so and provide a chance to opt out; and (2) a consumer’s account
or credit card numbers with third parties for direct marketing. The financial institution must also
send an annual notice to the consumer that clearly and conspicuously describes the institution’s
privacy policies and practices.107
The financial institution must also ensure the security and confidentiality of a customer’s NPI by
establishing concrete security policies, and by designating an information security program
coordinator and implementing a risk assessment process.108
The Consumer Financial Protection Bureau, Federal Trade Commission, and federal banking
agencies share civil enforcement authority of the GLBA. Certain civil remedies and criminal
liabilities are available for violations of the data security and protection provisions of the GLBA,
but there is no private cause of action.
Children’s Online Privacy Protection Act (COPPA)109
COPPA and its related rules regulate websites’ collection and use of children’s information. The
operator of a website or online service that is directed to children, or that has actual knowledge
that it collects children’s personal information (covered entities), must comply with requirements
regarding data collection and use, privacy policy notifications, and data security.
COPPA defines personal information as individually identifiable information about an individual
that is collected online, including:
A first and last name;
A home or other physical address, e-mail address, telephone number, or any other identifier
that the FCC determines could permit one to contact someone physically or online, such as a
screen name;
A social security number;
104
15 U.S.C. §§ 6801-6809. See generally, Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research
Service, Data Protection Law: An Overview pp. 8-10 (Mar. 25, 2019), available at
https://crsreports.congress.gov/product/pdf/R/R45631 (last visited April 5, 2023).
105
The GLBA defines “nonpublic personal information” as “personally identifiable information” that is not publicly available
and is either provided by the consumer to a financial institution, resulting from any transaction with the consumer or any
service performed for the consumer, or otherwise obtained by the financial institution. 15 U.S.C. § 6809(9).
106
Federal Trade Commission, Financial Institutions and Customer Information: Complying with the Safeguards Rule: Who
Must Comply?, available at https://www.ftc.gov/tips-advice/business-center/guidance/financial-institutions-customer-
information-complying (last visited April 5, 2023).
107
The notice must specifically include the categories of NPI the financial institution collects and discloses, the types of third
parties with which it shares NPI, and how it protects consumers’ NPI.
108
See, 16 C.F.R. § 314.4
109
16 C.F.R. pt. 312.
BILL: CS/SB 262 Page 17
A persistent identifier that can be used to recognize a user over time and across different
websites;
A photograph, video, or audio file that contains a child’s image or voice;
A geolocation information that is sufficient to identify the user’s location; or
Information concerning the child or parents that the operator collects from the child and
combines with any other identifier described above.
A covered entity may not collect a child’s (individual under the age of 13) personal information
without the prior, verifiable consent of his or her parent.110
COPPA further requires covered entities to:111
Give parents direct notice of their privacy policies, including a description of their data
collection and sharing practices;
Post a clear link to their privacy policies on their home page and at each area of their website
where they collect personal information from children;
Institute procedures to protect the personal information that they hold;
Ensure that any third party with which they share collected personal information implements
the same protection procedures; and
Delete children’s personal information after the purpose for its retention has been fulfilled.
Violations of COPPA are an unfair or deceptive act or practice and are prosecuted by the FTC.
COPPA also authorizes state attorneys general to enforce violations that affect residents of their
states. There is no criminal prosecution or private right of action provided for under COPPA.112
Driver’s Privacy Protection Act (DPPA)113
The DPPA prohibits state Departments of Motor Vehicle (DMVs) from releasing an individual’s
personal information obtained by the DMV in connection with a motor vehicle record, subject to
certain exceptions, such as a legitimate government need. Additionally, the DPPA requires
DMVs to obtain an individual’s consent to enable the sale or release of personal motor vehicle
record to a third-party marketer.
Violations of the DPPA are subject to criminal fine. Additionally, a private individual affected
by the improper disclosure or use of his or her personal information may bring a private civil
action against the violator.114
110
15 U.S.C. §§ 6502(a)-(b).
111
See, Federal Trade Commission, General Questions About the COPPA Rule: What is the Children’s Online Privacy
Protection Rule?(Jul. 2020), available at https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-
frequently-asked-questions-0 (last visited April 5, 2023).
112
Federal Trade Commission, General Questions About the COPPA Rule: COPPA Enforcement, available at
https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0 (last visited April
5, 2023).
113
18 U.S.C. §2721.
114
18 U.S.C. § 2724. See generally, Electronic Privacy Information Center, The Drivers Privacy Protection Act (DPPA) and
the Privacy of Your State Motor Vehicle Record, available at The Drivers Privacy Protection Act (DPPA) and the Privacy of
Your State Motor Vehicle Record – EPIC – Electronic Privacy Information Center (last visited April 5, 2023).
BILL: CS/SB 262 Page 18
Family Educational Rights and Privacy Act (FERPA)115
FERPA protects the privacy of student’s education records. The law applies to any school that
receives applicable funds from the U.S. Department of Education. FERPA grants parents certain
rights respecting their child’s education records, and this privacy right transfers to the student
when he or she reaches age 18 or attends a post-secondary school.
Schools may disclose, without consent, directory information, such as a student’s name, address,
telephone number, birthday, place of birth, honors and awards, and dates of attendance.
However, schools must disclose and allow parents and students to opt out of the disclosure of
their directory information.
Schools must give an annual notice about rights granted by FERPA to affected parties.116
Federal Trade Commission Act (FTC Act)
The FTC protects consumer data privacy by acting under Section 5 of the FTC Act, which bars
unfair and deceptive acts and practices that affect commerce.117 Specifically, the FTC prosecutes
companies that act unfairly or deceptively when they gather, use, or disclose personal
information in a manner that contradicts their posted privacy policy or other statements, or fail to
implement reasonable data security safeguards.118
For example, the FTC prosecuted both Sears and Upromise for drafting misleading privacy
policies that did not fully disclose the extent to which a consumer’s online browsing would be
tracked.119
III. Effect of Proposed Changes:
Governmental Content Moderation of Social Media Platforms
A social media platform is a form of electronic communication through which users create online
communities to share information, ideas, personal messages, and other content.
A governmental entity is any state, county, district, authority, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government created or established
by law.
115
20 U.S.C. §1232(g); 34 C.F.R. § 99.
116
U.S. Department of Education, Family Educational Rights and Privacy Act (FERPA), (Aug. 25, 2021) available at
https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html (last visited April 5, 2023).
117
15 U.S.C. § 1681. Federal Trade Commission, Privacy and Security Enforcement, available at https://www.ftc.gov/news-
events/media-resources/protecting-consumer-privacy/privacy-security-enforcement (last visited April 5, 2023).
118
Stephen Mulligan, Wilson Freeman, Chris Linebaugh, CONGRESSIONAL RESEARCH SERVICE, Data Protection Law: An
Overview p. 30-35 (Mar. 25, 2019), available at https://crsreports.congress.gov/product/pdf/R/R45631 (last visited April 5,
2023).
119
See, e.g., Federal Trade Commission, Membership Reward Service Upromise Penalized for Violating FTC Order (Mar.
17, 2017) Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection Law: An
Overview p. 42 (Mar. 25, 2019), available at https://crsreports.congress.gov/product/pdf/R/R45631 (last visited April 5,
2023); and Complaint In the Matter of Sears Holdings Mgmt Co., No. C-4264 (F.T.C. Aug. 31, 2009).
BILL: CS/SB 262 Page 19
SB 262 creates s. 112.23, F.S., to prohibit an officer or a salaried employee of a governmental
entity from using their position or any state resources to communicate with a social media
platform to request that it remove content or accounts from the social media platform.
Additionally, a governmental entity, or an officer or a salaried employee acting on behalf of a
governmental entity may not initiate or maintain any agreements or working relationships with a
social media platform for the purpose of content moderation.
The bill provides that the above prohibitions to do not apply if the governmental entity or an
officer or a salaried employee acting on behalf of a governmental entity is acting as part of any
of the following:
Routine account management of the government entity’s account;
An attempt to remove content that pertains to the commission of a crime or violation of
Florida’s public records law;
An attempt to remove an account that pertains to the commission of a crime or violation of
Florida’s public records law; or
An investigation or inquiry related to public safety.
Consumer Data Privacy
The bill creates s. 501.173, F.S., to establish specific consumer rights over their personal
information when held by specific controllers or processors, including:
The right to access personal information that is collected about the individual consumer;
The right to delete or correct their personal information; and
The right to opt-out of the sale or sharing of their personal information with third parties.
A “consumer,” as defined by the bill, may exercise these rights. A consumer is any natural
person who resides in, or is domiciled in, Florida and who acts in his or her personal capacity or
household120 context. The bill does not contemplate individuals who act in a commercial or
employment context.
A controller that receives a verifiable consumer request to access, delete, correct, or opt-out must
comply with the request, with certain exceptions.
Personal Information
The bill defines personal information as information, including biometric, genetic, and unique
identifiers, that is linked, or reasonably capable of being linked, with a particular consumer or
household. The term includes:
Identifiers such as a real name, alias, postal address, unique identifier,121 online identifier,
internet protocol address, email address, account name, social security number, driver license
number, passport number, or other similar identifiers;
120
The bill defines “household” as a natural person or a group of peole in Florida who reside at the same address, share a
common device or the same service provided by a controller, and are identified by a controller as sharing the same group
account or unique device.
121
The bill defines “unique identifier” as a persisitent identifier that can be used to recognize a consumer, a family, or a
device that is linked to a consumer or a family, over time and across different services.
BILL: CS/SB 262 Page 20
Information that identifies, relates to, or describes, or could be associated with, a particular
individual, including, but not limited to, a name, signature, social security number, physical
characteristics or description, address, location, telephone number, passport number, driver
license or state identification card number, insurance policy number, education, employment,
employment history, bank account number, credit card number, debit card number, or any
other financial information, medical information, or health insurance information;
Characteristics of protected classifications under state or federal law;
Commercial information, including records of personal property, products or services
purchased, obtained, or considered, or other purchasing or consuming histories or tendencies;
Biometric information;
Internet or other electronic network activity information, including, but not limited to,
browsing history, search history, and information regarding a consumer’s interaction with an
Internet website, application, or advertisement;
Geolocation data;
Audio, electronic, visual, thermal, olfactory, or similar information; and
Inferences drawn from any of the information used to create a profile about a consumer
reflecting the consumer’s preferences, characteristics, psychological trends, predispositions,
behavior, attitudes, intelligence, abilities, and aptitudes.
The term does not include:
Consumer employment contact information and similar information that is used only in an
employment context;
De-identified consumer information or aggregate consumer information; and
Publicly and lawfully available information reasonably believed to be made available to the
general public in a lawful manner and without legal restrictions.
Business Requirements
Controllers
A controller subject to the bill is any sole proprietorship partnership, limited liability company,
corporation, association, or legal entity that:
Is organized or operated for the profit or financial benefit of its shareholders or owners;
Does business in Florida;
Collects consumer personal information, or is the entity that directs such collection;
Determines the purpose and means of processing personal information about consumers,
alone or jointly with others;
Makes in excess of $1 billion in gross revenues, as adjusted in January of every odd-
numbered year to reflect any increase in the Consumer Price Index; and
Satisfies one of the following:
o Derives 50 percent or more of its global annual revenues from providing targeted
advertising122 or the sale of ads online; or
122
The bill defines “targeted advertising” as marketing to a consumer or displaying an advertisement to a consumer when the
advertisement is selected based on personal information used to predict such consumer’s preferences or interests.
BILL: CS/SB 262 Page 21
o Operates a consumer smart speaker and voice command component service with an
integrated virtual assistant connected to a cloud computing service that uses hands-free
verbal activation.123
Additionally, any entity that controls or is controlled by a controller is considered a controller for
the purposes of the bill.
Processors
A processor is a for-profit business that processes information on behalf of a controller pursuant
to a written contract. The contract between the controller and processor must prohibit the
processor from retaining, using, or disclosing the information for any reason other than that
stated in the contract, and as permitted by the bill.
A processor can only act pursuant to a contract between it and the controller. The contract must
include provisions that:
Prohibit the processor from selling, sharing, retaining, using, or disclosing the personal
information for any purpose that violates s. 501.173, F.S.;
Prohibit the processor from retaining, using, or disclosing the personal information other than
for the purposes specified in the contract or agreement;
Prohibit the processor from combining the personal information that the processor receives
from or on behalf of the controller with personal information that the processor receives from
or on behalf of another person or that the processor collects from its own interaction with the
consumer, provided that the processor may combine personal information to perform any
purpose specified in the contract or agreement and such combination is reported to the
controller;
Govern the processor’s personal information processing procedures with respect to
processing performed on behalf of the controller, including processing instructions, the
nature and purpose of processing, the type of information subject to processing, the duration
of processing, and the rights and obligations of the controller and processor;
Require the processor to return or delete all personal information under the contract to the
controller as requested by the controller at the end of the provision of services, unless
retention of the information is required by law; and
Require the processor to make available to the controller all personal information in its
possession under the contract or agreement, pursuant to the controller’s request.
Additionally, the bill provides that determining whether a person is acting as a controller or
processor with respect to a specific processing of data is a fact-based determination. A contract
between a controller and processor must reflect their respective roles and relationships related to
handling personal information.
If the processor engages a subcontractor, it must require it to meet the same obligations it is
required to meet under the bill.
123
The bill clarifies that a consumer smart speaker and voice command component service does not include a motor vehicle
or speaker or device associated with or connected to a vehicle.
BILL: CS/SB 262 Page 22
Third Parties
A third party is any person who is neither a controller, nor a processor. This may include
subcontractors required to engage in data processing, security auditors, or entities that partner
with web retail sites to allow consumers to pay in installments.
A third party is prohibited from selling or sharing personal information about a consumer unless
the consumer is provided an opportunity by such third party to opt out.
A third party that has collected personal information from a controller in accordance with the
requirements in this bill, may use such personal information to advertise or market products or
services that are produced or offered directly by such third party.
A third party that engages a subcontractor must require it to meet the same obligations it is
required to meet under the bill.
General Business Obligations
Generally, a controller that buys, sells, or shares Florida consumers’ personal information is
subject to the bill. The sale of personal information includes the transfer by any means, for actual
monetary or valuable consideration, of consumer personal information by a controller to another
controller or a third party. In contrast, a controller shares consumer personal information when it
transfers it by any means, or allows access to it, for the purpose of advertising or marketing. The
bill specifically includes in its definition of “sharing” (1) allowing a third party to advertise or
market to a consumer based on the consumer’s personal information, without the disclosure of
the personal information to the third party, and (2) transactions between a controller and third
party for advertising and marketing.
General Exemptions from Provisions of the Bill
Controllers, processors, and third parties may be exempt from the duties created by the bill,
depending on the manner in which they use consumer personal information.
The bill does not apply to the collection of personal information:
Used for transactional payments;
Deidentified or aggregate consumer information;
In compliance with federal, state, or local laws;
In compliance with a civil, criminal, or regulatory inquiry, investigation, subpoena, or
summons by federal, state, or local authorities;
In cooperation with law enforcement agencies concerning conduct reasonably believed to
violate laws;
For the purpose of exercising or defending legal rights, claims, or privileges;
Collected through direct interactions with the consumer, which is used for advertising or
marketing services to advertise or market products or services that are produced or offered
directly by the controller;
Pertaining to a job applicant, employee, owner, director, officer, contractor, volunteer, or
intern of a controller, to the extent the personal information is collected and used solely
within the context of the person’s role or former role with the controller;
BILL: CS/SB 262 Page 23
Pertaining to protected health information for purposes of the federal Health Insurance
Portability and Accountability Act (HIPPA) of 1996 and related regulations;
By a covered entity or business associate governed by the privacy, security, and breach
notification rules issued by the U.S. Department of Health and Human Services in 45 C.F.R.
parts 160 and 164, or a program or a qualified service program defined in 42 C.F.R. part 2;
For purposes of research as defined in 45 C.F.R. s. 164.501, conducted in accordance with
the Federal Policy for the Protection of Human Subjects for purposes of 45 C.F.R. part 46,
the good clinical practice guidelines issued by the International Council for Harmonisation of
Technical Requirements for Pharmaceuticals for Human Use, or the Protection for Human
Subjects for purposes of 21 C.F.R. Parts 50 and 56; or personal information used or shared in
research conducted in accordance with one or more of these standards;
For purposes of compliance with the federal Health Care Quality Improvement Act of 1986
and related regulations, or patient safety work product for purposes of 42 C.F.R. part 3,
established pursuant to 42 U.S.C. s. 299b-21 through 299b-26;
Is deidentified in accordance with 45 C.F.R. part 164 and that is derived from individually
identifiable health information, as described in HIPAA, or identifiable personal information,
consistent with the Federal Policy for the Protection of Human Subjects or the human subject
protection requirements of the United States Food and Drug Administration;
Used only for public health activities and purposes as described in 45 C.F.R. s. 164.512;
That is collected, processed, sold, or disclosed pursuant to the federal Fair Credit Reporting
Act, 15 U.S.C. s. 1681 and its implementing regulations;
That is nonpublic personal information collected, processed, sold, or disclosed pursuant to
the Gramm-Leach-Bliley Act, 15 U.S.C. s. 6801 et seq. and implementing regulations;
By a financial institution, as defined in the Gramm-Leach-Bliley Act, 15 U.S.C. ss. 6801 et
seq.;
That is collected, processed, sold, or disclosed pursuant to the federal Driver's Privacy
Protection Act of 1994, 18 U.S.C. ss. 2721 et. seq.;
That consists of education information covered by the Family Educational Rights and
Privacy Act, 20 U.S.C. s. 1232(g) and 34 C.F.R. part 99;
That is collected as part of public or peer-reviewed scientific or statistical research in the
public interest and which adheres to all other applicable ethics and privacy laws, if the
consumer has provided informed consent;
Disclosed for the purpose of responding to an alert of a present risk of harm to a person or
property or prosecuting those responsible for such activity;
Disclosed when a consumer uses or directs a controller to intentionally disclose information
to a third party or uses the controller to intentionally interact with a third party;
That is an identifier used for a consumer how has opted out of the sale or sharing of the
consumer’s personal information for the sole purpose of alerting processors and third parties
that the consumer has opted out of the sale or sharing of the consumer’s personal
information;
Transferred by a controller to a third party as an asset that is part of a merger, acquisition,
bankruptcy, or other transaction in which the third party assumes control of all or part of the
controller, provided that the information is used or shared consistently;
Necessary to fulfill the terms of a written warranty when such warranty was purchased by the
consumer or the product that is warranted was purchased by the consumer;
BILL: CS/SB 262 Page 24
Necessary for a product recall for a product purchased or owned by the consumer conducted
in accordance with federal law;
Processed solely for the purposed of independently measuring or reporting advertising or
content performance, reach, or frequency pursuant to a contract with a controller that
collected personal information in accordance with this bill;
Shared between a manufacturer of a tangible product and authorized third party distributors
or vendors of the product, as long as such information is used solely for advertising,
marketing, or servicing the product that is acquired directly through such manufacturer and
such authorized third party distributors or vendors.
Online Privacy Policy
Controllers that collect personal information about a consumer must maintain a current online
privacy policy that is available on the controller’s homepage.124 The privacy policy must include:
Any Florida-specific consumer privacy rights;
The types and categories of personal information that they collect, sell, or share, or have
collected, sold, or shared in the past about consumers;
The consumer’s right to request deletion or correction of certain personal information; and
The consumer’s right to opt out of the sale or sharing of their personal information to third
parties.
A controller that collects personal information must at or before the point of collection, inform
the consumer of the categories of personal information that it will collect, and the purposes for
which the categories of information will be used. Additionally, such controllers cannot expand
the scope of their collection of personal information or use that personal information outside of
its initially expressed purpose without first providing the consumer with additional notice
consistent with the requirements of the bill.
Notice of Retention of Personal Information
A controller must adopt and implement a retention schedule that prohibits the use or retention of
personal information by the controller or processor:
After the satisfaction of the initial purpose for which the information was collected or
obtained;
After the expiration or termination of the contract pursuant to which the information was
collected or obtained; or
2 years after the consumer’s last interaction with the controller.
The retention schedule requirement does not apply to personal information that is reasonably
used or retained to do any of the following:
Fulfill the terms of a written warranty or product recall conducted in accordance with federal
law;
124
The bill defines “homepage” as the introductrory page of an Internet website and any Internet webpage where personal
information is collected. In the case of a mobile application, the homepage is the application’s platform page or download
page, a link within the application, such as “About” or “Information” application configurations, or the settings page, and any
other location that allows consumers to review the notice required by the bill, but not limited to, before downloading the
application.
BILL: CS/SB 262 Page 25
Provide a good or service requested by the consumer, or reasonably anticipate the request of
such good or service within the context of a controller’s ongoing business relationship with
the consumer;
Detect security threats or incidents; protect against malicious, deceptive, fraudulent,
unauthorized, or illegal activity or access; or prosecute those responsible for such activities.
Debug to identify and repair errors that impair existing functionality;
Engage in public or peer-reviewed scientific, historical, or statistical research in the public’s
interest that adheres to all applicable ethics and privacy laws when the controller’s deletion
would likely render impossible or seriously impair the achievement of the research, if the
consumer first provided informed consent;
Enable internal uses that are reasonably aligned with the expectations of the consumer based
on the relationship with the controller or that are compatible with the context in which the
consumer gave the information;
Comply with a legal obligation, including any state or federal retention laws;
Protect the controller’s interest against existing disputes, legal actions, or governmental
investigations; or
Assure the physical security of persons or property.
Data Security
A controller that collects a consumer’s personal information must implement and maintain
reasonable security procedures and practices to protect personal information from unauthorized
or illegal access, destruction, use, modification, or disclosure. Additionally, a controller must
require any processors to implement and maintain the same or similar security procedures and
practices.
Consumer Rights Based on the Sale of Personal Information
The bill establishes specific consumer rights regarding their personal information, including:
The right to access personal information that was collected about them;
The right to delete or correct their personal information; and
The right to opt-out of the sale or sharing of their personal information with third parties.
The bill prohibits as contrary to public policy any waiver or limitation of a consumer’s rights as
provided by the bill, including the waiver or limitation of the consumer’s right to a remedy or
means of enforcement.
Verifiable Requests
A consumer must make a verifiable request to exercise their rights to know, delete, or correct,
their collected personal information.
A “verifiable consumer request” is defined as a request that is submitted to a controller by:
A consumer;
A parent or guardian on behalf of a consumer who is a minor child; or
A person authorized by the consumer to act on the consumer’s behalf.
BILL: CS/SB 262 Page 26
A verifiable consumer request is presumed to have been made when requested through an
established account using the controller’s established security features to access the account
through communication features offered to consumers. However, a controller may not require the
consumer to create or have an account with the controller in order to make a verifiable consumer
request.
Right to Request a Copy of Personal Information that is Collected, Sold, or Shared
The bill grants consumers the right to request an accounting of certain information from a
controller who collects, sells, or shares their personal information. Within 45 calendar days of its
receipt of the request, the controller must respond with the following information in a readily
usable format:
The specific pieces of personal information collected about the consumer;
The categories of sources from which the consumer’s personal information was collected;
The specific pieces of personal information about the consumer that were sold or shared;
The third parties to which the controller sold or shared the consumer’s personal information;
and
The categories of consumer personal information that were disclosed to a processor.
The controller may extend their response period by an additional 45 calendar days (for a total of
90 calendar days) if they inform the consumer of the extension within the first 45 days from
receipt of the request. This right does not apply to information that relates solely to households.
Additionally, the controller is not required to provide the above-requested information more than
twice in a 12-month period.
This right to request a copy of personal information does not otherwise require controllers to
retain, reidentify, or link data that they would not maintain in their ordinary course of business.
Additionally, a controller is permitted to provide the data to the consumer in a manner that does
not disclose the controller’s trade secrets.
Right to Delete and Correct Personal Information
A consumer may request that a controller delete personal information that it collected about the
consumer or about the consumer’s child younger than 18 years old. After the business receives
such a request, it must delete the information and direct any processors the delete the information
within 90 days.
A consumer may request to correct personal information about the consumer or about the
consumer’s child younger than 18 years old that is held by a controller. The controller must use
commercially reasonable efforts to correct the inaccurate information as directed by the
consumer and direct any processor to correct it as well within 90 days of the request. A controller
can allow a consumer to correct information through a self-service mechanism.
Controllers and processors acting pursuant to a contract with the controller are not required to
comply with a request to delete or correct information if it is necessary to:
Complete the transaction for which the personal information was collected;
BILL: CS/SB 262 Page 27
Fulfill the terms of a written warranty or product recall that is conducted in accordance with
federal law;
Detect security threats or incidents; protect against malicious, deceptive, fraudulent,
unauthorized, or illegal activity or access; or prosecute those responsible for such activity;
Debug and identify repair errors;
Engage in public or peer-reviewed scientific, historical, or statistical research that is
performed in accordance with applicable ethical standards and privacy laws—only when the
deletion of the consumer’s personal information would render such research impossible or
seriously impaired and where the consumer previously provided informed consent;
Enable solely internal uses that are reasonably aligned with the expectations of the consumer
based on the consumer’s relationship with the controller;
Comply with a legal obligation, including state or federal retention laws;
Reasonably protect the controller’s interests against existing disputes, legal action, or
governmental investigation; or
Assure the physical security of persons or property.
Additionally, a controller and contracted-processor are not required to comply with a request to
delete a consumer’s personal information if it is required to:
Provide a good or service requested by the consumer, or reasonably anticipate the request of
a good or service within the context of the controller’s ongoing business relationship with the
consumer, or otherwise perform a contract between the controller and consumer; or
Engage in public or peer-reviewed research that adheres to applicable ethics and privacy
laws, if the deletion would likely render impossible, or seriously impair the research, and if
the consumer initially provided informed consent.
Right to Opt Out of the Sale or Sharing of Personal Information
The bill creates a “right to opt out,” which allows a consumer to instruct a controller that sells
personal information to a third party not to sell their personal information. A controller must stop
selling and sharing the consumer’s personal information within 4 calendar days after it receives
an opt-out request, and cannot begin to sell or share the consumer personal information again
unless it receives subsequent express authorization. Additionally, a controller is prohibited from
selling or sharing the personal information of a minor consumer if the controller has actual
knowledge that the consumer is not at least 18 years old. However, if a consumer who is between
13 and 18 years old, or if the parent or guardian of a consumer who is 12 years old or younger,
has affirmatively authorized the sale or sharing of such consumer’s personal information, then a
controller may do so pursuant to the requirements under the bill.
The controller must provide a clear and accessible link on its homepage to consumer’s entitled
“Do Not Sell or Share My Personal Information” to allow the consumer to opt out. The
controller cannot require a consumer to create an account. A consumer’s opt out request may
also be made through a user-enabled global privacy control, e.g., a browser plug-in or privacy
setting. Any personal information collected from the consumer in connection with an opt out
request must solely be used to comply with such request. Additionally, a consumer may
authorize another person to opt out on the consumer’s behalf.
BILL: CS/SB 262 Page 28
The controller must respect the consumer’s opt out request for at least 12-months before it can
request the consumer’s authorization of the sale or sharing of consumer personal information
again.
Incentives for Consent to Sell or Share Personal Information
A controller cannot deny goods or services to a consumer because the consumer exercised any
rights under the bill.
A controller can charge a consumer who exercised any of the rights granted by the bill a different
price or rate, or provide a different level or quality of goods or services to the consumer, only if
that difference is:
Reasonably related to the value provided to the controller by the consumer’s data, or
Related to a consumer’s voluntary participation in a financial incentive program, including
loyalty, rewards, premium features, discounts, or club card program that is offered by the
controller.
A controller can offer additional benefits to consumers who participate in the collection, sharing,
sale, or deletion of personal information. This consent must have been granted based on a clear
description of the material terms of the incentive program, and the consumer must be permitted
to revoke his or her consent at any time. The discount or promotional item must be reasonably
related to the value the consumer’s data provides to the business and must not be unjust,
unreasonable, coercive, or usurious.
Surveillance
A controller is prohibited from collecting a consumer’s precise geolocation data or personal
information through the operation of a voice recognition feature, unless the consumer provides
authorization.
Precise geolocation data is information from technology, such as global positioning system level
latitude and longitude coordinates or other mechanisms, which directly identifies the specific
location of a person within a radius of 1,750 feet. However, the term does not include
information generated by the transmission of communications or any information generated by
or connected to advance utility metering infrastructure systems.
A voice recognition feature means the function of a device which enables the collection,
recording, storage, analysis, transmission, interpretation, or other use of spoken words or other
sounds.
Search Engine Transparency
A controller that operates a search engine must provide a consumer with information of how the
controller’s search engine algorithm prioritizes or deprioritizes political partisanship or political
ideology in its search results.
BILL: CS/SB 262 Page 29
Agency Enforcement and Implementation
The Department of Legal Affairs (DLA) may prosecute on behalf of a Florida consumer any
violation of the bill’s provisions as a deceptive and unfair trade practice, pursuant to the Florida
Deceptive and Unfair Trade Practices Act (FDUTPA).125
The DLA may provide suspected controller, processor, or third party violators a right to cure
their violation by providing written notice of the violation and then allowing a 45-day period to
cure the alleged violation. However, the DLA cannot offer a right to cure based on an alleged
violation that involves a Florida consumer who the controller, processor, or third party has actual
knowledge is under 18 years old. If the alleged violator cures the violation to the satisfaction of
the DLA, the DLA may issue a letter of guidance. If the violator fails to cure within 45 days, the
DLA may commence enforcement against the controller, processor, or third party.
The court may:
Grant injunctive relief;126
Award actual damages based on the violation;127
Award a civil penalty of not more than $50,000 for each willful violation; and
Triple the civil penalty if the violation:
o Involves a Florida consumer who the controller, processor, or third party has actual
knowledge is 18 years of age or younger, or
o Is based on a controller’s, processor’s, or third party’s failure to delete or correct the
consumer’s personal information after receiving a verifiable request to delete or correct,
unless otherwise exempt; or
o Is based on the controller’s, processor’s, or third party’s continued sale or sharing of the
consumer’s personal information after the consumer opted out.
The bill grants the DLA rulemaking authority to implement the bill, including the adoption of
standards for verifiable consumer requests, enforcement, data security, and authorized persons
who may act on a consumer’s behalf. The DLA may employ or use the legal services of outside
counsel and the investigative services of outside personnel. Additionally, the DLA may
collaborate and cooperate with other enforcement authorities of the federal government or other
state governments if such enforcement authorities have restrictions governing confidentiality that
are at least as stringent as the restrictions in this bill.
Liability for a tort, contract claim, or consumer protection claim that is unrelated to an action
brought under the bill does not arise solely from the failure of a controller, processor, or third
party to comply with this bill.
The bill provides that there is not a private cause of action.
125
For the purpose of brining an action pursuant to this bill ss. 501.211 and 501.212, F.S., do not apply.
126
Section 501.207(1), F.S.
127
Section 501.207(1), F.S.
BILL: CS/SB 262 Page 30
The bill requires all money recovered by the Attorney General for attorney fees, costs, and
penalties in an action for a violation of this bill must be deposited in the Legal Affairs Revolving
Trust fund.
Report by the Department of Legal Affairs
The bill requires the DLA to submit a report by February 1 each year to the President of the
Senate and the Speaker of the House of Representatives that describes any actions it has
undertaken to enforce the bill. The report must include statistics and relevant information that
details:
The number of complaints received and the categories or types of violations alleged by the
complainant;
The number and type of enforcement actions taken and the outcomes of such action;
The number of complaints resolved without the need for litigation; and
The status of the development and implementation of rules to implement the bill.
Preemption
The bill provides that consumer data privacy is a matter of statewide concern and the bill
supersedes all rules, regulations, codes, ordinances, and other laws adopted by a city, county, city
and county, municipality, or local agency regarding the collection, processing, sharing, or sale of
consumer personal information by a controller or processor. The regulation of the collection,
processing, sharing, or sale of consumer personal information by a controller or processor is
preempted to the state.
Florida Information Protection Act
The bill amends s. 501.171, F.S., to define “biometric information” as an individual's
physiological, biological, or behavioral characteristics that can be used, singly or in combination
with each other or with other identifying data, to establish individual identity. The term includes,
but is not limited to, imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and
voice recordings, from which an identifier template, such as a face print, a minutiae template, or
a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and
sleep, health, or exercise data that contain identifying information.
The bill defines “genetic information” as an individual's deoxyribonucleic acid (DNA).
The bill includes biometric information, genetic information, and geolocation in FIPA’s
definition of “personal information” so that covered entities are required to notify the affected
individual, the DLA, and credit reporting agencies of a breach of biometric information or
geolocation paired with an individual’s first name or first initial and last name.
Effective Date
The bill takes effect on July 1, 2023.
BILL: CS/SB 262 Page 31
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
This will likely have wide-ranging impact on how Florida consumers interact with
websites and internet-connected devices.
Businesses will have to adjust their operations to implement the bill’s notice and privacy
requirements. Many of the businesses subject to the bill’s requirements may have already
implemented or are in the process of implementing similar privacy practices based on
legislation in other states, and the E.U.
Search engines will have to provide information to consumers on how the search engine
prioritizes or deprioritizes certain information.
C. Government Sector Impact:
Governmental entities may have to update their policies to reflect the prohibitions in the
bill.
VI. Technical Deficiencies:
None.
BILL: CS/SB 262 Page 32
VII. Related Issues:
None.
VIII. Statutes Affected:
The bill substantially amends the following sections of the Florida Statutes: 16.53 and 501.171.
This bill creates the following sections of the Florida Statutes: 112.23 and 501.173.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on April 4, 2023:
The committee substitute clarifies that the prohibitions provided in section 1 of the bill do
not apply to a governmental entity that is acting as part of any of the following:
An attempt to remove content that pertains to the commission of a crime or violation
of Florida's public records law; or
An attempt to remove an account that pertains to the commission of a crime or
violation of Florida's public records law.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 262 Bill No. SB 262
Ì164120cÎ164120 Ì164120cÎ164120
LEGISLATIVE ACTION 11 with a social media platform for the purpose of content
Senate . House 12 moderation.
Comm: RCS . 13 (4) Subsections (2) and (3) do not apply if the
04/04/2023 . 14 governmental entity or an officer or a salaried employee acting
. 15 on behalf of a governmental entity is acting as part of any of
. 16 the following:
. 17 (a) Routine account management of the governmental entity’s
18 account.
19 (b) An attempt to remove content that pertains to the
20 commission of a crime or violation of this state’s public
21 records law.
22 (c) An attempt to remove an account that pertains to the
23 commission of a crime or violation of this state’s public
24 records law.
25 (d) An investigation or inquiry related to public safety.
The Committee on Commerce and Tourism (Bradley) recommended the
following:
1 Senate Amendment
2
3 Delete lines 92 - 108
4 and insert:
5 communicate with a social media platform to request the social
6 media platform to remove content or accounts from the social
7 media platform.
8 (3) A governmental entity, or an officer or a salaried
9 employee acting on behalf of a governmental entity, may not
10 initiate or maintain any agreements or working relationships
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By Senator Bradley
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1 A bill to be entitled 30 controller has collected about the consumer; requiring
2 An act relating to technology transparency; creating 31 controllers to make available two or more methods for
3 s. 112.23, F.S.; defining terms; prohibiting officers 32 consumers to request their personal information;
4 or salaried employees of governmental entities from 33 requiring controllers to provide such information free
5 using their positions or state resources to make 34 of charge within a certain timeframe and in a certain
6 certain requests of social media platforms; 35 format upon receiving a verifiable consumer request;
7 prohibiting governmental entities from initiating or 36 specifying requirements for third parties with respect
8 maintaining agreements or working relationships with 37 to consumer information acquired or used; providing
9 social media platforms under a specified circumstance; 38 construction; authorizing consumers to request
10 providing exceptions; creating s. 501.173, F.S.; 39 controllers to delete or correct personal information
11 providing applicability; defining terms; prohibiting a 40 collected by the controllers; providing exceptions;
12 controller from collecting certain consumer 41 specifying requirements for controllers to comply with
13 information without the consumer’s authorization; 42 deletion or correction requests; authorizing consumers
14 requiring controllers that collect a consumer’s 43 to opt out of third-party disclosure of personal
15 personal information to disclose certain information 44 information collected by a controller; prohibiting
16 regarding data collection and selling practices to the 45 controllers from selling or disclosing the personal
17 consumer at or before the point of collection; 46 information of consumers younger than a certain age,
18 specifying that such information may be provided 47 except under certain circumstances; prohibiting
19 through a general privacy policy or through a notice 48 controllers from selling or sharing a consumer’s
20 informing the consumer that additional specific 49 information if the consumer has opted out of such
21 information will be provided upon a certain request; 50 disclosure; prohibiting controllers from taking
22 prohibiting controllers from collecting additional 51 certain actions to retaliate against consumers who
23 categories of personal information or using personal 52 exercise certain rights; providing applicability;
24 information for additional purposes without notifying 53 providing that a contract or agreement that waives or
25 the consumer; requiring controllers that collect 54 limits certain consumer rights is void and
26 personal information to implement reasonable security 55 unenforceable; authorizing the Department of Legal
27 procedures and practices to protect such information; 56 Affairs to bring an action under the Florida Deceptive
28 authorizing consumers to request controllers to 57 and Unfair Trade Practices Act and to adopt rules;
29 disclose the specific personal information the 58 requiring the department to submit an annual report to
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59 the Legislature; providing report requirements; 88 agency, person, partnership, corporation, or business entity
60 providing that controllers must have a specified 89 acting on behalf of any public agency.
61 timeframe to cure any violations; providing 90 (2) An officer or a salaried employee of a governmental
62 jurisdiction; declaring that the act is a matter of 91 entity may not use his or her position or any state resources to
63 statewide concern; preempting the collection, 92 communicate with a social media platform to request that it
64 processing, sharing, and sale of consumer personal 93 remove content or accounts from the social media platform.
65 information to the state; amending s. 501.171, F.S.; 94 (3) A governmental entity, or an officer or a salaried
66 revising the definition of “personal information”; 95 employee acting on behalf of a governmental entity, may not
67 amending s. 16.53, F.S.; requiring that certain 96 initiate or maintain any agreements or working relationships
68 attorney fees, costs, and penalties recovered by the 97 with a social media platform for the purpose of content
69 Attorney General be deposited in the Legal Affairs 98 moderation.
70 Revolving Trust Fund; providing an effective date. 99 (4) Subsections (2) and (3) do not apply if the
71 100 governmental entity or an officer or a salaried employee acting
72 Be It Enacted by the Legislature of the State of Florida: 101 on behalf of a governmental entity is acting as part of any of
73 102 the following:
74 Section 1. Section 112.23, Florida Statutes, is created to 103 (a) Routine account management of the governmental entity’s
75 read: 104 account.
76 112.23 Government-directed content moderation of social 105 (b) An attempt to remove content or an account that
77 media platforms prohibited.— 106 pertains to the commission of a crime or violation of this
78 (1) As used in this section, the term: 107 state’s public records law.
79 (a) “Social media platform” means a form of electronic 108 (c) An investigation or inquiry related to public safety.
80 communication through which users create online communities to 109 Section 2. Section 501.173, Florida Statutes, is created to
81 share information, ideas, personal messages, and other content. 110 read:
82 (b) “Governmental entity” means any state, county, 111 501.173 Consumer data privacy.—
83 district, authority, or municipal officer, department, division, 112 (1) APPLICABILITY.—This section does not apply to:
84 board, bureau, commission, or other separate unit of government 113 (a) Personal information collected and transmitted which is
85 created or established by law, including, but not limited to, 114 necessary for the sole purpose of sharing such personal
86 the Commission on Ethics, the Public Service Commission, the 115 information with a financial service provider solely to
87 Office of Public Counsel, and any other public or private 116 facilitate short term, transactional payment processing for the
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117 purchase of products or services. 146 (i) Protected health information for purposes of the
118 (b) Personal information collected, used, retained, sold, 147 federal Health Insurance Portability and Accountability Act of
119 shared, or disclosed as deidentified personal information or 148 1996 and related regulations, and patient identifying
120 aggregate consumer information. 149 information for purposes of 42 C.F.R. part 2, established
121 (c) Compliance with federal, state, or local laws. 150 pursuant to 42 U.S.C. s. 290dd-2.
122 (d) Compliance with a civil, criminal, or regulatory 151 (j) An entity or business associate governed by the
123 inquiry, investigation, subpoena, or summons by federal, state, 152 privacy, security, and breach notification rules issued by the
124 or local authorities. 153 United States Department of Health and Human Services in 45
125 (e) Cooperation with law enforcement agencies concerning 154 C.F.R. parts 160 and 164, or a program or a qualified service
126 conduct or activity that the controller, processor, or third 155 program as defined in 42 C.F.R. part 2, to the extent the
127 party reasonably and in good faith believes may violate federal, 156 entity, business associate, or program maintains personal
128 state, or local law. 157 information in the same manner as medical information or
129 (f) Exercising or defending legal rights, claims, or 158 protected health information as described in paragraph (i), and
130 privileges. 159 as long as the entity, business associate, or program does not
131 (g) Personal information collected through the controller’s 160 use personal information for targeted advertising with third
132 direct interactions with the consumer, if collected in 161 parties and does not sell or share personal information to a
133 accordance with this section, which is used by the controller or 162 third party unless such sale or sharing is covered by an
134 the processor that the controller directly contracts with for 163 exception under this section.
135 advertising or marketing services to advertise or market 164 (k) Identifiable private information collected for purposes
136 products or services that are produced or offered directly by 165 of research as defined in 45 C.F.R. s. 164.501 conducted in
137 the controller. Such information may not be sold, shared, or 166 accordance with the Federal Policy for the Protection of Human
138 disclosed unless otherwise authorized under this section. 167 Subjects for purposes of 45 C.F.R. part 46, the good clinical
139 (h) Personal information of a person acting in the role of 168 practice guidelines issued by the International Council for
140 a job applicant, employee, owner, director, officer, contractor, 169 Harmonisation of Technical Requirements for Pharmaceuticals for
141 volunteer, or intern of a controller which is collected by a 170 Human Use, or the Federal Policy for the Protection for Human
142 controller, to the extent the personal information is collected 171 Subjects for purposes of 21 C.F.R. parts 50 and 56, or personal
143 and used solely within the context of the person’s role or 172 information used or shared in research conducted in accordance
144 former role with the controller. For purposes of this paragraph, 173 with one or more of these standards.
145 personal information includes employee benefit information. 174 (l) Information and documents created for purposes of the
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175 federal Health Care Quality Improvement Act of 1986 and related 204 disclosed pursuant to the federal Driver’s Privacy Protection
176 regulations, or patient safety work product for purposes of 42 205 Act of 1994, 18 U.S.C. s. 2721 et seq.
177 C.F.R. part 3, established pursuant to 42 U.S.C. s. 299b-21 206 (s) Education information covered by the Family Educational
178 through 299b-26. 207 Rights and Privacy Act, 20 U.S.C. s. 1232(g) and 34 C.F.R. part
179 (m) Information that is deidentified in accordance with 45 208 99.
180 C.F.R. part 164 and derived from individually identifiable 209 (t) Information collected as part of public or peer-
181 health information as described in the Health Insurance 210 reviewed scientific or statistical research in the public
182 Portability and Accountability Act of 1996, or identifiable 211 interest and which adheres to all other applicable ethics and
183 personal information, consistent with the Federal Policy for the 212 privacy laws, if the consumer has provided informed consent.
184 Protection of Human Subjects or the human subject protection 213 Research with personal information must be subjected by the
185 requirements of the United States Food and Drug Administration. 214 controller conducting the research to additional security
186 (n) Information used only for public health activities and 215 controls that limit access to the research data to only those
187 purposes as described in 45 C.F.R. s. 164.512. 216 individuals necessary to carry out the research purpose, and
188 (o) Personal information collected, processed, sold, or 217 such personal information must be subsequently deidentified.
189 disclosed pursuant to the federal Fair Credit Reporting Act, 15 218 (u) Personal information disclosed for the purpose of
190 U.S.C. s. 1681 and implementing regulations. 219 responding to an alert of a present risk of harm to a person or
191 (p) Nonpublic personal information collected, processed, 220 property or prosecuting those responsible for that activity.
192 sold, or disclosed pursuant to the Gramm-Leach-Bliley Act, 15 221 (v) Personal information disclosed when a consumer uses or
193 U.S.C. s. 6801 et seq., and implementing regulations. 222 directs a controller to intentionally disclose information to a
194 (q) A financial institution as defined in the Gramm-Leach- 223 third party or uses the controller to intentionally interact
195 Bliley Act, 15 U.S.C. s. 6801 et seq., to the extent the 224 with a third party. An intentional interaction occurs when the
196 financial institution maintains personal information in the same 225 consumer intends to interact with the third party, by one or
197 manner as nonpublic personal information as described in 226 more deliberate interactions. Hovering over, muting, pausing, or
198 paragraph (p), and as long as such financial institution does 227 closing a given piece of content does not constitute a
199 not use personal information for targeted advertising with third 228 consumer’s intent to interact with a third party.
200 parties and does not sell or share personal information to a 229 (w) An identifier used for a consumer who has opted out of
201 third party unless such sale or sharing is covered by an 230 the sale or sharing of the consumer’s personal information for
202 exception under this section. 231 the sole purpose of alerting processors and third parties that
203 (r) Personal information collected, processed, sold, or 232 the consumer has opted out of the sale or sharing of the
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233 consumer’s personal information. 262 a tangible product and authorized third-party distributors or
234 (x) Personal information transferred by a controller to a 263 vendors of the product, as long as such personal information is
235 third party as an asset that is part of a merger, acquisition, 264 used solely for advertising, marketing, or servicing the product
236 bankruptcy, or other transaction in which the third party 265 that is acquired directly through such manufacturer and such
237 assumes control of all or part of the controller, provided that 266 authorized third-party distributors or vendors. Such personal
238 the information is used or shared consistently with this 267 information may not be sold or shared unless otherwise
239 section. If a third party materially alters how it uses or 268 authorized under this section.
240 shares the personal information of a consumer in a manner that 269 (2) DEFINITIONS.—As used in this section, the term:
241 is materially inconsistent with the commitments or promises made 270 (a) “Aggregate consumer information” means information that
242 at the time of collection, it must provide prior notice of the 271 relates to a group or category of consumers, from which the
243 new or changed practice to the consumer. The notice must be 272 identity of an individual consumer has been removed and is not
244 sufficiently prominent and robust to ensure that consumers can 273 reasonably capable of being directly or indirectly associated or
245 easily exercise choices consistent with this section. 274 linked with any consumer, household, or device. The term does
246 (y) Personal information necessary to fulfill the terms of 275 not include information about a group or category of consumers
247 a written warranty when such warranty was purchased by the 276 used to facilitate targeted advertising or the display of ads
248 consumer or the product that is warranted was purchased by the 277 online. The term does not include personal information that has
249 consumer. Such information may not be sold or shared unless 278 been deidentified.
250 otherwise authorized under this section. 279 (b) “Biometric information” means an individual’s
251 (z) Personal information necessary for a product recall for 280 physiological, biological, or behavioral characteristics that
252 a product purchased or owned by the consumer conducted in 281 can be used, singly or in combination with each other or with
253 accordance with federal law. Such information may not be sold or 282 other identifying data, to establish individual identity. The
254 shared unless otherwise authorized under this section. 283 term includes, but is not limited to, imagery of the iris,
255 (aa) Personal information processed solely for the purpose 284 retina, fingerprint, face, hand, palm, vein patterns, and voice
256 of independently measuring or reporting advertising or content 285 recordings, from which an identifier template, such as a
257 performance, reach, or frequency pursuant to a contract with a 286 faceprint, a minutiae template, or a voiceprint, can be
258 controller that collected personal information in accordance 287 extracted, and keystroke patterns or rhythms, gait patterns or
259 with this section. Such information may not be sold or shared 288 rhythms, and sleep, health, or exercise data that contain
260 unless otherwise authorized under this section. 289 identifying information.
261 (bb) Personal information shared between a manufacturer of 290 (c) “Collect” means to buy, rent, gather, obtain, receive,
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291 or access any personal information pertaining to a consumer by 320 component service with an integrated virtual assistant connected
292 any means. The term includes, but is not limited to, actively or 321 to a cloud computing service that uses hands-free verbal
293 passively receiving information from the consumer or by 322 activation. For purposes of this sub-sub-subparagraph, a
294 observing the consumer’s behavior or actions. 323 consumer smart speaker and voice command component service does
295 (d) “Consumer” means a natural person who resides in or is 324 not include a motor vehicle or speaker or device associated with
296 domiciled in this state, however identified, including by any 325 or connected to a vehicle.
297 unique identifier, who is acting in a personal capacity or 326 2. Any entity that controls or is controlled by a
298 household context. The term does not include a natural person 327 controller. As used in this subparagraph, the term “control”
299 acting on behalf of a legal entity in a commercial or employment 328 means:
300 context. 329 a. Ownership of, or the power to vote, more than 50 percent
301 (e) “Controller” means: 330 of the outstanding shares of any class of voting security of a
302 1. A sole proprietorship, partnership, limited liability 331 controller;
303 company, corporation, association, or legal entity that meets 332 b. Control in any manner over the election of a majority of
304 the following requirements: 333 the directors, or of individuals exercising similar functions;
305 a. Is organized or operated for the profit or financial 334 or
306 benefit of its shareholders or owners; 335 c. The power to exercise a controlling influence over the
307 b. Does business in this state; 336 management of a company.
308 c. Collects personal information about consumers, or is the 337 (f) “Deidentified” means information that cannot reasonably
309 entity on behalf of which such information is collected; 338 be used to infer information about or otherwise be linked to a
310 d. Determines the purposes and means of processing personal 339 particular consumer, provided that the controller that possesses
311 information about consumers alone or jointly with others; 340 the information:
312 e. Makes in excess of $1 billion in gross revenues, as 341 1. Takes reasonable measures to ensure that the information
313 adjusted in January of every odd-numbered year to reflect any 342 cannot be associated with a specific consumer;
314 increase in the Consumer Price Index; and 343 2. Maintains and uses the information in deidentified form
315 f. Satisfies one of the following: 344 and does not attempt to reidentify the information, except that
316 (I) Derives 50 percent or more of its global annual 345 the controller may attempt to reidentify the information solely
317 revenues from providing targeted advertising or the sale of ads 346 for the purpose of determining whether its deidentification
318 online; or 347 processes satisfy the requirements of this paragraph;
319 (II) Operates a consumer smart speaker and voice command 348 3. Contractually obligates any recipients of the
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349 information to comply with all this paragraph to avoid 378 a. Identifiers such as a real name, alias, postal address,
350 reidentifying such information; and 379 unique identifier, online identifier, internet protocol address,
351 4. Implements business processes to prevent the inadvertent 380 email address, account name, social security number, driver
352 release of deidentified information. 381 license number, passport number, or other similar identifiers.
353 (g) “Department” means the Department of Legal Affairs. 382 b. Information that identifies, relates to, or describes,
354 (h) “Device” means a physical object associated with a 383 or could be associated with, a particular individual, including,
355 consumer or household capable of directly or indirectly 384 but not limited to, a name, signature, social security number,
356 connecting to the Internet. 385 physical characteristics or description, address, location,
357 (i) “Genetic information” means information about an 386 telephone number, passport number, driver license or state
358 individual’s deoxyribonucleic acid (DNA). 387 identification card number, insurance policy number, education,
359 (j) “Homepage” means the introductory page of an Internet 388 employment, employment history, bank account number, credit card
360 website and any Internet webpage where personal information is 389 number, debit card number, or any other financial information,
361 collected. In the case of a mobile application, the homepage is 390 medical information, or health insurance information.
362 the application’s platform page or download page, a link within 391 c. Characteristics of protected classifications under state
363 the application, such as the “About” or “Information” 392 or federal law.
364 application configurations, or the settings page, and any other 393 d. Commercial information, including records of personal
365 location that allows consumers to review the notice required by 394 property, products or services purchased, obtained, or
366 subsection (7), including, but not limited to, before 395 considered, or other purchasing or consuming histories or
367 downloading the application. 396 tendencies.
368 (k) “Household” means a natural person or a group of people 397 e. Biometric information.
369 in this state who reside at the same address, share a common 398 f. Internet or other electronic network activity
370 device or the same service provided by a controller, and are 399 information, including, but not limited to, browsing history,
371 identified by a controller as sharing the same group account or 400 search history, and information regarding a consumer’s
372 unique identifier. 401 interaction with an Internet website, application, or
373 (l) “Personal information” means information that is linked 402 advertisement.
374 or reasonably linkable to an identified or identifiable consumer 403 g. Geolocation data.
375 or household, including biometric information, genetic 404 h. Audio, electronic, visual, thermal, olfactory, or
376 information, and unique identifiers to the consumer. 405 similar information.
377 1. The term includes, but is not limited to, the following: 406 i. Inferences drawn from any of the information identified
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407 in this paragraph to create a profile about a consumer 436 (n) “Processing” means any operation or set of operations
408 reflecting the consumer’s preferences, characteristics, 437 performed on personal information or on sets of personal
409 psychological trends, predispositions, behavior, attitudes, 438 information, regardless of whether by automated means.
410 intelligence, abilities, and aptitudes. 439 (o) “Processor” means a sole proprietorship, partnership,
411 2. The term does not include consumer information that is: 440 limited liability company, corporation, association, or other
412 a. Consumer employment contact information, including a 441 legal entity that is organized or operated for the profit or
413 position name or title, employment qualifications, emergency 442 financial benefit of its shareholders or other owners, that
414 contact information, business telephone number, business 443 processes information on behalf of a controller and to which the
415 electronic mail address, employee benefit information, and 444 controller discloses a consumer’s personal information pursuant
416 similar information used solely in an employment context. 445 to a written contract, provided that the contract prohibits the
417 b. Deidentified or aggregate consumer information. 446 entity receiving the information from retaining, using, or
418 c. Publicly and lawfully available information reasonably 447 disclosing the personal information for any purpose other than
419 believed to be made available to the general public in a lawful 448 for the specific purpose of performing the services specified in
420 manner and without legal restrictions: 449 the contract for the controller, as authorized by this section.
421 (I) From federal, state, or local government records. 450 (p) “Sell” means to sell, rent, release, disclose,
422 (II) By a widely distributed media source. 451 disseminate, make available, transfer, or otherwise communicate
423 (III) By the consumer or by someone to whom the consumer 452 orally, in writing, or by electronic or other means, a
424 disclosed the information unless the consumer has purposely and 453 consumer’s personal information or information that relates to a
425 effectively restricted the information to a certain audience on 454 group or category of consumers by a controller to another
426 a private account. 455 controller or a third party for monetary or other valuable
427 (m) “Precise geolocation data” means information from 456 consideration.
428 technology, such as global positioning system level latitude and 457 (q) “Share” means to share, rent, release, disclose,
429 longitude coordinates or other mechanisms, which directly 458 disseminate, make available, transfer, or access a consumer’s
430 identifies the specific location of a natural person with 459 personal information for advertising or marketing. The term
431 precision and accuracy within a radius of 1,750 feet. The term 460 includes:
432 does not include information generated by the transmission of 461 1. Allowing a third party to advertise or market to a
433 communications or any information generated by or connected to 462 consumer based on a consumer’s personal information without
434 advance utility metering infrastructure systems or equipment for 463 disclosure of the personal information to the third party.
435 use by a utility. 464 2. Monetary transactions, nonmonetary transactions, and
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465 transactions for other valuable consideration between a 494 the controller’s established security features to access the
466 controller and a third party for advertising or marketing. 495 account through communication features offered to consumers, but
467 (r) “Targeted advertising” means marketing to a consumer or 496 a controller may not require the consumer to create or have an
468 displaying an advertisement to a consumer when the advertisement 497 account with the controller in order to make a verifiable
469 is selected based on personal information used to predict such 498 consumer request.
470 consumer’s preferences or interests. 499 (v) “Voice recognition feature” means the function of a
471 (s) “Third party” means a person who is not a controller or 500 device which enables the collection, recording, storage,
472 a processor. 501 analysis, transmission, interpretation, or other use of spoken
473 (t) “Unique identifier” means a persistent identifier that 502 words or other sounds.
474 can be used to recognize a consumer, a family, or a device that 503 (3) CONTROLLER REQUIREMENTS; CONSUMER DATA COLLECTION
475 is linked to a consumer or a family, over time and across 504 REQUIREMENTS AND RESPONSIBILITIES.—
476 different services, including, but not limited to, a device 505 (a) A controller may not collect, without the consumer’s
477 identifier; an Internet Protocol address; cookies, beacons, 506 authorization, a consumer’s precise geolocation data or personal
478 pixel tags, mobile ad identifiers, or similar technology; a 507 information through the operation of a voice recognition
479 customer number, unique pseudonym, or user alias; telephone 508 feature.
480 numbers, or other forms of persistent or probabilistic 509 (b) A controller that operates a search engine shall
481 identifiers that can be used to identify a particular consumer, 510 provide a consumer with information of how the controller’s
482 family, or device that is linked to a consumer or family. As 511 search engine algorithm prioritizes or deprioritizes political
483 used in this paragraph, the term “family” means a custodial 512 partisanship or political ideology in its search results.
484 parent or guardian and any minor children of whom the parent or 513 (c) A controller that collects personal information about
485 guardian has custody, or a household as defined in paragraph 514 consumers shall maintain an up-to-date online privacy policy and
486 (k). 515 make such policy available on its homepage. The online privacy
487 (u) “Verifiable consumer request” means a request made by a 516 policy must include the following information:
488 consumer, by a parent or guardian on behalf of a consumer who is 517 1. Any Florida-specific consumer privacy rights.
489 a minor child, or by a person authorized by the consumer to act 518 2. A list of the types and categories of personal
490 on the consumer’s behalf, that the controller can reasonably 519 information that the controller collects, sells, or shares, or
491 verify to be the consumer, pursuant to rules adopted by the 520 has collected, sold, or shared, about consumers.
492 department. A verifiable consumer request is presumed to have 521 3. The consumer’s right to request deletion or correction
493 been made when requested through an established account using 522 of certain personal information.
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523 4. The consumer’s right to opt out of the sale or sharing 552 retained to do any of the following:
524 to third parties. 553 1. Fulfill the terms of a written warranty or product
525 (d) A controller that collects personal information from 554 recall conducted in accordance with federal law.
526 the consumer shall, at or before the point of collection, 555 2. Provide a good or service requested by the consumer, or
527 inform, or direct the processor to inform, consumers of the 556 reasonably anticipate the request of such good or service within
528 categories of personal information to be collected and the 557 the context of a controller’s ongoing business relationship with
529 purposes for which such categories of personal information will 558 the consumer.
530 be used. 559 3. Detect security threats or incidents; protect against
531 (e) A controller may not collect additional categories of 560 malicious, deceptive, fraudulent, unauthorized, or illegal
532 personal information or use personal information collected for 561 activity or access; or prosecute those responsible for such
533 additional purposes without providing the consumer with notice 562 activity or access.
534 consistent with this section. 563 4. Debug to identify and repair errors that impair existing
535 (f) A controller that collects a consumer’s personal 564 intended functionality.
536 information shall implement and maintain reasonable security 565 5. Engage in public or peer-reviewed scientific,
537 procedures and practices appropriate to the nature of the 566 historical, or statistical research in the public interest which
538 personal information to protect such personal information from 567 adheres to all other applicable ethics and privacy laws when the
539 unauthorized or illegal access, destruction, use, modification, 568 controller’s deletion of the information is likely to render
540 or disclosure. A controller shall require any processors to 569 impossible or seriously impair the achievement of such research,
541 implement and maintain the same or similar security procedures 570 if the consumer has provided informed consent.
542 and practices for personal information. 571 6. Enable solely internal uses that are reasonably aligned
543 (g) A controller shall adopt and implement a retention 572 with the expectations of the consumer based on the consumer’s
544 schedule that prohibits the use or retention of personal 573 relationship with the controller or that are compatible with the
545 information not subject to an exemption by the controller or 574 context in which the consumer provided the information.
546 processor after the satisfaction of the initial purpose for 575 7. Comply with a legal obligation, including any state or
547 which such information was collected or obtained, after the 576 federal retention laws.
548 expiration or termination of the contract pursuant to which the 577 8. Protect the controller’s interests against existing
549 information was collected or obtained, or 2 years after the 578 disputes, legal action, or governmental investigations.
550 consumer’s last interaction with the controller. This paragraph 579 9. Assure the physical security of persons or property.
551 does not apply to personal information reasonably used or 580 (4) CONSUMER RIGHT TO REQUEST COPY OF PERSONAL INFORMATION
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581 COLLECTED, SOLD, OR SHARED.— 610 45-day response period and the reason for the extension. The
582 (a) A consumer has the right to request that a controller 611 information must be delivered in a portable and, to the extent
583 that collects, sells, or shares personal information about the 612 technically feasible, readily usable format that allows the
584 consumer disclose the following to the consumer: 613 consumer to transmit the data to another entity without
585 1. The specific pieces of personal information which have 614 hindrance. A controller may provide the data to the consumer in
586 been collected about the consumer. 615 a manner that does not disclose the controller’s trade secrets.
587 2. The categories of sources from which the consumer’s 616 A controller is not obligated to provide information to the
588 personal information was collected. 617 consumer if the consumer or a person authorized to act on the
589 3. The specific pieces of personal information about the 618 consumer’s behalf does not provide verification of identity or
590 consumer which were sold or shared. 619 verification of authorization to act with the permission of the
591 4. The third parties to which the personal information 620 consumer.
592 about the consumer was sold or shared. 621 (e) A controller may provide personal information to a
593 5. The categories of personal information about the 622 consumer at any time, but is not required to provide personal
594 consumer which were disclosed to a processor. 623 information to a consumer more than twice in a 12-month period.
595 (b) A controller that collects, sells, or shares personal 624 (f) This subsection does not apply to personal information
596 information about a consumer shall disclose the information 625 relating solely to households.
597 specified in paragraph (a) to the consumer upon receipt of a 626 (5) RIGHT TO HAVE PERSONAL INFORMATION DELETED OR
598 verifiable consumer request. 627 CORRECTED.—
599 (c) This subsection does not require a controller to 628 (a) A consumer has the right to request that a controller
600 retain, reidentify, or otherwise link any data that, in the 629 delete any personal information about the consumer or about the
601 ordinary course of business is not maintained in a manner that 630 consumer’s child younger than 18 years of age which the
602 would be considered personal information. 631 controller has collected.
603 (d) The controller shall deliver to a consumer the 632 1. A controller that receives a verifiable consumer request
604 information required under this subsection or act on a request 633 to delete the consumer’s personal information shall delete the
605 made under this subsection by a consumer free of charge within 634 consumer’s personal information from its records and direct any
606 45 calendar days after receiving a verifiable consumer request. 635 processors to delete such information within 90 calendar days
607 The response period may be extended once by 45 additional 636 after receipt of the verifiable consumer request.
608 calendar days when reasonably necessary, provided the controller 637 2. A controller or a processor acting pursuant to its
609 informs the consumer of any such extension within the initial 638 contract with the controller may not be required to comply with
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639 a consumer’s request to delete the consumer’s personal 668 h. Comply with a legal obligation, including any state or
640 information if it is reasonably necessary for the controller or 669 federal retention laws.
641 processor to maintain the consumer’s personal information to do 670 i. Protect the controller’s interests against existing
642 any of the following: 671 disputes, legal action, or governmental investigations.
643 a. Complete the transaction for which the personal 672 j. Assure the physical security of persons or property.
644 information was collected. 673 (b) A consumer has the right to request that a controller
645 b. Fulfill the terms of a written warranty or product 674 correct inaccurate personal information maintained by the
646 recall conducted in accordance with federal law. 675 controller about the consumer or about the consumer’s child
647 c. Provide a good or service requested by the consumer, or 676 younger than 18 years of age. A controller that receives a
648 reasonably anticipate the request of such good or service within 677 verifiable consumer request to correct inaccurate personal
649 the context of a controller’s ongoing business relationship with 678 information shall use commercially reasonable efforts to correct
650 the consumer, or otherwise perform a contract between the 679 the inaccurate personal information as directed by the consumer
651 controller and the consumer. 680 and shall direct any processors to correct such information
652 d. Detect security threats or incidents; protect against 681 within 90 calendar days after receipt of the verifiable consumer
653 malicious, deceptive, fraudulent, unauthorized, or illegal 682 request. If a controller maintains a self-service mechanism to
654 activity or access; or prosecute those responsible for such 683 allow a consumer to correct certain personal information, the
655 activity or access. 684 controller may require the consumer to correct their own
656 e. Debug to identify and repair errors that impair existing 685 personal information through such mechanism. A controller or a
657 intended functionality. 686 processor acting pursuant to its contract with the controller
658 f. Engage in public or peer-reviewed scientific, 687 may not be required to comply with a consumer’s request to
659 historical, or statistical research in the public interest which 688 correct the consumer’s personal information if it is reasonably
660 adheres to all other applicable ethics and privacy laws when the 689 necessary for the controller or processor to maintain the
661 controller’s deletion of the information is likely to render 690 consumer’s personal information to do any of the following:
662 impossible or seriously impair the achievement of such research, 691 1. Complete the transaction for which the personal
663 if the consumer has provided informed consent. 692 information was collected.
664 g. Enable solely internal uses that are reasonably aligned 693 2. Fulfill the terms of a written warranty or product
665 with the expectations of the consumer based on the consumer’s 694 recall conducted in accordance with federal law.
666 relationship with the controller or that are compatible with the 695 3. Detect security threats or incidents; protect against
667 context in which the consumer provided the information. 696 malicious, deceptive, fraudulent, unauthorized, or illegal
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697 activity or access; or prosecute those responsible for such 726 of the consumer’s age. A controller that complies with the
698 activity or access. 727 verifiable parental consent requirements of the Children’s
699 4. Debug to identify and repair errors that impair existing 728 Online Privacy Protection Act, 15 U.S.C. s. 6501 et seq., shall
700 intended functionality. 729 be deemed compliant with any obligation to obtain parental
701 5. Enable solely internal uses that are reasonably aligned 730 consent.
702 with the expectations of the consumer based on the consumer’s 731 (c) A controller that has received direction from a
703 relationship with the controller or that are compatible with the 732 consumer opting out of the sale or sharing of the consumer’s
704 context in which the consumer provided the information. 733 personal information is prohibited from selling or sharing the
705 6. Comply with a legal obligation, including any state or 734 consumer’s personal information beginning 4 calendar days after
706 federal retention laws. 735 receipt of such direction, unless the consumer subsequently
707 7. Protect the controller’s interests against existing 736 provides express authorization for the sale or sharing of the
708 disputes, legal action, or governmental investigations. 737 consumer’s personal information.
709 8. Assure the physical security of persons or property. 738 (7) FORM TO OPT OUT OF SALE OR SHARING OF PERSONAL
710 (6) RIGHT TO OPT OUT OF THE SALE OR SHARING OF PERSONAL 739 INFORMATION.—
711 INFORMATION.— 740 (a) A controller shall:
712 (a) A consumer has the right at any time to direct a 741 1. In a form that is reasonably accessible to consumers,
713 controller not to sell or share the consumer’s personal 742 provide a clear and conspicuous link on the controller’s
714 information to a third party. This right may be referred to as 743 Internet homepage, entitled “Do Not Sell or Share My Personal
715 the right to opt out. 744 Information,” to an Internet webpage that enables a consumer, a
716 (b) Notwithstanding paragraph (a), a controller may not 745 parent or guardian of a minor who is a consumer, or a person
717 sell or share the personal information of a minor consumer if 746 authorized by the consumer, to opt out of the sale or sharing of
718 the controller has actual knowledge that the consumer is not 18 747 the consumer’s personal information. A controller may not
719 years of age or older. However, if a consumer who is between 13 748 require a consumer to create an account in order to direct the
720 and 18 years of age, or if the parent or guardian of a consumer 749 controller not to sell or share the consumer’s personal
721 who is 12 years of age or younger, has affirmatively authorized 750 information. A controller may accept a request to opt out
722 the sale or sharing of such consumer’s personal information, 751 received through a user-enabled global privacy control, such as
723 then a controller may sell or share such information in 752 a browser plug-in or privacy setting, device setting, or other
724 accordance with this section. A controller that willfully 753 mechanism, which communicates or signals the consumer’s choice
725 disregards the consumer’s age is deemed to have actual knowledge 754 to opt out.
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755 2. For consumers who opted out of the sale or sharing of 784 sharing, sale, or deletion of personal information if the
756 their personal information, respect the consumer’s decision to 785 consumer gives the controller prior consent that clearly
757 opt out for at least 12 months before requesting that the 786 describes the material terms of the financial incentive program.
758 consumer authorize the sale or sharing of the consumer’s 787 The consent may be revoked by the consumer at any time.
759 personal information. 788 (d) A controller may not use financial incentive practices
760 3. Use any personal information collected from the consumer 789 that are unjust, unreasonable, coercive, or usurious in nature.
761 in connection with the submission of the consumer’s opt-out 790 (9) CONTRACTS AND ROLES.—
762 request solely for the purposes of complying with the opt-out 791 (a) Any contract or agreement between a controller and a
763 request. 792 processor must:
764 (b) A consumer may authorize another person to opt out of 793 1. Prohibit the processor from selling, sharing, retaining,
765 the sale or sharing of the consumer’s personal information on 794 using, or disclosing the personal information for any purpose
766 the consumer’s behalf pursuant to rules adopted by the 795 that violates this section;
767 department. 796 2. Prohibit the processor from retaining, using, or
768 (8) ACTIONS RELATED TO CONSUMERS WHO EXERCISE PRIVACY 797 disclosing the personal information other than for the purposes
769 RIGHTS.— 798 specified in the contract or agreement;
770 (a) A controller may not deny goods or services to a 799 3. Prohibit the processor from combining the personal
771 consumer because the consumer exercised any of the consumer’s 800 information that the processor receives from or on behalf of the
772 rights under this section. 801 controller with personal information that the processor receives
773 (b) A controller may charge a consumer who exercised any of 802 from or on behalf of another person or that the processor
774 the consumer’s rights under this section a different price or 803 collects from its own interaction with the consumer, provided
775 rate, or provide a different level or quality of goods or 804 that the processor may combine personal information to perform
776 services to the consumer, only if that difference is reasonably 805 any purpose specified in the contract or agreement and such
777 related to the value provided to the controller by the 806 combination is reported to the controller;
778 consumer’s data or is related to a consumer’s voluntary 807 4. Govern the processor’s personal information processing
779 participation in a financial incentive program, including a bona 808 procedures with respect to processing performed on behalf of the
780 fide loyalty, rewards, premium features, discounts, or club card 809 controller, including processing instructions, the nature and
781 program offered by the controller. 810 purpose of processing, the type of information subject to
782 (c) A controller may offer financial incentives, including 811 processing, the duration of processing, and the rights and
783 payments to consumers as compensation, for the collection, 812 obligations of both the controller and processor;
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813 5. Require the processor to return or delete all personal 842 subcontractor to meet the same obligations of such processor or
814 information under the contract to the controller as requested by 843 third party with respect to personal information.
815 the controller at the end of the provision of services, unless 844 (e) A processor or third party or any subcontractor thereof
816 retention of the information is required by law; and 845 who violates any of the restrictions imposed upon it under this
817 6. Upon request of the controller, require the processor to 846 section is liable or responsible for any failure to comply with
818 make available to the controller all personal information in its 847 this section. A controller that discloses personal information
819 possession under the contract or agreement. 848 to a third party or processor in compliance with this section is
820 (b) Determining whether a person is acting as a controller 849 not liable or responsible if the person receiving the personal
821 or processor with respect to a specific processing of data is a 850 information uses it without complying with the restrictions
822 fact-based determination that depends upon the context in which 851 under this section if, provided that at the time of disclosing
823 personal information is to be processed. The contract between a 852 the personal information, the controller does not have actual
824 controller and processor must reflect their respective roles and 853 knowledge or reason to believe that the person does not intend
825 relationships related to handling personal information. A 854 to comply with this section.
826 processor that continues to adhere to a controller’s 855 (f) Any provision of a contract or agreement of any kind
827 instructions with respect to a specific processing of personal 856 that waives or limits in any way a consumer’s rights under this
828 information remains a processor. 857 section, including, but not limited to, any right to a remedy or
829 (c) A third party that has collected personal information 858 means of enforcement, is deemed contrary to public policy and is
830 from a controller in accordance with this section: 859 void and unenforceable. This section does not prevent a consumer
831 1. May not sell or share personal information about a 860 from declining to exercise the consumer’s rights under this
832 consumer unless the consumer is provided an opportunity by such 861 section.
833 third party to opt out under this section. Once a third party 862 (10) ENFORCEMENT AND IMPLEMENTATION BY THE DEPARTMENT.—
834 sells or shares personal information after providing the 863 (a) Any violation of this section is an unfair and
835 opportunity to opt out, the third party becomes a controller 864 deceptive trade practice actionable under part II of chapter 501
836 under this section if the entity meets the definition of 865 solely by the department against a controller, processor, or
837 controller in subsection (2). 866 third party. If the department has reason to believe that any
838 2. May use such personal information from a controller to 867 controller, processor, or third party is in violation of this
839 advertise or market products or services that are produced or 868 section, the department, as the enforcing authority, may bring
840 offered directly by such third party. 869 an action against such controller, processor, or third party for
841 (d) A processor or third party must require any 870 an unfair or deceptive act or practice. For the purpose of
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871 bringing an action pursuant to this section, ss. 501.211 and 900 an action for the alleged violation but in its discretion may
872 501.212 do not apply. In addition to other remedies under part 901 issue a letter of guidance that indicates that the controller,
873 II of chapter 501, the department may collect a civil penalty of 902 processor, or person will not be offered a 45-day cure period
874 up to $50,000 per violation of this section. Civil penalties may 903 for any future violations. If the controller, processor, or
875 be tripled for the following violations: 904 third party fails to cure the violation within 45 calendar days,
876 1. Any violation involving a Florida consumer who the 905 the department may bring an action against the controller,
877 controller, processor, or third party has actual knowledge is 18 906 processor, or third party for the alleged violation.
878 years of age or younger. 907 (c) Any action brought by the department may be brought
879 2. Failure to delete or correct the consumer’s personal 908 only on behalf of a Florida consumer.
880 information pursuant to this section after receiving a 909 (d) By February 1 of each year, the department shall submit
881 verifiable consumer request or directions from a controller to 910 a report to the President of the Senate and the Speaker of the
882 delete or correct such personal information unless the 911 House of Representatives describing any actions taken by the
883 controller, processor, or third party qualifies for an exception 912 department to enforce this section. Such report must be made
884 to the requirements to delete or correct such personal 913 publicly available on the department’s website. The report must
885 information under this section. 914 include statistics and relevant information detailing:
886 3. Continuing to sell or share the consumer’s personal 915 1. The number of complaints received and the categories or
887 information after the consumer chooses to opt out under this 916 types of violations alleged by the complainant;
888 section. 917 2. The number and type of enforcement actions taken and the
889 (b) After the department has notified a controller, 918 outcomes of such actions, including the amount of penalties
890 processor, or third party in writing of an alleged violation, 919 issued and collected;
891 the department may in its discretion grant a 45-day period to 920 3. The number of complaints resolved without the need for
892 cure the alleged violation. The 45-day cure period does not 921 litigation; and
893 apply to a violation of subparagraph (a)1. The department may 922 4. The status of the development and implementation of
894 consider the number and frequency of violations, the substantial 923 rules to implement this section.
895 likelihood of injury to the public, and the safety of persons or 924 (e) The department may adopt rules to implement this
896 property when determining whether to grant 45 calendar days to 925 section, including standards for verifiable consumer requests,
897 cure and the issuance of a letter of guidance. If the violation 926 enforcement, data security, and authorized persons who may act
898 is cured to the satisfaction of the department and proof of such 927 on a consumer’s behalf.
899 cure is provided to the department, the department may not bring 928 (f) The department may collaborate and cooperate with other
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929 enforcement authorities of the federal government or other state 958 a controller or processor. The regulation of the collection,
930 governments concerning consumer data privacy issues and consumer 959 processing, sharing, or sale of consumer personal information by
931 data privacy investigations if such enforcement authorities have 960 a controller or processor is preempted to the state.
932 restrictions governing confidentiality at least as stringent as 961 Section 3. Paragraph (g) of subsection (1) of section
933 the restrictions provided in this section. 962 501.171, Florida Statutes, is amended to read:
934 (g) Liability for a tort, contract claim, or consumer 963 501.171 Security of confidential personal information.—
935 protection claim that is unrelated to an action brought under 964 (1) DEFINITIONS.—As used in this section, the term:
936 this subsection does not arise solely from the failure of a 965 (g)1. “Personal information” means either of the following:
937 controller, processor, or third party to comply with this 966 a. An individual’s first name or first initial and last
938 section. 967 name in combination with any one or more of the following data
939 (h) This section does not establish a private cause of 968 elements for that individual:
940 action. 969 (I) A social security number;
941 (i) The department may employ or use the legal services of 970 (II) A driver license or identification card number,
942 outside counsel and the investigative services of outside 971 passport number, military identification number, or other
943 personnel to fulfill the obligations of this section. 972 similar number issued on a government document used to verify
944 (11) JURISDICTION.—For purposes of bringing an action 973 identity;
945 pursuant to subsection (10), any person who meets the definition 974 (III) A financial account number or credit or debit card
946 of controller as defined in this section which collects, shares, 975 number, in combination with any required security code, access
947 or sells the personal information of Florida consumers is 976 code, or password that is necessary to permit access to an
948 considered to be both engaged in substantial and not isolated 977 individual’s financial account;
949 activities within this state and operating, conducting, engaging 978 (IV) Any information regarding an individual’s medical
950 in, or carrying on a business, and doing business in this state, 979 history, mental or physical condition, or medical treatment or
951 and is therefore subject to the jurisdiction of the courts of 980 diagnosis by a health care professional; or
952 this state. 981 (V) An individual’s health insurance policy number or
953 (12) PREEMPTION.—This section is a matter of statewide 982 subscriber identification number and any unique identifier used
954 concern and supersedes all rules, regulations, codes, 983 by a health insurer to identify the individual;
955 ordinances, and other laws adopted by a city, county, city and 984 (VI) An individual’s biometric information or genetic
956 county, municipality, or local agency regarding the collection, 985 information as defined in s. 501.173(2); or
957 processing, sharing, or sale of consumer personal information by 986 (VII) Any information regarding an individual’s
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987 geolocation.
988 b. A user name or e-mail address, in combination with a
989 password or security question and answer that would permit
990 access to an online account.
991 2. The term does not include information about an
992 individual that has been made publicly available by a federal,
993 state, or local governmental entity. The term also does not
994 include information that is encrypted, secured, or modified by
995 any other method or technology that removes elements that
996 personally identify an individual or that otherwise renders the
997 information unusable.
998 Section 4. Subsection (1) of section 16.53, Florida
999 Statutes, is amended, and subsection (8) is added to that
1000 section, to read:
1001 16.53 Legal Affairs Revolving Trust Fund.—
1002 (1) There is created in the State Treasury the Legal
1003 Affairs Revolving Trust Fund, from which the Legislature may
1004 appropriate funds for the purpose of funding investigation,
1005 prosecution, and enforcement by the Attorney General of the
1006 provisions of the Racketeer Influenced and Corrupt Organization
1007 Act, the Florida Deceptive and Unfair Trade Practices Act, the
1008 Florida False Claims Act, or state or federal antitrust laws, or
1009 s. 501.173.
1010 (8) All moneys recovered by the Attorney General for
1011 attorney fees, costs, and penalties in an action for a violation
1012 of s. 501.173 must be deposited in the fund.
1013 Section 5. This act shall take effect July 1, 2023.
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The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1648
INTRODUCER: Commerce and Tourism Committee and Senator Bradley
SUBJECT: Public Records/Investigations by the Department of Legal Affairs
DATE: April 5, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Fav/CS
2. JU
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/SB 1648 creates a public records exemption for information received by the Department of
Legal Affairs (DLA) pursuant to a notification of a violation under s. 501.173, F.S., or received
pursuant to an investigation made by the DLA or a law enforcement agency.
The bill permits the DLA to disclose this confidential and exempt information during an active
investigation under specific circumstances.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by the DLA will remain confidential and exempt:
All information to which another public record exemption applies;
Personal information;
A computer forensic report;
Information that would otherwise reveal weaknesses in a business’ data security; and
Information that would disclose a business’ proprietary information.
The bill provides for the repeal of the exemption on October 2, 2028, unless it is reenacted by the
Legislature under the Open Government Sunset Review Act.
The bill takes effect on the same date that linked bill SB 262, relating to technology
transparency, takes effect, if such legislation is adopted in the same legislative session or an
extension thereof and becomes law.
BILL: CS/SB 1648 Page 2
II. Present Situation:
Access to Public Records - Generally
The Florida Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.1 The right to inspect or copy applies
to the official business of any public body, officer, or employee of the state, including all three
branches of state government, local governmental entities, and any person acting on behalf of the
government.2
Additional requirements and exemptions related to public records are found in various statutes
and rules, depending on the branch of government involved. For instance, section 11.0431,
Florida Statutes (F.S.), provides public access requirements for legislative records. Relevant
exemptions are codified in s. 11.0431(2)-(3), F.S., and the statutory provisions are adopted in the
rules of each house of the legislature.3 Florida Rule of Judicial Administration 2.420 governs
public access to judicial branch records.4 Lastly, chapter 119, F.S., provides requirements for
public records held by executive agencies.
Executive Agency Records – The Public Records Act
Chapter 119, F.S., known as the Public Records Act, provides that all state, county, and
municipal records are open for personal inspection and copying by any person, and that
providing access to public records is a duty of each agency.5
A public record includes virtually any document or recording, regardless of its physical form or
how it may be transmitted.6 The Florida Supreme Court has interpreted the statutory definition of
“public record” to include “material prepared in connection with official agency business which
is intended to perpetuate, communicate, or formalize knowledge of some type.”7
The Florida Statutes specify conditions under which public access to public records must be
provided. The Public Records Act guarantees every person’s right to inspect and copy any public
record at any reasonable time, under reasonable conditions, and under supervision by the
1
FLA. CONST. art. I, s. 24(a).
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2018-2020) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 2, (2018-2020)
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4th DCA 2018).
5
Section 119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal
officer, department, division, board, bureau, commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf
of any public agency.”
6
Section 119.011(12), F.S., defines “public record” to mean “all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means
of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by
any agency.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
BILL: CS/SB 1648 Page 3
custodian of the public record.8 A violation of the Public Records Act may result in civil or
criminal liability.9
The Legislature may exempt public records from public access requirements by passing a
general law by a two-thirds vote of both the House and the Senate.10 The exemption must state
with specificity the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.11
General exemptions from the public records requirements are contained in the Public Records
Act.12 Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.13
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” Custodians of records designated as “exempt” are not prohibited
from disclosing the record; rather, the exemption means that the custodian cannot be compelled
to disclose the record.14 Custodians of records designated as “confidential and exempt” may not
disclose the record except under circumstances specifically defined by the Legislature.15
Open Government Sunset Review Act
The Open Government Sunset Review Act16 (the Act) prescribes a legislative review process for
newly created or substantially amended17 public records or open meetings exemptions, with
specified exceptions.18 It requires the automatic repeal of such exemption on October 2nd of the
fifth year after creation or substantial amendment, unless the Legislature reenacts the
exemption.19
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.20
8
Section 119.07(1)(a), F.S.
9
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
10
FLA. CONST. art. I, s. 24(c).
11
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public
meetings exemption was unconstitutional because the statement of public necessity did not define important terms and did
not justify the breadth of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189
(Fla. 1st DCA 2004) (holding that a statutory provision written to bring another party within an existing public records
exemption is unconstitutional without a public necessity statement).
12
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of
examinations administered by a governmental agency for the purpose of licensure).
13
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the
Department of Revenue).
14
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
15
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5th DCA 2004).
16
Section 119.15, F.S.
17
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
18
Section 119.15(2)(a) and (b), F.S., provide that exemptions that are required by federal law or are applicable solely to the
Legislature or the State Court System are not subject to the Open Government Sunset Review Act.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S.
BILL: CS/SB 1648 Page 4
An exemption serves an identifiable purpose if it meets one of the following purposes and the
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
It allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;21
It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;22 or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.23
The Act also requires specified questions to be considered during the review process.24 In
examining an exemption, the Act directs the Legislature to carefully question the purpose and
necessity of reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.25 If the exemption is continued without substantive changes or if
the exemption is continued and narrowed, then a public necessity statement and a two-thirds vote
for passage are not required. If the Legislature allows an exemption to sunset, the previously
exempt records will remain exempt unless provided for by law.26
Current Public Records Exemptions for Investigations Conducted by the Department of
Legal Affairs
Florida’s public records laws currently make most information obtained by the DLA open to the
public.27 In the absence of a specific legislative exemption, investigative records made or
received by public agencies are open to public inspection pursuant to ch. 119, F.S.28 Further, an
agency’s disclosure of records of its investigative proceedings upon the completion of a
preliminary investigation does not violate an individual’s right of privacy.29
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
Section 119.15(6)(a), F.S. The specified questions are:
What specific records or meetings are affected by the exemption?
Whom does the exemption uniquely affect, as opposed to the general public?
What is the identifiable public purpose or goal of the exemption?
Can the information contained in the records or discussed in the meeting be readily obtained by alternative means?
If so, how?
Is the record or meeting protected by another exemption?
Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
See State ex rel. Veale v. City of Boca Raton, 353 So. 2d 1194 (Fla. 4th DCA 1977), cert. denied 360 So. 2d 1247 (Fla.
1978).
28
See State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DVA 1977), cert. denied, 360 So.2d 1247 (Fla.
1978).
29
See Garner v. Florida Comm’n. on Ethics, 415 So.2d 67 (Fla. 1st DCA 1982), rev. denied, 424 So.2d 761 (Fla. 1983).
BILL: CS/SB 1648 Page 5
Section 119.071(2), F.S., exempts various records and information from public inspection,
including the following information when held by the DLA:
Complaint and information held pursuant to an investigation of a violation of the Florida
False Claims Act—this information may be disclosed after the completion of the DLA’s
investigation, or as otherwise provided in the exemption.30
Information received pursuant to a notice of a data breach or pursuant to certain investigation
is confidential until the investigation is completed or ceases to be active. Disclosure of this
information is authorized under specific circumstance.31
Criminal or civil intelligence, investigative information, or any other information held by any
state or federal agency that is obtained by the DLA in the course of an investigation under
Part II of Ch. 501, regarding Deceptive and Unfair Trade Practices. If this information is
confidential or exempt from disclosure pursuant to s. 119.07(1), F.S., when held by the
originating agency, it will retain that exemption when obtained by the DLA.32
Consumer Data Privacy
SB 262 grants consumers specific rights relating to their personal information, namely (1) the
right to opt-out of the sale or sharing of their personal information, and (2) the right to correct or
delete their personal information held by a business.
Specific businesses must act to accommodate these consumer privacy rights and provide notice
to consumers about their collection and sale of personal information. Additionally, the businesses
cannot discriminate against consumers based on their decision to opt-out of the sale or sharing of
their personal information.
SB 262 grants the Florida Department of Legal Affairs (DLA) (also known as the Office of the
Attorney General) authority to institute appropriate legal proceedings against businesses that it
believes have violated or are violating the provisions in SB 262 relating to consumer data
privacy.
As created, then, any information obtained by the DLA during an investigation of the consumer
data privacy provisions in SB 262 is subject to disclosure under ch. 119, F.S. This could present
a hurdle to the DLA’s investigation and enforcement because it could stifle the disclosure of
pertinent information from law enforcement or consumers to the DLA. Additionally, the release
of consumer personal information could subject them to identity theft or further harm.
III. Effect of Proposed Changes:
SB 1648 makes information received by the DLA pursuant to a notification of a violation of
certain statutory requirements or received by the DLA pursuant to an investigation by the DLA
or a law enforcement agency confidential and exempt.
During an active investigation, the DLA may disclose confidential and exempt information:
30
Section 68.083(8), F.S.
31
Section 501.171(11), F.S.
32
Section 501.2065, F.S.
BILL: CS/SB 1648 Page 6
In furtherance of its official duties and responsibilities;
For print, publication, or broadcast if the DLA determines that such release would assist in
notifying the public or locating or identifying a person believed to be a victim of the
improper use or disposal of customer records; or
To another governmental entity in the furtherance of its official duties and responsibilities.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by the DLA will remain confidential and exempt:
All information to which another public record exemption applies;
Personal information;
A computer forensic report;
Information that would otherwise reveal weaknesses in a business’ data security; and
Information that would disclose a business’ proprietary information.
For purposes of this public records exemption, “proprietary information” means information that:
Is owned or controlled by the business
Is intended to be private and treated as such by the business because disclosure would harm
the business or its business operations;
Has not been disclosed except as required by law or a private agreement that provides that
the information will not be released to the public;
Is not publicly available or otherwise readily ascertainable through proper means from
another source in the same configuration as it was received by the DLA; and
Includes trade secrets and competitive interests.
This provision will be subject to an Open Government Sunset Review in accordance with s.
119.15, F.S., and will stand repealed on October 2, 2028, unless reviewed and saved from repeal
through reenactment by the Legislature.
The bill will become effective on the same date that SB 262 (2023) or similar legislation takes
effect, if such legislation is adopted in the same legislative session or an extension thereof and
becomes law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities
have to raise revenue in the aggregate, nor reduce the percentage of state tax shared with
counties or municipalities.
B. Public Records/Open Meetings Issues:
Vote Requirement
Article I, s. 24(c) of the State Constitution requires a two-thirds vote of the members
present and voting for final passage of a bill creating or expanding an exemption to the
BILL: CS/SB 1648 Page 7
public records requirements. This bill creates a new record exemption; thus, the bill
requires a two-thirds vote to be enacted.
Public Necessity Statement
Article I, s. 24(c) of the State Constitution requires a bill creating or expanding an
exemption to the public records requirements to state with specificity the public necessity
justifying the exemption. The bill creates a new public records exemption. Thus, the bill
includes a public necessity statement.
Breadth of Exemption
Article I, s. 24(c) of the State Constitution requires an exemption to the public records
requirements to be no broader than necessary to accomplish the stated purpose of the law.
The bill creates a public record exemption for information relating communications
services locations, project proposals, and challenges submitted to the department under
the Broadband Opportunity Program. The exemption does not appear to be broader than
necessary to accomplish the purpose of the law.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
BILL: CS/SB 1648 Page 8
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 501.173(13) of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on April 4, 2023:
The committee substitute deletes a comma and removes unnecessary verbiage to clarify
the public necessity statement.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 1648 Bill No. SB 1648
Ì963930&Î963930 Ì963930&Î963930
LEGISLATIVE ACTION 11 controller, processor, or third party. Release of such
Senate . House 12 information could give business competitors an unfair advantage.
Comm: RCS .
04/04/2023 .
.
.
.
The Committee on Commerce and Tourism (Bradley) recommended the
following:
1 Senate Amendment
2
3 Delete lines 110 - 119
4 and insert:
5 economic value, actual or potential, from being generally
6 unknown to, and not readily ascertainable by, other persons who
7 might obtain economic value from its disclosure or use. Allowing
8 public access to proprietary information, including a trade
9 secret, through a public records request could destroy the value
10 of the proprietary information and cause a financial loss to the
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Florida Senate - 2023 SB 1648 Florida Senate - 2023 SB 1648
By Senator Bradley
6-00671-23 20231648__ 6-00671-23 20231648__
1 A bill to be entitled 30 1. In the furtherance of its official duties and
2 An act relating to public records; amending s. 31 responsibilities;
3 501.173, F.S.; providing an exemption from public 32 2. For print, publication, or broadcast if the department
4 records requirements for information relating to 33 determines that such release would assist in notifying the
5 investigations by the Department of Legal Affairs and 34 public or locating or identifying a person that the department
6 law enforcement agencies of certain data privacy 35 believes to be a victim of a data breach or improper use or
7 violations; providing for future legislative review 36 disposal of customer records, except that information made
8 and repeal of the exemption; providing a statement of 37 confidential and exempt by paragraph (c) may not be released
9 public necessity; providing a contingent effective 38 pursuant to this subparagraph; or
10 date. 39 3. To another governmental entity in the furtherance of its
11 40 official duties and responsibilities.
12 Be It Enacted by the Legislature of the State of Florida: 41 (c) Upon completion of an investigation or once an
13 42 investigation ceases to be active, the following information
14 Section 1. Subsection (13) is added to section 501.173, 43 received by the department shall remain confidential and exempt
15 Florida Statutes, as created by SB 262 or similar legislation, 44 from s. 119.07(1) and s. 24(a), Art. I of the State
16 to read: 45 Constitution:
17 501.173 Consumer data privacy.— 46 1. All information to which another public records
18 (13) PUBLIC RECORDS EXEMPTION.— 47 exemption applies.
19 (a) All information received by the department pursuant to 48 2. Personal information.
20 a notification of a violation under this section, or received by 49 3. A computer forensic report.
21 the department pursuant to an investigation by the department or 50 4. Information that would otherwise reveal weaknesses in
22 a law enforcement agency of a violation of this section, is 51 the data security of a controller, processor, or third party.
23 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I 52 5. Information that would disclose the proprietary
24 of the State Constitution, until such time as the investigation 53 information of a controller, processor, or third party.
25 is completed or ceases to be active. This exemption shall be 54 (d) For purposes of this subsection, the term “proprietary
26 construed in conformity with s. 119.071(2)(c). 55 information” means information that:
27 (b) During an active investigation, information made 56 1. Is owned or controlled by the controller, processor, or
28 confidential and exempt pursuant to paragraph (a) may be 57 third party.
29 disclosed by the department: 58 2. Is intended to be private and is treated by the
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59 controller, processor, or third party as private because 88 premature release of such information could frustrate or thwart
60 disclosure would harm the controller, processor, or third party 89 the investigation and impair the ability of the department to
61 or its business operations. 90 effectively and efficiently administer s. 501.173, Florida
62 3. Has not been disclosed except as required by law or a 91 Statutes. In addition, release of such information before
63 private agreement that provides that the information will not be 92 completion of an active investigation could jeopardize the
64 released to the public. 93 ongoing investigation.
65 4. Is not publicly available or otherwise readily 94 (2) Release of information to which another public record
66 ascertainable through proper means from another source in the 95 exemption applies once an investigation is completed or ceases
67 same configuration as received by the department. 96 to be active would undo the specific statutory exemption
68 5. Includes: 97 protecting that information.
69 a. Trade secrets as defined in s. 688.002. 98 (3) An investigation of a violation of s. 501.173, Florida
70 b. Competitive interests, the disclosure of which would 99 Statutes, is likely to result in the gathering of sensitive
71 impair the competitive advantage of the controller, processor, 100 personal information, including identification numbers, unique
72 or third party who is the subject of the information. 101 identifiers, professional or employment-related information, and
73 (e) This subsection is subject to the Open Government 102 personal financial information. Such information could be used
74 Sunset Review Act in accordance with s. 119.15 and shall stand 103 for the purpose of identity theft. The release of such
75 repealed on October 2, 2028, unless reviewed and saved from 104 information could subject possible victims of data privacy
76 repeal through reenactment by the Legislature. 105 violations to further harm.
77 Section 2. The Legislature finds that it is a public 106 (4) Notices received by the department and information
78 necessity that all information received by the Department of 107 received during an investigation of a violation of s. 501.173,
79 Legal Affairs pursuant to a notification of a violation of s. 108 Florida Statutes, are likely to contain proprietary information.
80 501.173, Florida Statutes, or received by the department 109 Such information, including trade secrets, derives independent,
81 pursuant to an investigation by the department or a law 110 economic value, actual, or potential, from being generally
82 enforcement agency of a violation of s. 501.173, Florida 111 unknown to, and not readily ascertainable by, other persons who
83 Statutes, be made confidential and exempt from s. 119.07(1), 112 might obtain economic value from its disclosure or use. Allowing
84 Florida Statutes, and s. 24(a), Article I of the State 113 public access to proprietary information, including a trade
85 Constitution for the following reasons: 114 secret, through a public records request could destroy the value
86 (1) A notification of a violation of s. 501.173, Florida 115 of the proprietary information and cause a financial loss to the
87 Statutes, may result in an investigation of such violation. The 116 controller, processor, or third party submitting the
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117 information. Release of such information could give business
118 competitors an unfair advantage and weaken the position of the
119 entity supplying the proprietary information in the marketplace.
120 (5) Information received by the department may contain a
121 computer forensic report or information that could reveal
122 weaknesses in the data security of a controller, processor, or
123 third party. The release of this information could result in the
124 identification of vulnerabilities in the cybersecurity system of
125 the controller, processor, or third party and be used to harm
126 the controller, processor, or third party and clients.
127 (6) The harm that may result from the release of
128 information received by the department pursuant to a
129 notification or investigation by the department or a law
130 enforcement agency of a violation of s. 501.173, Florida
131 Statutes, could impair the effective and efficient
132 administration of the investigation and thus, outweighs the
133 public benefit that may be derived from the disclosure of the
134 information.
135 Section 3. This act shall take effect on the same date that
136 SB 262 or similar legislation takes effect, if such legislation
137 is adopted in the same legislative session or an extension
138 thereof and becomes a law.
Page 5 of 5
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 628
INTRODUCER: Banking and Insurance Committee and Senator Grall
SUBJECT: Debt Management Services
DATE: April 3, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Moody Knudson BI Fav/CS
2. Renner McKay CM Favorable
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
Debt management services laws regulate the fees credit counseling organizations may charge
debtors for debt management services and credit counseling services. Non-profit credit
counseling agencies work with debtors’ creditors, educate debtors about credit practices, and
enroll qualifying debtors in debt management plans tailored to their specific situation and budget.
The bill revises the fee chargeable by a credit counseling agency to a debtor for receiving from
the debtor, and subsequently disbursing to a creditor, money or anything of value. The maximum
fee will now be up to the lesser of 15 percent of the monthly payment or $75 monthly. Under
current law, the maximum fee is the greater of 7.5 percent of the monthly payment or $35
monthly.
This bill will not have a fiscal impact on state and local governments but will have both positive
and negative fiscal impacts on the private sector.
The bill provides an effective date of July 1, 2023.
BILL: CS/SB 628 Page 2
II. Present Situation:
Credit Counseling Organizations
Debtors seeking to manage and reduce their debts often engage credit counseling organizations
who provide debt management services and credit counseling services.1 Non-profit credit
counseling agencies assist debtors with managing and reducing their debt by offering free
counseling on credit practices, enrolling qualifying debtors in debt management plans, and
providing community education to individuals and families on money management skills.2
Floridians are among the many individuals who can be expected to use services from non-profit
credit counseling organizations. According to Experian, the average Floridian carried $84,926 in
debt in 2021,3 and the average mortgage was $208,536.4 Credit card debt, student loans, and auto
loans accounted for the other main sources of debt for Floridians, with a state average of $5,620,
$41,300, and $21,341, respectively.5 In 2022, the average Floridian carried $89,195 in debt, a
5% increase from 2021.6
Debt Management Services
Debt management services is defined by Florida statute as services provided for a fee to “effect
the adjustment, compromise, or discharge of any unsecured note, account, or other indebtedness
of the debtor; or receive from the debtor and disburse to a creditor any money or other item of
value.”7
Credit counseling agencies and creditors may classify individuals who find it particularly
difficult to manage their debt, whether due to their health or other specific situation, as
“vulnerable.”8 Credit counseling agencies encourage creditors to take, and do take, extra
measures to ensure an individual who is vulnerable receives the same services as others.9
1
Consumer Financial Protection Bureau, What is credit counseling?,available at https://www.consumerfinance.gov/ask-
cfpb/what-is-credit-counseling-en-1451/ (last visited April 3, 2023).
2
See Financial Counseling Association of America, available at https://fcaa.org/ (last visited April 3, 2023).
3
Experian, Average Consumer Debt Levels Increase in 2022, available at https://www.experian.com/blogs/ask-
experian/research/consumer-debt-study/ (hereinafter cited as “Experian’s Article on Average Consumer Debt Levels”) (last
visited April 3, 2023).
4
Horymski, C., Total Mortgage Debt Increases to $10.3 Trillion in 2021, Experian, Jun. 4, 2022, available at Total
Mortgage Debt Increases to $10.3 Trillion in 2021 - Experian (last visited April, 2023).
5
Horymski, C., Credit Card Debt in 2021: Balances Slightly Decline, Experian, Jun. 23, 2022, available at Credit Card Debt
in 2021: Balances Slightly Decline - Experian (last visited April 3, 2023); Horymski, C., Student Loan Balances Barely
Budge in 2021, Experian, Aug. 23, 2022, available at Student Loan Debt Increases Slightly in 2021 - Experian (last visited
April 3, 2023); Horymski, C., Auto Loan Debt Reaches a Record-High $1.43 Trillion, Experian, Jul. 29, 2022, available at
Auto Loan Debt Reaches a Record-High $1.43 Trillion - Experian (last visited April 3, 2023).
6
Experian’s Article on Average Consumer Debt Levels.
7
Section 817.801(4), F.S.
8
See Step Change: Debt Charity, Dealing with the debts of a vulnerable person, available at
https://www.stepchange.org/debt-info/dealing-with-the-debts-of-vulnerable-people.aspx (last visited April 3, 2023).
9
Id.
BILL: CS/SB 628 Page 3
Unlike for-profit debt settlement companies,10 credit counseling agencies are non-profit
organizations whose fees are regulated and vary across jurisdiction. 11 According to Cambridge
Credit Counseling Corp., many states set maximum rates regulating the initial fee a credit
counseling agency may impose on a consumer, and of the states who have set a maximum rate,
the rates range between $25 and $100.12 Other states generally also allow credit counseling
agencies to charge a monthly fee up to a certain amount which is usually a flat rate or a
percentage of the monthly amount paid by the debtor to repay the debt, or both.13 The lowest rate
cap is $25 per month and the highest rate cap is $75 per month.14
Florida’s Limitations on Fees for Debt Management Services
In 2004, the Legislature recognized the importance of easy access to debt management services,
while also acknowledging the vulnerability of debtors, by prescribing the maximum fees a
person or entity could charge a debtor for debt management services.15
Specifically, the 2004 legislation made it unlawful for any entity or individual engaging in debt
management services or credit counseling services, to charge a debtor:
A fee greater than $50 for an initial consultation;16 and
A fee greater than $120 per year for additional consultations or, alternatively, in the case
of receiving debt payments from the debtor and disbursing to a creditor any money or
other item of value, the greater of 7.5% of the amount paid monthly by the debtor or $35
per month.17
No state agency directly regulates credit counseling organizations. Regulation is self-executing
by means of private civil actions under part II of ch. 501, F.S., including possible action by the
Attorney General or local prosecutors.18 Any person in violation of the debt services statute
“commits an unfair or deceptive trade practice.”19 A violation results in criminal and civil
penalties. Namely, a violation is a third-degree felony,20 and an individual injured by a violation
can bring an action for damages, where judgement is entered for actual damages no less than the
amount paid by the aggrieved individual to the credit counseling organization.21
10
Consumer Financial Protection Bureau, What are Debt Settlement/Debt Relief Services and Should I Use Them?, Aug. 24,
2022, available at What are debt settlement/debt relief services and should I use them? | Consumer Financial Protection
Bureau (consumerfinance.gov) (last visited April 3, 2023) (defining debt settlement companies as “companies that say they
can renegotiate, settle, or in some way change the terms of a person’s debt to a creditor or debt collector, and noting that
dealing with debt settlement companies can be risky and often charge expensive fees.)
11
Email from Kelly Mallette, Ronald L. Book, P.A., to Jacqueline Moody, Florida Senate Committee on Banking and
Insurance, State Based Fees, Mar. 17, 2023 (on file with Senate Committee on Banking and Insurance)
12
Id.
13
Id.
14
Id.
15
Chapter 2004-351, Laws of Florida, created s. 817.802, F.S.
16
Section 817.802(1), F.S.
17
Id.
18
Chapter 501, part II, F.S., relating to the protection of consumers from unfair trade practices, and remedies for violations
thereof, similar to federal policies relating to consumer protection.
19
Section 817.806, F.S.
20 A third degree felony is generally punishable by not more than five years in state prison and a fine not exceeding $5,000.
Sections 775.082 and 775.083, F.S.
21
Section 817.806, F.S.
BILL: CS/SB 628 Page 4
Although a 2006 amendment narrowed the scope of debtors protected to those debtors
specifically residing in the state of Florida,22 the limitation on fees for debt management services
has not been increased since its enactment in 2004.
III. Effect of Proposed Changes:
Section 1 changes the fee a person or entity may charge for the debt management services
described in s. 817.802(4)(b), F.S., (namely, receiving from the debtor and disbursing to a
creditor any money or item of value) up to the lesser of 15 percent of the amount paid monthly
by the debtor or $75 per month, rather than the greater of 7.5 percent of the amount paid or $35
per month. The following table illustrates the current and proposed fees.
Current SB 628
Greater of Lesser of
Monthly Monthly Result of
Monthly 7.5% of 15% of
$35 Fee $75 Fee Current vs.
Payment monthly monthly
Allowed Allowed SB 628
$100 $ 7.50 $ 35.00 $ 35.00 $ 15.00 $ 75.00 $ 15.00 Reduction
$500 $ 37.50 $ 35.00 $ 37.50 $ 75.00 $ 75.00 $ 75.00 Increase
$1,000 $ 75.00 $ 35.00 $ 75.00 $ 150.00 $ 75.00 $ 75.00 No Change
$1,500 $ 112.50 $ 35.00 $ 112.50 $ 225.00 $ 75.00 $ 75.00 Reduction
Section 2 provides an effective date of July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
22
Chapter 2006-136, Laws of Florida, amended s. 817.802, F.S.
BILL: CS/SB 628 Page 5
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Credit counseling organizations and debtors residing in Florida would experience a fiscal
impact from this bill. Specifically, the change in fees to the lesser of 15% of the amount
paid monthly by the debtor or $75 per month would likely result in an increase in some
revenue for credit counseling organizations. On the other hand, the increase in the
maximum chargeable amount might have a negative fiscal impact on debtors residing in
Florida.23 The bill results in increased maximum fees for payment amounts greater than
$233.33 but less than $1,000.00; maximum fees are reduced for payment amounts less
than $233.33 or greater than $1,000.00.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 817.802 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Banking and Insurance Committee on March 22, 2023:
Clarifies that the fee a person or entity may charge for the debt management services
is “up to” the lesser of 15 percent of the amount paid monthly by the debtor or $75
per month.
B. Amendments:
None.
23
Florida Office of Financial Regulations, 2023 Agency Legislative Bill Analysis for HB 599, p. 3, Mar. 3, 2023 (on file with
Senate Committee on Banking and Insurance).
BILL: CS/SB 628 Page 6
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 CS for SB 628
By the Committee on Banking and Insurance; and Senator Grall
597-02912-23 2023628c1
1 A bill to be entitled
2 An act relating to debt management services; amending
3 s. 817.802, F.S.; increasing the maximum fee that may
4 be charged for debt management services; providing an
5 effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Subsection (1) of section 817.802, Florida
10 Statutes, is amended to read:
11 817.802 Unlawful fees and costs.—
12 (1) It is unlawful for any person, while engaging in debt
13 management services or credit counseling services, to charge or
14 accept from a debtor residing in this state, directly or
15 indirectly, a fee or contribution greater than $50 for the
16 initial setup or initial consultation. Subsequently, the person
17 may not charge or accept a fee or contribution from a debtor
18 residing in this state greater than $120 per year for additional
19 consultations or, alternatively, if debt management services as
20 defined in s. 817.801(4)(b) are provided, the person may charge
21 up to the lesser greater of 15 7.5 percent of the amount paid
22 monthly by the debtor to the person or $75 $35 per month.
23 Section 2. This act shall take effect July 1, 2023.
Page 1 of 1
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/CS/SB 712
INTRODUCER: Commerce and Tourism Committee; Transportation Committee; and Senator Avila and
others
SUBJECT: Motor Vehicle Sales
DATE: April 5, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Jones Vickers TR Fav/CS
2. McMillan McKay CM Fav/CS
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 712 amends the Florida Automobile Dealers Act (Act), which primarily regulates the
contractual business relationship between franchised motor vehicle dealers (dealers), and
manufacturers, factory branches, distributors, and importers (manufacturers) and provides for the
licensure of manufacturers. The Act prohibits certain manufacturers with established dealerships
from conducting direct-sales or owning or operating a motor vehicle dealership; however, a
manufacturer without a franchised dealership is exempt from this prohibition.
The bill revises provisions related to the licensure of, and contractual agreements between,
dealers and manufacturers, as follows:
Broadens the definition of “common entity” and expands the prohibitions on direct-to-
consumer motor vehicle sales, and dealer ownership, by manufacturers that have established
dealers.
Broadens the definition of “sell” to include additional types of financial agreements.
Prohibits new franchise agreements with manufacturers that do not include all types of “line-
make.”
Prohibits manufacturers from reserving or incentivizing the sale or lease of a motor vehicle.
Prohibits manufacturers from requiring or incentivizing dealers to sell or lease vehicles at a
specified price or profit margin, or restricts the price that a dealer may sell or lease a vehicle.
Prohibits manufacturers from engaging in certain motor vehicle dealer activities.
BILL: CS/CS/SB 712 Page 2
Authorizes manufacturers to sell certain motor vehicle features or improvements through
remote electronic transmission;
Requires the manufacturer to pay the dealer a percentage of at least eight percent of the
payment received from the sale of a motor vehicle feature or improvement through remote
electronic transmission if it is made within three years after the sale or lease of the new
vehicle.
Prohibits manufacturers from refusing to provide a dealer with an “equitable supply” of new
vehicles by model, mix, or color as it offers or allocates to dealers.
Prohibits manufacturers from using the number of motor vehicles pre-ordered or reserved by
consumers when determining allocations to dealers.
Provides that neither a distributor nor an affiliate thereof may be licensed as a motor vehicle
dealer or own or operate a dealership that sells or services motor vehicles of the line-make of
motor vehicles distributed by the distributor.
Limits the administrative authority of the Department of Highway Safety and Motor Vehicles
(DHSMV) to provide certain exceptions to the restriction on dealer ownership by
manufacturers that have established dealers.
Prohibits manufacturers from controlling by contract, agreement or otherwise a dealership for
any “line-make” which is or has been offered for sale in Florida by a franchise agreement
with an “independent person.”
Creates a timeline and process for DHSMV to conduct an inquiry of a manufacturer relating
to a written complaint alleging a violation of the Act, when such complaint is made by a
franchised motor vehicle dealer or a motor vehicle dealer association with at least one
member with a current franchise agreement issued by the manufacturer.
The bill may have a negative indeterminate fiscal impact on DHSMV to the extent that the bill
results in increased written complaints against manufacturers.
The bill takes effect July 1, 2023.
II. Present Situation:
Background of Motor Vehicle Dealer Franchise Agreements
The first automobile franchise in the United States was established by General Motors in
1898.1Franchise agreements were initially voluntary.2 Most state auto franchise laws now
extensively regulate the contractual obligations between manufacturers and dealers. In an effort
to protect consumers, these laws prevent manufacturers from selling new vehicles, new brands,
and related services directly to the public.3
1
Francine Lafontaine and Fiona Scott Morton, State Franchise Laws, Dealer Terminations, and the Auto Crisis, 24 J. ECON.
PERSP. 233, 234 (2010), available at https://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.24.3.233 (last visited April 5, 2023).
2
Id. at 238-239.
3
Congressional Research Service, R40712, U.S. Motor Vehicle Industry Restructuring
and Dealership Terminations (January 8, 2010), available at
https://www.everycrsreport.com/files/20100108_R40712_461532aa2624faaa80c6e8f950d6b0ad0719195e.pdf (last visited
April 5, 2023).
BILL: CS/CS/SB 712 Page 3
Florida has substantially regulated motor vehicle manufacturers and dealers since before 1950.4
Initially, Florida implemented consumer protections aimed at preventing consumer abuse by
dealers.5 In 1970, more comprehensive regulations were adopted, embodied in Ch. 320, F.S.,6
which regulates the contractual relationship between manufacturers and franchised dealers,7
requires the licensing of manufacturers, and regulates numerous aspects of the contracts between
the manufacturers and dealers.
Florida’s Automobile Dealer Franchise Law states that “it is the intent of the Legislature to
protect the public health, safety, and welfare of the citizens of the state by regulating the
licensing of motor vehicle dealers and manufacturers, maintaining competition, providing
consumer protection and fair trade and providing minorities with opportunities for full
participation as motor vehicle dealers.”8
Certain manufacturers with established dealer franchises have recently indicated an intent to
separate their electric vehicle (EV) and internal combustion vehicle business models, similar to
how they currently separate cars and trucks into separate dealership agreements. Some
manufacturers indicate they plan to offer a business model that is a hybrid between the current
model and the direct-to-consumer model used by some EV manufacturers for both EV and
internal combustion vehicle lines.9 Certain EV manufactures have developed a cost-effective
method of auto distribution known as build-to-order.10
Newer automakers that do not have franchise agreements with auto dealers have been using
captive (manufacturer-owned) dealerships and the direct-to-consumer model in which consumers
custom-design their vehicles on the internet and receive them directly from the manufacturer.
However, for in-person needs, these automakers provide their own dealerships and service
centers. State franchise laws protect independent dealerships and thus, auto manufacturers that
already have franchise agreements with dealers are unable to offer this new way of buying a
vehicle to consumers.11
Recently, manufacturers and dealers have engaged in public disputes about how vehicles should
be sold in the future, and about whether dealer franchise laws have contributed to dealers pricing
their new cars at an all-time high.12 Ford Motor Company recently wrote a formal letter to its
4
Chapter 9157, Laws of Fla. (1923); Chapter 20236, Laws of Fla. (1941).
5
Walter E. Forehand and John W. Forehand, Motor Vehicle Dealer and Motor Vehicle Manufacturers: Florida Reacts to
Pressures in the Marketplace, 29 FLA. ST. UNIV. LAW REV. 1058, 1064 (2002), available at
http://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1632&context=lr (last visited April 5, 2023).
6
Ch. 70-424, Laws of Fla.
7
Section 320.60(11), F.S.
8
Section 320.605, F.S.
9
Greg Rosalsky, Inside the rise of 'stealerships' and the shady economics of car buying, National Public Radio (NPR)
(August 30, 2022), available at https://www.npr.org/sections/money/2022/08/30/1119715886/inside-the-rise-of-stealerships-
and-the-shady-economics-of-car-buying (last visited April 5, 2023).
10
The United States Department of Justice, Economic Effects of State Bans on Direct Manufacturer Sales to Car Buyers
(May 2009), available at https://www.justice.gov/sites/default/files/atr/legacy/2009/05/28/246374.pdf (last visited April 5,
2023).
11
Rosalsky, supra note 9.
12
Motor Biscuit, Ford Threatens to Cut Dealer Inventories to Demolish Price Markups (February 9, 2022), available at
https://www.motorbiscuit.com/ford-threatens-cut-dealer-inventories-demolish-price-
BILL: CS/CS/SB 712 Page 4
dealers asking them to cut down on markups, additional waiting list fees and deposits for EVs,
and gave notice to dealers that it would cut back on sending them Ford's most popular vehicles if
prices did not come down.13 Dealers have responded by arguing that manufacturer actions will
not solve pricing issues and will interfere with market competition.
Florida Automobile Dealers Act
Manufacturers must be licensed to engage in business in Florida.14 The “Florida Automobile
Dealers Act”15 (Act), primarily regulates the contractual business relationship between dealers
and manufacturers; and provides for the licensure of the manufacturers. The Department of
Highway Safety and Motor Vehicles (DHSMV) is responsible for administering and enforcing
the Act.16 The Act specifies, in part:17
The conditions and situations under which the DHSMV may deny, suspend, or revoke a
regulated license;
The process, timing, and notice requirements for manufacturers who wish to discontinue,
cancel, modify, or otherwise replace a franchise agreement with a dealer, and the conditions
under which the DHSMV may deny such a request;
The procedures manufacturers must follow to add a franchised dealership in an area already
served by a franchised dealer, the protest process, and the DHSMV’s role in these
circumstances;
The damages that can be assessed against a manufacturer who is in violation of Florida
Statutes; and
The DHSMV’s authority to adopt rules to implement these sections of law.
The Act applies to all presently existing or future systems of distribution of motor vehicles in
Florida, except to the extent that such application would impair valid contractual agreements in
violation of the State Constitution or Federal Constitution. Generally, all agreements that are
renewed, amended, or entered into subsequent to October 1, 1988, are governed by the Act,
including amendments to the Act, unless the amendment specifically provides otherwise.18
Definitions
The Act provides definitions for several terms used throughout it, which are described below.
“Agreement” or “Franchise agreement” is defined as “a contract, franchise, new motor vehicle
franchise, sales and service agreement, or dealer agreement or any other terminology used to
describe the contractual relationship between a manufacturer, factory branch, distributor, or
markups/?utm_source=npr_newsletter&utm_medium=email&utm_content=20220826&utm_term=7163011&utm_campaign
=money&utm_id=4320608&orgid=&utm_att1= (last visited April 5, 2023).
13
Id.
14
Section 320.61(1), F.S.
15
Forehand, supra note 5, at 1065.
16
Section 320.011, F.S.
17
See ss. 320.60-320.70, F.S.
18
Section 320.6992, F.S.
BILL: CS/CS/SB 712 Page 5
importer, and a motor vehicle dealer, pursuant to which the motor vehicle dealer is authorized to
transact business pertaining to motor vehicles of a particular line-make.”19
“Common entity” is defined as a person:20
Who “is either controlled or owned, beneficially or of record, by one or more persons who
also control or own more than 40 percent of the voting equity interests of a manufacturer;” or
Who “shares directors or officers or partners with a manufacturer.”
“Distributor” is defined as “a person, resident or nonresident, who, in whole or in part, sells or
distributes motor vehicles to motor vehicle dealers or who maintains distributor
representatives.”21
“Factory branch” is defined as “a branch office maintained by a manufacturer, distributor, or
importer for the sale of motor vehicles to distributors or to motor vehicle dealers, or for directing
or supervising, in whole or in part, its representatives in this state.”22
“Importer” is defined as “any person who imports vehicles from a foreign country into the
United States or into this state for the purpose of sale or lease.”23
“Licensee” is defined as “any person licensed or required to be licensed under s. 320.61, F.S.,
which includes motor vehicle manufacturers, distributors, and importers.”24
“Manufacturer” is defined as “any person, whether a resident or nonresident of this state, who
manufactures or assembles motor vehicles or who manufactures or installs on previously
assembled truck chassis special bodies or equipment which, when installed, form an integral part
of the motor vehicle and which constitute a major manufacturing alteration. The term
“manufacturer” includes a central or principal sales corporation or other entity through which, by
contractual agreement or otherwise, it distributes its products.”25
“Line-make vehicles” are defined as “motor vehicles which are offered for sale, lease, or
distribution under a common name, trademark, service mark, or brand name of the manufacturer
of same” (such as Ford, General Motors, or Honda). “However, motor vehicles sold or leased
under multiple brand names or marks shall constitute a single line-make when they are included
in a single franchise agreement and every motor vehicle dealer in this state authorized to sell or
lease any such vehicles has been offered the right to sell or lease all of the multiple brand names
or marks covered by the single franchise agreement.”26
19
Section 320.60(1), F.S.
20
Section 320.60(2), F.S.
21
Section 320.60(5), F.S.
22
Section 320.60(6), F.S.
23
Section 320.60(7), F.S.
24
Section 320.60(8), F.S.
25
Section 320.60(9), F.S.
26
Section 320.60(14), F.S.
BILL: CS/CS/SB 712 Page 6
“Motor vehicle dealer” is defined as “any person, firm, company, corporation, or other entity,
who:”27
Is licensed as a “franchised motor vehicle dealer” and, “for commission, money, or other
things of value, repairs or services motor vehicles or used motor vehicles pursuant to a
franchise agreement;”
Who “sells, exchanges, buys, leases or rents, or offers, or attempts to negotiate a sale or
exchange of any interest in, motor vehicles;” or
Who “is engaged wholly or in part in the business of selling motor vehicles, whether or not
such motor vehicles are owned by such person, firm, company, or corporation.”
Such persons, or persons who buy, sell, or deal in three or more motor vehicles in any 12-month
period or who offer or display for sale three or more motor vehicles in any 12-month period are
prima facie presumed to be a motor vehicle dealer.28
The terms “selling” and “sale” “include lease-purchase transactions.”29
The term “motor vehicle dealer” does not include:30
“Public officers while performing their official duties;”
“Receivers, trustees, administrators, executors, guardians, or other persons appointed by, or
acting under the judgment or order of, any court;”
“Banks, finance companies, or other loan agencies that acquire motor vehicles as an incident
to their regular business;” or
“Motor vehicle rental and leasing companies that sell motor vehicles to licensed motor
vehicle dealers.”
The terms “sell,” “selling,” “sold,” “exchange,” “retail sales,” and “leases” are defined, as
follows:31
“Any transaction where the title of motor vehicle or used motor vehicle is transferred to a
retail consumer.”
“Any retail lease transaction where a retail customer leases a vehicle for a period of at least
12 months.”
“Establishing a price for sale when an applicant or licensee has sold a motor vehicle to any
retail consumer in the state except through a motor vehicle dealer holding a franchise
agreement for the line-make that includes the motor vehicle does not constitute a sale or
lease.”32
Grounds for Denial, Suspension, or Revocation of a License
An application for a manufacturer, distributor, and importer license (license) may be denied, or a
license may be revoked or suspended, on various grounds. Denials, suspensions, or revocations
27
Section 320.60(11), F.S.
28
Id.
29
Id.
30
Id.
31
Section 320.60(15), F.S.
32
Id.
BILL: CS/CS/SB 712 Page 7
of licenses can be based on consumer protection; however, the grounds for acting against
manufacturers arise principally out of their dealings with motor vehicle franchised dealers with
whom the manufacturers have a contractual relationship allowing the dealer to sell and service
the manufacturer’s new motor vehicles.33, 34
Currently, there are 42 different criteria that may cause the DHSMV to deny, suspend, or revoke
a manufacturer’s license. The criteria cross many topics, including: contractual obligations;
coercion or threats; discontinuation, canceling, non-renewing, modifying, or replacing franchise
agreements; requiring changes to a dealer’s sales or service facility; reducing the supply of new
vehicles or parts to a franchised dealer; audits; disclosure of confidential financial information;
failure to pay the dealer; and denying a warranty repair claim.35
An applicant or manufacturer is prohibited from establishing or implementing a system of motor
vehicle allocation or distribution to its franchised motor vehicle dealers which reduces or alters
allocations or supplies of new motor vehicles to the dealer to achieve, directly or indirectly, a
purpose that is prohibited by the Act, or which otherwise is unfair,36 inequitable, unreasonably
discriminatory, or not supportable by reason and good cause after considering the equities of the
affected motor vehicles dealer or dealers.37
An applicant or manufacturer is required to maintain for three years records that describe its
methods or formula of allocation and distribution of its motor vehicles, and records of its actual
allocation and distribution of motor vehicles, to its dealers in this state.38
An applicant or manufacturer is prohibited from competing (with respect to any activity covered
by the franchise agreement) with a franchised dealer of the same line-make located in this state
with whom the manufacturer has entered into a franchise agreement.39
An applicant or manufacturer is prohibited from selling a motor vehicle to any retail consumer in
the state except through a dealer holding a franchise agreement for the line-make that includes
the motor vehicle. This does not apply to sales by the applicant or manufacturer to its current
employees, employees of companies affiliated by common ownership, charitable not-for-profit
organizations, and the federal government.40
Dealer Licenses in Areas Previously Served
Any manufacturer who proposes to establish an additional motor vehicle dealership, or relocate
an existing dealer, to a location within a community or territory where the same line-make
33
Section 320.64, F.S.
34
Section 320.60(l) (defining “agreement” or “franchise agreement”).
35
Section 320.64, F.S.
36
As used in this provision, “unfair” includes, without limitation, the refusal or failure to offer to any dealer an equitable
supply of new vehicles under its franchise, by model, mix, or colors as the manufacturer offers or allocates to its other same
line-make dealers in the state. See s. 320.64(18), F.S.
37
Section 320.64(18), F.S.
38
Id.
39
Section 320.64(23), F.S.
40
Section 320.64(24), F.S.
BILL: CS/CS/SB 712 Page 8
vehicle is presently represented by a franchised dealer, is required to give written notice of its
intention to the DHSMV.41
An existing franchised dealer or dealers has standing to protest a proposed additional or relocated
motor vehicle dealer when the existing dealer or dealers have a franchise agreement for the same
line-make vehicle to be sold or serviced by the proposed dealer and certain physical location
mileage requirements are met. Specific mileage requirements that are based on county
population are as follows:42
In counties with a population of less than 300,000, the existing dealer has standing if the
existing dealer of the same line-make has a licensed franchise location within a radius of
20 miles of the location of the proposed dealer.43
In counties with a population over 300,000, an existing dealer has standing if the existing
dealer of the same line-make has a licensed franchise location within a radius of 12.5 miles
of the location of the proposed additional or relocated motor vehicle dealer.44
When a proposed addition or relocation concerns a dealership that performs or is to perform only
service and not the sale or lease of new motor vehicles, the proposal is subject to the notice and
protest provisions. Standing to protest the addition or relocation of a service-only dealership is
limited to those instances in which the applicable mileage requirements based on county
populations are met.45
The addition or relocation of a service-only dealership is not subject to protest if:
The applicant for the service-only dealership location is an existing motor vehicle dealer of
the same line-make as the proposed additional or relocated service-only dealership;
There is no existing dealer of the same line-make closer than the applicant to the proposed
location of the additional or relocated service-only dealership; and
The proposed location of the additional or relocated service-only dealership is at least seven
miles from all existing motor vehicle dealerships of the same line-make, other than motor
vehicle dealerships owned by the applicant.46
In determining whether existing franchised dealers are providing adequate representations in the
community or territory for the line-make in question in a protest of the proposed addition or
relocation of a service-only dealership, the DHSMV is authorized to consider certain elements.47
If an application for a service-only dealership is granted, the DHSMV is required to issue a
license which permits only service, and does not permit the selling or leasing of new motor
vehicles. If a service-only dealership subsequently seeks to sell new motor vehicles at its
location, the notice and protest provisions apply.48
41
Section 320.642(1), F.S.
42
Section 320.642(3), F.S.
43
Section 320.642(3)(a)2., F.S.
44
Section 320.642(3)(b)1., F.S.
45
Section 320.642(6)(a), F.S.
46
Section 320.642(6)(b), F.S.
47
Section 320.642(6)(c), F.S.
48
Section 320.642(6)(d), F.S.
BILL: CS/CS/SB 712 Page 9
Restriction on Ownership of Dealerships
Current law prohibits the following entities from owning or operating a dealership in this state
for the sale or service of motor vehicles that are already offered for sale under a franchise
agreement with a dealer in this state:49
“Licensees;”
“Distributors;”
“Manufacturers;”
“Agents of a manufacturer or distributor;” or
“Any parent, subsidiary, common entity, or officer or representative of the licensee.”
In such cases, manufacturers may not be issued a dealer license. However, manufacturers are not
deemed to be in violation under the following circumstances:50
When operating a dealership for a temporary period of up to a year, during the transition
from one owner of the dealership to another;
When operating a dealership temporarily for a reasonable period for the exclusive purpose of
broadening the diversity of its dealer body and enhancing opportunities for qualified persons
who:
o Are part of a group that has historically been underrepresented in its dealer body; or
o The licensee “deems lack the resources to purchase or capitalize the dealership outright;
or
If the DHSMV determines, after an administrative hearing on the matter, at the request of
any person, that there is no independent person available in the community or territory to
own and operate the dealership in a manner consistent with the public interest.
In any such case, the manufacturer is required to continue to make the dealership available for
sale to an independent person at a fair and reasonable price, and approval of the sale may not be
unreasonably withheld.
“Independent person” is defined as a person who is not an officer, director, or employee of the
manufacturer.51
Procedure for Administrative Hearings and Adjudications
A franchised dealer who is directly and adversely affected by the action or conduct of a
manufacturer, which is alleged to be in violation of the Act, may seek a declaration and
adjudication of its rights by filing one of the following with the DHSMV: 52
Request for a proceeding and administrative hearing; or
Written objection or notice of protest.
49
Section 320.645(1), F.S.
50
Id.
51
Section 320.645(2)(a), F.S.
52
Section 320.699(1), F.S.
BILL: CS/CS/SB 712 Page 10
Hearings are held no sooner than 180 days, or later than 240 days, from the date a written
objection or notice of protest is filed, unless extended with good cause by the administrative law
judge.53
Civil Damages
A franchised dealer who can demonstrate that a violation of, or failure to comply with, any of the
provisions of the Act by an applicant or manufacturer will or can adversely and pecuniarily
affect the dealer, is entitled to pursue treble damages and attorney’s fees in civil court.54 The
manufacturer has the burden to prove that such violation did not occur upon a prima facie
showing by the person bringing the action.55
Injunctions
A franchised dealer may make an application to any circuit court of the state for a temporary or
permanent injunction, or both, restraining any manufacturer from violating or continuing to
violate any of the provisions of the Act or from failing or refusing to comply with these statutory
requirements.56
Market Background
Electric Vehicle Sales
In the United States revenue in the electric vehicles (EV) market is projected to reach
approximately $61 billion in 2023, and will result in a market volume of $139 billion by 2027.57
The growth of the EV market has been significant despite the COVID-19 pandemic and the
resulting supply chain bottlenecks. Despite such challenges and rising production costs as a
result of increasing raw material prices, EV sales are still increasing.58
As more automakers introduce EVs, they are rethinking the sales process, including selling new
vehicles largely, if not fully, online. Historically, dealers rely on automakers for product to fill
and move off lots, and the automakers rely on dealers to sell and service the vehicles and
customers. How that historical relationship fits into an all-electric future is at the forefront of
discussions between automakers and dealers.59
53
Section 320.699(2), F.S.
54
Sections 320.64, 320.694, and 320.697, F.S.
55
Section 320.697, F.S.
56
Section 320.695, F.S.
57
Statista, Electric Vehicles – United States, available at https://www.statista.com/outlook/mmo/electric-vehicles/united-
states (last visited April 5, 2023).
58
Id.
59
Michael Wayland, Carmakers face a crossroads as they work to fit auto dealers into their EV plans, CNBC (Jan. 28,
2023), available at https://www.cnbc.com/2023/01/28/ev-sales-automakers-
dealers.html?__source=sharebar|email&par=sharebar (last visited April 5, 2023).
BILL: CS/CS/SB 712 Page 11
Direct-Sales
According to the National Conference of State Legislatures (NCSL),60 a number of states have
amended dealer franchise laws to either explicitly prohibit or allow for direct-sales of motor
vehicles. Most enacted state laws authorizing limited direct-sales appear to be narrowly tailored
to apply to Tesla by requiring that a manufacturer either have no existing franchise agreements in
a relevant market area and/or have an existing direct-sales operation. Recently, legislation has
trended toward providing for new manufacturers to engage in direct-sales.61
The NCSL provides that:62
Approximately 17 states have laws that expressly ban direct-sales.
Approximately 18 states have laws that expressly allow for manufacturers to directly sell
vehicles to consumers.
Approximately nine states have laws prohibiting all new direct-sales, while allowing for
manufacturers already engaged in direct-sales in the state to maintain a certain number of
sales locations.
Of the states that provide for direct-sales, at least eight states tied their direct-sales provisions
to a requirement that the manufacturer exclusively sell non-fossil-fuel, electric, or zero-
emission vehicles.
Most states that provide for the direct-sales model still require a manufacturer to obtain a
dealer license or permit to be able to operate in the state. Some states, like Utah, restrict the
use of the direct-sales model to only those manufacturers that sell new non-fossil fuel
powered vehicles, like those that rely on electricity or hydrogen fuel.
Other states, like Ohio, provide for the direct-sales model, but only for manufacturers
engaged in the market by a certain date and place a limit on the number of dealerships that
direct-sale manufacturers may operate within the state.
In states like Arizona, Tesla’s ability to sell vehicles through its direct-sales model is a result
of a favorable judicial or administrative ruling regarding the applicability of state law as
opposed to changes in the statutory text. In these states, the question of whether
manufacturers may sell vehicles directly to consumers would likely be decided on a case-by-
case basis.
Some states, like Louisiana, have recently enhanced protections for franchise dealerships by
explicitly prohibiting direct-sales.
III. Effect of Proposed Changes:
Definitions
The bill expands the definition of “common entity” to mean a person who:
Is directly or indirectly controlled by or has more than 30 percent of his or her equity interest
directly or indirectly owned, beneficially or of record, through any form of ownership
structure, by a manufacturer, an importer, a distributor, or a licensee, or an affiliate thereof;
or
60
National Conference of State Legislatures, State Laws on Direct Sales, available at https://www.wispolitics.com/wp-
content/uploads/2021/08/State-Laws-on-Direct-Sales.pdf (last visited April 5, 2023).
61
Id.
62
Id.
BILL: CS/CS/SB 712 Page 12
Has more than 30 percent of his or her equity interest directly or indirectly controlled or
owned, beneficially or of record, through any form of ownership structure, by one or more
persons who also directly or indirectly control or own, beneficially or of record, more than 30
percent of equity interests of a manufacturer, an importer, a distributor, or a licensee, or an
affiliate thereof.
However, the bill provides exceptions for certain common entities of distributors. An entity that
would otherwise be considered a common entity of a distributor is not considered a common
entity of the distributor if:
The distributor that the entity is related to was a licensed distributor on March 1, 2023;
The entity is not a common entity of a manufacturer or importer; and
The distributor is not, and has never been, a common entity of a manufacturer or importer.
The bill deletes the provision in the definition of “common entity” that includes a person who
shares directors or officers or partners with a manufacturer.
The bill defines an “independent person” as a person who is not an agent, parent, subsidiary,
common entity, officer, director, or employed representative of a licensee, manufacturer,
importer, or distributor.
The bill defines a “motor vehicle dealer association” as a not-for-profit entity organized under
the laws of this state which:
Is qualified for tax-exempt status under s. 501(c)(6) of the Internal Revenue Code;
Acts as a trade association that primarily represents the interests of franchised motor vehicle
dealers; and
Has a membership of at least 500 franchised motor vehicle dealers.
The bill expands the definition of “sell,” “selling,” “sold,” “exchange,” “retail sales,” and
“leases,” as follows:
Includes:
o Accepting a deposit or receiving a payment for the purchase, lease, or other use of a
motor vehicle, but does not include facilitating a motor vehicle dealer’s acceptance of a
deposit or receipt of a payment from a consumer and does not include receiving payment
under a installment sale contract;
o Accepting a reservation from a retail consumer for a specific motor vehicle identified by
a vehicle identification number or other product identifier;
o Setting the retail price for the purchase, lease, or other use of a motor vehicle, but does
not include setting a manufacturer’s suggested retail price;
o Offering or negotiating with a retail consumer the terms for the purchase, lease, or other
use of a motor vehicle;
o Offering or negotiating with a retail consumer the value of a motor vehicle being traded
in as part of the purchase, lease, or other use of a motor vehicle, but does not include a
website or other means of electronic communication that identifies to a consumer a
conditional trade-in value that is not binding on a motor vehicle dealer;
Clarifies that the reference to a “retail customer” refers to a “retail consumer” in the
provision describing a 12-month lease, and that the definition does not include administering
BILL: CS/CS/SB 712 Page 13
lease agreements, taking assignments of leases, performing required actions pursuant to such
leases, or receiving payments under a lease agreement originated by a motor vehicle dealer;
and
Removes a provision that exempts the establishment of a price for sale under certain
circumstances from the definition of sell.
Legislative Intent
The bill adds to the statement of legislative intent that ss. 320.61-320.70, F.S., are intended to
apply solely to the licensing of manufacturers, factory branches, distributors, and importers and
do not apply to non-motor-vehicle-related businesses.
Grounds for Denial, Suspension, or Revocation of a License
The bill includes additional actions that constitute grounds for which a license of a motor vehicle
manufacturer, distributor, or importer may be denied, suspended, or revoked, as follows:
Conditionally or unconditionally reserving a specific motor vehicle identified by a vehicle
identification number or other unique identifier for a specifically named person, except for
purposes of replacing a consumer’s vehicle pursuant to chapter 681, F.S., relating to motor
vehicle sale warranties;
Requiring or incentivizing a motor vehicle dealer to sell or lease, or to negotiate the sale or
lease of, a specific motor vehicle identified by a vehicle identification number or other
unique identifier to a specifically named person; or
Requiring or incentivizing a motor vehicle dealer to sell or lease a motor vehicle at a
specified price or profit margin, or restricting the price at which a motor vehicle dealer may
sell a motor vehicle.
The bill revises the term “unfair” for purposes of this provision to include using the number of
motor vehicles pre-ordered or reserved by consumers as a factor in determining the allocation of
motor vehicles to motor vehicle dealers.
The bill revises the violation criteria related to competition, as follows:
Specifies that it is a violation for the applicant or licensee to engage in any of the activities of
a motor vehicle dealer as defined in s. 320.60, F.S.
Creates an exception for the remote electronic transmission of a permanent or temporary
motor vehicle feature or improvement.
The bill revises the violation criteria relating to selling a motor vehicle to any retail consumer in
the state except through a motor vehicle dealer holding a franchise agreement for the line-make
that includes the motor vehicle, as follows:
Prohibits the applicant or licensee, or a common entity thereof, from selling or leasing a
motor vehicle of a line-make manufactured, imported, or distributed by the applicant or
licensee.
Prohibits, for a motor vehicle of such line-make, activation for a fee or sale of, any
permanent or temporary motor vehicle feature or improvement, to any retail consumer in the
state except through a motor vehicle dealer properly licensed and holding a franchise
agreement for the line-make that includes the motor vehicle.
BILL: CS/CS/SB 712 Page 14
Provides an exception if the feature or improvement is provided directly to the motor vehicle
through remote electronic transmission. Requires, if such motor vehicle was sold or leased as
new by a franchised motor vehicle dealer in this state within three years before such remote
electronic transmission, the applicant, licensee, or common entity thereof must pay such
franchised motor vehicle dealer a minimum of eight percent of the payment received for the
feature or improvement. Payments must be made to the dealer within 30 days of the date of
sale of the feature or improvement.
The bill provides that the term “feature or improvement” includes the activation or use of motor
vehicle components or hardware, but does not include services that require transmission of data
or information to or from the motor vehicle while the service is being used.
Restriction on Ownership of Dealerships
The bill revises the restriction on ownership of dealerships by licensees, distributors,
manufacturers, or agents of a manufacturer or distributor, or any parent, subsidiary, common
entity, or officer or representative of the licensee, as follows:
Adds “importer” to the list of entities that are restricted;
Specifies that a manufacturer, importer, or distributor may not directly or indirectly own,
operate, or control by contract, agreement, or otherwise a motor vehicle dealership for any
line-make in this state if the licensee, manufacturer, importer, or distributor has
manufactured, imported, or distributed motor vehicles of any line-make which have been
offered for sale under a franchise agreement in this state with an independent person;
Specifies that a person not prohibited from owning, operating, or controlling a motor vehicle
dealership may be issued a motor vehicle dealer license; and
Specifies that a person prohibited from owning, operating, or controlling a motor vehicle
dealership may not be issued a motor vehicle dealer license.
The bill limits the administrative authority of the DHSMV to provide an exception to the
ownership requirements in situations where no independent person is available in the community
or territory to own and operate a motor vehicle dealership in a manner consistent with the public
interest. The bill:
Specifies that the DHSMV’s authority only applies in these situations if the motor vehicle
dealership sells motor vehicles of a line-make which, at the time of the hearing, are offered
for sale by at least one other existing motor vehicle dealership not owned, operated, or
controlled by:
o The licensee;
o An officer or employed representative of the licensee;
o A parent, subsidiary, or common entity of the licensee; or
o A manufacturer, an importer, or a distributor.
The bill clarifies that dealerships that are owned and operated under any of the three exceptions
to the restriction on dealership ownership requirements must be continually made available for
sale to an independent person at a fair and reasonable price.
BILL: CS/CS/SB 712 Page 15
The bill also provides that neither a distributor nor an affiliate thereof may be licensed as a motor
vehicle dealer or own or operate a dealership that sells or services motor vehicles of the line-
make of motor vehicles distributed by the distributor.
DHSMV Inquiry of Written Complaints
The bill requires the DHSMV to conduct an inquiry of a manufacturer relating to a written
complaint alleging a violation of any provision of the Act is made by a Florida-franchised motor
vehicle dealer or a motor vehicle dealer association with at least one member with a current
franchise agreement issued by the manufacturer.
The DHSMV may use its subpoena power to compel production of, inspect pertinent books,
records, letters, and contracts of a licensee, and compel attendance of witnesses at deposition.
The DHSMV must commence the inquiry within 30 days after receipt of the written complaint,
and may allow the licensee subject of the complaint no more than 60 days to provide a written
response. Within, 30 days following the deadline to receive a written response, the DHSMV
must provide a written response to the complainant stating whether the DHSMV intends to take
action against the manufacturer and what action the DHSMV intends to take. Such actions may
include license suspension or revocation; denial of a license renewal application; assessment,
imposition, levy, and collection of an appropriate civil fine; or instituting a civil action for
issuance of an injunction.
The bill takes effect July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
BILL: CS/CS/SB 712 Page 16
E. Other Constitutional Issues:
The bill appears to apply only prospectively.63 Accordingly, it would apply only to
contracts entered into after the bill’s effective date.64 Thus, the bill does not appear to
impair existing contracts in violation of the contracts clauses of the Florida Constitution
or the United States Constitution.65
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill appears to further prevent manufacturers with established dealer franchises from
conducting direct-to-consumer sales or operating a dealership regardless of the type of
product being sold. Some manufacturers have indicated an intent to separate their electric
vehicle and internal combustion vehicle business models, similar to how they currently
separate cars and trucks, and some plan to offer a business model that is a hybrid between
the current model and the direct-to-consumer model used by some EV manufacturers.
There is debate about the economic impacts from allowing manufacturers to sell their
vehicles directly to consumers or changing current practices. Proponents generally argue
that the direct sales model lowers end prices for consumers, increases consumer choice
between industry brands, and gives manufacturers greater control over marketing and
sales. Opponents argue that the model reduces price competition, lowers consumer safety,
and reduces investments in local communities.66
The Federal Trade Commission (FTC) has advocated relaxing state franchise laws so that
manufacturers can create new, direct-to-consumer business models: “States should allow
consumers to choose not only the cars they buy, but also how they buy them.”67
63
See, e.g., Yamaha Parts Distributors Inc. v. Ehrman, 316 So. 2d 557, 559 (“Florida legislation is presumed to operate
prospectively unless there exists a showing on the face of the law that retroactive application is intended.”); Young v.
Altenhaus, 472 So. 2d 1152, 1153 (Fla. 1985) (stating that “in the absence of an explicit legislative expression to the contrary,
a substantive law is to be construed as having prospective effect only.”); Fla. Ins. Guar. Ass’n., Inc. v. Devon Neighborhood
Ass’n., Inc. 67 So. 3d 187, 196 (Fla. 2011) (stating that the inclusion of effective date generally rebuts intent for retroactive
application of law).
64
See, e.g., Yamaha Parts Distributors Inc. v. Ehrman, 316 So. 2d 557, 559 (stating that a law affecting contracts which
applies prospectively does not apply to contracts entered before the law’s effective date); State Farm Mut. Auto. Ins. Co. v.
Hassen, 650 So. 2d 128, 134 (Fla. 2d DCA 1995) (inferring that prospective application of a law affecting contracts means
applying it only to contracts arising after the law’s effective date).
65
See Fla. Const. art. I s. 10; U.S. Const. art. I s. 10.
66
Connecticut General Assembly, Office of Legislative Research, Arguments For and Against Direct Sales
by Motor Vehicle Manufacturers (Feb. 27, 2019), available at https://www.cga.ct.gov/2019/rpt/pdf/2019-R-0088.pdf (last
visited April 5, 2023).
67
Marina, et al., Direct-to-consumer auto sales: It’s not just about Tesla, Federal Trade Commission (May 11, 2015),
available at https://www.ftc.gov/enforcement/competition-matters/2015/05/direct-consumer-auto-sales-its-not-just-about-
tesla (last visited April 5, 2023).
BILL: CS/CS/SB 712 Page 17
The FTC has also proposed new rules aimed at combating rising consumer prices.68 The
FTC’s new rules propose to ban deceptive advertising in which dealerships market cars
as cheaper than they actually intend to sell them for; ban “junk fees for fraudulent add-on
products and services that provide no benefit to the consumer”; and require dealerships to
disclose all upfront costs and conditions for buying their vehicles.69
The National Auto Dealers Association (NADA) opposes these proposed rules: “The
FTC's proposed rules would cause great harm to consumers by significantly extending
transaction times, making the customer experience much more complex, inefficient, and
increasing prices. The NADA again urges the FTC to go back to the drawing board
before forcing implementation of a series of unstudied and untested mandates that will
have such significant negative impacts on customers.”70
C. Government Sector Impact:
The bill may have a negative indeterminate fiscal impact on the DHSMV to the extent
that the bill results in increased written complaints against manufacturers. Under the bill,
the DHSMV will be required to conduct an inquiry of a manufacturer if a written
compliant is made against such manufacturer.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 320.60, 320.605,
320.64, 320.642, 320.645, 320.67, 681.102 and 681.113.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Transportation on March 20, 2023:
The CS makes numerous changes to the bill. Specifically, it:
Clarifies that certain entities that would otherwise be considered a common entity of a
motor vehicle distributor are not a common entity under specified conditions.
68
Federal Trade Commission, FTC Proposes Rule to Ban Junk Fees, Bait-and-Switch Tactics Plaguing Car Buyers (June 23,
2022, available at https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-proposes-rule-ban-junk-fees-bait-
switch-tactics-plaguing-car-buyers (last visited April 5, 2023).
69
Id.
70
Rosalsky, supra note 9.
BILL: CS/CS/SB 712 Page 18
Revises the definition of “sell,” “selling,” “sold,” “exchange,” “retail sales,” and
“leases” to except facilitating a motor vehicle dealer’s acceptance of a deposit or
receipt of a payment from a customer, and excludes a website or other electronic
communication that identifies certain consumer-related information from the
definition.
Adds to the statement of legislative intent that ss. 320.61-320.70, F.S., are intended to
apply solely to the licensing of motor vehicles dealers and manufacturers and do not
apply to non-motor-vehicle-related businesses.
Prohibits a manufacturer from restricting the price that a dealer may sell or lease a
vehicle.
Revises the provision relating to the activation for a fee or sale of a motor vehicle
accessory, option, add-on, feature, improvement, or upgrade to provide that the
manufacturer must pay a Florida-franchised motor vehicle dealer a percentage of the
gross sale price for the accessory, option, add-on, feature, improvement, or upgrade
which is commensurate with the dealer margin structure applicable to the vehicle.
Provides that neither a distributor nor an affiliate thereof may be licensed as a motor
vehicle dealer or own or operate a dealership that sells or services motor vehicles of
the line-make of motor vehicles distributed by the distributor.
Requires the DHSMV to conduct an inquiry of a manufacturer relating to a written
complaint alleging a violation of any provision of the Act is made by a Florida-
franchised motor vehicle dealer or a motor vehicle dealer association with at least one
member with a current franchise agreement issued by the manufacturer.
Provides a timeframe for such inquiry and requires a written response to the
complainant stating whether DHSMV intends to take action against the manufacturer.
If DHSMV determines the manufacturer has violated the Act, DHSMV must take
appropriate action against the licensee. If the complainant is a motor vehicle dealer
association and the inquiry determines a violation has occurred, the motor vehicle
dealer association may seek a declaration and adjudication through an administrative
hearing.
Removes provisions from the bill authorizing motor vehicle dealer associations to
seek injunctive relief against manufacturers in specified situations.
CS by Commerce and Tourism on April 4, 2023:
The CS makes the following changes to the bill:
Clarifies that a manufacturer receiving payment under a retail installment sale
contract is not prohibited under the bill;
Adds to the legislative intent section that the Florida Automobile Dealers Act applies
solely to the licensing of manufacturers, factory branches, distributors, and importers
and does not apply to non-motor-vehicle-related businesses;
Removes the motor vehicle dealer association’s standing to intervene in hearings
pursuant to restrictions upon ownership of a dealership; and
Modifies changes made by the bill to the remote electronic transmission of permanent
or temporary features or improvements of a motor vehicle by:
o Providing that the manufacturer or common entity thereof is prohibited from
selling or activating such feature or improvement for a fee directly to the retail
consumer unless the manufacturer or common entity provides the dealer who sold
BILL: CS/CS/SB 712 Page 19
the vehicle a minimum of eight percent of the payment received for such feature
or improvement on any vehicle sold or leased as new in this state within the
preceding 3-year period.
o Clarifying the term “feature or improvement” includes the activation or use of
motor vehicle components or hardware, but does not includes services that require
the transmission of data or information to or from the motor vehicle while the
service is being used.
o Requires such payments be made to the dealer within 30 days of the date of sale
of the feature or improvement.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 712 Bill No. CS for SB 712
Ì224252{Î224252 Ì224252{Î224252
LEGISLATIVE ACTION 11 320.60 Definitions for ss. 320.61-320.70.—Whenever used in
Senate . House 12 ss. 320.61-320.70, unless the context otherwise requires, the
Comm: RCS . 13 following words and terms have the following meanings:
04/04/2023 . 14 (2) “Common entity” means a person:
. 15 (a) Who is directly or indirectly either controlled by or
. 16 has more than 30 percent of its equity interest directly or
. 17 indirectly owned, beneficially or of record, through any form of
18 ownership structure, by a manufacturer, an importer, a
19 distributor, or a licensee, or an affiliate thereof.
20 (b) Who has more than 30 percent of its equity interest
21 directly or indirectly controlled or owned, beneficially or of
22 record, through any form of ownership structure, by one or more
23 persons who also directly or indirectly control or own,
24 beneficially or of record, more than 30 40 percent of the voting
25 equity interests of a manufacturer, an importer, a distributor,
The Committee on Commerce and Tourism (Avila) recommended the 26 or a licensee, or an affiliate thereof; or
following: 27 (b) Who shares directors or officers or partners with a
28 manufacturer.
1 Senate Amendment (with title amendment) 29 (c) Notwithstanding the foregoing, an entity that would
2 30 otherwise be considered a common entity of a distributor under
3 Delete everything after the enacting clause 31 paragraph (a) or paragraph (b) because of its relation to a
4 and insert: 32 distributor is not considered a common entity of that
5 Section 1. Present subsections (8), (9), (10), (11), (12), 33 distributor if:
6 (13), (14), (15), and (16) of section 320.60, Florida Statutes, 34 1. The distributor that the entity is related to was a
7 are redesignated as subsections (9), (11), (12), (13), (14), 35 licensed distributor on March 1, 2023;
8 (18), (10), (16), and (17), respectively, new subsections (8) 36 2. The entity is not a common entity of a manufacturer or
9 and (14) are added to that section, and subsections (2) and 37 importer; and
10 present subsection (15) of that section are amended, to read: 38 3. The distributor that the entity is related to is not,
39 and has never been, a common entity of a manufacturer or
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40 importer. 69 for a motor vehicle being traded in as part of the purchase,
41 (8) “Independent person” means a person who is not an 70 lease, or other use of a motor vehicle, but does not include a
42 agent, parent, subsidiary, common entity, officer, director, or 71 website or other means of electronic communication that
43 an employed representative of a licensee, manufacturer, 72 identifies to a consumer a conditional trade-in value and that
44 importer, or distributor. 73 contains language informing the consumer that the trade-in value
45 (14) “Motor vehicle dealer association” means a not-for- 74 is not binding on any motor vehicle dealer;
46 profit entity organized under the laws of this state and 75 (f) Any transaction where the title of a motor vehicle or a
47 qualified as tax-exempt under s. 501(c)(6) of the Internal 76 used motor vehicle is transferred to a retail consumer; or, and
48 Revenue Code which acts as a trade association that primarily 77 also
49 represents the interests of franchised motor vehicle dealers and 78 (g) Any retail lease transaction where a retail consumer
50 has a membership of at least 500 franchised motor vehicle 79 customer leases a vehicle for a period of at least 12 months,
51 dealers as defined in s. 320.27(1)(c)1. 80 but does not include administering lease agreements, taking
52 (16)(15) “Sell,” “selling,” “sold,” “exchange,” “retail 81 assignments of leases, performing required actions pursuant to
53 sales,” and “leases” includes: 82 such leases, or receiving payments under a lease agreement that
54 (a) Accepting a deposit or receiving a payment for the 83 was originated by a motor vehicle dealer. Establishing a price
55 retail purchase, lease, or other use of a motor vehicle, but 84 for sale pursuant to s. 320.64(24) does not constitute a sale or
56 does not include facilitating a motor vehicle dealer’s 85 lease.
57 acceptance of a deposit or receipt of a payment from a consumer 86 Section 2. Section 320.605, Florida Statutes, is amended to
58 and does not include receiving payment under a retail 87 read:
59 installment sale contract; 88 320.605 Legislative intent.—It is the intent of the
60 (b) Accepting a reservation from a retail consumer for a 89 Legislature to protect the public health, safety, and welfare of
61 specific motor vehicle identified by a vehicle identification 90 the citizens of the state by regulating the licensing of motor
62 number or other product identifier; 91 vehicle dealers and manufacturers, maintaining competition,
63 (c) Setting the retail price for the purchase, lease, or 92 providing consumer protection and fair trade and providing
64 other use of a motor vehicle, but does not include setting a 93 minorities with opportunities for full participation as motor
65 manufacturer’s suggested retail price; 94 vehicle dealers. Sections 320.61-320.70 are intended to apply
66 (d) Offering or negotiating with a retail consumer terms 95 solely to the licensing of manufacturers, factory branches,
67 for the purchase, lease, or other use of a motor vehicle; 96 distributors, and importers and do not apply to non-motor-
68 (e) Offering or negotiating with a retail consumer a value 97 vehicle-related businesses.
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98 Section 3. Subsections (18), (23), and (24) of section 127 (d) Requires or incentivizes motor vehicle dealers to sell
99 320.64, Florida Statutes, are amended to read: 128 or lease a motor vehicle at a specified price or profit margin
100 320.64 Denial, suspension, or revocation of license; 129 or restricts the price at which a motor vehicle dealer may sell
101 grounds.—A license of a licensee under s. 320.61 may be denied, 130 or lease a motor vehicle; or
102 suspended, or revoked within the entire state or at any specific 131 (e) Is, or which otherwise is unfair, inequitable,
103 location or locations within the state at which the applicant or 132 unreasonably discriminatory, or not supportable by reason and
104 licensee engages or proposes to engage in business, upon proof 133 good cause after considering the equities of the affected motor
105 that the section was violated with sufficient frequency to 134 vehicles dealer or dealers. As used in this paragraph, “unfair”
106 establish a pattern of wrongdoing, and a licensee or applicant 135 includes, but is not limited to, refusing or failing to offer to
107 shall be liable for claims and remedies provided in ss. 320.695 136 any dealer an equitable supply of new vehicles under its
108 and 320.697 for any violation of any of the following 137 franchise, by model, mix, or color, as the licensee offers or
109 provisions. A licensee is prohibited from committing the 138 allocates to its other same line-make dealers in this state or
110 following acts: 139 using the number of motor vehicles preordered or reserved by
111 (18) The applicant or licensee has established a system of 140 consumers as a factor in determining the allocation of motor
112 motor vehicle allocation or distribution or has implemented a 141 vehicles to motor vehicle dealers.
113 system of allocation or distribution of motor vehicles to one or 142
114 more of its franchised motor vehicle dealers which: 143 An applicant or licensee shall maintain for 3 years records that
115 (a) Reduces or alters allocations or supplies of new motor 144 describe its methods or formula of allocation and distribution
116 vehicles to the dealer to achieve, directly or indirectly, a 145 of its motor vehicles and records of its actual allocation and
117 purpose that is prohibited by ss. 320.60-320.70; 146 distribution of motor vehicles to its motor vehicle dealers in
118 (b) Conditionally or unconditionally reserves a specific 147 this state. As used in this subsection, “unfair” includes,
119 motor vehicle identified by vehicle identification number or 148 without limitation, the refusal or failure to offer to any
120 other unique identifier for a specifically named person, except 149 dealer an equitable supply of new vehicles under its franchise,
121 for purposes of replacing a consumer’s vehicle pursuant to 150 by model, mix, or colors as the licensee offers or allocates to
122 chapter 681; 151 its other same line-make dealers in the state.
123 (c) Requires or incentivizes motor vehicle dealers to sell 152 (23) The applicant or licensee has engaged in any of the
124 or lease, or to negotiate the sale or lease of, a specific motor 153 activities of a motor vehicle dealer as defined in s.
125 vehicle identified by vehicle identification number or other 154 320.60(13)(a) and (16) or has competed or is competing with
126 unique identifier to a specifically named person; 155 respect to any activity covered by the franchise agreement with
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156 a motor vehicle dealer of the same line-make located in this 185 that require the transmission of data or information to or from
157 state with whom the applicant or licensee has entered into a 186 the motor vehicle while the service is being used. Payments
158 franchise agreement, except as permitted in s. 320.645 or in 187 required under this subsection shall be made within 30 days of
159 subsection (24) with respect to the remote electronic 188 the date of sale of the feature or improvement.
160 transmission of a permanent or temporary feature or improvement 189 (b) For motorcycle dealers, manufacturers, factory
161 of a motor vehicle. 190 branches, distributors, or importers, such applicant or licensee
162 (24)(a) Except as provided in paragraph (b), the applicant 191 has sold a motorcycle to any retail consumer in the state except
163 or licensee, or common entity thereof, has sold or leased a 192 through a dealer holding a franchise agreement for the line-make
164 motor vehicle to any retail consumer in the state, or has sold 193 that includes the motorcycle.
165 or activated for a fee to any retail consumer in this state any 194 (c) This subsection section does not apply to sales by the
166 permanent or temporary motor vehicle feature or improvement that 195 applicant or licensee of motor vehicles to its current
167 functions through hardware or components installed on the motor 196 employees, employees of companies affiliated by common
168 vehicle, except through a motor vehicle dealer properly licensed 197 ownership, charitable not-for-profit organizations, and the
169 pursuant to s. 320.27 and holding a franchise agreement for the 198 Federal Government.
170 line-make that includes the motor vehicle. Notwithstanding this 199
171 subsection, an applicant or a licensee, or common entity 200 A motor vehicle dealer who can demonstrate that a violation of,
172 thereof, may sell or activate for a fee a permanent or temporary 201 or failure to comply with, any of the preceding provisions by an
173 motor vehicle feature or improvement to a retail consumer in 202 applicant or licensee will or may adversely and pecuniarily
174 this state only if the feature or improvement is provided 203 affect the complaining dealer, shall be entitled to pursue all
175 directly to the motor vehicle through remote electronic 204 of the remedies, procedures, and rights of recovery available
176 transmission, provided that if such motor vehicle was sold or 205 under ss. 320.695 and 320.697.
177 leased as new by a motor vehicle dealer in this state within the 206 Section 4. Subsection (6) of section 320.642, Florida
178 3-year period preceding such remote electronic transmission, 207 Statutes, is amended to read:
179 then the applicant or licensee must pay the such motor vehicle 208 320.642 Dealer licenses in areas previously served;
180 dealer a minimum of 8 percent of the payment received by the 209 procedure.—
181 applicant, licensee, or common entity from the sale of the 210 (6) When a proposed addition or relocation concerns a
182 feature or improvement. As used in this subsection, the term 211 dealership that performs or is to perform only service, as
183 “feature or improvement” includes the activation or use of motor 212 defined in s. 320.60 s. 320.60(16), and will not or does not
184 vehicle components or hardware, but does not include services 213 sell or lease new motor vehicles, as defined in s. 320.60 s.
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214 320.60(15), the proposal shall be subject to notice and protest 243 4. With respect to subparagraph (2)(b)11., only the volume
215 pursuant to the provisions of this section. 244 of service business transacted shall be considered.
216 (a) Standing to protest the addition or relocation of a 245 (d) If an application for a service-only dealership is
217 service-only dealership shall be limited to those instances in 246 granted, the department shall issue a license which permits only
218 which the applicable mileage requirement established in 247 service, as defined in s. 320.60 s. 320.60(16), and does not
219 subparagraphs (3)(a)2. and (3)(b)1. is met. 248 permit the selling or leasing of new motor vehicles, as defined
220 (b) The addition or relocation of a service-only dealership 249 in s. 320.60 s. 320.60(15). If a service-only dealership
221 shall not be subject to protest if: 250 subsequently seeks to sell new motor vehicles at its location,
222 1. The applicant for the service-only dealership location 251 the notice and protest provisions of this section shall apply.
223 is an existing motor vehicle dealer of the same line-make as the 252 Section 5. Subsection (1), paragraph (a) of subsection (2),
224 proposed additional or relocated service-only dealership; 253 and subsection (4) of section 320.645, Florida Statutes, are
225 2. There is no existing dealer of the same line-make closer 254 amended to read:
226 than the applicant to the proposed location of the additional or 255 320.645 Restriction upon ownership of dealership by
227 relocated service-only dealership; and 256 licensee.—
228 3. The proposed location of the additional or relocated 257 (1) A No licensee, manufacturer, importer, or distributor,
229 service-only dealership is at least 7 miles from all existing 258 manufacturer, or agent of the licensee, a manufacturer,
230 motor vehicle dealerships of the same line-make, other than 259 importer, or distributor, or any parent, subsidiary, common
231 motor vehicle dealerships owned by the applicant. 260 entity, or officer, or employed representative of the licensee,
232 (c) In determining whether existing franchised motor 261 manufacturer, importer, or distributor may not directly or
233 vehicle dealers are providing adequate representations in the 262 indirectly shall own, or operate, or control, by contract,
234 community or territory for the line-make in question in a 263 agreement, or otherwise either directly or indirectly, a motor
235 protest of the proposed addition or relocation of a service-only 264 vehicle dealership for any line-make in this state if the
236 dealership, the department may consider the elements set forth 265 licensee, manufacturer, importer, or distributor has
237 in paragraph (2)(b), provided: 266 manufactured, imported, or distributed for the sale or service
238 1. With respect to subparagraph (2)(b)1., only the impact 267 of motor vehicles of any line-make which have been or are
239 as it relates to service may be considered; 268 offered for sale under a franchise agreement with a motor
240 2. Subparagraph (2)(b)3. shall not be considered; 269 vehicle dealer in this state with an independent person. Any
241 3. With respect to subparagraph (2)(b)9., only service 270 person who is not prohibited by this section from owning,
242 facilities shall be considered; and 271 operating, or controlling a motor vehicle dealership may be
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272 issued a license pursuant to s. 320.27. Any person prohibited by 301 is offered for sale by at least one other existing motor vehicle
273 this section from owning, operating, or controlling a motor 302 dealership not owned, operated, or controlled by the licensee,
274 vehicle dealership. A licensee may not be issued a motor vehicle 303 an officer or employed representative of the licensee, a parent,
275 dealer license pursuant to s. 320.27. However, a no such 304 subsidiary, or common entity of the licensee, or a manufacturer,
276 licensee subject to the prohibition in this section is not will 305 importer, or distributor.
277 be deemed to be in violation of this section: 306
278 (a) When operating a motor vehicle dealership for a 307 In the any such case of a, the licensee must continue to make
279 temporary period, not to exceed 1 year, during the transition 308 the motor vehicle dealership owned or operated pursuant to
280 from one owner of the motor vehicle dealership to another; 309 paragraph (a), paragraph (b), or paragraph (c), the dealership
281 (b) When operating a motor vehicle dealership temporarily 310 must be continually made available for sale to an independent
282 for a reasonable period for the exclusive purpose of broadening 311 person at a fair and reasonable price. Approval of the sale of
283 the diversity of its dealer body and enhancing opportunities for 312 such a motor vehicle dealership to a proposed motor vehicle
284 qualified persons who are part of a group that has historically 313 dealer shall not be unreasonably withheld.
285 been underrepresented in its dealer body, or for other qualified 314 (2) As used in this section, the term:
286 persons who the licensee deems lack the resources to purchase or 315 (a) “Independent person” is a person who is not an officer,
287 capitalize the dealership outright, in a bona fide relationship 316 director, or employee of the licensee.
288 with an independent person, other than a licensee or its agent 317 (4) Nothing in this chapter shall prohibit a distributor as
289 or affiliate, who has made a significant investment that is 318 defined in s. 320.60 s. 320.60(5) or common entity an affiliate
290 subject to loss in the dealership within the dealership’s first 319 thereof that is not a manufacturer or importer, a division of a
291 year of operation and who can reasonably expect to acquire full 320 manufacturer or importer, an entity that is controlled by a
292 ownership of the dealership on reasonable terms and conditions; 321 manufacturer or importer, or a common entity of a manufacturer
293 or 322 or importer, and that is not owned, in whole or in part,
294 (c) If the department determines, after a hearing on the 323 directly or indirectly, by a manufacturer or importer, as
295 matter, pursuant to chapter 120, at the request of any person, 324 defined in s. 320.60 s. 320.60(9), from receiving a license or
296 that there is no independent person available in the community 325 licenses as defined in s. 320.27 and owning and operating a
297 or territory to own and operate the motor vehicle dealership in 326 motor vehicle dealership or dealerships that sell or service
298 a manner consistent with the public interest. This paragraph 327 motor vehicles other than any line-make of motor vehicles
299 shall apply only if the motor vehicle dealership at issue sells 328 distributed by the distributor. Neither a distributor nor an
300 motor vehicles of a line-make that, at the time of the hearing, 329 affiliate thereof may receive a license pursuant to s. 320.27
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330 for a motor vehicle dealership, or own or operate a motor 359 the department intends to take action against the licensee under
331 vehicle dealership, that sells or services motor vehicles of the 360 subsection (3) and, if so, what action the department intends to
332 line-make of motor vehicles distributed by the distributor. 361 take. Any information obtained may not be used against the
333 Section 6. Section 320.67, Florida Statutes, is amended to 362 licensee as the basis for a criminal prosecution under the laws
334 read: 363 of this state.
335 320.67 Inquiry and inspection of books or other documents 364 (3) If, as the result of an inquiry conducted under this
336 of licensee.— 365 section, the department determines that a licensee has violated
337 (1) The department shall conduct an inquiry of a licensee 366 ss. 320.60-320.70, the department must take appropriate action
338 may inspect the pertinent books, records, letters, and contracts 367 against the licensee, which may include license suspension or
339 of a licensee relating to any written complaint alleging a 368 revocation; denial of a license renewal application; assessment,
340 violation of any provision of ss. 320.60-320.70 made to it 369 imposition, levy, and collection of an appropriate civil fine;
341 against such licensee made by a motor vehicle dealer with a 370 or instituting a civil action for issuance of an injunction
342 current franchise agreement issued by the licensee, or a motor 371 pursuant to s. 320.695.
343 vehicle dealer association with at least one member with a 372 (4) This section does not alter or affect the rights of a
344 current franchise agreement issued by the licensee. 373 motor vehicle dealer to bring a claim or action against a
345 (2) In the exercise of its duties under this section, the 374 licensee pursuant to any other provision of ss. 320.60-320.70.
346 department is granted and authorized to exercise the power of 375 Section 7. Subsection (13) of section 681.102, Florida
347 subpoena for the purposes of compelling production of and 376 Statutes, is amended to read:
348 inspecting pertinent books, records, letters, and contracts of a 377 681.102 Definitions.—As used in this chapter, the term:
349 licensee and compelling the attendance of witnesses at 378 (13) “Manufacturer” means any person, whether a resident or
350 deposition and the production of any documentary evidence 379 nonresident of this state, who manufactures or assembles motor
351 necessary to the disposition by it of any written complaint 380 vehicles, or who manufactures or assembles chassis for
352 under this section. The inquiry required by this section must be 381 recreational vehicles, or who manufactures or installs on
353 commenced within 30 days after receipt of the written complaint. 382 previously assembled truck or recreational vehicle chassis
354 The department may allow the licensee that is the subject of the 383 special bodies or equipment which, when installed, forms an
355 complaint no more than 60 days from commencement of the inquiry 384 integral part of the motor vehicle, or a distributor or an
356 to provide a written response. Within 30 days after the deadline 385 importer as those terms are defined in s. 320.60 s. 320.60(5),
357 for a written response by the licensee, the department must 386 or an importer as defined in s. 320.60(7). A dealer as defined
358 provide a written response to the complainant stating whether 387 in s. 320.60 s. 320.60(11)(a) shall not be deemed to be a
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388 manufacturer, distributor, or importer as provided in this 417 applicant or a licensee from certain actions in the
389 section. 418 allocation or distribution of motor vehicles to
390 Section 8. Section 681.113, Florida Statutes, is amended to 419 franchised motor vehicle dealers; revising the
391 read: 420 definition of the term “unfair”; prohibiting
392 681.113 Dealer liability.—Except as provided in ss. 421 applicants and licensees from engaging in certain
393 681.103(3) and 681.114(2), nothing in this chapter imposes any 422 activities of motor vehicle dealers; authorizing an
394 liability on a dealer as defined in s. 320.60 s. 320.60(11)(a) 423 applicant or licensee, or common entity thereof, to
395 or creates a cause of action by a consumer against a dealer, 424 sell or activate certain motor vehicle features or
396 except for written express warranties made by the dealer apart 425 improvements through remote electronic transmission;
397 from the manufacturer’s warranties. A dealer may not be made a 426 providing for a payment of the percentage of such sale
398 party defendant in any action involving or relating to this 427 or activation to a motor vehicle dealer; providing
399 chapter, except as provided in this section. The manufacturer 428 applicability; amending s. 320.642, F.S.; conforming
400 shall not charge back or require reimbursement by the dealer for 429 cross-references; amending s. 320.645, F.S.; revising
401 any costs, including, but not limited to, any refunds or vehicle 430 provisions prohibiting a manufacturer, a distributor,
402 replacements, incurred by the manufacturer arising out of this 431 or an importer from owning, operating, or controlling
403 chapter, in the absence of evidence that the related repairs had 432 a motor vehicle dealership in this state; specifying
404 been carried out by the dealer in a manner substantially 433 when certain licenses may be and are prohibited from
405 inconsistent with the manufacturer’s published instructions. 434 being issued; revising exceptions to certain
406 Section 9. This act shall take effect July 1, 2023. 435 prohibitions on licensees; providing applicability;
407 436 making technical changes; deleting the definition of
408 ================= T I T L E A M E N D M E N T ================ 437 the term “independent person”; conforming cross-
409 And the title is amended as follows: 438 references; amending s. 320.67, F.S.; requiring the
410 Delete everything before the enacting clause 439 Department of Highway Safety and Motor Vehicles to
411 and insert: 440 conduct an inquiry relating to certain written
412 A bill to be entitled 441 complaints; providing purposes of the department’s use
413 An act relating to motor vehicle sales; amending s. 442 of a subpoena; authorizing the department to allow a
414 320.60, F.S.; revising and providing definitions; 443 written response to the complaint; requiring the
415 amending s. 320.605, F.S.; providing legislative 444 department to commence the inquiry by a certain
416 intent; amending s. 320.64, F.S.; prohibiting an 445 timeframe; requiring the department to provide a
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446 certain written response to the complainant by a LEGISLATIVE ACTION
447 certain date; requiring the department to take certain Senate . House
448 action if the department determines that a licensee Comm: FAV .
449 violated certain statutes; providing construction; 04/04/2023 .
450 amending ss. 681.102 and 681.113, F.S.; conforming .
451 cross-references; providing an effective date. .
.
The Committee on Commerce and Tourism (Avila) recommended the
following:
1 Senate Amendment to Amendment (224252) (with title
2 amendment)
3
4 Delete lines 19 - 194
5 and insert:
6 distributor, or a licensee, or an affiliate thereof; or
7 (b) Who has more than 30 percent of its equity interest
8 directly or indirectly controlled or owned, beneficially or of
9 record, through any form of ownership structure, by one or more
10 persons who also directly or indirectly control or own,
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11 beneficially or of record, more than 30 40 percent of the voting 40 sales,” and “leases” includes:
12 equity interests of a manufacturer, an importer, a distributor, 41 (a) Accepting a deposit or receiving a payment for the
13 or a licensee, or an affiliate thereof; or 42 retail purchase, lease, or other use of a motor vehicle, but
14 (b) Who shares directors or officers or partners with a 43 does not include facilitating a motor vehicle dealer’s
15 manufacturer. 44 acceptance of a deposit or receipt of a payment from a consumer,
16 (c) Notwithstanding the foregoing, an entity that would 45 and does not include receiving payment under a retail
17 otherwise be considered a common entity of a distributor under 46 installment sale contract;
18 paragraph (a) or paragraph (b) because of its relation to a 47 (b) Accepting a reservation from a retail consumer for a
19 distributor is not considered a common entity of that 48 specific motor vehicle identified by a vehicle identification
20 distributor if: 49 number or other product identifier;
21 1. The distributor that the entity is related to was a 50 (c) Setting the retail price for the purchase, lease, or
22 licensed distributor on March 1, 2023; 51 other use of a motor vehicle, but does not include setting a
23 2. The entity is not a common entity of a manufacturer or 52 Manufacturer’s Suggested Retail Price;
24 importer; and 53 (d) Offering or negotiating with a retail consumer terms
25 3. The distributor that the entity is related to is not, 54 for the purchase, lease, or other use of a motor vehicle;
26 and has never been, a common entity of a manufacturer or 55 (e) Offering or negotiating with a retail consumer a value
27 importer. 56 for a motor vehicle being traded in as part of the purchase,
28 (8) “Independent person” means a person who is not an 57 lease, or other use of a motor vehicle, but does not include a
29 agent, parent, subsidiary, common entity, officer, director, or 58 website or other means of electronic communication that
30 an employed representative of a licensee, manufacturer, 59 identifies to a consumer a conditional trade-in value and that
31 importer, or distributor. 60 contains language informing the consumer that the trade-in value
32 (14) “Motor vehicle dealer association” means a not-for- 61 is not binding on any motor vehicle dealer;
33 profit entity organized under the laws of this state and 62 (f) Any transaction where the title of a motor vehicle or a
34 qualified as tax-exempt under s. 501(c)(6) of the Internal 63 used motor vehicle is transferred to a retail consumer; or, and
35 Revenue Code which acts as a trade association that primarily 64 also
36 represents the interests of franchised motor vehicle dealers and 65 (g) Any retail lease transaction where a retail consumer
37 has a membership of at least 500 franchised motor vehicle 66 customer leases a vehicle for a period of at least 12 months,
38 dealers as defined in s. 320.27(1)(c)1. 67 but does not include administering lease agreements, taking
39 (16)(15) “Sell,” “selling,” “sold,” “exchange,” “retail 68 assignments of leases, performing required actions pursuant to
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69 such leases, or receiving payments under a lease agreement that 98 (18) The applicant or licensee has established a system of
70 was originated by a motor vehicle dealer. Establishing a price 99 motor vehicle allocation or distribution or has implemented a
71 for sale pursuant to s. 320.64(24) does not constitute a sale or 100 system of allocation or distribution of motor vehicles to one or
72 lease. 101 more of its franchised motor vehicle dealers which:
73 Section 2. Section 320.605, Florida Statutes, is amended to 102 (a) Reduces or alters allocations or supplies of new motor
74 read: 103 vehicles to the dealer to achieve, directly or indirectly, a
75 320.605 Legislative intent.—It is the intent of the 104 purpose that is prohibited by ss. 320.60-320.70;
76 Legislature to protect the public health, safety, and welfare of 105 (b) Conditionally or unconditionally reserves a specific
77 the citizens of the state by regulating the licensing of motor 106 motor vehicle identified by vehicle identification number or
78 vehicle dealers and manufacturers, maintaining competition, 107 other unique identifier for a specifically named person, except
79 providing consumer protection and fair trade and providing 108 for purposes of replacing a consumer’s vehicle pursuant to
80 minorities with opportunities for full participation as motor 109 chapter 681;
81 vehicle dealers. Sections 320.61-320.70 are intended to apply 110 (c) Requires or incentivizes motor vehicle dealers to sell
82 solely to the licensing of manufacturers, factory branches, 111 or lease, or to negotiate the sale or lease of, a specific motor
83 distributors, and importers and do not apply to non-motor- 112 vehicle identified by vehicle identification number or other
84 vehicle-related businesses. 113 unique identifier to a specifically named person;
85 Section 3. Subsections (18), (23), and (24) of section 114 (d) Requires or incentivizes motor vehicle dealers to sell
86 320.64, Florida Statutes, are amended to read: 115 or lease a motor vehicle at a specified price or profit margin
87 320.64 Denial, suspension, or revocation of license; 116 or restricts the price at which a motor vehicle dealer may sell
88 grounds.—A license of a licensee under s. 320.61 may be denied, 117 or lease a motor vehicle; or
89 suspended, or revoked within the entire state or at any specific 118 (e) Is, or which otherwise is unfair, inequitable,
90 location or locations within the state at which the applicant or 119 unreasonably discriminatory, or not supportable by reason and
91 licensee engages or proposes to engage in business, upon proof 120 good cause after considering the equities of the affected motor
92 that the section was violated with sufficient frequency to 121 vehicles dealer or dealers. As used in this paragraph, the term
93 establish a pattern of wrongdoing, and a licensee or applicant 122 “unfair” includes, but is not limited to, refusing or failing to
94 shall be liable for claims and remedies provided in ss. 320.695 123 offer to any dealer an equitable supply of new vehicles under
95 and 320.697 for any violation of any of the following 124 its franchise, by model, mix, or color, as the licensee offers
96 provisions. A licensee is prohibited from committing the 125 or allocates to its other same line-make dealers in this state
97 following acts: 126 or using the number of motor vehicles preordered or reserved by
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127 consumers as a factor in determining the allocation of motor 156 holding a franchise agreement for the line-make that includes
128 vehicles to motor vehicle dealers. 157 the motor vehicle. Notwithstanding this subsection, an applicant
129 158 or a licensee, or common entity thereof, may sell or activate
130 An applicant or licensee shall maintain for 3 years records that 159 for a fee a permanent or temporary motor vehicle feature or
131 describe its methods or formula of allocation and distribution 160 improvement to a retail consumer in this state only if the
132 of its motor vehicles and records of its actual allocation and 161 feature or improvement is provided directly to the motor vehicle
133 distribution of motor vehicles to its motor vehicle dealers in 162 through remote electronic transmission, provided that if such
134 this state. As used in this subsection, “unfair” includes, 163 motor vehicle was sold or leased as new by a motor vehicle
135 without limitation, the refusal or failure to offer to any 164 dealer in this state within the 3-year period preceding such
136 dealer an equitable supply of new vehicles under its franchise, 165 remote electronic transmission, the applicant or licensee must
137 by model, mix, or colors as the licensee offers or allocates to 166 pay such motor vehicle dealer a minimum of 8 percent of the
138 its other same line-make dealers in the state. 167 payment received by the applicant, licensee, or common entity
139 (23) The applicant or licensee has engaged in any of the 168 from the sale of the feature or improvement. As used in this
140 activities of a motor vehicle dealer as defined in s. 169 subsection, the term “feature or improvement” includes the
141 320.60(13)(a) or any activities described in s. 320.60(16) or 170 activation or use of motor vehicle components or hardware, but
142 has competed or is competing with respect to any activity 171 does not include services that require the transmission of data
143 covered by the franchise agreement with a motor vehicle dealer 172 or information to or from the motor vehicle while the service is
144 of the same line-make located in this state with whom the 173 being used. Payments required under this subsection shall be
145 applicant or licensee has entered into a franchise agreement, 174 made within 30 days after the date of sale of the feature or
146 except as permitted in s. 320.645 or in subsection (24) with 175 improvement. This subsection section does not apply to sales by
147 respect to the remote electronic transmission of a permanent or 176 the
148 temporary feature or improvement of a motor vehicle. 177
149 (24) The applicant or licensee, or common entity thereof, 178 ================= T I T L E A M E N D M E N T ================
150 has sold or leased a motor vehicle to any retail consumer in 179 And the title is amended as follows:
151 this state, or has sold or activated for a fee to any retail 180 Delete lines 428 - 444
152 consumer in the state any permanent or temporary motor vehicle 181 and insert:
153 feature or improvement that functions through hardware or 182 applicability; requiring certain payments to be made
154 components installed on the motor vehicle, except through a 183 within a certain timeframe; amending s. 320.642, F.S.;
155 motor vehicle dealer properly licensed pursuant to s. 320.27 and 184 conforming cross-references; amending s. 320.645,
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185 F.S.; revising provisions prohibiting a manufacturer,
186 a distributor, or an importer from owning, operating,
187 or controlling a motor vehicle dealership in this
188 state; specifying when certain licenses may be and are
189 prohibited from being issued; revising exceptions to
190 certain prohibitions on licensees; providing
191 applicability; making technical changes; deleting the
192 definition of the term “independent person”;
193 conforming cross-references; amending s. 320.67, F.S.;
194 requiring the Department of Highway Safety and Motor
195 Vehicles to conduct an inquiry relating to certain
196 written complaints; providing purposes of the
197 department’s use of a subpoena; authorizing the
198 department to allow a written response to the
199 complaint; requiring the department to commence the
200 inquiry within a certain
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By the Committee on Transportation; and Senators Avila and
Garcia
596-02773-23 2023712c1 596-02773-23 2023712c1
1 A bill to be entitled 30 references; amending s. 320.67, F.S.; requiring the
2 An act relating to motor vehicle sales; amending s. 31 Department of Highway Safety and Motor Vehicles to
3 320.60, F.S.; revising and providing definitions; 32 conduct an inquiry relating to certain written
4 amending s. 320.605, F.S.; providing legislative 33 complaints; providing purposes of the department’s use
5 intent; amending s. 320.64, F.S.; prohibiting an 34 of a subpoena; authorizing the department to allow a
6 applicant or a licensee from certain actions in the 35 written response to the complaint; requiring the
7 allocation or distribution of motor vehicles to 36 department to commence the inquiry by a certain
8 franchised motor vehicle dealers; revising the 37 timeframe; requiring the department to provide a
9 definition of the term “unfair”; prohibiting 38 certain written response to the complainant by a
10 applicants and licensees from engaging in certain 39 certain date; requiring the department to take certain
11 activities of motor vehicle dealers; authorizing an 40 action if the department determines that a licensee
12 applicant, a licensee, or their common entity to sell 41 violated certain statutes; authorizing a motor vehicle
13 or activate certain motor vehicle accessories or 42 dealer association to file an administrative action
14 features through remote electronic transmission; 43 regarding such complaint in certain circumstances;
15 providing for revenue-sharing regarding such sale or 44 providing construction; amending ss. 681.102 and
16 activation; providing for the calculation of the 45 681.113, F.S.; conforming cross-references; providing
17 dealer margin structure; providing applicability; 46 an effective date.
18 amending s. 320.642, F.S.; conforming cross- 47
19 references; amending s. 320.645, F.S.; revising 48 Be It Enacted by the Legislature of the State of Florida:
20 provisions prohibiting a manufacturer, a distributor, 49
21 or an importer from owning, operating, or controlling 50 Section 1. Present subsections (8), (9), (10), (11), (12),
22 a motor vehicle dealership in this state; specifying 51 (13), (14), (15), and (16) of section 320.60, Florida Statutes,
23 when certain licenses may be and are prohibited from 52 are redesignated as subsections (9), (11), (12), (13), (15),
24 being issued; revising exceptions to certain 53 (18), (10), (16), and (17), respectively, new subsections (8)
25 prohibitions on licensees; providing applicability; 54 and (13) are added to that section, and subsection (2) and
26 providing that a motor vehicle dealer association has 55 present subsection (15) of that section are amended, to read:
27 standing to intervene under certain circumstances; 56 320.60 Definitions for ss. 320.61-320.70.—Whenever used in
28 making technical changes; deleting the definition of 57 ss. 320.61-320.70, unless the context otherwise requires, the
29 the term “independent person”; conforming cross- 58 following words and terms have the following meanings:
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59 (2) “Common entity” means a person: 88 employee of the licensee or an employed representative of a
60 (a) Who is directly or indirectly either controlled by or 89 licensee, manufacturer, importer, or distributor.
61 has more than 30 percent of its equity interest directly or 90 (14) “Motor vehicle dealer association” means a not-for-
62 indirectly owned, beneficially or of record, through any form of 91 profit entity organized under the laws of this state and
63 ownership structure, by a manufacturer, an importer, a 92 qualified as tax-exempt under s. 501(c)(6) of the Internal
64 distributor, or a licensee, or an affiliate thereof. 93 Revenue Code which acts as a trade association that primarily
65 (b) Who has more than 30 percent of its equity interest 94 represents the interests of franchised motor vehicle dealers and
66 directly or indirectly controlled or owned, beneficially or of 95 has a membership of at least 500 franchised motor vehicle
67 record, through any form of ownership structure, by one or more 96 dealers as defined in s. 320.27(1)(c)1.
68 persons who also directly or indirectly control or own, 97 (16)(15) “Sell,” “selling,” “sold,” “exchange,” “retail
69 beneficially or of record, more than 30 40 percent of the voting 98 sales,” and “leases” includes:
70 equity interests of a manufacturer, an importer, a distributor, 99 (a) Accepting a deposit or receiving a payment for the
71 or a licensee, or an affiliate thereof; or 100 purchase, lease, or other use of a motor vehicle, but does not
72 (b) Who shares directors or officers or partners with a 101 include facilitating a motor vehicle dealer’s acceptance or a
73 manufacturer. 102 deposit or receipt of a payment from a consumer;
74 (c) Notwithstanding the foregoing, an entity that would 103 (b) Accepting a reservation from a retail consumer for a
75 otherwise be considered a common entity of a distributor under 104 specific motor vehicle identified by a vehicle identification
76 paragraph (a) or paragraph (b) because of its relation to a 105 number or other product identifier;
77 distributor is not considered a common entity of that 106 (c) Setting the retail price for the purchase, lease, or
78 distributor if: 107 other use of a motor vehicle;
79 1. The distributor that the entity is related to was a 108 (d) Offering or negotiating with a retail consumer terms
80 licensed distributor on March 1, 2023; 109 for the purchase, lease, financing, or other use of a motor
81 2. The entity is not a common entity of a manufacturer or 110 vehicle;
82 importer; and 111 (e) Offering or negotiating with a retail consumer a value
83 3. The distributor that the entity is related to is not, 112 for a motor vehicle being traded in as part of the purchase,
84 and has never been, a common entity of a manufacturer or 113 lease, or other use of a motor vehicle, but does not include a
85 importer. 114 website or other means of electronic communication that
86 (8) “Independent person” means a person who is not an 115 identifies to a consumer a conditional trade-in value and that
87 agent, parent, subsidiary, common entity, officer, director, or 116 contains language informing the consumer that the trade-in value
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117 is not binding on any motor vehicle dealer; 146 Section 3. Subsections (18), (23), and (24) of section
118 (f) Offering or negotiating with a retail consumer any 147 320.64, Florida Statutes, are amended to read:
119 service contract, extended warranty, vehicle maintenance 148 320.64 Denial, suspension, or revocation of license;
120 contract, guaranteed asset protection agreement, or any other 149 grounds.—A license of a licensee under s. 320.61 may be denied,
121 vehicle-related products or services in connection with the 150 suspended, or revoked within the entire state or at any specific
122 purchase or lease of a motor vehicle; 151 location or locations within the state at which the applicant or
123 (g) Any transaction where the title of a motor vehicle or a 152 licensee engages or proposes to engage in business, upon proof
124 used motor vehicle is transferred to a retail consumer; or, and 153 that the section was violated with sufficient frequency to
125 also 154 establish a pattern of wrongdoing, and a licensee or applicant
126 (h) Any retail lease transaction where a retail consumer 155 shall be liable for claims and remedies provided in ss. 320.695
127 customer leases a vehicle for a period of at least 12 months, 156 and 320.697 for any violation of any of the following
128 but does not include administering lease agreements, taking 157 provisions. A licensee is prohibited from committing the
129 assignments of leases, performing required actions pursuant to 158 following acts:
130 such leases, or receiving payments under a lease agreement that 159 (18) The applicant or licensee has established a system of
131 was originated by a motor vehicle dealer. Establishing a price 160 motor vehicle allocation or distribution or has implemented a
132 for sale pursuant to s. 320.64(24) does not constitute a sale or 161 system of allocation or distribution of motor vehicles to one or
133 lease. 162 more of its franchised motor vehicle dealers which:
134 Section 2. Section 320.605, Florida Statutes, is amended to 163 (a) Reduces or alters allocations or supplies of new motor
135 read: 164 vehicles to the dealer to achieve, directly or indirectly, a
136 320.605 Legislative intent.—It is the intent of the 165 purpose that is prohibited by ss. 320.60-320.70;
137 Legislature to protect the public health, safety, and welfare of 166 (b) Conditionally or unconditionally reserves a specific
138 the citizens of the state by regulating the licensing of motor 167 motor vehicle identified by vehicle identification number or
139 vehicle dealers and manufacturers, maintaining competition, 168 other unique identifier for a specifically named person, except
140 providing consumer protection and fair trade and providing 169 for purposes of replacing a consumer’s vehicle pursuant to
141 minorities with opportunities for full participation as motor 170 chapter 681;
142 vehicle dealers. Sections 320.61-320.70 are intended to apply 171 (c) Requires or incentivizes motor vehicle dealers to sell
143 solely to the licensing of motor vehicle dealers and 172 or lease, or to negotiate the sale or lease of, a specific motor
144 manufacturers and do not apply to non-motor-vehicle-related 173 vehicle identified by vehicle identification number or other
145 businesses. 174 unique identifier to a specifically named person;
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175 (d) Requires or incentivizes motor vehicle dealers to sell 204 of the same line-make located in this state with whom the
176 or lease a motor vehicle at a specified price or profit margin 205 applicant or licensee has entered into a franchise agreement,
177 or restricts the price at which a motor vehicle dealer may sell 206 except as permitted in s. 320.645 or in subsection (24) with
178 or lease a motor vehicle; or 207 respect to the remote electronic transmission of a motor vehicle
179 (e) Is, or which otherwise is unfair, inequitable, 208 accessory, option, add-on, feature, improvement, or upgrade.
180 unreasonably discriminatory, or not supportable by reason and 209 (24) The applicant or licensee, or common entity thereof,
181 good cause after considering the equities of the affected motor 210 has sold or leased a motor vehicle of a line-make to any retail
182 vehicles dealer or dealers. As used in this paragraph, “unfair” 211 consumer in this state, or has sold or activated for a fee any
183 includes, but is not limited to, refusing or failing to offer to 212 permanent or temporary motor vehicle accessory, option, add-on,
184 any dealer an equitable supply of new vehicles under its 213 feature, improvement, or upgrade to any retail consumer in the
185 franchise, by model, mix, or color, as the licensee offers or 214 state, except through a motor vehicle dealer properly licensed
186 allocates to its other same line-make dealers in this state or 215 pursuant to s. 320.27 and holding a franchise agreement for the
187 using the number of motor vehicles preordered or reserved by 216 line-make that includes the motor vehicle. Notwithstanding this
188 consumers as a factor in determining the allocation of motor 217 subsection, an applicant, a licensee, or their common entity may
189 vehicles to motor vehicle dealers. 218 sell or activate for a fee a permanent or temporary motor
190 219 vehicle accessory, option, add-on, feature, improvement, or
191 An applicant or licensee shall maintain for 3 years records that 220 upgrade for a motor vehicle of a line-make manufactured,
192 describe its methods or formula of allocation and distribution 221 imported, or distributed by the applicant or licensee and
193 of its motor vehicles and records of its actual allocation and 222 registered in this state only if the accessory, option, add-on,
194 distribution of motor vehicles to its motor vehicle dealers in 223 feature, improvement, or upgrade is provided directly to the
195 this state. As used in this subsection, “unfair” includes, 224 motor vehicle through remote electronic transmission, provided
196 without limitation, the refusal or failure to offer to any 225 that if such motor vehicle was sold or leased as new by a
197 dealer an equitable supply of new vehicles under its franchise, 226 Florida-franchised motor vehicle dealer within the 3-year period
198 by model, mix, or colors as the licensee offers or allocates to 227 preceding such remote electronic transmission, the applicant or
199 its other same line-make dealers in the state. 228 licensee must pay the Florida-franchised motor vehicle dealer a
200 (23) The applicant or licensee has engaged in any of the 229 percentage of the gross sale price for the accessory, option,
201 activities of a motor vehicle dealer as defined in s. 320.60 or 230 add-on, feature, improvement, or upgrade which is at least
202 has competed or is competing with respect to any activity 231 commensurate with the dealer margin structure established by the
203 covered by the franchise agreement with a motor vehicle dealer 232 applicant or licensee for the sale of the vehicle to which the
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233 accessory, option, add-on, feature, improvement, or upgrade was 262 pursuant to the provisions of this section.
234 remotely transmitted. As used in this subsection, the dealer 263 (a) Standing to protest the addition or relocation of a
235 margin structure is calculated by the applicant or licensee 264 service-only dealership shall be limited to those instances in
236 subtracting the invoiced vehicle wholesale price from the 265 which the applicable mileage requirement established in
237 manufacturer’s suggested retail price, then adding to that 266 subparagraphs (3)(a)2. and (3)(b)1. is met.
238 figure all monetary per vehicle incentives offered by the 267 (b) The addition or relocation of a service-only dealership
239 applicant or licensee whether or not received by the motor 268 shall not be subject to protest if:
240 vehicle dealer, and then dividing that sum by the invoiced 269 1. The applicant for the service-only dealership location
241 vehicle wholesale price. This subsection section does not apply 270 is an existing motor vehicle dealer of the same line-make as the
242 to sales by the applicant or licensee of motor vehicles to its 271 proposed additional or relocated service-only dealership;
243 current employees, employees of companies affiliated by common 272 2. There is no existing dealer of the same line-make closer
244 ownership, charitable not-for-profit organizations, and the 273 than the applicant to the proposed location of the additional or
245 Federal Government. 274 relocated service-only dealership; and
246 275 3. The proposed location of the additional or relocated
247 A motor vehicle dealer who can demonstrate that a violation of, 276 service-only dealership is at least 7 miles from all existing
248 or failure to comply with, any of the preceding provisions by an 277 motor vehicle dealerships of the same line-make, other than
249 applicant or licensee will or may adversely and pecuniarily 278 motor vehicle dealerships owned by the applicant.
250 affect the complaining dealer, shall be entitled to pursue all 279 (c) In determining whether existing franchised motor
251 of the remedies, procedures, and rights of recovery available 280 vehicle dealers are providing adequate representations in the
252 under ss. 320.695 and 320.697. 281 community or territory for the line-make in question in a
253 Section 4. Subsection (6) of section 320.642, Florida 282 protest of the proposed addition or relocation of a service-only
254 Statutes, is amended to read: 283 dealership, the department may consider the elements set forth
255 320.642 Dealer licenses in areas previously served; 284 in paragraph (2)(b), provided:
256 procedure.— 285 1. With respect to subparagraph (2)(b)1., only the impact
257 (6) When a proposed addition or relocation concerns a 286 as it relates to service may be considered;
258 dealership that performs or is to perform only service, as 287 2. Subparagraph (2)(b)3. shall not be considered;
259 defined in s. 320.60 s. 320.60(16), and will not or does not 288 3. With respect to subparagraph (2)(b)9., only service
260 sell or lease new motor vehicles, as defined in s. 320.60 s. 289 facilities shall be considered; and
261 320.60(15), the proposal shall be subject to notice and protest 290 4. With respect to subparagraph (2)(b)11., only the volume
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291 of service business transacted shall be considered. 320 this section from owning, operating, or controlling a motor
292 (d) If an application for a service-only dealership is 321 vehicle dealership. A licensee may not be issued a motor vehicle
293 granted, the department shall issue a license which permits only 322 dealer license pursuant to s. 320.27. However, a no such
294 service, as defined in s. 320.60 s. 320.60(16), and does not 323 licensee subject to the prohibition in this section is not will
295 permit the selling or leasing of new motor vehicles, as defined 324 be deemed to be in violation of this section:
296 in s. 320.60 s. 320.60(15). If a service-only dealership 325 (a) When operating a motor vehicle dealership for a
297 subsequently seeks to sell new motor vehicles at its location, 326 temporary period, not to exceed 1 year, during the transition
298 the notice and protest provisions of this section shall apply. 327 from one owner of the motor vehicle dealership to another;
299 Section 5. Subsection (1), paragraph (a) of subsection (2), 328 (b) When operating a motor vehicle dealership temporarily
300 and subsection (4) of section 320.645, Florida Statutes, are 329 for a reasonable period for the exclusive purpose of broadening
301 amended to read: 330 the diversity of its dealer body and enhancing opportunities for
302 320.645 Restriction upon ownership of dealership by 331 qualified persons who are part of a group that has historically
303 licensee.— 332 been underrepresented in its dealer body, or for other qualified
304 (1) A No licensee, manufacturer, importer, or distributor, 333 persons who the licensee deems lack the resources to purchase or
305 manufacturer, or agent of the licensee, a manufacturer, 334 capitalize the dealership outright, in a bona fide relationship
306 importer, or distributor, or any parent, subsidiary, common 335 with an independent person, other than a licensee or its agent
307 entity, or officer, or employed representative of the licensee, 336 or affiliate, who has made a significant investment that is
308 manufacturer, importer, or distributor may not directly or 337 subject to loss in the dealership within the dealership’s first
309 indirectly shall own, or operate, or control, by contract, 338 year of operation and who can reasonably expect to acquire full
310 agreement, or otherwise either directly or indirectly, a motor 339 ownership of the dealership on reasonable terms and conditions;
311 vehicle dealership for any line-make in this state if the 340 or
312 licensee, manufacturer, importer, or distributor has 341 (c) If the department determines, after a hearing on the
313 manufactured, imported, or distributed for the sale or service 342 matter, pursuant to chapter 120, at the request of any person,
314 of motor vehicles of any line-make which have been or are 343 that there is no independent person available in the community
315 offered for sale under a franchise agreement with a motor 344 or territory to own and operate the motor vehicle dealership in
316 vehicle dealer in this state with an independent person. Any 345 a manner consistent with the public interest. This paragraph
317 person who is not prohibited by this section from owning, 346 shall apply only if the motor vehicle dealership at issue sells
318 operating, or controlling a motor vehicle dealership may be 347 motor vehicles of a line-make that, at the time of the hearing,
319 issued a license pursuant to s. 320.27. Any person prohibited by 348 is offered for sale by at least one other existing motor vehicle
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349 dealership not owned, operated, or controlled by the licensee, 378 affiliate thereof may receive a license pursuant to s. 320.27
350 an officer or employed representative of the licensee, a parent, 379 for a motor vehicle dealership, or own or operate a motor
351 subsidiary, or common entity of the licensee, or a manufacturer, 380 vehicle dealership, that sells or services motor vehicles of the
352 importer, or distributor. A motor vehicle dealer association has 381 line-make of motor vehicles distributed by the distributor.
353 standing to intervene in any hearing held pursuant to this 382 Section 6. Section 320.67, Florida Statutes, is amended to
354 subsection. 383 read:
355 384 320.67 Inquiry and inspection of books or other documents
356 In the any such case of a, the licensee must continue to make 385 of licensee.—
357 the motor vehicle dealership owned or operated pursuant to 386 (1) The department shall conduct an inquiry of a licensee
358 paragraph (a), paragraph (b), or paragraph (c), the dealership 387 may inspect the pertinent books, records, letters, and contracts
359 must be continually made available for sale to an independent 388 of a licensee relating to any written complaint alleging a
360 person at a fair and reasonable price. Approval of the sale of 389 violation of any provision of ss. 320.60-320.70 made to it
361 such a motor vehicle dealership to a proposed motor vehicle 390 against such licensee made by a motor vehicle dealer with a
362 dealer shall not be unreasonably withheld. 391 current franchise agreement issued by the licensee, or a motor
363 (2) As used in this section, the term: 392 vehicle dealer association with at least one member with a
364 (a) “Independent person” is a person who is not an officer, 393 current franchise agreement issued by the licensee.
365 director, or employee of the licensee. 394 (2) In the exercise of its duties under this section, the
366 (4) Nothing in this chapter shall prohibit a distributor as 395 department is granted and authorized to exercise the power of
367 defined in s. 320.60 s. 320.60(5) or common entity an affiliate 396 subpoena for the purposes of compelling production of and
368 thereof that is not a manufacturer or importer, a division of a 397 inspecting pertinent books, records, letters, and contracts of a
369 manufacturer or importer, an entity that is controlled by a 398 licensee and compelling the attendance of witnesses at
370 manufacturer or importer, or a common entity of a manufacturer 399 deposition and the production of any documentary evidence
371 or importer, and that is not owned, in whole or in part, 400 necessary to the disposition by it of any written complaint
372 directly or indirectly, by a manufacturer or importer, as 401 under this section. The inquiry required by this section must be
373 defined in s. 320.60 s. 320.60(9), from receiving a license or 402 commenced within 30 days after receipt of the written complaint.
374 licenses as defined in s. 320.27 and owning and operating a 403 The department may allow the licensee that is the subject of the
375 motor vehicle dealership or dealerships that sell or service 404 complaint no more than 60 days from commencement of the inquiry
376 motor vehicles other than any line-make of motor vehicles 405 to provide a written response. Within 30 days after the deadline
377 distributed by the distributor. Neither a distributor nor an 406 for a written response by the licensee, the department must
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407 provide a written response to the complainant stating whether 436 nonresident of this state, who manufactures or assembles motor
408 the department intends to take action against the licensee under 437 vehicles, or who manufactures or assembles chassis for
409 subsection (3) and, if so, what action the department intends to 438 recreational vehicles, or who manufactures or installs on
410 take. Any information obtained may not be used against the 439 previously assembled truck or recreational vehicle chassis
411 licensee as the basis for a criminal prosecution under the laws 440 special bodies or equipment which, when installed, forms an
412 of this state. 441 integral part of the motor vehicle, or a distributor or an
413 (3) If, as the result of an inquiry conducted under this 442 importer as those terms are defined in s. 320.60 s. 320.60(5),
414 section, the department determines that a licensee has violated 443 or an importer as defined in s. 320.60(7). A dealer as defined
415 ss. 320.60-320.70, the department must take appropriate action 444 in s. 320.60 s. 320.60(11)(a) shall not be deemed to be a
416 against the licensee, which may include license suspension or 445 manufacturer, distributor, or importer as provided in this
417 revocation; denial of a license renewal application; assessment, 446 section.
418 imposition, levy, and collection of an appropriate civil fine; 447 Section 8. Section 681.113, Florida Statutes, is amended to
419 or instituting a civil action for issuance of an injunction 448 read:
420 pursuant to s. 320.695. 449 681.113 Dealer liability.—Except as provided in ss.
421 (4) If the complainant is a motor vehicle dealer 450 681.103(3) and 681.114(2), nothing in this chapter imposes any
422 association and the department’s inquiry determines that a 451 liability on a dealer as defined in s. 320.60 s. 320.60(11)(a)
423 licensee has violated ss. 320.60-320.70, the motor vehicle 452 or creates a cause of action by a consumer against a dealer,
424 dealer association may seek a declaration and adjudication that 453 except for written express warranties made by the dealer apart
425 the alleged conduct of the licensee violated ss. 320.60-320.70 454 from the manufacturer’s warranties. A dealer may not be made a
426 by filing with the department a request for a proceeding and an 455 party defendant in any action involving or relating to this
427 administrative hearing which conforms substantially with the 456 chapter, except as provided in this section. The manufacturer
428 requirements of ss. 120.569 and 120.57. 457 shall not charge back or require reimbursement by the dealer for
429 (5) This section does not alter or affect the rights of a 458 any costs, including, but not limited to, any refunds or vehicle
430 motor vehicle dealer to bring a claim or action against a 459 replacements, incurred by the manufacturer arising out of this
431 licensee pursuant to any other provision of ss. 320.60-320.70. 460 chapter, in the absence of evidence that the related repairs had
432 Section 7. Subsection (13) of section 681.102, Florida 461 been carried out by the dealer in a manner substantially
433 Statutes, is amended to read: 462 inconsistent with the manufacturer’s published instructions.
434 681.102 Definitions.—As used in this chapter, the term: 463 Section 9. This act shall take effect July 1, 2023.
435 (13) “Manufacturer” means any person, whether a resident or
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Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 712
Ì335364/Î335364
LEGISLATIVE ACTION
Senate . House
Comm: FAV .
04/04/2023 .
.
.
.
The Committee on Commerce and Tourism (Avila) recommended the
following:
1 Senate Amendment to Amendment (224252) (with title
2 amendment)
3
4 Delete lines 19 - 194
5 and insert:
6 distributor, or a licensee, or an affiliate thereof; or
7 (b) Who has more than 30 percent of its equity interest
8 directly or indirectly controlled or owned, beneficially or of
9 record, through any form of ownership structure, by one or more
10 persons who also directly or indirectly control or own,
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11 beneficially or of record, more than 30 40 percent of the voting
12 equity interests of a manufacturer, an importer, a distributor,
13 or a licensee, or an affiliate thereof; or
14 (b) Who shares directors or officers or partners with a
15 manufacturer.
16 (c) Notwithstanding the foregoing, an entity that would
17 otherwise be considered a common entity of a distributor under
18 paragraph (a) or paragraph (b) because of its relation to a
19 distributor is not considered a common entity of that
20 distributor if:
21 1. The distributor that the entity is related to was a
22 licensed distributor on March 1, 2023;
23 2. The entity is not a common entity of a manufacturer or
24 importer; and
25 3. The distributor that the entity is related to is not,
26 and has never been, a common entity of a manufacturer or
27 importer.
28 (8) “Independent person” means a person who is not an
29 agent, parent, subsidiary, common entity, officer, director, or
30 an employed representative of a licensee, manufacturer,
31 importer, or distributor.
32 (14) “Motor vehicle dealer association” means a not-for-
33 profit entity organized under the laws of this state and
34 qualified as tax-exempt under s. 501(c)(6) of the Internal
35 Revenue Code which acts as a trade association that primarily
36 represents the interests of franchised motor vehicle dealers and
37 has a membership of at least 500 franchised motor vehicle
38 dealers as defined in s. 320.27(1)(c)1.
39 (16)(15) “Sell,” “selling,” “sold,” “exchange,” “retail
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40 sales,” and “leases” includes:
41 (a) Accepting a deposit or receiving a payment for the
42 retail purchase, lease, or other use of a motor vehicle, but
43 does not include facilitating a motor vehicle dealer’s
44 acceptance of a deposit or receipt of a payment from a consumer,
45 and does not include receiving payment under a retail
46 installment sale contract;
47 (b) Accepting a reservation from a retail consumer for a
48 specific motor vehicle identified by a vehicle identification
49 number or other product identifier;
50 (c) Setting the retail price for the purchase, lease, or
51 other use of a motor vehicle, but does not include setting a
52 Manufacturer’s Suggested Retail Price;
53 (d) Offering or negotiating with a retail consumer terms
54 for the purchase, lease, or other use of a motor vehicle;
55 (e) Offering or negotiating with a retail consumer a value
56 for a motor vehicle being traded in as part of the purchase,
57 lease, or other use of a motor vehicle, but does not include a
58 website or other means of electronic communication that
59 identifies to a consumer a conditional trade-in value and that
60 contains language informing the consumer that the trade-in value
61 is not binding on any motor vehicle dealer;
62 (f) Any transaction where the title of a motor vehicle or a
63 used motor vehicle is transferred to a retail consumer; or, and
64 also
65 (g) Any retail lease transaction where a retail consumer
66 customer leases a vehicle for a period of at least 12 months,
67 but does not include administering lease agreements, taking
68 assignments of leases, performing required actions pursuant to
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Bill No. CS for SB 712
Ì335364/Î335364
69 such leases, or receiving payments under a lease agreement that
70 was originated by a motor vehicle dealer. Establishing a price
71 for sale pursuant to s. 320.64(24) does not constitute a sale or
72 lease.
73 Section 2. Section 320.605, Florida Statutes, is amended to
74 read:
75 320.605 Legislative intent.—It is the intent of the
76 Legislature to protect the public health, safety, and welfare of
77 the citizens of the state by regulating the licensing of motor
78 vehicle dealers and manufacturers, maintaining competition,
79 providing consumer protection and fair trade and providing
80 minorities with opportunities for full participation as motor
81 vehicle dealers. Sections 320.61-320.70 are intended to apply
82 solely to the licensing of manufacturers, factory branches,
83 distributors, and importers and do not apply to non-motor-
84 vehicle-related businesses.
85 Section 3. Subsections (18), (23), and (24) of section
86 320.64, Florida Statutes, are amended to read:
87 320.64 Denial, suspension, or revocation of license;
88 grounds.—A license of a licensee under s. 320.61 may be denied,
89 suspended, or revoked within the entire state or at any specific
90 location or locations within the state at which the applicant or
91 licensee engages or proposes to engage in business, upon proof
92 that the section was violated with sufficient frequency to
93 establish a pattern of wrongdoing, and a licensee or applicant
94 shall be liable for claims and remedies provided in ss. 320.695
95 and 320.697 for any violation of any of the following
96 provisions. A licensee is prohibited from committing the
97 following acts:
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98 (18) The applicant or licensee has established a system of
99 motor vehicle allocation or distribution or has implemented a
100 system of allocation or distribution of motor vehicles to one or
101 more of its franchised motor vehicle dealers which:
102 (a) Reduces or alters allocations or supplies of new motor
103 vehicles to the dealer to achieve, directly or indirectly, a
104 purpose that is prohibited by ss. 320.60-320.70;
105 (b) Conditionally or unconditionally reserves a specific
106 motor vehicle identified by vehicle identification number or
107 other unique identifier for a specifically named person, except
108 for purposes of replacing a consumer’s vehicle pursuant to
109 chapter 681;
110 (c) Requires or incentivizes motor vehicle dealers to sell
111 or lease, or to negotiate the sale or lease of, a specific motor
112 vehicle identified by vehicle identification number or other
113 unique identifier to a specifically named person;
114 (d) Requires or incentivizes motor vehicle dealers to sell
115 or lease a motor vehicle at a specified price or profit margin
116 or restricts the price at which a motor vehicle dealer may sell
117 or lease a motor vehicle; or
118 (e) Is, or which otherwise is unfair, inequitable,
119 unreasonably discriminatory, or not supportable by reason and
120 good cause after considering the equities of the affected motor
121 vehicles dealer or dealers. As used in this paragraph, the term
122 “unfair” includes, but is not limited to, refusing or failing to
123 offer to any dealer an equitable supply of new vehicles under
124 its franchise, by model, mix, or color, as the licensee offers
125 or allocates to its other same line-make dealers in this state
126 or using the number of motor vehicles preordered or reserved by
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Bill No. CS for SB 712
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127 consumers as a factor in determining the allocation of motor
128 vehicles to motor vehicle dealers.
129
130 An applicant or licensee shall maintain for 3 years records that
131 describe its methods or formula of allocation and distribution
132 of its motor vehicles and records of its actual allocation and
133 distribution of motor vehicles to its motor vehicle dealers in
134 this state. As used in this subsection, “unfair” includes,
135 without limitation, the refusal or failure to offer to any
136 dealer an equitable supply of new vehicles under its franchise,
137 by model, mix, or colors as the licensee offers or allocates to
138 its other same line-make dealers in the state.
139 (23) The applicant or licensee has engaged in any of the
140 activities of a motor vehicle dealer as defined in s.
141 320.60(13)(a) or any activities described in s. 320.60(16) or
142 has competed or is competing with respect to any activity
143 covered by the franchise agreement with a motor vehicle dealer
144 of the same line-make located in this state with whom the
145 applicant or licensee has entered into a franchise agreement,
146 except as permitted in s. 320.645 or in subsection (24) with
147 respect to the remote electronic transmission of a permanent or
148 temporary feature or improvement of a motor vehicle.
149 (24) The applicant or licensee, or common entity thereof,
150 has sold or leased a motor vehicle to any retail consumer in
151 this state, or has sold or activated for a fee to any retail
152 consumer in the state any permanent or temporary motor vehicle
153 feature or improvement that functions through hardware or
154 components installed on the motor vehicle, except through a
155 motor vehicle dealer properly licensed pursuant to s. 320.27 and
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156 holding a franchise agreement for the line-make that includes
157 the motor vehicle. Notwithstanding this subsection, an applicant
158 or a licensee, or common entity thereof, may sell or activate
159 for a fee a permanent or temporary motor vehicle feature or
160 improvement to a retail consumer in this state only if the
161 feature or improvement is provided directly to the motor vehicle
162 through remote electronic transmission, provided that if such
163 motor vehicle was sold or leased as new by a motor vehicle
164 dealer in this state within the 3-year period preceding such
165 remote electronic transmission, the applicant or licensee must
166 pay such motor vehicle dealer a minimum of 8 percent of the
167 payment received by the applicant, licensee, or common entity
168 from the sale of the feature or improvement. As used in this
169 subsection, the term “feature or improvement” includes the
170 activation or use of motor vehicle components or hardware, but
171 does not include services that require the transmission of data
172 or information to or from the motor vehicle while the service is
173 being used. Payments required under this subsection shall be
174 made within 30 days after the date of sale of the feature or
175 improvement. This subsection section does not apply to sales by
176 the
177
178 ================= T I T L E A M E N D M E N T ================
179 And the title is amended as follows:
180 Delete lines 428 - 444
181 and insert:
182 applicability; requiring certain payments to be made
183 within a certain timeframe; amending s. 320.642, F.S.;
184 conforming cross-references; amending s. 320.645,
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185 F.S.; revising provisions prohibiting a manufacturer,
186 a distributor, or an importer from owning, operating,
187 or controlling a motor vehicle dealership in this
188 state; specifying when certain licenses may be and are
189 prohibited from being issued; revising exceptions to
190 certain prohibitions on licensees; providing
191 applicability; making technical changes; deleting the
192 definition of the term “independent person”;
193 conforming cross-references; amending s. 320.67, F.S.;
194 requiring the Department of Highway Safety and Motor
195 Vehicles to conduct an inquiry relating to certain
196 written complaints; providing purposes of the
197 department’s use of a subpoena; authorizing the
198 department to allow a written response to the
199 complaint; requiring the department to commence the
200 inquiry within a certain
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The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/CS/SB 752
INTRODUCER: Commerce and Tourism Committee; Regulated Industries Committee; and Senator
Calatayud
SUBJECT: Temporary Commercial Kitchens
DATE: April 4, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Oxamendi Imhof RI Fav/CS
2. Baird McKay CM Fav/CS
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 752 regulates temporary commercial kitchens in the same manner as mobile food
delivery vehicles (MFDVs or food trucks). The bill defines the term “temporary commercial
kitchen” to mean “any kitchen that is a public food service establishment, used for the
preparation of takeout or delivery-only meals housed in portable structures that are movable
from place to place by a tow or are self-propelled or otherwise axle-mounted, that include self-
contained utilities, including, but not limited to, gas, water, electricity, or liquid waste disposal.”
The term does not include a tent.
Temporary kitchens are typically used when fixed kitchens are unavailable, e.g., when damaged
by a fire, or during remodeling, when extra kitchen space is needed, and for catering at events.
Temporary kitchens may also be used after a natural disaster, such as a hurricane. Temporary
kitchens are contained in a variety of modular structures, such as portable cabin structures,
modular buildings, towed trailers, or standard freight containers.
The bill:
Requires operators of public food service establishments who provide commissary services
to temporary commercial kitchens to maintain a registry to verify that each temporary
commercial kitchen that receives such services is properly licensed;
BILL: CS/CS/SB 752 Page 2
Requires operators of temporary commercial kitchens to properly display their public food
service establishment license number to assist the public food service establishment to verify
the licensure of the temporary commercial kitchens;
Preempts regulation of licenses, registrations, permits, and fees for temporary commercial
kitchens to the state; and
Authorizes MFDVs and temporary commercial kitchens that are operated on the same
premises of a separately licensed public food service establishment to operate during the
same hours of operation as the separately licensed public food service establishment.
The bill additionally allows a licensed permanent food service establishment to operate a
temporary commercial kitchen:
On site for the purpose of supplementing the kitchen operations for 60 consecutive days, with
one potential 60 day extension;
On site or nearby during a period of renovation, repair, or rebuilding, for 120 days, with
possible extension.
The bill also allows a licensed permanent food service establishment to operate a temporary
commercial kitchen on site or reasonably nearby if the establishment or land is rendered
uninhabitable due to natural disaster, with notification to DBPR every 90 days.
Except for the above circumstances, temporary commercial kitchens may not operate in one
location for longer than 30 consecutive days.
The bill takes effect July 1, 2023.
II. Present Situation:
Department of Business and Professional Regulation, Division of Hotels and Restaurants
The Division of Hotels and Restaurants (Division) within the Division of Business and
Professional Regulation (DBPR) is charged with enforcing the laws relating to the inspection and
regulation of public food service establishments for the purpose of protecting the public health,
safety, and welfare.1
Public Food Service Establishments
A “public food service establishment” is defined as:2
…any building, vehicle, place, or structure, or any room or division in a
building, vehicle, place, or structure where food is prepared, served, or
sold for immediate consumption on or in the vicinity of the premises;
called for or taken out by customers; or prepared prior to being delivered
to another location for consumption.
There are several exclusions from the definition of public food service establishment, including:3
1
Section 509.032, F.S.
2
Section 509.013(5)(a), F.S.
3
Section 509.013(5)(b), F.S.
BILL: CS/CS/SB 752 Page 3
Any place maintained and operated by a public or private school, college, or university for
the use of students and faculty or temporarily to serve events such as fairs, carnivals, and
athletic contests;
Any eating place maintained and operated by a church or a religious, nonprofit fraternal, or
nonprofit civic organization for the use of members and associates or temporarily to serve
events such as fairs, carnivals, or athletic contests;
Any eating place located on an airplane, train, bus, or watercraft which is a common carrier;
Any eating place maintained by a facility certified or licensed and regulated by the Agency
for Health Care Administration or the Department of Children and Families;
Any place of business issued a permit or inspected by the Department of Agriculture and
Consumer Services under s. 500.12, F.S.;
Any vending machine that dispenses any food or beverage other than potentially hazardous
food;
Any place of business serving only ice, beverages, popcorn, and prepackaged items; and
Any research and development test kitchen limited to use by employees and not open to the
general public.
Health and Safety
The division must adopt and enforce sanitation rules to ensure the protection of the public from
food-borne illness in those establishments it licenses. These rules must provide standards and
requirements for obtaining, storing, preparing, processing, serving, or displaying food in public
food service establishments; approving public food service establishment facility plans;
conducting inspections for compliance with sanitation regulations; cooperating and coordinating
with the Department of Health in epidemiological investigations; initiating enforcement actions;
and other such responsibilities deemed necessary by the division.4
Effective November 1, 2019, the division has adopted the 2017 Food and Drug Administration
(FDA) Food Code (food code), which establishes practical, science-based guidance and
enforceable provisions for reducing risk factors known to cause or contribute to foodborne
illness.5 The food code represents FDA's best advice for a uniform system to address the safety
and protection of food offered at retail and in food service.6
The food code provides a plan review and inspectional guide for “mobile food establishments”
based on the mobile unit's menu and operation. Mobile units range in type from push carts to
food preparation catering vehicles. The guide provides a matrix of requirements that a mobile
food establishment must follow based on the type of food that is available for sale to the
4
Section 509.032(2)(d), F.S.
5
Fla. Admin. Code R. 61C-1.001(12).
6
U.S. Public Health Service, FDA Food Code 2017, p. 327,
http://www.myfloridalicense.com/dbpr/hr/statutes/documents/2017-FDA-Food-Code.pdf (last visited March 24, 2023).
BILL: CS/CS/SB 752 Page 4
consumer. This includes requirements for “time/temperature control for the safety of food”7 that
is prepared within a mobile food establishment.8
Mobile Food Dispensing Vehicles – Food Trucks
Food Trucks9 are regulated by the DBPR as a “mobile food dispensing vehicles,” (MFDV),10
which are defined as:11
…any vehicle that is a public food service establishment and that is self-
propelled or otherwise movable from place to place and includes self-
contained utilities, including, but not limited to, gas, water, electricity, or
liquid waste disposal.
To obtain a license as an MFDV, an applicant must complete a kitchen plan review for sanitation
and safety concerns (if required).12 No plan review is required if an operator buys a vehicle
already licensed by the division and no changes have been made to the vehicle. A plan review is
required if an operator:
Constructs or uses a vehicle that has never been licensed by the division;
Uses a vehicle that has been closed for more than one year; or
Uses a vehicle that has been remodeled.
A plan review requires:
A plan of the vehicle with the equipment labeled;
A sample menu; and
A side photograph of the vehicle showing the wheels and open service window, and the
water/sewer or commissary location.
By rule, the division provides different license fees for a public food service establishment based
on the license classification for the establishment. The division’s general classifications are
nonseating and seating, which are then divided into sub-classifications.13 MFDVs are classified
under the nonseating classification. The license for an MFDV requires payment of a $50
application fee and a $347 license fee.14
7
The term "time/temperature control for safety food" is defined in chapter 1, subpart 1-201, of the food code as a food that
requires time/temperature control for safety (TCS) to limit pathogenic microorganism growth or toxin formation.
8
U.S. Public Health Service, FDA Food Code 2017, FDA Food Code Mobile Food Establishment Matrix, p. 754,
http://www.myfloridalicense.com/dbpr/hr/statutes/documents/2017-FDA-Food-Code.pdf (last visited April 3, 2023).
9
Generally, a food truck is a large wheeled vehicle from which food is sold that typically contains cooking facilities where
the food is prepared. Merriam-Webster Dictionary, Food Truck, https://www.merriam-webster.com/dictionary/food%20truck
(last visited April 3, 2023).
10
Section 509.102, F.S.
11
Section 509.032, F.S., and Fla. Admin. Code R. 61C-1.002.
12
Fla. Admin. Code R. 61C-1.002(5)(c); See also Florida Department of Business and Professional Regulation, Division of
Hotels and Restaurants – Guide to Mobile Food Dispensing Vehicles, http://www.myfloridalicense.com/DBPR/hotels-
restaurants/licensing/mfdv-guide/ (last visited April 3, 2023).
13
See Fla. Admin. Code R. 61C-1.008(4).
14
Fla. Admin. Code R. 61C-1.008(4)(a)1.
BILL: CS/CS/SB 752 Page 5
All new licensees are required to pass a sanitation and safety inspection prior to opening.15
Division personnel have the right to inspect licensed MFDVs as often as necessary to enforce the
provisions of law and rule, and for the protection of the public’s health, safety, and welfare.16
The division is required, upon proper finding, to immediately issue an order to close a licensed
public food service establishment in the instance of a severe and immediate public health or
safety or welfare threat.17
Commissary Services Registry
The DBPR defines the term “commissary” to mean “a licensed public food service
establishment, which is utilized by an MFDV for the purpose of providing all required support
services, including potable water and wastewater disposal that are not available on the mobile
food dispensing vehicle.”18
Operators of public food service establishments that provide commissary services are required to
maintain a daily registry verifying that each MFDV that receives such services is properly
licensed. Each MFDV operator must permanently affix in a prominent place on the side of the
vehicle, in figures at least 2 inches high and in contrasting colors from the background, the
operator’s public food service establishment license number. Prior to providing commissary
services, each public food service establishment must verify that the license number displayed on
the vehicle matches the number on the vehicle operator’s public food service establishment
license.19
Mobility Requirements
“Permanent nonseating establishments” are described in current law as “fixed public food service
establishments for which the sole service provided is intended as take-out or delivery, or which
do not otherwise provide accommodations for consumption of food by guests on the premises, or
premises under the control of the operator.”20
MFDVs are described in current law as “mounted public food service establishments which are
self-propelled or otherwise movable from place to place…”21 The DBPR’s Guide to Mobile
Food Establishments (guide) provides that an MFDV license is a vehicle mounted food service
license where the vehicle has adequate hand washing and dishwashing facilities, food protection,
refrigeration, power and plumbing systems. The guide indicates that an MFDV operator
performs food service activities inside the vehicle like food storage, cooking or preparation of
food and dishwashing.22
15
Fla. Admin. Code R. 61C-1.002(3).
16
Section 509.032(2)(b), F.S.
17
Section 509.035, F.S.
18
Fla. Admin. Code R. 61C-1.001(8).
19
Section 509.101(3), F.S.
20
Fla. Admin. Code R. 61C-1.002(5)(a)1.
21
Fla. Admin. Code R. 61C-1.002(5)(a)2.
22
Supra note 12.
BILL: CS/CS/SB 752 Page 6
One of the requirements for obtaining an MFDV license is that the licensed location be a vehicle
and for the vehicle to be mobile.23 In order to be mobile, the DBPR requires “a side photograph
of the vehicle showing its wheels and open service window must be submitted at time of
application.”24
Preemption
The regulation of public food service establishments is preempted to the state. This preemption
does not affect the authority of a local government or local enforcement district to conduct
inspections for compliance with the Florida Building Code and the Florida Fire Prevention
Code.25
The regulation of MFDVs is also preempted to the state. A municipality, county, or other local
government entity may not:26
Require a separate license, registration, or permit beyond those established by the DBPR as a
condition for the MFDV’s operation within the jurisdiction;
Require a separate fee beyond those established by the DBPR as a condition for the MFDV's
operation within the jurisdiction; or
Prohibit MFDVs from operating within the entirety of the entity’s jurisdiction.
The preemption for the regulation of MFDVs does not apply to any port authority, aviation
authority, airport, or seaport.27
Temporary Kitchens
Temporary kitchens are kitchen facilities that are typically used when fixed kitchens are
unavailable, e.g., have been damaged by a fire, or when a fixed kitchen is being refurbished,
when extra kitchen space is needed, and for catering at events.28 Providers of temporary kitchens
also market these kitchens for rent after a natural disaster, such as a hurricane.29
Temporary kitchens are contained in a variety of modular structures, such as portable cabin
structures, modular buildings, towed trailers, or standard freight containers.30
A temporary kitchen is a “public food service establishment” as defined in s. 509.013(5)(a), F.S.,
and is therefore subject to regulation by the division.
23
Fla. Admin. Code R. 61C-1.002(5)(a)2.
24
Id.
25
Section 509.032(7), F.S.
26
Section 509.102, F.S.
27
Id.
28
The Caterer, Temporary kitchens: Everything you need to know, Nov. 24, 2004,
https://www.thecaterer.com/news/foodservice/temporary-kitchens-everything-you-need-to-know (last visited April 3, 2023).
29
Mobile Kitchens USA, Affected by a Natural Disaster? Mobile Kitchens USA Can Help,
https://mobilekitchens.com/2018/04/05/affected-by-a-natural-disaster-mobile-kitchens-usa-can-help/ (last visited April 3,
2023).
30
Id. See also U.S. Mobile Kitchens, Temporary Kitchens, at: https://www.usmobilekitchens.com/mobile-
kitchens/temporary-kitchens (last visited April 3, 2023).
BILL: CS/CS/SB 752 Page 7
Ghost Kitchens
Ghost kitchens, also known as virtual restaurants, are shared commercial kitchens that do not
have a public-facing storefront and only offer food for delivery. Customers of ghost kitchens
typically do not know the location where the food is prepared. Ghost kitchens became popular in
2020 during the COVID-19 pandemic, when restaurants were shut down due to restrictions, or
business volume slowed significantly. Some traditional restaurants also use ghost kitchens for
delivery-only sales.31
The food code may be used to regulate ghost kitchen establishments. However, while the food
code specifically references mobile food establishments, it does not reference ghost kitchens or
similar locations or structures.
III. Effect of Proposed Changes:
The bill amends s. 509.101(3), F.S., to require operators of public food service establishments
who provide commissary services to temporary commercial kitchens to maintain a registry to
verify that each temporary commercial kitchen that receives such services is properly licensed,
and requires operators of temporary commercial kitchens to properly display their public food
service establishment license number. The bill applies to temporary commercial kitchens the
same the requirements that currently apply to commissary services for MFDVs under current
law.
The bill amends s. 509.102, F.S., to apply the same requirements to temporary commercial
kitchens that apply to MFDVs under current law.
The bill creates s. 509.102, F.S., to define the term “temporary commercial kitchen” to mean
“any kitchen that is a public food service establishment, used for the preparation of takeout or
delivery-only meals housed in portable structures that are movable from place to place by a tow
or are self-propelled or otherwise axle-mounted, that include self-contained utilities, including,
but not limited to, gas, water, electricity, or liquid waste disposal.” The term does not include a
tent.32
Under the bill, temporary commercial kitchens are subject to regulation under ch. 509, F.S.
The bill preempts the regulation for licenses, registrations, permits, and fees for temporary
commercial kitchens to the state. Under the bill, local governments may not:
Require a separate license, registration, or permit beyond those established by the DBPR as a
condition for the temporary commercial kitchen’s operation within the jurisdiction;
Require a separate fee beyond those established by the DBPR as a condition for the
temporary commercial kitchen's operation within the jurisdiction; or
31
Eater, Ghost Kitchens Are the Wave of the Future. But Is That a Good Thing?, Nov. 9, 2020,
https://www.eater.com/21540765/ghost-kitchens-virtual-restaurants-covid-19-industry-impact (last visited April 3, 2023).
32
In pertinent part, the term “tent” means “a collapsible shelter of fabric (such as nylon or canvas) stretched and sustained by
poles and used for camping outdoors or as a temporary building.” See Merriam-Webster.com, tent, https://www.merriam-
webster.com/dictionary/tent (last visited April 3, 2023).
BILL: CS/CS/SB 752 Page 8
Prohibit temporary commercial kitchens from operating within the entirety of the entity’s
jurisdiction.
The bill provides that an MFDV “or temporary commercial kitchen that is operated on the same
premises as and by a separately licensed public food service establishment may operate during
the same hours of operation as the separately licensed public food service establishment that
operates such mobile food dispensing vehicle or temporary commercial kitchen.” This provision
may permit a licensed public food service establishment to operate a separately licensed MFDV
or a temporary commercial kitchen at the same location and for the same hours as the public
food service establishment.
The bill clarifies that local governments’ authority regulate the operation of temporary
commercial kitchens is not affected, except as described in the preemption.
The bill additionally allows a licensed permanent food service establishment to operate a
temporary commercial kitchen:
On site for the purpose of supplementing the kitchen operations for 60 consecutive days, with
one potential 60 day extension;
On site or nearby during a period of renovation, repair, or rebuilding, for 120 days, with
possible extension.
The bill also allows a licensed permanent food service establishment to operate a temporary
commercial kitchen on site or reasonably nearby if the establishment or land is rendered
uninhabitable due to natural disaster, with notification to DBPR every 90 days.
Except for the above circumstances, temporary commercial kitchens may not operate in one
location for longer than 30 consecutive days, and operators of a temporary commercial kitchen
must notify the division within 48 hours of commencing operation in a location.
The bill takes effect July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
BILL: CS/CS/SB 752 Page 9
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The DBPR anticipates an indeterminate fiscal impact for the bill.33 The division considers
temporary commercial kitchens to be in the same classification as mobile food delivery
vehicles, but if temporary kitchens are classified by the division under another
classification, the division anticipates an indeterminate increase in license fees.34
VI. Technical Deficiencies:
None.
VII. Related Issues:
Distinguishing MFDVs and Temporary Commercial Kitchens
A mobile food delivery vehicle (food truck or MFDV) is defined as:35
…any vehicle that is a public food service establishment and that is self-
propelled or otherwise movable from place to place and includes self-
contained utilities, including, but not limited to, gas, water, electricity, or
liquid waste disposal.
The bill defines temporary commercial kitchen as:
…any kitchen that is a public food service establishment, used for the
preparation of takeout or delivery-only meals housed in portable structures
that are movable from place to place by a tow or are self-propelled or
otherwise axle mounted, that include self-contained utilities, including, but
not limited to, gas, water, electricity, or liquid waste disposal.
Under the bill, the primary distinction between an MFDV and a temporary commercial kitchen is
that a temporary commercial kitchen prepares food for takeout or delivery-only and it may be a
portable structure that can be towed. Otherwise, it is not clear that an MFDV may not also
33
See Department of Business and Professional Regulation, 2023 Agency Legislative Bill Analysis for HB 415 (Jan. 24, 2023)
(on file with the Senate Regulated Industries Committee).
34
Id.
35
Section 509.032, F.S., and Fla. Admin. Code R. 61C-1.002.
BILL: CS/CS/SB 752 Page 10
qualify as a temporary commercial kitchen because an MFDV must be self-propelled and is
necessarily axle-mounted, i.e., it moves on wheels connected to an axle,36 and must include the
same self-contained utilities as a temporary commercial kitchen.
The term “temporary” in “temporary commercial kitchen” may relate to the length of time that a
location is used as a commercial kitchen, to the kitchen’s mobility, or to the impermanence of the
kitchen’s structure, but there is no time limit in the bill.
Local Pilot Programs
The City of Miami has created a pilot program to regulate “mobile operating units.” The term
“mobile operation unit” is defined by the city as a “movable stand, cart, vehicle, truck, van, or
trailer through which mobile operations are performed on a parking lot site or on vacant land.”
The term “delivery food vehicle” is defined as “any vehicle used as or in conjunction with a
mobile operation unit operating with app-based meal production for delivery only to be
consumed off-premises.”37 The regulations require the mobile operating units to refrain from
providing on-site takeout or dine-in service.
Mobile operating units are required to obtain city business tax receipts and a “peddler’s permit.”
The ordinance provides restrictions for food truck gatherings, such as prohibiting their operation
in certain zones. It also requires a site plan survey indicating the general placement of a food
truck. Violations are punishable by a fine of $250 for a first offense and $500 for each
subsequent offense.38 The pilot program was renewed on March 24, 2022, for a second year.39
It is not clear whether the ordinance is applicable to temporary commercial kitchens.
The City of Orlando has adopted a similar pilot program.40
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 509.101 and
509.102.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism Committee on April 4, 2023:
36
See Merriam-Webster.com, axle, https://www.merriam-webster.com/dictionary/axle (last visited March 24, 2023).
37
City of Miami Ordinance s. 31-51(h),
https://library.municode.com/fl/miami/codes/code_of_ordinances?nodeId=PTIITHCO_CH31LOBUTAMIBURE_ARTIILO
BUTABT_S31-51FOTROPPRLA (last visited April 3, 2023).
38
Id.
39
City of Miami, City Commission Agenda March 24, 2022,
http://miamifl.iqm2.com/Citizens/FileOpen.aspx?Type=15&ID=2611&Inline=True (last visited April 3, 2023).
40
The Community Paper, Ghost kitchens pilot program passed by the City,
https://www.yourcommunitypaper.com/articles/ghost-kitchens-pilot-program-passed-by-city/ (last visited April 3, 2023).
BILL: CS/CS/SB 752 Page 11
The amendment allows a licensed permanent food service establishment to operate a
temporary commercial kitchen:
On site for the purpose of supplementing the kitchen operations for 60 consecutive
days, with one potential 60 day extension;
On site or nearby during a period of renovation, repair, or rebuilding, for 120 days,
with possible extension.
The CS also allows a licensed permanent food service establishment to operate a
temporary commercial kitchen on site or reasonably nearby if the establishment or land is
rendered uninhabitable due to natural disaster, with notification to DBPR every 90 days.
Except for the above circumstances, temporary commercial kitchens may not operate in
one location for longer than 30 consecutive days.
CS by Regulated Industries on March 7, 2023:
The CS includes temporary commercial kitchens in the requirements:
For public food service establishments who provide commissary services to
temporary commercial kitchens. Currently, these requirements only apply to
commissary services provided to mobile food dispensing vehicles (food trucks);
For food trucks, including the preemption of regulation to the state.
The CS also:
Permits a food truck or temporary commercial kitchen to operate on the same
premises as and by a separately licensed public food service establishment that may
operate during the same hours of operation as the separately licensed public food
service establishment that operates such mobile food dispensing vehicle or temporary
commercial kitchen; and
Removes the requirement that the Division of Hotels and Restaurants adopt rules
regulating temporary commercial kitchens.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 752 Bill No. CS for SB 752
Ì892746IÎ892746 Ì892746IÎ892746
LEGISLATIVE ACTION 11 establishment for 60 consecutive days. Upon request of the
Senate . House 12 operators of a temporary commercial kitchen, the division may
Comm: WD . 13 grant a one extension of up to 60 additional consecutive days.
04/03/2023 . 14 If the temporary commercial kitchen is needed to supplement the
. 15 kitchen services of the licensed permanent food service
. 16 establishment during a period of renovation or repair, the
. 17 division may exercise discretion to grant an additional
18 extension of time upon a reasonable and reliable demonstration
19 by the licensed permanent food service establishment that
20 additional time is needed to complete the renovation or repair.
21 (b) If a licensed permanent food service establishment
22 licensed under this chapter, or the land upon which that
23 establishment is sited, is rendered uninhabitable due to a
24 natural disaster that is the subject of a declared state of
25 emergency, a temporary commercial kitchen may operate in a
The Committee on Commerce and Tourism (Calatayud) recommended 26 location on or as near the location of the permanent licensed
the following: 27 food service establishment as reasonably practicable. A
28 temporary commercial kitchen may operate in this capacity only
1 Senate Amendment (with directory and title amendments) 29 during the period of repair and rebuilding of the permanent
2 30 establishment. The operators of a temporary commercial kitchen
3 Delete line 77 31 operating in this capacity must notify the division of the
4 and insert: 32 kitchens location and renew the notification every 90 days.
5 (3)(a) A temporary commercial kitchen may be used in 33 (c) Except as authorized under paragraphs (a) and (b), a
6 conjunction with a permanent food service establishment licensed 34 temporary commercial kitchen may not operate in one location for
7 under this chapter for the purpose of supplementing the kitchen 35 longer than 30 consecutive days. The operators of a temporary
8 operations of the licensed permanent food service establishment. 36 commercial kitchen must notify the division within 24 hours
9 A temporary commercial kitchen may operate in this capacity on 37 after commencing operation in a location.
10 the premises of the licensed permanent food service 38 (4)(3) This section may not be construed to affect a
39
Page 1 of 3 Page 2 of 3
3/24/2023 2:46:23 PM 577-03014-23 3/24/2023 2:46:23 PM 577-03014-23
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 752 Bill No. CS for SB 752
Ì892746IÎ892746 Ì358156;Î358156
40 ====== D I R E C T O R Y C L A U S E A M E N D M E N T ====== LEGISLATIVE ACTION
41 And the directory clause is amended as follows: Senate . House
42 Delete lines 38 - 39 Comm: RCS .
43 and insert: 04/04/2023 .
44 Section 2. Present subsections (3) and (4) of section .
45 509.102, Florida Statutes, are redesignated as subsections (4) .
46 and (5), a new subsection (3) is added to that section, and .
47 subsection (1) and present subsection (3) of that section are
48 amended, to read:
49
50 ================= T I T L E A M E N D M E N T ================
51 And the title is amended as follows:
52 Delete line 13
53 and insert:
54 to operate during certain hours; authorizing temporary
55 commercial kitchens to be used in conjunction with The Committee on Commerce and Tourism (Calatayud) recommended
56 licensed permanent food service establishments for the following:
57 specified purposes; authorizing such operation for
58 specified timeframes; authorizing the Division of 1 Senate Amendment (with directory and title amendments)
59 Hotels and Restaurants of the Department of Business 2
60 and Professional Regulation to grant extensions; 3 Delete line 77
61 requiring a temporary commercial kitchen to notify the 4 and insert:
62 division within a specified timeframe of commencing 5 (3)(a) A temporary commercial kitchen may be used in
63 operation; providing 6 conjunction with a permanent food service establishment licensed
7 under this chapter for the purpose of supplementing the kitchen
8 operations of the licensed permanent food service establishment.
9 A temporary commercial kitchen may operate in this capacity as
10 follows:
Page 3 of 3 Page 1 of 3
3/24/2023 2:46:23 PM 577-03014-23 4/3/2023 8:20:14 AM 577-03394-23
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 752 Bill No. CS for SB 752
Ì358156;Î358156 Ì358156;Î358156
11 1. On the premises of the licensed permanent food service 40 commercial kitchen must notify the division within 48 hours
12 establishment for 60 consecutive days. Upon request of the 41 after commencing operation in a location.
13 operator of a temporary commercial kitchen, the division may 42 (4)(3) This section may not be construed to affect a
14 grant one extension of up to 60 additional consecutive days. 43
15 2. During a period of renovation, repair, or rebuilding, on 44 ====== D I R E C T O R Y C L A U S E A M E N D M E N T ======
16 the premises of the licensed permanent food service 45 And the directory clause is amended as follows:
17 establishment or off the premises within the line of sight of, 46 Delete lines 38 - 39
18 and not to exceed 1,320 feet from, the licensed permanent food 47 and insert:
19 service establishment for 120 consecutive days. The division may 48 Section 2. Present subsections (3) and (4) of section
20 exercise discretion to grant an additional extension of time 49 509.102, Florida Statutes, are redesignated as subsections (4)
21 upon a reasonable and reliable demonstration by the licensed 50 and (5), a new subsection (3) is added to that section, and
22 permanent food service establishment that additional time is 51 subsection (1) and present subsection (3) of that section are
23 needed to complete the renovation, repair, or rebuilding. 52 amended, to read:
24 (b) If a permanent food service establishment licensed 53
25 under this chapter, or the land upon which that establishment is 54 ================= T I T L E A M E N D M E N T ================
26 sited, is rendered uninhabitable due to a natural disaster that 55 And the title is amended as follows:
27 is the subject of a declared state of emergency, a temporary 56 Delete line 13
28 commercial kitchen may operate on the premises of, or as near as 57 and insert:
29 reasonably practicable to, the location of the licensed 58 to operate during certain hours; authorizing temporary
30 permanent food service establishment. A temporary commercial 59 commercial kitchens to be used in conjunction with
31 kitchen may operate in this capacity only during the period of 60 licensed permanent food service establishments for
32 repair and rebuilding of the permanent establishment with which 61 specified purposes; authorizing such operation for
33 it is associated. The operators of a temporary commercial 62 specified timeframes; authorizing the Division of
34 kitchen operating in this capacity must notify the division of 63 Hotels and Restaurants of the Department of Business
35 the kitchen’s location and renew the notification every 90 days 64 and Professional Regulation to grant extensions;
36 for the duration of its operation. 65 requiring a temporary commercial kitchen to notify the
37 (c) Except as authorized under paragraphs (a) and (b), a 66 division within a specified timeframe of commencing
38 temporary commercial kitchen may not operate in one location for 67 operation; providing
39 longer than 30 consecutive days. The operators of a temporary
Page 2 of 3 Page 3 of 3
4/3/2023 8:20:14 AM 577-03394-23 4/3/2023 8:20:14 AM 577-03394-23
Florida Senate - 2023 CS for SB 752 Florida Senate - 2023 CS for SB 752
By the Committee on Regulated Industries; and Senator Calatayud
580-02343-23 2023752c1 580-02343-23 2023752c1
1 A bill to be entitled 30 operator shall permanently affix in a prominent place on the
2 An act relating to temporary commercial kitchens; 31 side of the vehicle or kitchen, in figures at least 2 inches
3 amending s. 509.101, F.S.; requiring operators of 32 high and in contrasting colors from the background, the
4 public food service establishments who provide 33 operator’s public food service establishment license number.
5 commissary services to maintain a temporary commercial 34 Prior to providing commissary services, each public food service
6 kitchen registry; requiring temporary commercial 35 establishment must verify that the license number displayed on
7 kitchen operators to display license numbers; amending 36 the vehicle or kitchen matches the number on the vehicle or
8 s. 509.102, F.S.; defining the term “temporary 37 kitchen operator’s public food service establishment license.
9 commercial kitchen”; preempting regulation of 38 Section 2. Subsections (1), (2), and (3) of section
10 temporary commercial kitchens to the state; 39 509.102, Florida Statutes, are amended to read:
11 authorizing mobile food dispensing vehicles and 40 509.102 Mobile food dispensing vehicles; temporary
12 temporary commercial kitchens in specified locations 41 commercial kitchens; preemption.—
13 to operate during certain hours; providing 42 (1)(a) As used in this section, the term “mobile food
14 construction; providing an effective date. 43 dispensing vehicle” means any vehicle that is a public food
15 44 service establishment and that is self-propelled or otherwise
16 Be It Enacted by the Legislature of the State of Florida: 45 movable from place to place and includes self-contained
17 46 utilities, including, but not limited to, gas, water,
18 Section 1. Subsection (3) of section 509.101, Florida 47 electricity, or liquid waste disposal.
19 Statutes, is amended to read: 48 (b) As used in this section, the term “temporary commercial
20 509.101 Establishment rules; posting of notice; food 49 kitchen” means any kitchen that is a public food service
21 service inspection report; maintenance of guest register; mobile 50 establishment, used for the preparation of takeout or delivery-
22 food dispensing vehicle registry.— 51 only meals housed in portable structures that are movable from
23 (3) It is the duty of each operator of a public food 52 place to place by a tow or are self-propelled or otherwise axle-
24 service establishment that provides commissary services to 53 mounted, that include self-contained utilities, including, but
25 maintain a daily registry verifying that each mobile food 54 not limited to, gas, water, electricity, or liquid waste
26 dispensing vehicle or temporary commercial kitchen that receives 55 disposal. Such kitchens are subject to all provisions of this
27 such services is properly licensed by the division. In order 56 chapter except as may be provided herein. The term does not
28 that such licensure may be readily verified, each mobile food 57 include a tent.
29 dispensing vehicle operator or temporary commercial kitchen 58 (2)(a) Regulation of mobile food dispensing vehicles, and
Page 1 of 3 Page 2 of 3
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2023 CS for SB 752
580-02343-23 2023752c1
59 temporary commercial kitchens, involving licenses,
60 registrations, permits, and fees is preempted to the state. A
61 municipality, county, or other local governmental entity may not
62 require a separate license, registration, or permit other than
63 the license required under s. 509.241, or require the payment of
64 any license, registration, or permit fee other than the fee
65 required under s. 509.251, as a condition for the operation of a
66 mobile food dispensing vehicle or temporary commercial kitchen
67 within the entity’s jurisdiction. A municipality, county, or
68 other local governmental entity may not prohibit mobile food
69 dispensing vehicles or temporary commercial kitchens from
70 operating within the entirety of the entity’s jurisdiction.
71 (b) Any mobile food dispensing vehicle or temporary
72 commercial kitchen that is operated on the same premises as and
73 by a separately licensed public food service establishment may
74 operate during the same hours of operation as the separately
75 licensed public food service establishment that operates such
76 mobile food dispensing vehicle or temporary commercial kitchen.
77 (3) This section may not be construed to affect a
78 municipality, county, or other local governmental entity’s
79 authority to regulate the operation of mobile food dispensing
80 vehicles or temporary commercial kitchens other than the
81 regulations described in subsection (2).
82 Section 3. This act shall take effect July 1, 2023.
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 940
INTRODUCER: Banking and Insurance Committee and Senators Calatayud and Rodriguez
SUBJECT: Multiple-employer Welfare Arrangements
DATE: April 3, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Johnson Knudson BI Fav/CS
2. Renner McKay CM Favorable
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/SB 940 revises statutory provisions relating to the regulation of association health plans
(AHP), which are a type of multiple employer welfare arrangement (MEWA). A MEWA is a
legal arrangement that allows business associations or employer groups to jointly offer health
insurance and other specified benefits to their members or employees. In Florida, The Office of
Insurance Regulation has regulatory oversight of self-insured MEWAs and AHPs.
In 2018, the U.S. Department of Labor (DOL) revised the Employee Retirement Income Security
Act (ERISA) rules by providing another option for establishing and maintaining an association
health plan in order to expand access to affordable health coverage for sole proprietors and small
employers. This rule loosened the requirements for associations to qualify as ERISA-covered
“bona-fide associations,” thereby allowing the AHPs they sponsor to qualify as single ERISA
plans and be subject to large group market requirements instead of the individual and small
group market requirements. Florida codified the 2018 federal regulation defining “bona-fide
group.” In 2019, the U.S. District Court for the District of Columbia invalidated significant
provisions of the federal regulations. The court concluded that the bona fide association and
working provisions of the Final Rule are unreasonable and unlawful interpretations of ERISA,
and these provisions were vacated by the court.
CS/SB 940 revises the definition of “bona-fide group” under Florida law to include many of the
provisions of the 2018 federal rule and removes the cross reference to the 2018 federal
BILL: CS/SB 940 Page 2
regulation. The bill provides that a bona-fide group is an employee welfare benefit plan
consisting of a group or association of member employers that meets the following requirements:
The primary purpose of the group or association is to offer and provide health coverage to its
member employers and their employees, but the group or association must have at least one
substantial business purpose that is unrelated to the offering and providing of health
insurance. A substantial business purpose is considered to exist if the group or association
would be a viable entity in the absence of sponsoring an employee benefit plan.
Each member employer participating in the group health plan is a person acting directly as an
employer of at least one employee who is a participant covered under the plan.
The group or association has a formal organizational structure with a governing body.
The functions and activities of the group or association are controlled by its member
employers. The control must be present both in form and substance.
The member employers have a principal place of business in the same region that does not
exceed the boundaries of a single state or a metropolitan area, even if the metropolitan area
includes more than one state.
Eligibility for the association or group health coverage offerings is specified, such as an
employee or former employee of a current employer member of the group or association; or a
beneficiary of the current or former employee.
The group or association is not a health insurance issuer as described in section 733(b)(2) of
ERISA, or owned or controlled by a health insurance issuer or by a subsidiary or affiliate of a
health insurance issuer, other than to the extent such entities participate in the group or
association in their capacity as member employers of the group or association. This language
is substantially similar to language found in 29 C.F.R. part 2510.3-5 (8), with the only
difference being the removal of the federal citation for the definition of a health insurance
issuer.
The group or association health coverage must comply with the nondiscrimination provisions
of s. 627.6699, F.S., as it applies to small group health plans.
The bill is not expected to have an impact on state or local governments.
The bill takes effect upon becoming law.
II. Present Situation:
Regulation of Multiple Employer Welfare Arrangements under ERISA
The U.S. Department of Labor (DOL) is responsible for the administration and enforcement of
the provisions of Title I of the Employee Retirement Income Security Act (ERISA).1 In general,
ERISA prescribes minimum participation, vesting and funding standards for private-sector
pension benefit plans and reporting and disclosure, claims procedure, bonding and other
requirements which apply to both private-sector pension plans and private-sector welfare benefit
plans. ERISA also prescribes standards of fiduciary conduct which apply to persons responsible
for the administration and management of the assets of employee benefit plans subject to ERISA.
1
29 U.S.C. s. 100 et seq.
BILL: CS/SB 940 Page 3
ERISA covers only those plans, funds, or arrangements that constitute an “employee welfare
benefit plan,” as defined in ERISA Section 3(1), or an “employee pension benefit plan,” as
defined in ERISA Section 3(2). By definition, multiple employer welfare arrangements
(MEWAs) do not provide pension benefits; therefore, only those MEWAs that constitute
“employee welfare benefit plans” are subject to ERISA’s provisions governing employee benefit
plans.
Prior to 1983, if a MEWA was determined to be an ERISA-covered plan, state regulation of the
arrangement would have been precluded by ERISA’s preemption provisions. On the other hand,
if the MEWA was not an ERISA-covered plan, which was generally the case, ERISA’s
preemption provisions did not apply and states were free to regulate the entity in accordance with
applicable state law. In 1983, Congress amended ERISA to give states regulatory authority over
self-insured multiple employer welfare arrangements and some regulatory authority over fully
insured MEWAs to ensure solvency, require state licensure, and require financial reporting.2
Subsequently in 1996, ERISA was amended to give the DOL the authority to require full-insured
and self-insured MEWAs to register with the DOL.3 MEWAs that are not group health plans
(non-plan MEWAs) must register with the DOL prior to operating in a state.4 The purpose of this
reporting was to allow the department to determine whether the requirements of part 7 of ERISA
were being met.5 Part 7 of ERISA includes statutory amendments made by HIPAA and other
statutes for which MEWAs must annually report compliance.
The Patient Protection and Affordable Care Act6 (PPACA) created reporting requirements for
MEWAs, imposed criminal penalties on MEWA fraud, and authorized the department to take
immediate actions against fraudulent MEWAs.
Access to Affordable Health Insurance Coverage through an Association
Prior to August 20, 2018, health insurance coverage offered or provided through an employer
trade association, chamber of commerce, or similar organization, to individuals and small
employers, was generally regulated under the same federal standards that apply to insurance
coverage sold by health insurance issuers7 directly to these individuals and small employers,
unless the coverage sponsored by the group or association constituted a single ERISA covered
plan.8 Generally, unless the arrangement sponsored by the group or association constituted a
single ERISA covered plan, the regulatory framework disregarded the group or association in
determining whether the coverage obtained by any particular participating individual or
2
Pub. L. 97-473.
3
Pub. L. 104-191.
4
Title 29 CFR s. 2520.101-2.
5
65 Fed Reg. 7152 (Feb. 11, 2000) interim rule and 68 Fed. Reg. 17494 (Apr. 9, 2003) final rule.
6
The Patient Protection and Affordable Care Act (Pub. L. 111-148) and the Health Care and Education Reconciliation Act of
2010 (Pub. L. 111-152), which amended and revised several provisions of the PPACA, was enacted on March 30, 2010. The
laws are collectively referred to as PPACA.
7
A “health insurance issuer” or ‘‘issuer’’ is an insurance company, insurance service, or insurance organization (including an
HMO) that is required to be licensed to engage in the business of insurance in a state and that is subject to state law that
regulates insurance (within the meaning of section 514(b)(2) of ERISA). Such term does not include a group health plan.
29 CFR 2590.701–2. The terms ‘‘health insurance issuer’’ and ‘‘issuer’’ are used interchangeably.
8
Fed. Reg. Vol. 83, No 120 (June 21, 2018) at 28912 and 28913.
BILL: CS/SB 940 Page 4
employer is individual, small group, or large group market coverage. Instead, the test for
determining the type of coverage focuses on whether the coverage is offered to individuals or
employers.9
As a result, associations that wanted to form association health plans (AHPs) and existing AHPs
currently faced a complex and costly compliance environment, insofar as the various employer
members of the association and the association’s health insurance coverage arrangement may
simultaneously be subject to large group, small group, and individual market regulation which
undermines one of the core purposes and advantages of an association forming and its employer
members joining an AHP.
On June 21, 2018, the DOL issued its final rule on the regulation of AHPs, effective August 20,
2018.10 The final rule maintains the existing regulatory framework but also creates a second
option for both new and existing AHPs that may elect to follow the new regulations. The second
option contains the following key provisions:
Allows for AHPs to be based on a common geography area or a common industry for
purposes of the commonality of interest test.
Allows small employers, including sole proprietors with no employees, to join together to
form an AHP and be treated as a large employer for the purpose of buying insurance.
Previously an employer with no employees was not eligible for group coverage.
Includes nondiscrimination protections that prohibit associations from conditioning
membership based on a health factor (e.g., health status, medical condition including both
physical and mental illnesses, claims experience, receipt of health care, medical history,
genetic information, evidence of insurability, or disability of an employee, or family
member). An AHP may not discriminate in eligibility (e.g., enrollment, effective coverage
dates, or waiting periods) benefits or premiums against an individual within a group of
similarly situated individuals based on health factors. The rule does not prohibit the use of
non-health factors such as gender, age, geography, and industry. The rule prohibits groups or
associations from treating the employees of different employer members as distinct groups of
similarly situated individuals based on a health factor.
Eliminates the existing requirement that a group or association acting as an employer must
exist for purposes other than providing health benefits. The rule requires that a group or
association of employers have at least one substantial business purpose unrelated to offering
and providing health coverage or other employee benefits to its employer members and their
employees, even if the primary purpose of the group or association is to offer such coverage
to its members.
The rule provides that states will continue to have regulatory oversight of AHPs and share
enforcement authority with the federal government. The new rule does not affect previously
existing AHPs, which were authorized under prior guidance.11 Such plans can continue to
operate as before, or elect to follow the new requirements if they want to expand within a
geographic area, regardless of industry, or to cover the self-employed. New plans can also form
9
Id. Known as the “look through” doctrine.
10
29 CFR Part 2510, available at https://www.govinfo.gov/content/pkg/FR-2018-06-21/pdf/2018-12992.pdf (last viewed
April 3, 2023).
11
Fed. Reg. Vol. 83, No. 120 (June 21, 2018) Preamble.
BILL: CS/SB 940 Page 5
and elect to follow either the old guidance or the new rules. New and existing plans may use
experience rating by underwriting premiums for individual employer members based on health
status. However, the AHPs that want to do so must continue to meet the prior federal regulations,
which are more stringent standards in areas such as commonality of interest; and they could not
enroll working owners in an AHP coverage.
In the preamble of the rule, the DOL states that the final rule does nothing to remove the
traditional oversight and regulatory authority that states have over AHPs and MEWAs. The final
rule does not modify or otherwise limit existing state authority under Section 514 of ERISA.
For fully insured AHPs, states can impose solvency standards and other rules that apply to health
insurers that sell policies to AHPs. The DOL adds that states clearly have the authority to impose
licensing, registration, certification, financial reporting, examination, audit, and any other
standards on fully insured AHPs that are necessary to ensure compliance with the state solvency
standards. For self-insured AHPs, states can apply insurance laws to the AHP so long as the state
law is “not inconsistent” with ERISA.12
The rule provides that the large group market’s regulatory flexibility is likely to encourage and
enable more existing organizations to pursue more potential scale advantages for small business
members. These might include some MEWAs that currently do not constitute single large group
plans but instead encompass multiple plans, each sponsored separately by a participating
employer (non-plan MEWAs).13 Further, the rule also encourages the establishment of new
organizations to sponsor AHPs, and will enable both existing and new AHPs to extend
membership to working owners. Fully-insured and self-insured AHPs established under this final
rule generally will be subject to federal benefit mandates that apply to the large group insurance
and self-insured ERISA-covered markets, respectively.
Federal Litigation Relating to the Regulations of AHPs
Eleven states and the District of Columbia sued the DOL alleging that its final rule interpreting
the definition of “employer” in ERISA is unlawful under the Administrative Procedure Act.14
The court held that the bona fide association and working owner provisions of the final rule,
codified at 29 C.F.R. ss. 2510.3-5(b), (c), and (e), are unreasonable interpretations of ERISA and
were vacated by the court.15 The court concluded that the final rule was intended to end run the
requirements of PPACA.16 The court notes that the final rule includes a severability provision,
which provides that if a provision is found entirely invalid then “the provision shall be severable
from (the final rule) and shall not affect the remainder thereof.” In light of this provision, the
court remanded the final rule to the agency for consideration in the first instance of how the
12
Section 514(b)(6)(A)(ii) of ERISA. See Health Affairs Blog, Final Rule Rapidly Eases Restrictions on Non-ACA-
Compliant Association Health Plans (June 21, 2018), available at
https://www.healthaffairs.org/do/10.1377/forefront.20180621.671483/full/ (last visited April 3, 2023).
13
Health Affairs Blog, Final Rule Rapidly Eases Restrictions on Non-ACA-Compliant Association Health Plans (June 21,
2018), available at https://www.healthaffairs.org/do/10.1377/forefront.20180621.671483/full/ (last visited April 3, 2023).
14
State of New York, et al., v. United States Department of Labor, 363 F.Supp.3d 109 (D.C. Cir 2019).
15
Id. at 141.
16
Id.
BILL: CS/SB 940 Page 6
severability provision affects the remaining portions of the final rule. The Department of Justice
appealed the court’s decision to the court of Appeals for the District of Columbia.17
On April 29, 2019, the DOL provided guidance18 regarding their enforcement stance for AHPs
created under the new rule. The court ruling was issued days before the rule went fully into effect
for new self-insured AHPs.19 Because the rule had already been partially in effect, there were
questions about what the court’s decision meant for consumers who already enrolled in new
AHP coverage.20
Under this guidance, the DOL and HHS stated that they would not take enforcement action for
violations that occurred before court decision so long as the entity made those decisions in good
faith reliance on the validity of the AHP rule.21 DOL will not take action against existing AHPs
for continuing to provide benefits to members who enrolled in good faith reliance on the AHP
rule's validity before the district court's order, through the remainder of the applicable contract
term. Further, at the end of the plan year, the issuer would only be able to renew the coverage for
an employer member of an AHP formed pursuant to the DOL’s final rule if the coverage
complies with the relevant market requirements for that employer's size (such as, for insurance
sold to small employers, the essential health benefits requirements and premium rating rules).
The guidance provided that an insurer can satisfy the requirement to continue the coverage in
force by continuing coverage for each employer-member of the association that chooses to
continue coverage, either through the master policy with the association or through separate
contracts with each employer-member on an outside-the-association basis.
Regulation of Insurance in Florida
The Office of Insurance Regulation (OIR) licenses and regulates the activities of insurers, health
maintenance organizations (HMOs), and other risk-bearing entities.22 The Agency for Health
Care Administration (agency) regulates the quality of care provided by HMOs under part III of
ch. 641, F.S., and before receiving a certificate of authority from the OIR, an HMO must receive
a Health Care Provider Certificate from the agency. 23
Regulation of Multiple Employer Welfare Arrangements—General Provisions
Section 627.651, F.S., provides that group health insurance contracts and plans of self-insurance
must meet certain group requirements. Further, this section does not apply to any plan which is
established or maintained by an individual employer in accordance with ERISA or to a MEWA,
as defined in s. 624.437, F.S., except that a MEWA must comply with the following statutory
provisions:
17
Health Affairs Blog, DOL Issues Additional Guidance On AHPs (May 15, 2019), available at
https://www.healthaffairs.org/do/10.1377/forefront.20190515.142866/full/ (last visited April 3, 2023).
18
U.S. Department of Labor Statement Relating to the U.S. District Court Ruling in State of New York v. United States
Department of Labor | U.S. Department of Labor (dol.gov) (Apr. 29, 2019) (last visited April 3, 2023).
19
DOJ Appeals AHP Decision, CMS Posts Final 1332 Funding For 2019 | Health Affairs (Apr. 30, 2019).
20
Supra note 17.
21
Supra note 18.
22
Section 20.121(3)(a), F.S.
23
Section 641.21(1), F.S.
BILL: CS/SB 940 Page 7
627.419, F.S., relating to the construction of policies.
627.657, F.S., relating to guaranteed availability of individual health insurance coverage.
627.6575, F.S., relating to group coverage for newborn children.
627.6578, F.S., relating to group coverage for natural-born, adopted, and foster children; and
children in insured’s custodial care.
627.6579, F.S., relating to group coverage for child health supervision services.
627.6612, F.S., relating to group coverage for surgical procedures and devices incident to
mastectomy.
627.66121, F.S., relating to coverage length of stay and outpatient postsurgical care for breast
cancer.
627.66122, F.S., relating to group coverage for breast cancer and routine follow up care.
627.6615, F.S., relating to group coverage continuation of coverage for children with
disabilities.
627.6616, F.S., relating to group coverage for ambulatory surgical center service.
627.662(7), F.S., relating to denial of claims.24
Florida’s Nonprofit Multiple Employer Welfare Arrangement Act
In Florida, MEWAs25 are regulated pursuant to the Florida’s Nonprofit Multiple Employer
Welfare Arrangement Act (act).26 An AHP consisting of multiple employers is referred to as a
MEWA.27 For purposes of this act, a MEWA is an employee welfare benefit plan or any other
arrangement which is established or maintained for the purpose of offering or providing health
insurance benefits or any other benefits described in s. 624.33, F.S., other than life insurance
benefits, to the employees of two or more employers, or to their beneficiaries.28 A person may
not operate, maintain, or, after October 1, 1983, establish a MEWA unless such arrangement has
a valid certificate of authority issued by the OIR.29
The OIR uses the requirements of s. 624.438, F.S., to determine eligibility for MEWAs30 and
specifies the application requirements in Rule 69O-192.008, F.A.C. The OIR reviews MEWA
24
Section 627.645(1), F.S. provides that a claim for payment under a health insurance policy or self-insured program of
health benefits for treatment, care, or services in a licensed hospital that is accredited by an accrediting organization whose
standards incorporate comparable regulations required by this state may not be denied because such hospital lacks major
surgical facilities and is primarily of a rehabilitative nature, if such rehabilitation is specifically for treatment of physical
disability.
25
Section 624.437(3), F.S., provides this section does not apply to a MEWA that offers or provides fully insured benefits by
an authorized insurer, to an arrangement which is exempt from state insurance regulation pursuant to ERISA, or to the state
group insurance program.
26
Section 624.436-624.448, F.S. which may be cited as the “Florida Nonprofit Multiple Welfare Arrangement Act.”
27
Section 624.438, F.S.
28
Section 624.437(1), F.S. Subsection (3) of this section exempts a MEWA that offers or provides benefits which are fully
insured by an authorized insurer, to an arrangement which is exempt from state insurance regulation in accordance with the
Employee Retirement Income Security Act of 1974 (ERISA), and the state group health insurance program administered
pursuant to s.110.123, F.S.
29
Section 624.437(2), F.S.
30
See Office of Insurance Regulation, 2023 Legislative Session, SB 940 Analysis (Feb. 22, 2023). On file with the Senate
Banking and Insurance Committee.
BILL: CS/SB 940 Page 8
applications for compliance with Florida law and does not review for compliance with federal
standards.31
In 2019, s. 624.438, F.S., was amended to codify the cross reference to the definition of bona
fide group, as adopted in the 2018 federal rule. This change also was made in s. 627.654, F.S,
relating to labor unions, association of employers, and small employer alliance groups.32 Section
624.438, F.S., specifies the general eligibility criteria for a MEWA and requires the employers to
be in the same trade, industry, or profession as defined by the appropriate licensing agencies, or a
bona fide group as defined in 29 C.F.R. part 2510.3-5. It also requires the MEWA to have a
constitution or bylaws specifically stating its purpose and which has been organized for purposes
in addition to obtaining or providing insurance.
In Florida, three MEWAs are licensed by Office of Insurance Regulation. They are the Florida
Bankers Health Consortium, Inc., Greater Health Trust, and Independent Colleges and
Universities Benefit Association, Inc.33
Labor Unions, Association, and Small Employer Health Alliance Groups
Section 627.654, F.S., provides that a bona fide group or association or association of employers,
as defined in 29 C.F.R. part 2510.3-5, or a group of individuals insured under an association may
include a labor union or small employer health alliance groups if certain conditions are met.
Regulation of Small Group Employers
Section 627.6699, F.S., the Employee Health Care Access Act, defines a small group as an
employer with at least one and not more 50 employees. The act provides restrictions relating to
premium rates. The act allows the use of modified community rating in which the premium for
each small employer is determined solely on the basis of the eligible employee’s and eligible
dependent’s gender, age, family composition, tobacco use, or geographic area. In addition,
premium adjustments of an employer’s rate for claims experience, health status, or duration of
coverage may deviate plus or minus 15 percent from the carrier’s approved rate.34 Subsequently,
a small employer carrier may make an adjustment to a small employer’s renewal premium, up to
10 percent annually due to claims experience, health status, or duration of coverage of the
employees or dependents of the small employer.
The rating and underwriting standards of PPACA35 require that premiums for individuals and
small groups may vary only by:
31
Id. The OIR states that the U.S. Department of Labor advisory opinion and the 2018 Federal District Court opinion do not
impact OIR's review of MEWA licensing applications.
32
Ch. 2019-129, Laws of Fla. Section 627.654, F.S., provides eligibility requirements for associations, labor unions, and
small employer health alliance groups that want to be insured under a policy issued to their respective entity.
33
Office of Insurance Regulation, Company Search (myfloridacfo.gov) (last visited April 3, 2023)
34
Section 627.6699(6), F.S.
35
PPACA requires individual and small group plans to provide certain essential benefits and creates rating standards.
PPACA preempts any state law that prevents the application of a provision of the PPACA. The PPACA effectively allows
states to adopt and enforce laws that provide greater consumer protections than the PPACA, but any state law that does not
meet the federal minimum standards will be preempted. Pub. L. No. 111–148, s. 1321(d).
BILL: CS/SB 940 Page 9
Age, up to a maximum ratio of 3 to 1. This means rates for older adults may not be more than
three times greater than the rates for younger adults.
Tobacco, up to a maximum ratio of 1.5 to 1.
Geographic rating area.
Whether coverage is for an individual or a family.36
III. Effect of Proposed Changes:
Section 1. Amends s. 624.438, F.S., by deleting the current definition of “bona fide group,”
which is defined by a cross reference to the 2018 federal rule, 29 C.F.R. 2510-3-5. The
definition of the term, “bona fide group” is created within the section and it is similar but not
identical to the federal definition and requirements. The bill provides that a bona fide group that
is an employee welfare benefit plan includes a group or association which meets the following
requirements:
The primary purpose of the group or association is to offer and provide health coverage to its
member employers and their employees, but the group or association has at least one
substantial business purpose that is unrelated to the offering and providing of health
insurance. A substantial business purpose is considered to exist if the group or association
would be a viable entity in the absence of sponsoring an employee benefit plan.
Each member employer participating in the group health plan is a person acting directly as an
employer of at least one employee who is a participant covered under the plan.
The group or association must have a formal organizational structure with a governing body.
The functions and activities of the group or association are controlled by its member
employers. The control must be present both in form and substance.
The member employers must have a principal place of business in the same region that does
not exceed the boundaries of a single state or a metropolitan area, even if the metropolitan
area includes more than one state.
Eligibility for health coverage offered by the individuals and employers of the association or
group is specified.
The group or association health coverage must comply with the nondiscrimination provisions
of section 627.6699, F.S., as it applies to small group health plans rather than the federal
requirements.37 Section 627.6699, F.S. allows for the use of modified community rating in
which the premium for each small employer is determined solely on the basis of the eligible
employee’s and eligible dependent’s gender, age, family composition, tobacco use, or
geographic area. In addition, premium adjustments of plus or minus 15 percent of the
approved rate are allowed for claims experience, health status, or duration of coverage may
not be charged to individual employees or dependents. The federal rule does not provide
rating bands. Section 627.654, F.S., provides that a small employer, as defined in s.
627.6699, F.S., may be insured under a policy issued to a small employer health alliance by a
carrier, as defined in s. 627.6699, F.S.
Specifies that the group or association is not a health insurance issuer as described in section
733(b)(2) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. section
1191b(b)(2), or owned or controlled by a health insurance issuer or by a subsidiary or
36
42 U.S.C. s.18022.
37
Supra note 9.
BILL: CS/SB 940 Page 10
affiliate of a health insurance issuer, other than to the extent such entities participate in the
group or association in their capacity as member employers of the group or association.
Section 2. Provides that the bill takes effect upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Implementation of the bill will clarify the regulations of self-funded MEWAs in Florida.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
Under federal law, self-employed employers or sole proprietors that have no employees are
generally not eligible for group coverage. Instead, they may obtain coverage in the individual
BILL: CS/SB 940 Page 11
market.38 It is unclear whether such employers would qualify as an employee of a current group
member under Florida law.39
VIII. Statutes Affected:
This bill substantially amends section 624.438 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Banking and Insurance on March 29, 2023:
The amendment makes technical and conforming changes.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
38
45 CFR s. 155.20.
39
See Office of Insurance Regulation, 2023 Legislative Session, SB 940 Analysis (Feb. 22, 2023). On file with Senate
Committee on Banking and Insurance.
Florida Senate - 2023 CS for SB 940 Florida Senate - 2023 CS for SB 940
By the Committee on Banking and Insurance; and Senators
Calatayud and Rodriguez
597-03293-23 2023940c1 597-03293-23 2023940c1
1 A bill to be entitled 30 subparagraph 3.
2 An act relating to multiple-employer welfare 31 3. A professional association consists of member employers
3 arrangements; amending s. 624.438, F.S.; revising 32 who are of the same profession as recognized by the appropriate
4 eligibility requirements for a bona fide group to 33 licensing agency.
5 qualify as a multiple-employer welfare arrangement; 34 4. A bona fide group is a group or an association of
6 amending s. 627.654, F.S.; conforming a provision to 35 employers which meets all of the following requirements:
7 changes made by the act; providing an effective date. 36 a. The primary purpose of the group or association may be
8 37 to offer and provide health coverage to its employer members and
9 Be It Enacted by the Legislature of the State of Florida: 38 their employees. However, the group or association must also
10 39 have at least one substantial business purpose unrelated to such
11 Section 1. Paragraph (b) of subsection (1) of section 40 primary purpose. For purposes of this sub-subparagraph, a
12 624.438, Florida Statutes, is amended to read: 41 substantial business purpose is deemed to exist if the group or
13 624.438 General eligibility.— 42 association would be a viable entity in the absence of
14 (1) To meet the requirements for issuance of a certificate 43 sponsoring an employee benefit plan. A substantial business
15 of authority and to maintain a multiple-employer welfare 44 purpose includes promoting common business interests of its
16 arrangement, an arrangement: 45 members or the common economic interests in a given trade or
17 (b) Must be established by a trade association, industry 46 employer community and is not required to be a for-profit
18 association, professional association of employers or 47 activity.
19 professionals, or a bona fide group that as defined in 29 C.F.R. 48 b. Each employer member of the group or association which
20 part 2510.3-5 which has a constitution or bylaws specifically 49 participates in the group health plan is a person acting
21 stating its purpose and which has been organized for purposes in 50 directly as an employer of at least one employee who is a
22 addition to obtaining or providing insurance. 51 participant covered under the plan.
23 1. A trade association consists of member employers who are 52 c. The group or association has a formal organizational
24 in the same trade as recognized by the appropriate licensing 53 structure with a governing body and has bylaws or other similar
25 agency. 54 indications of formality.
26 2. An industry association consists of member employers who 55 d. The functions and activities of the group or association
27 are in the same major group code, as defined by the Standard 56 are controlled by its employer members, and the group’s or
28 Industrial Classification Manual issued by the federal Office of 57 association’s employer members that participate in the group
29 Management and Budget, unless restricted by subparagraph 1. or 58 health plan control the plan. Control must be present both in
Page 1 of 4 Page 2 of 4
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2023 CS for SB 940 Florida Senate - 2023 CS for SB 940
597-03293-23 2023940c1 597-03293-23 2023940c1
59 form and in substance. 88 The requirements of this paragraph do not apply to an
60 e. The employer members have a principal place of business 89 arrangement licensed before April 1, 1995, regardless of the
61 in the same region that does not exceed the boundaries of a 90 nature of its business. However, an arrangement exempt from the
62 single state or metropolitan area, even if the metropolitan area 91 requirements of this paragraph may not expand the nature of its
63 includes more than one state. 92 business beyond that set forth in the articles of incorporation
64 f. The group or association does not make health coverage 93 of its sponsoring association as of April 1, 1995, except as
65 through the group’s or association’s group health plan available 94 authorized in this paragraph.
66 to any person other than: 95 Section 2. Paragraph (a) of subsection (1) of section
67 (I) An employee of a current employer member of the group 96 627.654, Florida Statutes, is amended to read:
68 or association; 97 627.654 Labor union, association, and small employer health
69 (II) A former employee of a current employer member of the 98 alliance groups.—
70 group or association who became eligible for coverage under the 99 (1)(a) A bona fide group as defined in s. 624.438(1)(b)4.,
71 group health plan when the former employee was an employee of 100 an or association of employers, as defined in 29 C.F.R. part
72 the employer; or 101 2510.3-5, or a group of individuals may be insured under a
73 (III) A beneficiary, such as a spouse or dependent child, 102 policy issued to an association, including a labor union, which
74 of an individual described in sub-sub-subparagraph (I) or sub- 103 association has a constitution and bylaws and which has been
75 sub-subparagraph (II). 104 organized for purposes in addition to that of obtaining
76 g. The group or association and the health coverage offered 105 insurance, or to the trustees of a fund established by such an
77 by the group or association comply with the nondiscrimination 106 association, which association or trustees shall be deemed the
78 provisions of s. 627.6699. 107 policyholder, insuring at least 15 individual members of the
79 h. The group or association is not a health insurance 108 association for the benefit of persons other than the officers
80 issuer as defined in s. 733(b)(2) of the Employee Retirement 109 of the association, the association, or trustees.
81 Income Security Act of 1974, 29 U.S.C. s. 1191b(b)(2), or owned 110 Section 3. This act shall take effect upon becoming a law.
82 or controlled by such a health insurance issuer or by a
83 subsidiary or affiliate of such a health insurance issuer, other
84 than to the extent such entities participate in the group or
85 association in their capacity as employer members of the group
86 or association.
87
Page 3 of 4 Page 4 of 4
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The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1242
INTRODUCER: Commerce and Tourism Committee and Senator Boyd
SUBJECT: Registrations and Transfers of Heating, Ventilation, and Air-conditioning System
Manufacturer Warranties
DATE: April 4, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Baird McKay CM Fav/CS
2. JU
3. RC
I. Summary:
CS/SB 1242 provides that a manufacturer warranty for a Heating, Ventilation, and Air
Conditioning (HVAC) system, of a residential property, be registered to the property instead of
the person who registered for the warranty. The bill also provides for the following:
When a subsequent owner purchases the property, the remaining manufacturer warranty
coverage of the HVAC system is transferred to the subsequent owner.
A manufacturer warranty for an HVAC system becomes effective once an HVAC is
installed.
The warrantor continues to be obligated under the terms of a manufacturer’s warranty and
cannot charge the new owner a transfer fee.
A contractor who installs a new HVAC system must document the installation through an
invoice or receipt to the customer.
The transfer of the warranty to the new owner does not extend the existing warranty term.
Warranties are deemed registered with the manufacturer if the contractor is licensed under
part I of Chapter 489, F.S., installs the new HVAC system, and provides the manufacturer
with the serial number of the HVAC system.
The bill provides an effective date of July 1, 2023.
BILL: CS/SB 1242 Page 2
II. Present Situation:
Warranty Background
A warranty is an assurance that a manufacturer or seller makes about the condition of its
product.1 A warranty means that a manufacturer or seller will replace or repair the product under
certain instances. A warranty can be either express or implied.2
An express warranty is a verbal or written assurance for the product.3 On the other hand, an
implied warranty is an unstated assurance that the product is made for its intended purpose.4 An
implied warranty is in addition to an express warranty. However, an implied warranty may be
negated or limited by an express warranty. There is no implied warranty if a seller states that the
product is “as is”, “with all faults”, or similar language.5
Manufacturer Warranties
A manufacturer warranty attaches to the purchase of the product by the manufacturer. A
manufacturer warranty is considered a limited warranty because the warranty is only valid for a
certain time period after the purchase. These terms and conditions are created by the
manufacturer. Once the period of coverage is over, someone can purchase an extended warranty
under different coverage terms to extend the protection of the product beyond the terms and
conditions laid out in the manufacturer warranty.6
Magnuson-Moss Warranty Act
The Magnuson-Moss Warranty Act (MMWA)7 is a federal law that governs consumer product
warranties. Passed in 1975, the Act requires manufacturers and sellers of consumer products to
provide consumers with detailed information about warranty coverage before and after the sale
of the warranted product.8
The MMWA defines three kinds of consumers:
A buyer of any consumer product.
Any person to whom such product is transferred during the duration of an implied or express
warranty applicable to the product.
1 Will Kenton, Warranty Definition, Types, Example, and How It Works, Investopedia, Nov. 24, 2022, available at
https://www.investopedia.com/terms/w/warranty.asp (last visited April 3, 2023).
2
45 Fla. Jur 2d Sales and Exchanges of Goods § 156.
3
“An express warranty is created by an affirmation of fact or promise made by the seller to the buyer that relates to the
goods, by any description of the goods that is made part of the basis of the bargain, or by any sample or model that is made
part of the basis of the bargain.” S. 672.313, F.S.
4
Section 672.314, F.S.
5
Section 672.316, F.S.
6
Tom Scott, Extended Warranties vs. Manufacturer Warranties: What's the Difference?, Fortegra, July 9, 2019, available at
https://blog.fortegra.com/extended-warranties-vs.-manufacturer-warranties-whats-the-difference (last visited April 3, 2023).
7
15 U.S.C. §§ 2301-2312 (1975).
8
MMWA does not apply if a seller or manufacturer does not provide a warranty on their product. Jason Gordon, Magnuson
Moss Warranty Act – Explained, The Business Professor, Sept. 26, 2021, available at
https://thebusinessprofessor.com/en_US/consumer-law/magnuson-moss-warranty-act (last visited April 3, 2023).
BILL: CS/SB 1242 Page 3
Any other person who is entitled by the terms of such warranty or under applicable State law
to enforce the obligations of the warranty.9
Manufacturer Warranties for HVAC Systems in Florida
Most manufacturers require that an HVAC contractor purchase and install the HVAC system
before the consumer can register the HVAC system for the limited manufacturer warranty.
Generally, manufacturers provide a warranty for the HVAC system for 5 to 10 years. The
warranty covers parts that might fail such as the air compressor or furnace heat exchanger. The
manufacturer will replace or repair any parts at no cost if the parts are covered under the
warranty.10
If a building or house that contains an HVAC system with a manufacturer warranty is sold to
another person, the warranty time may be cut short or may not transfer to the new owner. The
assignment of the HVAC warranty to the new owner is contingent upon the terms and conditions
for the warranty. In Florida, most manufacturer warranties are tied to a person instead of the
property. Usually, the manufacturer warranty is tied to the original owner and does not transfer
when the property is sold unless the previous owner transfers it to the new owner if that is an
option in the warranty. Below are some typical transfer policies:11
Manufacturer Transfer Policy
Must register within 90 days of the property sale.
Carrier HVAC must stay in same location.
Subsequent owner will have access to limited warranty
with 5-year parts and compressor coverage.12
Can transfer a warranty from the original owner to
subsequent owner.
Maytag Subsequent owner can access an “unregistered warranty”
for 5-year parts and compressor coverage and 20-year heat
exchanger coverage.
Subsequent owners cannot access the entire coverage
period that the original owner had for the registered
warranty.13
9
O'Connor v. BMW of N. Am., LLC, 905 So. 2d 235, 236–37 (Fla. 2d DCA 2005); see also, § 2310(d) of MMMWA provides
that, “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation
under this title, or under a written warranty, implied warranty, or service contract, may bring suit for damages…”
10
Bryan Carnahan, HVAC Warranties and You: What Are They, and Why Should You Register Your Product?, Fire & Ice
Heating and Air Conditioning, Inc., July 1, 2022, available at https://indoortemp.com/resources/hvac-warranties-and-
product-registration (last visited April 3, 2023).
11
Bry'Ana Arvie, Will HVAC Warranties Automatically Transfer over to New Homeowners?, Angi, Aug. 10, 2021,
available at https://www.angi.com/articles/do-hvac-warranties-transfer-homeowners.htm (last visited April 3, 2023).
12
Homeowner Resources – Warranty, Carrier, available at https://www.carrier.com/residential/en/us/homeowner-
resources/warranty/ (last visited April 3, 2023).
13
Product Warranty, Maytag, available at https://www.maytaghvac.com/warranty/ (last visited April 3, 2023).
BILL: CS/SB 1242 Page 4
Trane Warranty stays with the HVAC unit regardless of original
or subsequent ownership.
Subsequent owner gets access to the remaining warranty
coverage period of the original owner’s limited warranty
with the manufacturer, but the subsequent owner must
register the unit with Trane and pay a transfer fee.14
Other States
States differ in their approach on the transferability of warranties to a subsequent owner. In
Louisiana and Texas, warranties automatically transfer the remaining coverage of the original
owner, without any cost, to the subsequent owner of the property.15 In Alaska, if the lessor has a
warranty on personal property and the terms of the warranty permit transfer, the lessor may
transfer the warranty to the new person who acquired ownership.16 Generally, states allow the
terms and conditions of the warranty to control whether the remaining coverage is transferable to
a subsequent owner.
Licensed Contractors
The Construction Industry Licensing Board (CILB) within the DBPR is responsible for licensing
and regulating the construction industry in this state under part I of ch. 489, F.S.17 The CILB is
divided into two divisions with separate jurisdictions:
Division I comprises the general contractor, building contractor, and residential contractor
members of the CILB. Division I has jurisdiction over the regulation of general contractors,
building contractors, and residential contractors.
Division II comprises the roofing contractor, sheet metal contractor, air-conditioning
contractor, mechanical contractor, pool contractor, plumbing contractor, and underground
utility and excavation contractor members of the CILB. Division II has jurisdiction over the
regulation of roofing contractors, sheet metal contractors, class A, B, and C air-conditioning
contractors, mechanical contractors, commercial pool/spa contractors, residential pool/spa
contractors, swimming pool/spa servicing contractors, plumbing contractors, underground
utility and excavation contractors, solar contractors, and pollutant storage systems
contractors.18
14
Warranty and Registration, Trane, available at https://www.trane.com/residential/en/resources/warranty-and-
registration/#faq (last visited April 3, 2023).
15
La. Stat. § 9:3148; TX BUS & COM § 608.002(a)-(b) which states the following:
(a) If residential real property that includes an air conditioning system as a fixture to the property is conveyed to a new
owner, a manufacturer's warranty in effect on that system or a component of that system on the date of the conveyance:
(1) is automatically transferred to the new owner; and
(2) continues in effect as if the new owner was the original purchaser of the system or component, as applicable.
(b) A warrantor continues to be obligated under the terms of a manufacturer's warranty agreement for a warranty transferred
under this section and may not charge a fee for the transfer of the warranty.
16
Alaska Stat. Ann. § 45.35.020.
17
See s. 489.107, F.S.
18
Section 489.105(3), F.S.
BILL: CS/SB 1242 Page 5
Under current law, a “certified contractor” has met competency requirements for a particular
trade category and holds a geographically unlimited certificate of competency from the DBPR
which allows the contractor to contract in any jurisdiction in the state without being required to
fulfill the competency requirements of other jurisdictions.19
The term “registered contractor” means a contractor who has registered with the DBPR as part of
meeting competency requirements for a trade category in a particular jurisdiction, which limits
the contractor to contracting only in the jurisdiction for which the registration is issued.20
Registered contractors must sit for and satisfactorily pass the state certified license examination
to receive a state certified contractor’s license.
A “class A air-conditioning contractor” means a contractor whose services are unlimited in the
execution of contracts requiring the experience, knowledge, and skill to install, maintain, repair,
fabricate, alter, extend, or design central air-conditioning, refrigeration, heating, and ventilating
systems.21
A “class B air-conditioning contractor” means a contractor whose services are limited to 25 tons
of cooling and 500,000 BTU of heating in any one system in the execution of contracts requiring
the experience, knowledge, and skill to install, maintain, repair, fabricate, alter, extend, or design
central air-conditioning, refrigeration, heating, and ventilating systems, including duct work in
connection with a complete system.22
A “class C air-conditioning contractor” means a contractor whose business is limited to the
servicing of air-conditioning, heating, or refrigeration systems, including any duct cleaning and
equipment sanitizing which requires at least a partial disassembling of the system.23
III. Effect of Proposed Changes:
The bill provides that:
A manufacturer’s warranty for a HVAC system for a residential property is registered to the
property, not the owner.
Once a subsequent owner purchases the property, the remaining manufacturer warranty
coverage of the HVAC system is transferred to the subsequent owner.
The warrantor cannot continues to be obligated under the terms of a manufacturer’s warranty
and cannot charge the new owner a transfer fee.
An installation of an HVAC system automatically triggers a manufacturer warranty for the
HVAC system.
The contractor who installs a new HVAC system must document the installation through an
invoice or receipt to the customer.
The transfer of the warranty to the new owner does not extend the existing warranty term.
19
Sections 489.105(8) and 489.113(1), F.S.
20
Sections 489.105(10) and 489.117(1)(b), F.S.
21
Section 489.105(3)(f), F.S.
22
Section 489.105(3)(g), F.S.
23
Section 489.105(3)(h), F.S.
BILL: CS/SB 1242 Page 6
Warranties are deemed registered with the manufacturer if the contractor is licensed under
part I of Chapter 489, F.S., installs the new HVAC system, and provides the manufacturer
with the serial number of the HVAC system.
The bill provides an effective date of July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
BILL: CS/SB 1242 Page 7
VIII. Statutes Affected:
This bill creates section 559.956 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on April 4, 2023:
The CS clarifies that a manufacturer’s warranty for an HVAC system is attached to the
property and not to the original purchaser. The amendment also:
Clarifies that the bill only applies to residential real property.
Provides that the warrantor continues to be obligated under the terms of a
manufacturer’s warranty and cannot charge the new owner a transfer fee.
Provides that the transfer of the warranty to the new owner does not extend the
existing warranty term.
Provides that warranties are deemed registered with the manufacturer if the contractor
is licensed under part I of Chapter 489, F.S., installs the new HVAC system, and
provides the manufacturer with the serial number of the HVAC system.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 1242 Bill No. SB 1242
Ì852154"Î852154 Ì852154"Î852154
LEGISLATIVE ACTION 11 warranty in effect on that system or a component of that system:
Senate . House 12 (a) Is automatically transferred to the new owner; and
Comm: RCS . 13 (b) Continues in effect as if the new owner was the
04/04/2023 . 14 original purchaser of such system or component, as applicable.
. 15 (2) A warrantor continues to be obligated under the terms
. 16 of a manufacturer’s warranty agreement for a warranty
. 17 transferred under this section and may not charge a fee for the
18 transfer of the warranty.
19 (3) The transfer of a manufacturer’s warranty under this
20 section does not extend the remaining term of the warranty.
21 (4) A manufacturer’s warranty for an HVAC system is deemed
22 registered with the manufacturer if a contractor licensed under
23 part I of chapter 489:
24 (a) Installs the new HVAC system; and
25 (b) Provides the manufacturer of the HVAC system with the
The Committee on Commerce and Tourism (Boyd) recommended the 26 date of the issuance of the certificate of occupancy for
following: 27 installations relating to new construction, or the serial number
28 of the HVAC system for installations relating to existing
1 Senate Amendment (with title amendment) 29 construction, as applicable.
2 30 (5) A contractor licensed under part I of chapter 489 who
3 Delete lines 18 - 28 31 installs a new HVAC system must document the installation
4 and insert: 32 through an invoice or a receipt and provide the
5 559.956 Registrations and transfers of heating, 33
6 ventilation, and air-conditioning system manufacturer 34 ================= T I T L E A M E N D M E N T ================
7 warranties; required contractor documentation.— 35 And the title is amended as follows:
8 (1) If a residential real property that includes a heating, 36 Delete lines 5 - 10
9 ventilation, and air-conditioning (HVAC) system as a fixture to 37 and insert:
10 the property is conveyed to a new owner, a manufacturer’s 38 specifying that certain warranties for heating,
39 ventilation, and air-conditioning (HVAC) systems are
Page 1 of 3 Page 2 of 3
3/30/2023 4:33:48 PM 577-03224-23 3/30/2023 4:33:48 PM 577-03224-23
Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 1242
Ì852154"Î852154
40 automatically transferred and remain in effect under
41 certain circumstances relating to the conveyance of
42 property; specifying that a warrantor continues to be
43 obligated under the terms of such transferred
44 warranty; prohibiting warrantors from charging a fee
45 for such transfers; specifying that such transfers do
46 not extend the remaining term of a warranty; deeming
47 manufacturers’ warranties for HVAC systems registered
48 with the manufacturer if certain requirements are met;
49 requiring certain contractors installing HVAC
Page 3 of 3
3/30/2023 4:33:48 PM 577-03224-23
Florida Senate - 2023 SB 1242 Florida Senate - 2023 SB 1242
By Senator Boyd
20-01102-23 20231242__ 20-01102-23 20231242__
1 A bill to be entitled 30 Section 2. This act shall take effect July 1, 2023.
2 An act relating to registrations and transfers of
3 heating, ventilation, and air-conditioning system
4 manufacturer warranties; creating s. 559.956, F.S.;
5 requiring manufacturer warranties for heating,
6 ventilation, and air-conditioning (HVAC) systems to be
7 registered to the home or building and not to the
8 owner of the home or building; providing for the
9 automatic effectiveness of such warranties at a
10 specified time; requiring contractors installing HVAC
11 systems to provide certain documentation; providing an
12 effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Section 559.956, Florida Statutes, is created to
17 read:
18 559.956 Heating, ventilation, and air-conditioning system
19 manufacturer warranty registrations and transfer; required
20 contractor documentation.—A manufacturer warranty for a heating,
21 ventilation, and air-conditioning (HVAC) system must be
22 registered to the home or building and not to the owner of the
23 home or building. When a new owner takes ownership of the home
24 or building, the current timeframe for the existing manufacturer
25 warranty for the HVAC system stays in place. A manufacturer
26 warranty for an HVAC system automatically becomes effective upon
27 the installation of the HVAC system. A contractor who installs a
28 new HVAC system must document the installation through an
29 invoice or receipt to the customer.
Page 1 of 2 Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1246
INTRODUCER: Senator Yarborough
SUBJECT: Truth in Legal Advertising
DATE: April 3, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Favorable
2. McMillan McKay CM Favorable
3. RC
I. Summary:
SB 1246 creates s. 501.139, F.S., to regulate certain legal advertisements soliciting clients for
personal injury lawsuits against drug manufacturers. These regulations prohibit advertisements
for legal services from appearing to offer professional medical advice or advice from a
government entity. Moreover, advertisements soliciting clients who may allege an injury from a
prescription drug or medical device approved by the Food and Drug Administration must advise
such persons to consult with their physicians before making decisions regarding their
medications or medical treatment.
The bill takes effect on July 1, 2023.
II. Present Situation:
Potentially Deceptive Legal Advertising
In 2017, the U.S. Chamber Institute for Legal Reform commissioned an online survey of 1,335
adults, 500 of whom were currently taking, or had taken, one or more of 12 prescription drugs
frequently targeted in lawsuits against drug manufacturers. Nearly half (46%) of the survey
respondents said they would definitely or probably stop taking the drug immediately after seeing
the advertisement. More than half (58%) said they would definitely or probably reduce the
dosage to below the prescribed amount.1
Because survey respondents were willing to discontinue or reduce their medication without
consulting a doctor, the survey results show that certain types of legal advertising could have
severe consequences for patients, which has generated concern at the federal level.
1
U.S. Chamber Institute for Legal Reform, Bad for Your Health: Lawsuit Advertising Implications and Solutions, at 20-22
(Oct. 2017), available at https://instituteforlegalreform.com/wp-content/uploads/2020/10/TLA_Advertising-Paper-WEB.pdf
(last visited April 3, 2023).
BILL: SB 1246 Page 2
In 2019, the Federal Trade Commission (FTC) contacted seven legal practitioners and lead
generating companies to express concern that some of their television advertisements that solicit
clients for personal injury lawsuits against drug manufacturers may be deceptive or unfair under
the FTC Act. Specifically, the warning letters stated that some of the advertisements might:
Misrepresent the risks associated with certain medications and could lead consumers to the
false conclusion that their prescribed medication had been recalled.
Make deceptive or unsubstantiated claims about the risks of taking blood thinners and drugs
for diabetes, acid reflux, and high blood pressure, among other conditions; advertisers must
have competent and reliable scientific evidence to substantiate their claims about these
purported risks.2
May mislead consumers into thinking that they are watching a government-sanctioned
announcement, with some of the advertisements going so far as to include the U.S. Food and
Drug Administration (FDA) logo or text reading “FDA Warning,” suggesting that the
advertisements had been approved by the agency.3
The FTC also noted that the FDA’s Adverse Event Reporting System contained reports of
consumers who had viewed advertisements about the prescription drugs they were taking, then
discontinued those medications, and suffered harmful consequences.4 The FTC warned that
advertisements that cause, or are likely to cause, viewers to discontinue their prescribed
medications might create an unfair act or practice. As a remedial step, the FTC recommended
those advertisements “include clear and prominent audio and visual disclosures” stating that a
consumer should not stop taking prescribed medication without first consulting a doctor.5
In 2020, several Congressional representatives asked the Chairman of the FTC for a progress
report on the effects of the seven warning letters issued in 2019.6 The Chairman replied that each
recipient committed to heed the FTC warnings for future lawsuit advertising. When asked if
various renditions of the lawsuit advertisements violated the FTC Act, the Chairman essentially
said that it depended on the actual claim involved. The Chairman did note that FTC staff had
reviewed state laws enacted in West Virginia, Texas, and Tennessee to address deceptive lawsuit
advertisements but has not taken a position on federal legislation on the topic.7
2
Federal Trade Commission, FTC Flags Potentially Unlawful TV Ads for Prescription Drug Lawsuits (Sept. 24, 2019),
available at https://www.ftc.gov/news-events/press-releases/2019/09/ftc-flags-potentially-unlawful-tv-ads-prescription-drug-
lawsuits (last visited April 3, 2023).
3
Correspondence from The Honorable Greg Walden et al., Committee on Energy and Commerce, U.S. House of
Representatives, to Joseph J. Simons, Chairman of the Federal Trade Commission, at 1-2 (Nov. 2, 2020) [Walden Letter],
available at https://d1dth6e84htgma.cloudfront.net/legacy/uploads/2020/11/2020.11.02-Letter-to-the-FTC.pdf (last visited
April 3, 2023).
4
FTC, supra note 2.
5
Id.
6
See generally Walden Letter, supra note 3.
7
Correspondence from Joseph J. Simons, Chairman of the Federal Trade Commission, to The Honorable Greg Walden,
Committee on Energy and Commerce, U.S. House of Representatives (Nov. 17, 2020), available at https://d1dth6e84htgma.
cloudfront.net/legacy/uploads/2020/11/2020.11.17-FTC-to-Rep.-Walden-Lawyer-Ads-.pdf (last visited April 3, 2023).
BILL: SB 1246 Page 3
The referenced laws in West Virginia,8 Texas,9 and Tennessee10 contain provisions that are
similar to the ones in this bill. Notably, the West Virginia law was recently challenged in federal
court and determined to be constitutional.11
Regulation of Legal Advertising
Article V, Section 15 of the Florida Constitution vests exclusive jurisdiction in the Florida
Supreme Court to regulate admissions to the bar and to discipline admitted attorneys. 12 The
Florida Bar, as an official arm of the Florida Supreme Court, is charged with the duty of
enforcing the rules governing lawyer advertising and solicitation, and with assisting members of
The Florida Bar to advertise their services in a manner beneficial to both the public and the legal
profession.13
Florida’s legal advertising rules apply to all forms of communication soliciting legal services in
any print or electronic forum.14 Any lawyer who advertises services must file with The Florida
Bar a copy of each advertisement at least 20 days prior to the lawyer’s first dissemination of the
advertisement.15 The Florida Bar evaluates all advertisements filed with it to determine
compliance with its advertising rules, and issues an opinion either approving or disapproving the
advertisement.16 Lawyers who do not comply with the applicable rules are subject to professional
discipline.17
All advertisements for legal employment must include name and office location information.18 If
the case or matter will be referred to another lawyer or law firm, the advertisement must include
a statement to this effect.19 If more than one language is used in an advertisement, then any
words or statements required by the advertising rules must appear in each language used in the
advertisement.20 Moreover, any information required by the rules to appear in an advertisement
must be reasonably prominent and clearly legible if written, or intelligible if spoken.21
Additionally, a lawyer may not engage in deceptive or inherently misleading advertisements. For
example, an advertisement cannot use a voice or image that creates the erroneous impression that
the person speaking or shown is the advertising lawyer or a lawyer or employee of the
8
See W. VA. CODE s. 47-28-3, available at https://code.wvlegislature.gov/47-28-3/ (last visited April 3, 2023).
9
See TEX. GOV’T CODE ss. 81.151-156, available at https://texas.public.law/statutes/tex._gov't_code_section_81.151 (last
visited April 3, 2023).
10
See TENN. CODE. ANN. ss. 47-18-5601-5606, available at https://legiscan.com/TN/text/SB0352/id/1998216 (last visited
April 3, 2023).
11
See Recht v. Morrissey, 32 F.4th 398 (4th Cir. 2022) (evaluating various provisions of the West Virginia law that are similar
to provisions in SB 1246 and concluding that they permissibly regulate commercial speech).
12 The Florida Bar, Frequently Asked Questions About the Florida Bar, available at https://www.floridabar.org/about/faq/ (last visited
April 3, 2023).
13
R. Regulating Fla. Bar 15-1.1.
14 R. Regulating Fla. Bar 4-7.11(a).
15 R. Regulating Fla. Bar 4-7.19(a).
16
R. Regulating Fla. Bar 4-7.19(b).
17
R. Regulating Fla. Bar 4-7.19(f)-(g).
18 R. Regulating Fla. Bar 4-7.12(a)(1)-(2).
19
R. Regulating Fla. Bar 4-7.12(b).
20
R. Regulating Fla. Bar 4-7.12(c).
21
R. Regulating Fla. Bar 4-7.12(d).
BILL: SB 1246 Page 4
advertising firm, or use a dramatization of an actual or fictitious event, unless certain clarifying
disclosures are made.22
Florida Deceptive and Unfair Trade Practices Act
History and Purpose
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) became law in 1973.23 The
FDUTPA is a consumer and business protection measure that prohibits unfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or practices in trade or
commerce.24 The FDUTPA is based on federal law, and s. 501.204(2), F.S., provides that it is the
intent of the Legislature that due consideration and great weight must be given to the
interpretations of the Federal Trade Commission and the federal courts relating to section 5 of
the Federal Trade Commission Act.25
The State Attorney or the Department of Legal Affairs may bring actions when it is in the public
interest on behalf of consumers or governmental entities.26 The Office of the State Attorney may
enforce violations of the FDUTPA if the violations take place in its jurisdiction.27 The
Department of Legal Affairs has enforcement authority if the violation is multi-jurisdictional, the
state attorney defers in writing, or the state attorney fails to act within 90 days after a written
complaint is filed.28 Consumers may also file suit through private actions.29
Remedies under the FDUTPA
The Department of Legal Affairs and the State Attorney, as enforcing authorities, may seek the
following remedies:
Declaratory judgments.
Injunctive relief.
Actual damages on behalf of consumers and businesses.
Cease and desist orders.
Civil penalties of up to $10,000 per willful violation.30
Remedies for private parties are limited to the following:
A declaratory judgment and an injunction where a person is aggrieved by a FDUTPA
violation.
22
R. Regulating Fla. Bar 4-7.13(b)(5)-(g).
23
Ch. 73-124, Laws of Fla.; codified at part II of ch. 501, F.S.
24
See s. 501.202, F.S. Trade or commerce means the advertising, soliciting, providing, offering, or distributing, whether by
sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article,
commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce,
however denominated, including any nonprofit or not-for-profit person or activity. See s. 501.203(8), F.S.
25
See s 501.204(2), F.S.
26
See ss. 501.203(2), 501.206, and 501.207, F.S.
27
Section 501.203(2), F.S.
28
Id.
29
Section 501.211, F.S.
30
Sections 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Section 501.2075,
F.S. Enforcing authorities may also request attorney fees and costs of investigation or litigation. Section 501.2105, F.S.
BILL: SB 1246 Page 5
Actual damages, attorney fees, and court costs, where a person has suffered a loss due to a
FDUTPA violation.31
Federal Unfair and Deceptive Trade Practices
The Federal Trade Commission’s unfair and deceptive trade practices regulations prohibit
unfair32 or deceptive33 acts or practices in or affecting commerce.34 The FTC’s regulations
include “Truth In Advertising” guidelines, which require advertisements to be truthful, not
misleading, and when appropriate, backed by scientific evidence.35 To enforce these regulations,
the FTC takes law enforcement actions, provides consumer and business education, issues
reports and policy guidance, leads workshops, and participates in other forums.36
III. Effect of Proposed Changes:
SB 1246 creates s. 501.139, F.S., to regulate certain advertisements soliciting clients for personal
injury lawsuits against drug manufacturers. The bill contains provisions that are similar to ones
already enacted in West Virginia, Texas, and Tennessee to combat misleading advertisements for
legal services.
Definitions
The bill defines “advertisement for legal services” to mean any representation disseminated in
any manner through a media entity for the purpose of soliciting prospective clients for legal
services. The term includes such solicitation by a person with the intent to transfer data obtained
from the consumer to one or more attorneys for legal services.
The bill defines “media entity” to mean a radio broadcast station, a television broadcast station, a
cable television company, a newspaper company, a periodical company, a billboard company, an
advertising agency, a digital media platform, or a bona fide news or public interest website
operator.
31
Section 501.211(1) and (2), F.S.
32
A practice is “unfair” if it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by
consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” See 15 U.S.C. s.
45(n).
33
A practice is “deceptive” if there is a “representation, omission or practice that is likely to mislead the consumer acting
reasonably in the circumstances, to the consumer’s detriment.” FTC Policy Statement on Deception (Oct. 14, 1983),
available at https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf; (last visited
April 3, 2023) see also Federal Trade Commission, A Brief Overview of the Federal Trade Commission's Investigative, Law
Enforcement, and Rulemaking Authority (rev. May 2021), available at https://www.ftc.gov/about-ftc/what-we-
do/enforcement-authority (citing the FTC’s Policy Statement on Deception) (last visited April 3, 2023).
34
15 U.S.C. s. 45(a)(1).
35
Federal Trade Commission, Truth In Advertising, available at https://www.ftc.gov/news-events/media-resources/truth-
advertising (last visited April 3, 2023).
36
Federal Trade Commission, Protecting Consumers, available at https://www.ftc.gov/news-events/media-resources/truth-
advertising/
protecting-consumers (last visited April 3, 2023).
BILL: SB 1246 Page 6
The bill defines “protected health information”37 as meaning individually identifiable health
information transmitted by, or maintained in, electronic media, or transmitted or maintained in
any other form or medium, except for information:
In education records covered by the Family Educational Rights and Privacy Act, as
amended.38
In records described in federal law.39
In employment records held by a covered entity in its role as employer.
Regarding a person who has been deceased for more than 50 years.
The bill defines “solicit” to mean attempting to procure a client for legal services by initiating
unsolicited personal, telephone, or real-time electronic contact or by advertising such services
through print media, video or audio recorded advertisements, or electronic communications.
Prohibitions
The bill provides that a person or an entity that issues an advertisement for legal services may
not do any of the following:
Present the advertisement as a medical alert, health alert, drug alert, or public service
announcement or use any substantially similar phrase that suggests to a reasonable consumer
that the advertisement is offering professional or medical advice, or advice from a state or
federal governmental entity or an entity approved by or affiliated with a state or federal
governmental entity.
Display the logo of a state or federal governmental entity in a manner that suggests to a
reasonable consumer that the advertisement is presented by a state or federal governmental
entity or by an entity approved by or affiliated with a state or federal governmental entity.
Use the term “recall” when referring to a product that has not been recalled in accordance
with applicable state or federal regulations.
Requirements
For Legal Advertisements Soliciting Clients Alleging Injury from Prescription Drugs or
Medical Devices approved by the FDA
The bill provides that a person or an entity that issues an advertisement for legal services to
solicit clients who may allege injury from a prescription drug or medical device approved by the
FDA must include all of the following in the advertisement:
The statement, “This is a paid advertisement for legal services,” which must appear at the
beginning of the advertisement.
The identity of the sponsor of the advertisement.
Either the identity of the attorney or the law firm that will be primarily responsible for
providing the solicited legal services to a consumer who engages the attorney or law firm in
response to the advertisement or an explanation of how a responding consumer’s case will be
referred to an attorney or a law firm if the sponsor of the advertisement is not licensed to
practice law.
37
The bill incorporates by reference the definition of “protected health information” found in 45 C.F.R. s. 160.103.
38
20 U.S.C. s. 1232g.
39
20 U.S.C. s. 1232g(a)(4)(B)(iv).
BILL: SB 1246 Page 7
A statement that a prescription drug or medical device approved by the FDA remains
approved unless it has been recalled in accordance with the applicable state or federal
regulations.
The statement, “Consult your physician before making any decision regarding prescribed
medication or medical treatment.”
For Written and Verbal Statements in Legal Advertisements
The bill provides that statements required to appear in an advertisement under the new statute
must be made in both written and verbal formats, except that a print-only advertisement may
include the statements in written format only, and an audio-only advertisement may include the
statements in verbal format only.
Required written statements must appear in a clear and conspicuous font and manner and, for
visual advertisements, must appear on screen for a sufficient length of time for a reasonable
consumer to read the statement. A written statement is presumed to comply with the
requirements of this subsection if it appears in the same font style and size and for the same
duration as a printed reference to the telephone number or website that a consumer is to use to
contact the entity for the advertised legal services, provided such duration is at least 10 seconds.
Required verbal statements must be audible, intelligible, and presented with equal prominence
and speed as the other parts of the advertisement. A verbal statement is presumed to comply with
the requirements of this subsection if it is made at approximately the same volume and uses
approximately the same number of words per minute as used when presenting other information
in the advertisement which is not required under this section.
Responsibility for Compliance
The bill provides that a person or entity that issues an advertisement for legal services is solely
responsible for ensuring that such advertisement complies with the new statute, and a media
entity may not be held liable or subjected to any penalty for producing, distributing, transmitting,
displaying, publishing, or otherwise disseminating another person’s or entity’s advertisement for
legal services which violates the new statute.
Consumer Protected Health Information
The bill provides that a person or an entity may not use, cause to be used, obtain, sell, transfer, or
disclose a consumer’s protected health information to another person or entity for the purpose of
soliciting the consumer for legal services without written authorization from that consumer. This
provision does not apply to the use or disclosure of protected health information to an
individual’s legal representative in the course of any judicial or administrative proceeding or as
otherwise permitted or required by law.
BILL: SB 1246 Page 8
Enforcement
The bill provides that a violation of the new statute is deemed a deceptive and unfair trade
practice subject to enforcement under part II of chapter 501, F.S., known as the “Florida
Deceptive and Unfair Trade Practices Act.”40
Florida Bar Exemption and Authority
The bill provides that the new statute does not apply to an advertisement that has been reviewed
and approved by an ethics or disciplinary committee of The Florida Bar in accordance with its
rules of professional conduct.
Additionally, the bill provides that the new statute does not limit or otherwise affect the authority
of The Florida Bar to regulate the practice of law, enforce its rules of professional conduct, or
discipline any person admitted to practice law in this state.
Effective Date
The bill takes effect on July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Article II, s. 3 of the State Constitution divides the powers of state government into
legislative, executive, and judicial branches, and provides that no person belonging to one
branch may exercise any powers belonging to either of the other branches unless
expressly provided otherwise in the constitution. Additionally, article V, s. 15 of the State
Constitution vests exclusive jurisdiction to regulate admissions to the bar and to
discipline admitted attorneys in the Florida Supreme Court.
40
See s. 501.201, F.S. (providing this short title).
BILL: SB 1246 Page 9
The Florida Bar, as an official arm of the Florida Supreme Court, is charged with the duty
of enforcing the rules governing lawyer advertising and solicitation, and with assisting
members of The Florida Bar to advertise their services in a manner beneficial to both the
public and the legal profession.
The bill provides that the new statute does not apply to an advertisement that has been
reviewed and approved by an ethics or disciplinary committee of The Florida Bar in
accordance with its rules of professional conduct. It also provides that the new statute
does not limit or otherwise affect the authority of The Florida Bar to regulate the practice
of law, enforce its rules of professional conduct, or discipline any person admitted to
practice law in this state.
Because the new statute will not prohibit dissemination of a legal advertisement that has
been reviewed and approved by an ethics or disciplinary committee of The Florida Bar,
and will not limit or otherwise affect the authority of The Florida Bar to regulate the
practice of law, enforce its rules of professional conduct, or discipline any person
admitted to practice law, the bill appears to be consistent with art. II, s. 3 of the State
Constitution.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill prohibits the use, acquisition, sale, transfer, or disclosure of consumers’
protected health information for the purpose of soliciting clients without their written
authorization. To the extent persons or entities currently profit from such activities, the
bill will eliminate such profits.
Advertisers may incur new or additional costs to ensure compliance with the bill’s
technical and formatting requirements for legal advertisements.
C. Government Sector Impact:
Violations of the new statute created by the bill will be subject to enforcement as
deceptive and unfair trade practices under the Florida Deceptive and Unfair Trade
Practices Act (FDUTPA). The bill may result in an increase of FDUTPA enforcement
actions, and therefore incur additional costs to enforcement authorities.
VI. Technical Deficiencies:
None.
BILL: SB 1246 Page 10
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 501.139, Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 SB 1246 Florida Senate - 2023 SB 1246
By Senator Yarborough
4-00496A-23 20231246__ 4-00496A-23 20231246__
1 A bill to be entitled 30 501.139 Advertisements for legal services.—
2 An act relating to truth in legal advertising; 31 (1) As used in this section, the term:
3 creating s. 501.139, F.S.; defining terms; specifying 32 (a) “Advertisement for legal services” means any
4 prohibited practices relating to advertisements for 33 representation disseminated in any manner through a media entity
5 legal services; requiring persons and entities that 34 for the purpose of soliciting prospective clients for legal
6 issue advertisements to solicit certain clients to 35 services. The term includes such solicitation by a person with
7 include specified information and statements in such 36 the intent to transfer data obtained from the consumer to one or
8 advertisements; providing for both written and verbal 37 more attorneys for legal services.
9 statements in advertisements for legal services; 38 (b) “Media entity” means a radio broadcast station, a
10 providing requirements for such written and verbal 39 television broadcast station, a cable television company, a
11 statements; providing that the person or entity that 40 newspaper company, a periodical company, a billboard company, an
12 issues an advertisement is solely responsible for 41 advertising agency, a digital media platform, or a bona fide
13 ensuring its compliance with specified provisions; 42 news or public interest website operator.
14 providing media entities with immunity from liability 43 (c) “Protected health information” has the same meaning as
15 for disseminating another person’s or entity’s 44 provided in 45 C.F.R. s. 160.103.
16 advertisement that violates specified provisions; 45 (d) “Solicit” means attempting to procure a client for
17 providing applicability; prohibiting the use, 46 legal services by initiating unsolicited personal, telephone, or
18 obtaining, sale, transfer, or disclosure of a 47 real-time electronic contact or by advertising such services
19 consumer’s protected health information for a 48 through print media, video or audio recorded advertisements, or
20 specified purpose without written authorization; 49 electronic communications.
21 providing an exception; providing that certain 50 (2) A person or an entity that issues an advertisement for
22 violations are deemed deceptive and unfair trade 51 legal services may not do any of the following:
23 practices; providing construction; providing an 52 (a) Present the advertisement as a medical alert, health
24 effective date. 53 alert, drug alert, or public service announcement or use any
25 54 substantially similar phrase that suggests to a reasonable
26 Be It Enacted by the Legislature of the State of Florida: 55 consumer that the advertisement is offering professional or
27 56 medical advice or advice from a state or federal governmental
28 Section 1. Section 501.139, Florida Statutes, is created to 57 entity or an entity approved by or affiliated with a state or
29 read: 58 federal governmental entity.
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59 (b) Display the logo of a state or federal governmental 88 any decision regarding prescribed medication or medical
60 entity in a manner that suggests to a reasonable consumer that 89 treatment.”
61 the advertisement is presented by a state or federal 90 (4) The statements required to appear in an advertisement
62 governmental entity or by an entity approved by or affiliated 91 under this section must be made in both written and verbal
63 with a state or federal governmental entity. 92 formats, except that a print-only advertisement may include the
64 (c) Use the term “recall” when referring to a product that 93 statements in written format only and an audio-only
65 has not been recalled in accordance with applicable state or 94 advertisement may include the statements in verbal format only.
66 federal regulations. 95 (a) Required written statements must appear in a clear and
67 (3) A person or an entity that issues an advertisement for 96 conspicuous font and manner and, for visual advertisements, must
68 legal services to solicit clients who may allege injury from a 97 appear on screen for a sufficient length of time for a
69 prescription drug or medical device approved by the United 98 reasonable consumer to read the statement. A written statement
70 States Food and Drug Administration shall include all of the 99 is presumed to comply with the requirements of this subsection
71 following in the advertisement: 100 if it appears in the same font style and size and for the same
72 (a) The statement, “This is a paid advertisement for legal 101 duration as a printed reference to the telephone number or
73 services,” which must appear at the beginning of the 102 website that a consumer is to use to contact the entity for the
74 advertisement. 103 advertised legal services, provided such duration is at least 10
75 (b) The identity of the sponsor of the advertisement. 104 seconds.
76 (c) Either the identity of the attorney or the law firm 105 (b) Required verbal statements must be audible,
77 that will be primarily responsible for providing the solicited 106 intelligible, and presented with equal prominence and speed as
78 legal services to a consumer who engages the attorney or law 107 the other parts of the advertisement. A verbal statement is
79 firm in response to the advertisement or an explanation of how a 108 presumed to comply with the requirements of this subsection if
80 responding consumer’s case will be referred to an attorney or a 109 it is made at approximately the same volume and uses
81 law firm if the sponsor of the advertisement is not licensed to 110 approximately the same number of words per minute as used when
82 practice law. 111 presenting other information in the advertisement which is not
83 (d) A statement that a prescription drug or medical device 112 required under this section.
84 approved by the United States Food and Drug Administration 113 (5) The person or entity that issues an advertisement for
85 remains approved unless it has been recalled in accordance with 114 legal services is solely responsible for ensuring that such
86 the applicable state or federal regulations. 115 advertisement complies with this section, and a media entity may
87 (e) The statement, “Consult your physician before making 116 not be held liable or subjected to any penalty for producing,
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117 distributing, transmitting, displaying, publishing, or otherwise
118 disseminating another person’s or entity’s advertisement for
119 legal services which violates this section.
120 (6) This section does not apply to an advertisement that
121 has been reviewed and approved by an ethics or disciplinary
122 committee of The Florida Bar in accordance with its rules of
123 professional conduct.
124 (7) A person or an entity may not use, cause to be used,
125 obtain, sell, transfer, or disclose a consumer’s protected
126 health information to another person or entity for the purpose
127 of soliciting the consumer for legal services without written
128 authorization from that consumer. This subsection does not apply
129 to the use or disclosure of protected health information to an
130 individual’s legal representative in the course of any judicial
131 or administrative proceeding or as otherwise permitted or
132 required by law.
133 (8) A violation of this section is deemed a deceptive and
134 unfair trade practice subject to enforcement under part II of
135 this chapter.
136 (9) This section does not limit or otherwise affect the
137 authority of The Florida Bar to regulate the practice of law,
138 enforce its rules of professional conduct, or discipline any
139 person admitted to practice law in this state.
140 Section 2. This act shall take effect July 1, 2023.
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The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1308
INTRODUCER: Commerce and Tourism Committee and Senators Yarborough and Rodriguez
SUBJECT: Telephone Solicitation
DATE: April 4, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Renner McKay CM Fav/CS
2. RI
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1308 amends s. 501.059, F.S., relating to the Florida Telemarketing Act to:
Clarify notice requirements prior to obtaining consent for telephone calls, text messages, or
the transmission of prerecorded voicemails.
Revise the definition of “prior express written consent” with respect to automated systems
and replaces references to the term “signatory” with the term “called party.”
Revise what qualifies as a “signature” for purposes of consenting to communications to
include an act that demonstrates express consent, such as checking a box indicating consent
or responding affirmatively to receiving text messages, to an advertising campaign, or to an
e-mail solicitation.
Provide that civil actions may not be brought for up to two communications made within 15
business days after the consumer withdraws a previously given valid consent or
communications, orally or by text message, that he or she does not wish to receive
communications.
The bill does not have a fiscal impact on state or local governments.
The bill takes effect upon becoming law.
BILL: CS/SB 1308 Page 2
II. Present Situation:
Florida Telemarketing Act
Chapter 501, part IV, F.S., the Florida Telemarketing Act (FTA), requires non-exempt
businesses engaged in telemarketing and their salespeople to be licensed by the Florida
Department of Agriculture and Consumer Services (DACS) before operating in Florida. Certain
exempt entities must have a valid affidavit of exemption on file prior to operating in Florida.
There are approximately 28 exemptions, including: soliciting for religious, charitable, political or
educational purposes; research companies; newspapers; book and video clubs; cable television;
and persons or companies with whom the consumer has a prior business relationship.1
The FTA generally requires businesses that solicit the sale of consumer goods or services to:
Be licensed;2
Post a form of security;3
License all of their salespeople4 and
Provide the DACS with a list of all telephone numbers used to make sales calls.5
An application for licensure as a telemarketer must include several pieces of information,
including the applicant’s identifying information, prior experience in the field, criminal and
administrative history (especially relating to fraud, theft, or unfair and deceptive trade practices),
phone numbers from which the telemarketer will make sales calls, and any parent or affiliate
entities under which it will transact business, if applicable.6
Additionally, an applicant for licensure as a telemarketer must submit:
A script that will be used by its salespersons during calls, or other related literature;
The identity, address, date of birth, and alias of each of the applicant’s principal officers,
directors, trustees, shareholders, owners, partners, office managers, and salespersons who are
employed by or affiliated with the applicant;7 and
A $1,500 licensing fee.8
In Florida, it is unlawful for telemarketers to:9
Make calls before 8 a.m. or after 8 p.m. local time at the called person’s time zone;
Fail to provide the call recipient with their name and telephone number;
Accept novelty payments;10
1
Section 501.604, F.S.
2
Section 501.605, F.S.
3
Section 501.611, F.S., requires a $50,000 bond, irrevocable letter of credit issued for the applicant, or a certificate of deposit
in favor of the DACS for payment on findings of fraud, misrepresentation, breach of contract, or other violation by the
applicant.
4
Section. 501.607, F.S.
5
Section 501.605(2)(k), F.S.
6
Section 501.605(2), F.S.
7
Section 501.605(2)(k), F.S.
8
Section 501.605(5)(b), F.S.
9
Section 501.616, F.S.
10
Section 501.603(8), F.S., defines a “novelty payment” as a payment method that does not have systematic monitoring and
includes remotely created checks, remotely created payment orders, cash-to-cash money transfers (such as Western Union)
BILL: CS/SB 1308 Page 3
Employ or be affiliated with an unlicensed salesperson;
Be employed by or affiliated with an unlicensed commercial telephone seller; and
Operate without a license.
Florida Do Not Call Act
Do Not Call List
Section 501.059, F.S., governs telephone solicitations. The law includes the Florida Do Not Call
Act, also known as the "Do Not Call” list (DNC list), which prohibits unsolicited telephonic
sales calls and text messages from telemarketers.11 Residents who do not wish to receive
unsolicited telephonic sales calls may have their residential, mobile, or paging device telephone
number included on the DNC list. The DACS maintains the DNC list. It is free to register and a
registered number remains on the DNC list indefinitely.12
An “unsolicited telephonic sales call” does not include calls made:
In response to an express request of the person called;
Primarily in connection with an existing debt or contract, if payment or performance of such
debt or contract has not been completed at the time of such call;
To a person with whom the telephone solicitor has a prior or existing business relationship;
or
By a newspaper publisher or his or her agent or employee in connection with his or her
business.13
Telephone solicitors14 are prohibited from making telephonic sales calls15 to consumers who
register for the DNC list. A “telephonic sales call” means a telephone call, text message, or
voicemail transmission to a consumer for the purpose of soliciting a sale of consumer goods or
services, soliciting an extension of credit for consumer goods or services, or obtaining
information that will or may be used for the direct solicitation of a sale of consumer goods or
services or an extension of credit for such purposes.16
In addition to those consumers who are registered for the DNC list, a telephone solicitor may not
call or text a consumer who previously communicated to the telephone solicitor that he or she
does not wish to be contacted. Businesses and non-profit organizations are required to maintain a
list of consumers who have made a do-not-call registration request. It is a violation of the Florida
and cash reload mechanisms (such as MoneyPak or ReloadIt). Novelty payment methods are not systematically monitored,
have little to no consumer protection in the case of fraud or theft, and are used frequently in scams and other fraudulent
activity.
11 See s. 501.059, F.S.
12
Dept. of Agriculture and Consumer Services, Florida Do Not Call, available at https://www.fdacs.gov/Consumer-
Resources/Florida-Do-Not-Call (last visited April 3, 2023).
13
Section 501.059(1)(k), F.S.
14
Section 501.059(1)(i), F.S., defines “telephone solicitor” as “a natural person, firm, organization, partnership, association,
or corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic
sales call, including, but not limited to, calls made by use of automated dialing or recorded message devices.”
15
Section 501.059(1)(j), F.S., defines “telephonic sales call” as a telephone call, text message, or voicemail transmission to a
consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for
consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer
goods or services or an extension of credit for such purposes.
16
Section 501.059(1)(j), F.S.
BILL: CS/SB 1308 Page 4
Do Not Call Act to call a consumer who has requested placement on the company's do-not-call
list.17
When a telephone number is made available through a caller ID service during a telephonic sales
call, the solicitor must ensure that the number is capable of receiving phone calls, and that the
dialing of the number will connect the call recipient with the telephone solicitor or the seller on
behalf of which the phone call was placed.18
Anyone who receives an unsolicited sales call can report the call to the DACS using the online
Do Not Call Complaint Form.19
Do Not Call - Consent
In 2021, the Florida Legislature updated s. 501.059, F.S., to further address unsolicited phone
calls.20 The law governing telephone solicitations also prohibits automated telephonic sales calls
without the prior express written consent of the called party. Specifically, the law provides that:
A person may not make or knowingly allow a telephonic sales call to be
made if such call involves an automated system for the selection or dialing
of telephone numbers or the playing of a recorded message when a
connection is completed to a number called without the prior express
written consent of the called party.21
“Prior express written consent” is defined as a written agreement that:
Bears the signature of the called party;
Clearly authorizes the person making or allowing the placement of a telephonic sales call by
telephone call, text message, or voicemail transmission to deliver or cause to be delivered to
the called party a telephonic sales call using an automated system for the selection or dialing
of telephone numbers, the playing of a recorded message when a connection is completed to
a number called, or the transmission of a prerecorded voicemail; and
Includes the telephone number to which the signatory authorizes a telephonic sales call to be
delivered.22
Prior express written consent must include a clear and conspicuous disclosure informing the
called party that:
By executing the agreement, the called party authorizes the person making or allowing the
placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call
to the called party using an automated system for the selection or dialing of telephone
numbers or the playing of a recorded message when a connection is completed to a number
called; and
17
Section 501.059(5), F.S.
18
Section 501.059(8)(b), F.S.
19
Dept. of Agriculture and Consumer Services, Florida Do Not Call, available at https://www.fdacs.gov/Consumer-
Resources/Florida-Do-Not-Call (last visited April 3, 2023).
20
Chapter 2021-185, s. 1, Laws of Fla.
21 Section 501.059(8)(a), F.S.
22
Section 501.059(1)(g), F.S.
BILL: CS/SB 1308 Page 5
He or she is not required to directly or indirectly sign the written agreement or to agree to
enter into such an agreement as a condition of purchasing any property, goods, or services.23
There is a rebuttable presumption that a telephonic sales call made to any Florida area code is a
call made to a Florida resident or to a person in Florida at the time of the call.24
One entity reports that this 2021 change to the FTA has resulted in at least 100 class action
complaints against those who make telephone sales calls since July 2021.25
Penalties
The DACS or the Office of the Attorney General may bring an action against a telephone
solicitor who violates the provisions of s. 501.059, F.S. Each violation is subject to a civil
penalty with a maximum fine of $10,000 per violation, or an administrative fine with a
maximum of $1,000 per violation, in addition to attorney’s fees and costs.26
In addition, a private citizen may file a private civil action to either enjoin the violation or
recover actual damages, or $500, whichever is greater, in addition to attorney’s fees and costs.
This civil penalty may be tripled by the court if it finds that the defendant knowingly or willfully
committed the violation.27
Federal Telephone Consumer Protection Act (TCPA) History
In an effort to address a growing number of telephone marketing calls, Congress enacted the
Telephone Consumer Protection Act (TCPA) in 1991. The TCPA restricts the making of
telemarketing calls and the use of automatic telephone dialing systems and artificial or
prerecorded voice messages. An automatic telephone dialing system is defined as “equipment
which has the capacity to store or produce telephone numbers to be called, using a random or
sequential number generator; and to dial such numbers.”28 The rules apply to common carriers
as well as to other marketers. In 1992, the Federal Communications Commission (FCC) adopted
rules to implement the TCPA, including the requirement that entities making telephone
solicitations institute procedures for maintaining company-specific do-not-call lists.29
23
Section 501.059(1)(g)4., F.S.
24
Section 501.059(8)(d), F.S.
25
Eric Troutman, TCPAWorld, The FTSA Claims are Still Pouring In: Florida Mini TCPA Continues to Generate Huge
Volume of Litigation (Dec. 13, 2021), available at https://tcpaworld.com/2021/12/13/the-ftsa-claims-are-still-pouring-in-
florida-mini-tcpa-continues-to-generate-huge-volume-of-litigation/ (last visited April 3, 2023).
26
Section 501.059(9), F.S.
27
Sections 501.059(10)-(11), F.S.
28
47 U.S.C., s. 227(a)(1)
29 Federal Communications Commission, FCC Actions on Robocalls, Telemarketing, available at
https://www.fcc.gov/general/telemarketing-and-robocalls (last visited April 3, 2023).
BILL: CS/SB 1308 Page 6
In July 2015, the FCC established rules indicating that telephone carriers can block unwanted
calls at the request of consumers.30 Currently there are a number of call-blocking applications
that provide some relief from unwanted calls and spam calls.31
On November 16, 2017, the FCC adopted new rules to allow voice service providers to
proactively block certain types of robocalls that are likely to be fraudulent because they come
from certain types of phone numbers, including those that do not or cannot make outgoing
calls.32 For example, perpetrators have used IRS phone numbers that do not dial out to
impersonate the tax agency, informing the people who answer that they are calling to collect
money owed to the U.S. government. Such calls appear legitimate to the person who receives
them and may often result in fraud or identity theft. Service providers can now block such calls,
as well as calls from invalid or illegitimate numbers.33
The FCC requires telemarketers to transmit caller identification information, including the
number and name of the caller. The telephone number provided must permit any individual to
make a do-not-call request during regular business hours. Moreover, any person or entity that
engages in telemarketing is prohibited from blocking the transmission of caller identification
information. However, tax-exempt nonprofit organizations are exempt from compliance with
these rules.34
With regard to telephone carriers, the FCC allows carriers to offer their customers external call-
blocking applications on their landlines and allows carriers to directly block certain illegal
robocalls. In December 2019, Congress enacted the “TRACED Act” to aid enforcement efforts
between law enforcement agencies and the private sector on traceback issues, and required the
FCC to issue rules “for the registration of a single consortium that conducts private-led efforts to
trace back the origin of suspected unlawful robocalls.”35 In July of 2020, the FCC designated the
US Telecom-led Industry Traceback Group (ITG) as the Official Consortium for coordinating
industry-led efforts to trace back the origin of suspected unlawful robocalls.36
According to the ITG’s first annual report, over 100 companies participated in over 1,000 ITG
traceback investigations in 2019, identifying more than 10 million illegal robocalls and resulting
30
Declaratory Ruling and Order, In the Matter of Rules and Regulations Implementing the Telecommunications Consumer
Protection Act of 1991, 30 FCC Rcd. 7961 (July 10, 2015). See Federal Communications Commission, TCPA Omnibus
Declaratory Ruling and Order, available at https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order (last
visited April 3, 2023).
31
CTIA, The Wireless Industry, How to Stop Robocalls, available at https://www.ctia.org/consumer-resources/how-to-stop-
robocalls/ (last visited April 3, 2023).
32
32 FCC Rcd 9706 (11). See Federal Communications Commission, FCC Adopts Rules to Help Block Illegal Robocalls,
available at https://www.fcc.gov/document/fcc-adopts-rules-help-block-illegal-robocalls-
0#:~:text=New%20Rules%20Authorize%20Call%20Blocking%20of%20Certain%20Types,FCC%20Record%20Citation%3
A%2032%20FCC%20Rcd%209706%20%2811%29 (last visited April 3, 2023).
33
Federal Communications Commission, Stop Unwanted Calls and Texts, available at
https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts (last visited April 3, 2023).
34
47 C.F.R. s. 64.1601.
35
Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, Pub. L. No. 116-105, 133 Stat. 3274
(2019).
36
USTelecom The Broadband Association, FCC Names USTelecom’s Industry Traceback Group as Official Robocall
Traceback Consortium, available at https://www.ustelecom.org/fcc-names-ustelecoms-industry-traceback-group-as-official-
robocall-traceback-consortium/ (last visited April 3, 2023).
BILL: CS/SB 1308 Page 7
in more than 20 subpoenas and/or civil investigative demands from federal and state
enforcement agencies.37
The ITG reported in a letter to the FCC on November 13, 2020, that about 100 providers had
failed to cooperate with the ITG, including approximately 30 based in the United States. 38 The
ITG encouraged the FCC to bring aggressive enforcement against robocallers and voice service
providers that routinely refuse to participate in the traceback process.39
In its “Fourth Report and Order on Advanced Methods to Target and Eliminate Unlawful
Robocalls” released on December 30, 2020, the FCC required “all voice service providers to
respond to traceback requests from the FCC, civil and criminal law enforcement and the
Consortium.” 40
The TRACED Act requires the FCC to issue an annual public notice seeking applicants to serve
as the registered consortium.41 On August 22, 2022, the FCC selected the Industry Traceback
Group (ITG) to continue to serve as the registered consortium.42
On September 12, 2022, the FCC announced the signing of an updated Memorandum of
Understanding (MOU) with the Body of European Regulators for Electronic Communications
(BEREC) that expands their current partnership, with a new focus on combatting unwanted
robocalls and the promotion of 5G, 6G and beyond. One of the major topics of mutual interest
includes robocall and other automated calls’ mitigation and prevention.43
National Do Not Call Registry
The Federal Trade Commission (FTC), in concert with the FCC, administers the National Do
Not Call Registry.44 Telephone solicitors may not contact a consumer who participates in the
National Do Not Call Registry, unless the calls are:
Made with a consumer’s prior, express permission;
Informational in nature, such as those made to convey a utility outage, school closing, or
flight information; or
37
InsideArm, The Latest Developments in the World of Call Delivery, available at
https://www.insidearm.com/news/00047073-latest-developments-world-call-delivery/ (last visited April 3, 2022).
38
USTelecom, Enforcement Bureau Requests Information on the Status of Private-Led
Traceback Efforts of Suspected Unlawful Robocalls, EB Docket No. 20-195, Nov. 13, 2020, available at
https://docs.fcc.gov/public/attachments/DOC-368957A2.pdf (last visited April 3, 2023).
39
InsideArm, The Latest Developments in the World of Call Delivery, available at
https://www.insidearm.com/news/00047073-latest-developments-world-call-delivery/ (last visited April 3, 2022).
40
Federal Communications Commission, Report and Order (Aug. 22, 2022), available at https://tcpaworld.com/wp-
content/uploads/2022/08/RENEWAL-OF-UST-TRACEBACK-GROUP.pdf (last visited April 3, 2023).
41
Federal Communications Commission, Public Notice, Enforcement Bureau Requests Letters of Intent to Become the
Registered Industry Consortium for Tracebacks, available at https://www.fcc.gov/document/fcc-requests-letters-intent-
robocall-tracebacks-consortium (last visted April 3, 2023).
42
Federal Communications Commission, Report and Order DA 21-1047 (Aug. 25, 2021), available at
https://www.fcc.gov/document/fcc-retains-industry-traceback-group-robocall-consortium (last visited April 3, 2022).
43
Federal Communications Commission, Press Release, FCC RENEWS AND EXPANDS PARTNERSHIP WITH
EUROPEAN COUNTERPARTS, Sep. 12, 2022).
44
Federal Communications Commission, Stop Unwanted Calls and Texts, available at
https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts (last visited April 3, 2023).
BILL: CS/SB 1308 Page 8
Made by a tax-exempt organization.45
Constitutionality of Do Not Call Registries
Do Not Call registries have been subject to numerous state and federal lawsuits challenging their
constitutionality. The courts have found the Do Not Call Registry is a reasonable restriction on
commercial speech and that the FTC is authorized to promulgate rules for the registry. The Tenth
Circuit Court of Appeals stated that “the do-not-call registry prohibits only telemarketing calls
aimed at consumers who have affirmatively indicated that they do not want to receive such calls
and for whom such calls would constitute an invasion of privacy.” Thus, the government has a
role in restricting the ability of a telemarketer to reach a household via telephone, and because
the government has left the ultimate decision of whether or not to be placed on the registry up to
the individual, the government has not restricted the First Amendment rights of the solicitor.46
Claims of preemption have also been unsuccessful. The TCPA’s non-preemption clause,47 often
referred to as the savings clause, has been relied upon by courts to uphold states’ Do Not Call
Registries. The clause states that “[n]othing in this section or in the regulations prescribed under
this section shall preempt any State law that imposes more restrictive intrastate requirements or
regulation.” The clause indicates specific types of actions that a state may prohibit or place more
restrictive regulations on, such as sending unsolicited advertisements via fax, using of automatic
dialing systems and prerecorded messages, and making telephone solicitations.48
The TPCA is silent on a state’s ability to place stricter regulations than the TCPA requires for
interstate calls.49 However, at least one federal court of appeals has held that state regulations
and prohibitions of telemarketing that cross state boundaries are valid.50
Caller ID and “Spoofing”
“Spoofing” is the practice of altering or manipulating the caller ID information that is received in
conjunction with an incoming telephone call. In the past, caller ID services were not common
and spoofing required special equipment or a relatively high degree of technical sophistication.
However, advances in technology, such as the proliferation of cellular phones, cell phone
applications, and the widespread availability of Voice over Internet Protocol (VoIP) allows
anyone to inexpensively spoof his or her caller ID using the services of a third-party spoofing
provider.51 For example, one such spoofing provider allows a consumer to download an app on
45
47 U.S.C. § 227(a)(4); See also, 47 C.F.R. § 64.1200 (2012).
46 Mainstream Marketing Services Inc v. Federal Trade Commission, 358 F.3d 1228 (10th Cir. 2004).
47
47 U.S.C. s. 227(f)(1).
48
National Association of Attorneys General, Do Not Call: The History of Do Not Call and How Telemarketing Has Evolved,
NAGTRI Journal, Vol. 1 No. 4, available at https://www.naag.org/attorney-general-journal/do-not-call-the-history-of-do-not-
call-and-how-telemarketing-has-evolved/ (last visited April 3, 2023).
49
47 U.S.C. s. 227 (f)(1).
50
See Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041 at 1044-45 (7th Cir. 2013) and Patriotic Veterans, Inc. v. State of
Indiana, No. 16-2059 (7th Cir. 2017)( “Preventing automated messages to persons who don’t want their peace and quiet
disturbed is a valid time, place, and manner restriction.”).
51 See FCC 11-100, Rules and Regulations Implementing the Truth in Caller ID Act of 2009, WC Docket No. 11-39, (June 22,
2011), at 9116, available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-11-100A1_Rcd.pdf (last visited April 3,
2023).
BILL: CS/SB 1308 Page 9
his or her smartphone, purchase credits towards call time, and simply input the number that he or
she wants displayed on the receiving end in order to place an untraceable, spoofed call.52
In response to the growing practice of spoofing, Congress amended the TCPA to add the Truth
in Caller ID Act of 2009. Under the Act and FCC rules, a person or entity is prohibited from
transmitting false or misleading caller ID information “with the intent to defraud, cause harm, or
wrongly obtain anything of value,” with a penalty of up to $10,000 for each violation.53
However, spoofing is not illegal when no harm is intended or caused, or if the caller has
legitimate reasons to hide his or her information. Examples may include law enforcement
agencies working on a case, a victim of domestic abuse, or a doctor who wishes to discuss
private medical matters with a patient.54
In 2008, Florida passed its own anti-spoofing legislation, The Florida Caller ID Anti-Spoofing
Act (2008).55 The Act prohibits any person from:
Making a call with knowledge that false information was entered into a telephone
caller ID system with the intent to deceive, defraud, or mislead the call’s recipient; and
Entering false information into a telephone caller ID system “with the intent to
deceive, defraud, or mislead” the call’s recipient.
However, a U.S. District Court in Miami found that Florida’s Caller ID Anti-Spoofing Act
(2008) violated the Commerce Clause of the United State Constitution because it had the effect
of controlling spoofing practices that took place entirely outside the state.56 Similarly, in 2011, a
federal court in Mississippi struck down Mississippi’s anti-spoofing law, which was substantially
similar to Florida’s.57
Spam Robocalls
US consumers received over 50.3 billion robocalls in 2022, only slightly less than the 50.5
billion total robocalls received in 2021 despite widespread enforcement efforts by government
regulators and state officials.58
Scammers often use caller ID spoofing to mask their true location and make it appear the call is
from a legitimate or local number to raise the odds of getting an answer. What follows is a
robotic voice on the other end claiming to represent a utility, a name-brand company, or a
government agency (such as the Social Security Administration or the Internal Revenue
52
Business Insider, It’s Surprisingly Easy for a Hacker to Call Anyone From Your Personal Phone Number (March 1, 2016),
available at http://www.businessinsider.com/phone-number-spoofing-2016-2 (last visited April 3, 2023).
53
47 U.S.C. s. 227(e).
54
FCC, Caller ID Spoofing, https://www.fcc.gov/consumers/guides/spoofing-and-caller-id (last visited Mar. 21, 2023).
55
Section 817.487, F.S. (2008).
56
TelTech Systems, Inc. v. McCollum, No. 08-61664-CIV-MARTINEZ-BROWN (S.D. Fla. Filed Oct. 16, 2008).
57
TelTech Systems, Inc. v. Barbour, 866 F. Supp. 2d 571 (S.D. Miss. 2011), aff’d sub nom Teltech Systems, Inc. v. Bryant,
702 F.2d 232 (5th Cir. 2012).
58 PR Newswire, Robocalls Top 50.3 Billion in 2022, Matching 2021 Call Volumes Despite Enforcement Efforts, available at
https://www.prnewswire.com/news-releases/robocalls-top-50-3-billion-in-2022--matching-2021-call-volumes-despite-
enforcement-efforts-
301714297.html#:~:text=IRVINE%2C%20Calif.%2C%20Jan.,government%20regulators%20and%20state%20officials (last
visited April 3, 2023).
BILL: CS/SB 1308 Page 10
Service). It might offer a free cruise, inexpensive health insurance, or a low-interest loan.
Answering or engaging with the call may lead to a live scammer, who realizes he or she has
found a “live” number, and thus may call repeatedly.59
Many robocalls are legal. The FCC allows such robocalls for informational or noncommercial
purposes, such as polling, political campaigning and outreach by nonprofit groups.
Advances in technology have enabled unrelenting robocalls from untraceable origins. As a
result, it is profitable to use spam calls to drive business regardless of whether the caller is
perpetuating a scam or is a legitimate business using telemarketing to increase sales.60
Consent and Revocation
The TCPA prohibits a telemarketer from using an automatic telephone dialing system (ATDS) to
place a call or send a text message to a cell phone without the recipient’s “prior express
consent.”61 The type of consent depends on the nature of the call or text. Consent generally can
be revoked by any reasonable method. However, some courts recently have considered whether
revocation may be restricted in circumstances where the consent is included on a bilateral
agreement.62
There are two types of prior consent provided for under the TCPA:
Prior express consent is required to place autodialed, non-solicitation calls or texts to a
cell phone.
Prior express written consent is a heightened form of consent, must be evidenced by a
written agreement signed by the call recipient, and is required to place autodialed
telemarketing or advertising calls or texts to a cell phone. The written agreement must
include a clear and conspicuous disclosure informing the consumer signing that:
o By signing the agreement, the consumer is authorizing autodialed telemarketing
or advertising calls or texts; and
o The consumer is not required to sign the agreement as a condition of purchasing
any property, goods, or services.63
Prior express consent can be written or verbal. Voluntarily providing one’s cellular number also
constitutes prior express consent where:
The individual gives “prior express consent” to be called or texted at the number
provided;
The individual has provided his or her number to the party calling or texting; and
59
AARP, Robocalls, available at https://www.aarp.org/money/scams-fraud/info-2019/robocalls.html?CMP=KNC-DSO-
Adobe-Google-FRD-Ongoing-Robocalls-NonBrand-Exact-
Robocalls&gclid=EAIaIQobChMIlvmq_4Sr7wIVFYvICh2RAwjqEAAYAiAAEgJD4vD_BwE&gclsrc=aw.ds (last visited
April 3, 2022).
60
Id.
61 47 U.S.C. s. 227(b)(1)(A)(iii).
62
The National Law Review, Consent and Revocation Under the TCPA, available at
https://www.natlawreview.com/print/article/consent-and-revocation-under-tcpa (last visited April 3, 2023).
63
Id.
BILL: CS/SB 1308 Page 11
There is some relation between the communications and the reason for which an
individual provided his or her number.64
Prior express written consent is required for calls or texts to cell phones that introduce an
advertisement,65 or constitute “telemarketing”66 and are sent using an ATDS. The TCPA’s
advertising prong merely requires introducing, at the most basic level, the commercial
availability of a service. In similar fashion, telemarketing occurs when the context of a text or
call indicates that it was initiated and transmitted to a person for promoting property, goods, or
services. Neither the TCPA nor its implementing regulations requires an explicit mention of a
good, product, or service where the implication of an improper purpose is clear from the
context.67
Revocation of consent is controlled by the consenting party, and may be communicated orally or
in writing by any reasonable means. However, where consent is contractually provided, as is the
case in credit agreements, the parties can bargain to require mutuality or particular revocation
methods. Recently, a number of courts have addressed whether a consumer may unilaterally
revoke consent when it is a term in a bargained-for contract.68
In 2017, the federal Second Circuit Court of Appeals held that a consumer may not unilaterally
revoke consent in a bargained-for, bilateral contract.69 The court based its decision on “black-
letter” contract law, referring to a fundamental aspect of contractual relationships that one party
may not alter or revoke a term of a bilateral agreement without the other party’s consent. The
court found that a consumer, having consented to be contacted via an auto-dialer, could not
unilaterally revoke consent without the caller’s permission. Notably, the court distinguished case
law from the Third and Eleventh Circuit Courts of Appeals, where consumers retained their
ability to revoke consent because it was given in credit applications, rather than as part of a
bilateral contract.70
In 2018, a United States District Court in Florida also held that consent provided by contract
cannot be unilaterally revoked.71 The court noted that no provision in the TCPA indicates that
contractually-granted consent can be unilaterally revoked where it would contradict black-letter
contract law. The court held that a consumer who has consented to auto-dialed communication in
a contract for services cannot later revoke such consent.72
64
Federal Communications Commission, Rules & Regulations Implementing the TCP Act of 1991 et al., 30 FCC Rcd at
7991–92.
65
47 C.F.R. s. 64.1200(f)(1), defines an “advertisement” as “any material advertising the commercial availability or quality
of any property, goods, or services,” and “telemarketing” is defined as “the initiation of a telephone call or message for the
purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any
person.”
66
47 C.F.R. s. 64.1200(f)(13).
67
The National Law Review, supra note 62.
68
Id.
69
Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 53 (2d Cir. 2017).
70
The National Law Review, supra note 62.
71
Medley v. Dish Network, LLC, Case No. 8:16-cv-2534-T-36TBM, 2018 WL 4092120, at *10 (M.D. Fla. Aug. 27, 2018).
72
The National Law Review, supra note 62.
BILL: CS/SB 1308 Page 12
However, other courts have disagreed, rejecting the argument that consent is irrevocable. In
2018, a United States District Court in Tennessee adopted the general rule that consumer consent
may be revoked at any time by “any reasonable means.”73 The court held that consumers retain
the ability to revoke their prior consent despite having a bilateral agreement with the caller.
Other courts have also allowed for revocation of consent by any means in the absence of a
contractual restriction on the means by which a consumer may revoke consent.74
In December 2020, the U.S. Supreme Court heard oral arguments in a landmark case regarding
whether consumers can sue a company for using an ATDS to text or call the consumers at a
phone number saved in the company’s system. At issue was the meaning of the TCPA’s
prohibition on using an ATDS to transmit communications to cell phones. The question before
the Supreme Court was “whether the definition of ATDS in the TCPA encompasses any device
that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not use a
random or sequential number generator.”75
On April 1, 2021, the Court ruled that to qualify as an ATDS under the TCPA, a device must
have the capacity to either store a telephone number using a random or sequential number
generator or produce a telephone number using a random or sequential number generator. The
Court concluded that merely having the capacity to store numbers and dial them automatically is
not enough to make a device qualify as an ATDS.76
Specifically, related to consent, the TCPA rules require telemarketers to:
Obtain prior express written consent from consumers before robocalling them;
No longer be able to use an "established business relationship" to bypass the consent
requirement; and
Require an automated, interactive "opt-out" mechanism to be used during each robocall
so consumers can immediately tell the telemarketer to stop calling.77
The TCPA includes a private right of action.78 A caller who places a call to a cell phone without
consent using an ATDS is subject to $500 in damages per call. The damages amount is $1,500
per call if the court finds that the defendant willfully or knowingly committed the violation.79
Specifically, related to consent, the Florida telephone solicitation law:80
Prohibits robocalls without the prior express written consent of the called party.
When the called party has given such consent, only allows robocalls in certain
circumstances through the use of an “automated system for the selection or dialing of
telephone numbers or the playing of a recorded message” when a connection is
completed to a number called.
73
Ammons v. Ally Fin., Inc., Case No. 3:17-cv-00505, 2018 WL 3134619, at *15 (M.D. Tenn. June 27, 2018).
74
Few v. Receivables Performance Mgmt., Case No. 1:17-CV-2038-KOB, 2018 WL 5923765 at *1 (N.D. Ala. Nov. 13,
2018).
75
Facebook, Inc., Petitioner vs. Noah Duguid, et al., 141 S. Ct. 1163, 1167 (2021).
76
Id.
77
FCC, supra note 29.
78
47 U.S.C. s. 227(b)(3).
79
Id. at s. 227(b)(3)(B)-(C).
80
Section 501.059(8), F.S.
BILL: CS/SB 1308 Page 13
III. Effect of Proposed Changes:
Section 1 amends s. 501.059, F.S., to clarify restrictions on unwanted telephone solicitation
practices. The bill:
Clarifies notice requirements prior to obtaining consent for telephone calls, text messages, or
the transmission of prerecorded voicemails.
Revises the definition of “prior express written consent” with respect to automated systems
and replaces references to the term “signatory” with the term “called party.”
Revises what qualifies as a “signature” for purposes of consenting to communications to
include an act that demonstrates express consent, such as checking a box indicating consent
or responding affirmatively to receiving text messages, to an advertising campaign, or to an
e-mail solicitation.
The bill provide that civil actions may not be brought for up to two communications made within
15 business days after the consumer withdraws a previously given valid consent or
communications, orally or by text message, that he or she does not wish to receive
communications.
Section 2 provides an effective date of upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
BILL: CS/SB 1308 Page 14
B. Private Sector Impact:
The bill may protect consumers from unwanted and fraudulent telephone solicitations.
The bill may have an indeterminate negative fiscal impact on legitimate telemarketers to
the extent they do not currently engage in business consistent with the requirements in the
bill.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 501.059 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on April 4, 2023:
The amendment:
Removes a definition for “automatic telephone dialing system” and clarifies what
constitutes an automated system for purposes of the bill;
Removes the requirement that calls must be “unsolicited” under the prohibition on
telephonic sales calls;
Provide that civil actions may not be brought for up to two communications made
within 15 business days after the consumer withdraws a previously given valid
consent or communications, orally or by text message, that he or she does not wish to
receive communications; and
Changes the effective date of the bill to upon becoming law and removes a provision
purporting to apply the bill’s provisions retroactively.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 1308 Bill No. SB 1308
Ì805210`Î805210 Ì805210`Î805210
LEGISLATIVE ACTION 11 (g) “Prior express written consent” means a written
Senate . House 12 agreement that:
Comm: RCS . 13 1. Bears the signature of the called party;
04/04/2023 . 14 2. Clearly authorizes the person making or allowing the
. 15 placement of a telephonic sales call by telephone call, text
. 16 message, or voicemail transmission to deliver or cause to be
. 17 delivered to the called party a telephonic sales call using an
18 automated system for the selection and or dialing of telephone
19 numbers, the playing of a recorded message when a connection is
20 completed to a number called, or the transmission of a
21 prerecorded voicemail;
22 3. Includes the telephone number to which the called party
23 signatory authorizes a telephonic sales call to be delivered;
24 and
25 4. Includes a clear and conspicuous disclosure informing
The Committee on Commerce and Tourism (Yarborough) recommended 26 the called party that:
the following: 27 a. By executing the agreement, the called party authorizes
28 the person making or allowing the placement of a telephonic
1 Senate Amendment (with title amendment) 29 sales call to be made by telephone call, text message, or
2 30 voicemail transmission to deliver or cause to be delivered a
3 Delete everything after the enacting clause 31 telephonic sales call to the called party a telephonic sales
4 and insert: 32 call using an automated system for the selection and or dialing
5 Section 1. Paragraphs (g) and (h) of subsection (1) and 33 of telephone numbers, if applicable, or the playing of a
6 paragraph (a) of subsection (8) of section 501.059, Florida 34 recorded message when a connection is completed to a number
7 Statutes, are amended, and paragraph (c) is added to subsection 35 called, or the transmission of a prerecorded voicemail; and
8 (10) of that section, to read: 36 b. He or she is not required to directly or indirectly sign
9 501.059 Telephone solicitation.— 37 the written agreement or to agree to enter into such an
10 (1) As used in this section, the term: 38 agreement as a condition of purchasing any property, goods, or
39 services.
Page 1 of 4 Page 2 of 4
4/3/2023 8:01:28 AM 577-03372-23 4/3/2023 8:01:28 AM 577-03372-23
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 1308 Bill No. SB 1308
Ì805210`Î805210 Ì805210`Î805210
40 (h) “Signature” includes: 69 And the title is amended as follows:
41 1. An electronic or digital signature if, to the extent 70 Delete everything before the enacting clause
42 that such form of signature is recognized as a valid signature 71 and insert:
43 under applicable federal law or state contract law; and 72 A bill to be entitled
44 2. An act that demonstrates express consent, including, but 73 An act relating to telephone solicitation; amending s.
45 not limited to, checking a box indicating consent or responding 74 501.059, F.S.; revising definitions; prohibiting
46 affirmatively to receiving text messages, to an advertising 75 certain telephonic sales calls; providing conditions
47 campaign, or to an e-mail solicitation. 76 under which civil actions may not be brought for
48 (8)(a) A person may not make or knowingly allow to be made 77 specified violations; providing an effective date.
49 an unsolicited a telephonic sales call to be made if such call
50 involves an automated system for the selection or dialing of
51 telephone numbers or the playing of a recorded message when a
52 connection is completed to a number called without the prior
53 express written consent of the called party.
54 (10)
55 (c) Notwithstanding any other provision of this section, no
56 action shall lie for a violation of subsection (8) for any
57 communication made within 30 days of:
58 1. The called party or consumer communicating with a
59 telephone solicitor or other person, orally or by text message,
60 that such called party or consumer does not wish to receive any
61 communications from that telephone solicitor or person or the
62 seller or organization represented by that telephone solicitor
63 or person.
64 2. The called party or consumer effectively withdrawing a
65 previously given valid consent.
66 Section 2. This act shall take effect upon becoming a law.
67
68 ================= T I T L E A M E N D M E N T ================
Page 3 of 4 Page 4 of 4
4/3/2023 8:01:28 AM 577-03372-23 4/3/2023 8:01:28 AM 577-03372-23
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 1308 Bill No. SB 1308
Ì817718EÎ817718 Ì817718EÎ817718
LEGISLATIVE ACTION 11 (10)
Senate . House 12 (c) Notwithstanding any other provision of this section, no
Comm: FAV . 13 action shall lie for a violation of subsection (8) for up to two
04/04/2023 . 14 communications made within 15 business days after any of the
. 15 following:
.
.
The Committee on Commerce and Tourism (Gruters) recommended the
following:
1 Senate Amendment to Amendment (805210)
2
3 Delete lines 48 - 57
4 and insert:
5 (8)(a) A person may not make or knowingly allow to be made
6 a telephonic sales call to be made if such call involves an
7 automated system for the selection or dialing of telephone
8 numbers or the playing of a recorded message when a connection
9 is completed to a number called without the prior express
10 written consent of the called party.
Page 1 of 2 Page 2 of 2
4/4/2023 7:57:29 AM 577-03439B-23 4/4/2023 7:57:29 AM 577-03439B-23
Florida Senate - 2023 SB 1308 Florida Senate - 2023 SB 1308
By Senator Yarborough
4-00182B-23 20231308__ 4-00182B-23 20231308__
1 A bill to be entitled 30 and or dialing of telephone numbers, the playing of a recorded
2 An act relating to telephone solicitation; amending s. 31 message when a connection is completed to a number called, or
3 501.059, F.S.; providing and revising definitions; 32 the transmission of a prerecorded voicemail;
4 prohibiting certain telephonic sales calls; providing 33 3. Includes the telephone number to which the called party
5 retroactive applicability; providing an effective 34 signatory authorizes a telephonic sales call to be delivered;
6 date. 35 and
7 36 4. Includes a clear and conspicuous disclosure informing
8 Be It Enacted by the Legislature of the State of Florida: 37 the called party that:
9 38 a. By executing the agreement, the called party authorizes
10 Section 1. Present paragraphs (a) through (l) of subsection 39 the person making or allowing the placement of a telephonic
11 (1) of section 501.059, Florida Statutes, are redesignated as 40 sales call to be made by telephone call, text message, or
12 paragraphs (b) through (m), respectively, a new paragraph (a) is 41 voicemail transmission to deliver or cause to be delivered a
13 added to that subsection, and present paragraphs (g) and (h) of 42 telephonic sales call to the called party a telephonic sales
14 that subsection and paragraph (a) of subsection (8) of that 43 call using an automatic telephone dialing automated system for
15 section are amended, to read: 44 the selection and or dialing of telephone numbers, if
16 501.059 Telephone solicitation.— 45 applicable, or the playing of a recorded message when a
17 (1) As used in this section, the term: 46 connection is completed to a number called, or the transmission
18 (a) “Automatic telephone dialing system” means equipment 47 of a prerecorded voicemail; and
19 using a random or sequential number generator that: 48 b. He or she is not required to directly or indirectly sign
20 1. Stores or produces telephone numbers; and 49 the written agreement or to agree to enter into such an
21 2. Dials the stored or produced telephone numbers. 50 agreement as a condition of purchasing any property, goods, or
22 (h)(g) “Prior express written consent” means a written 51 services.
23 agreement that: 52 (i)(h) “Signature” includes:
24 1. Bears the signature of the called party; 53 1. An electronic or digital signature, if to the extent
25 2. Clearly authorizes the person making or allowing the 54 that such form of signature is recognized as a valid signature
26 placement of a telephonic sales call by telephone call, text 55 under applicable federal law or state contract law; and
27 message, or voicemail transmission to deliver or cause to be 56 2. An act that demonstrates express consent, including, but
28 delivered to the called party a telephonic sales call using an 57 not limited to, checking a box indicating consent or responding
29 automatic telephone dialing automated system for the selection 58 affirmatively to receiving text messages, to an advertising
Page 1 of 3 Page 2 of 3
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2023 SB 1308
4-00182B-23 20231308__
59 campaign, or to an e-mail solicitation.
60 (8)(a) A person may not make or knowingly allow to be made
61 an unsolicited a telephonic sales call using to be made if such
62 call involves an automatic telephone dialing automated system
63 for the selection and or dialing of telephone numbers or the
64 playing of a recorded message when a connection is completed to
65 a number called without the prior express written consent of the
66 called party.
67 Section 2. The amendments made by this act are remedial in
68 nature and apply retroactively to July 1, 2021, and to any
69 proceeding pending on or after July 1, 2021.
70 Section 3. This act shall take effect July 1, 2023.
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 1308
Ì817718EÎ817718
LEGISLATIVE ACTION
Senate . House
Comm: FAV .
04/04/2023 .
.
.
.
The Committee on Commerce and Tourism (Gruters) recommended the
following:
1 Senate Amendment to Amendment (805210)
2
3 Delete lines 48 - 57
4 and insert:
5 (8)(a) A person may not make or knowingly allow to be made
6 a telephonic sales call to be made if such call involves an
7 automated system for the selection or dialing of telephone
8 numbers or the playing of a recorded message when a connection
9 is completed to a number called without the prior express
10 written consent of the called party.
Page 1 of 2
4/4/2023 7:57:29 AM 577-03439B-23
Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. SB 1308
Ì817718EÎ817718
11 (10)
12 (c) Notwithstanding any other provision of this section, no
13 action shall lie for a violation of subsection (8) for up to two
14 communications made within 15 business days after any of the
15 following:
Page 2 of 2
4/4/2023 7:57:29 AM 577-03439B-23
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/CS/SB 564
INTRODUCER: Commerce and Tourism Committee; Banking and Insurance Committee; and Senator
Hutson
SUBJECT: Interchange Fees on Taxes
DATE: April 4, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Moody Knudson BI Fav/CS
2. Renner McKay CM Fav/CS
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 564 creates s. 501.0119, F.S., which prohibits an issuer, a payment card network, an
acquirer bank, or a processor from charging an interchange fee on any tax that is separately
itemized on a sales invoice, sales slip, or other evidence of sale in any electronic payment
transaction if the merchant informs a specified entity of such tax amount as part of the
authorization process for such transaction. The merchant must transmit the tax amount data as
part of the authorization process to avoid being charged interchange fees on the tax amount.
A merchant that does not transmit the tax amount data for eligible electronic payment
transactions as part of the authorization process may submit tax documentation to the specified
entity no later than 180 days after the date of the electronic payment transaction, and within 30
days, the issuer must credit to the merchant the amount of interchange fees charged on the tax
amount of the electronic payment transaction.
An issuer, a payment card network, an acquirer bank, a processor, or other designated entity that
has received the tax amount data and that violates these provisions is subject to a civil penalty of
$1,000 per electronic payment transaction, and the issuer must refund the interchange fees
charged on any tax amount relative to the electronic payment transaction.
BILL: CS/CS/SB 564 Page 2
The bill defines several terms, including acquirer bank, authorization, clearance, credit card,
debit card, electronic payment transaction, interchange fee, issuer, merchant, payment card
network, processor, settlement, tax, and tax document.
See Section V. Fiscal Impact Statement.
The bill is effective October 1, 2023.
II. Present Situation:
Financial Institutions Code
The Florida Office of Financial Regulation (OFR) is responsible for all activities of the Financial
Services Commission relating to the regulation of banks, credit unions, other financial
institutions, finance companies, and the securities industry.1
Florida law defines the term “financial institution” as a state or federal savings or thrift
association, bank, savings bank, trust company, international bank agency, international banking
corporation, international branch, international representative office, international administrative
office, international trust entity, international trust company representative office, qualified
limited service affiliate, credit union, or an agreement corporation operating pursuant to s. 25 of
the Federal Reserve Act, 12 U.S.C. s. 601 et seq., or Edge Act corporation organized pursuant to
s. 25(a) of the Federal Reserve Act, 12 U.S.C. ss. 611 et seq.2
Financial institutions may be either state or federally chartered. OFR’s Division of Financial
Institutions provides general supervision over all state financial institutions, their subsidiaries,
and service corporations,3 and is charged with the administration of the financial institutions
codes, which apply to all state-authorized or state-chartered financial institutions and to the
enforcement of all laws relating to state-authorized or state-chartered financial institutions.
As of June 30, 2020, the Division of Financial Institutions regulates 197 financial institutions:4
69 banks
66 credit unions
21 international bank offices
15 trust companies
16 family trust companies
10 qualified limited service affiliates
Payment card networks or card associations, such as Visa and MasterCard, and processors do not
meet the definition of financial institution and, therefore, are not currently regulated by the
OFR.5
1
Section 20.121(3)(a)2., F.S.
2
Section 655.005(1)(i), F.S.
3
Section 655.012(1), F.S.
4
The OFR, Fast Facts (2021 ed.), available at: https://flofr.gov/sitePages/documents/FastFacts.pdf (last visited April 3,
2023).
5
The OFR, Agency Analysis for SB 564 (2023), p. 2, Mar. 14, 2023 (on file with the Senate Committee on Banking and
Insurance).
BILL: CS/CS/SB 564 Page 3
Electronic Payment Transactions
In 1958, Bank of America launched the first credit card6 payment program with revolving credit
known as BankAmericard in the U.S.7 In 1966, the Bank of Delaware launched the first debit
card8 pilot program.9 Over time credit card and debit cards have become a common way to pay
for goods and services. Several key players are involved in processing credit card and debit card
transactions, including acquiring banks or contracted processors,10 payment card networks or
bank card associations,11 and issuers or issuing banks.12 Processing credit card or debit card
transactions requires several steps, including gathering sales information from the merchant,
obtaining authorization for the transaction, collecting funds from the issuing bank, and making
payment to the merchant.13
Network Infrastructure, Technology, and Security
In 2006, certain major payment card networks established the PCI Security Standards Council
(PCI SSC) which created standards that set out technical requirements for their respective
compliance programs for payments made worldwide.14 Participating organizations include
merchants, processors, developers, and point of sale vendors.15 There are 12 requirements for
6
15 U.S.C. s. 1602(l) defines “credit card” as any card, plate, coupon book or other credit device existing for the purpose of
obtaining money, property, labor, or services on credit.
7
Visa, Inc., What We Do, available at: What we do | Unlocking opportunities for everyone | Visa (last visited April 3, 2023).
8
15 U.S.C. s. 1693o-2.(c)(2) defines “debit card” as (A) any card, or other payment code or device, issued or approved for
use through a payment card network to debit an asset account (regardless of the purpose for which the account is established),
whether authorization is based on signature, PIN, or other means; (B) includes a general-use prepaid card, as that term is
defined in s. 15 U.S.C. s. 1693l-1(a)(2)(A); and (C) does not include paper checks.
9
Hyashi, F., Sullivan, R., & Weiner, S., A Guide to the ATM and Debit Card Industry, Federal Reserve Bank of Kansas City,
2003, pg. 13, available at: A Guide to the ATM and Debit Card Industry (kansascityfed.org) (last visited April 3, 2023).
10
An “acquiring bank,” also known as the merchant bank, is a member of a card association that contracts with merchants for
the settlement of card transactions. An acquiring bank must sponsor a merchant that accepts as a form of payment card
association brand payment cards, and may contract directly with merchants or indirectly through agent banks or other third-
party organizations to process card transactions. Office of the Comptroller of the Currency, Comptroller’s Handbook: Safety
and Soundness: Merchant Processing, Vol. 1, pg. 2, Aug. 2014, available at: OCC Merchant Processing Handbook
(hereinafter cited as “OCC Merchant Processing Handbook”) (last visited April 3, 2023).
11
“Payment card network” or “bank card associations” are entities that directly, or through licensed members, processors, or
agents, provides the proprietary services, infrastructure, and software that route information and data to conduct debit card or
credit card transaction authorization, clearance, and settlement, and that a person uses in order to accept as a form of payment
a brand of debit card, credit card or other device that may be used to carry out debit or credit transactions. 15 U.S.C. s.
1693o-2.(c)(11). Examples of the major payment card networks include Visa, Inc. (Visa), MasterCard, Inc. (MasterCard),
Discover Global Network (Discover), and American Express (AmEx). See Visa, What We Do, available at: What we do |
Unlocking opportunities for everyone | Visa (last visited April 3, 2023); MasterCard, Who We Are, available at: About
Mastercard | Who We Are | Who We Serve (last visited April 3, 2012); Discover, Our Network, available at: Our Unique
Payments Network | Discover Global Network (last visited April 3, 2023); AmEx, American Express Network: The Network
That Backs You, available at; GNW-Home (americanexpress.com) (last visited April 3, 2023).
12
“Issuer” or “issuing bank” is any person or entity who issues a debit card, or credit card, or the agent of such person with
respect to such card. 15 U.S.C. s. 1693o-2.(c)(9).
13
OCC Merchant Processing Handbook at pg. 1.
14
PCI SSC, About Us, available at: Official PCI Security Standards Council Site - Verify PCI Compliance, Download Data
Security and Credit Card Security Standards (hereinafter cited as “PSI SSC Governance Website”) (last visited April 3,
2023).
15
PCI SSC, The Prioritized Approach to Pursue PCI DSS Compliance, pg. 2, available at: PCI DSS Prioritized Approach for
PCI DSS 3.2 (pcisecuritystandards.org) (last visited April 3, 2023).
BILL: CS/CS/SB 564 Page 4
securing cardholder data that is stored, processed or transmitted by participating members, such
as encrypting transmission of cardholder data across open public networks, and developing and
maintaining secure systems and applications.16 Payment card networks or processors are
responsible for enforcement of such requirements.17
Authorization Process
These secured networks are used to process the authorization of credit card and debit card
transactions. Authorization is the process of approving or declining a transaction prior to the
transaction being finalized.18 A merchant may obtain an estimated/initial authorization to place a
hold for a transaction amount for transactions in certain types of industries when the actual
amount of a transaction is unknown.19 Typically, authorization for a transaction to be paid by
credit card or debit card is requested electronically for the transaction amount from a merchant’s
point of sale system through the merchant’s bank or processor (via the payment card network) to
the issuer in a matter of seconds.20 An illustration of the authorization process is shown below.21
Clearing and Settlement Process
Clearing is the process of transmitting final transaction data from merchants to issuers for
posting to the cardholder’s account, and the calculation of certain fees and charges that apply to
16
Id. at pgs. 1, 8-9.
17
PSI SSC Governance Website.
18
OCC Merchant Processing Handbook at pg. 7.
19
See, Visa, Authorization and Reversal Processing Requirements for Merchants, available at: Authorization and Reversal
Processing Requirements for Merchants (visa.com) (last visited April 3, 2023).
20
OCC Merchant Processing Handbook at pg. 8.
21
Id.
BILL: CS/CS/SB 564 Page 5
the issuer and acquirer.22 The settlement process includes transmitting sales information to the
issuing bank for collection and reimbursement of funds to the merchant, and the process of
calculating and reporting the net financial position of issuers and acquirers for all transactions
that are cleared.23 An illustration of the clearing and settlement process is shown below.24
Transaction Fees
Merchants are charged network fees,25 processor fees,26 and interchange fees for using network
infrastructure and technology, and accepting credit card and debit cards as a form of payment for
transactions. An “interchange transaction fee” is any fee established, charged or received by a
payment card network for the purpose of compensating an issuer for its involvement in an
22
OCC Merchant Processing Handbook at pg. 9.
23
Id.
24
Id.
25
15 U.S.C. s. 1693o-2.(c)(10) defines “network fee” as a fee charged and received by a payment card network with respect
to an electronic debit transaction, other than an interchange transaction fee. These fees may also be referred to as “assessment
fees.” See Leonard, K., & Bottorff, C., Credit Card Processing Fees (2023 Guide), Forbes Advisor, Aug. 19, 2022, available
at: Credit Card Processing Fees (2023 Guide) – Forbes Advisor (hereinafter cited as “Forbes Article”) (last visited April 3,
2023). 15 U.S.C. s. 1693o-2.(c)(5) defines “electronic debit transaction” as a transaction in which a person uses a debit card.
26
Forbes Article (noting that payment process fees may include monthly fees, per-transaction fees, equipment lease fees and
statement fees).
BILL: CS/CS/SB 564 Page 6
electronic payment transaction.27 Payment card networks base the fees on the type or tier of the
merchant, and interchange fees includes a flat rate plus a percentage of the transaction value.28
Credit Card Transactions
No federal or state regulations were identified that restrict the maximum amount of interchange
fees that may be charged to a merchant for credit card transactions. The average interchange fees
for credit card transactions with major payment card networks is as follows:
Visa: 1.4% to 2.5%
MasterCard: 1.5% to 2.6%
Discover: 1.55% to 2.5%
AmEx: 2.3% to 3.5%29
Debit Card Transactions
The Electronic Fund Transfer Act (EFTA)30 was established with a primary objective of
individual consumer’s rights regarding the electronic fund and remittance transfer systems.31 The
EFTA provides that an amount of any interchange transaction fee that an issuer32 may receive or
charge with respect to an electronic debit transaction must be “reasonable and proportional to the
cost incurred by the issuer” with respect to the transaction.33 The EFTA provides for certain
exemptions from these provisions, such as exemptions for small issuers, including issuers34 that
have less than $10 billion in assets,35 and exemptions for government-administered payment
programs and reloadable prepaid cards.36
The Board of Governors of the Federal Reserve System (Board) may regulate any interchange
transaction fee that an issuer may receive or charge with respect to an electronic debit
transaction.37 The Board must consider the following factors when issuing standards and
prescribing regulations:
The nature, type, and occurrence of fraud in electronic debit transactions;
27
See 15 U.S.C. s. 1693o-2.(c)(8).
28
See Visa, The Visa System: Rates, Fees and Rules, available at: Visa USA Interchange Reimbursement Fees (last visited
April 3, 2023); MasterCard, MasterCard Interchange Rates and Fees, available at: U.S. Region Interchange, 22 April 2022
(mastercard.us) (last visited April 3, 2023); O’Keefe, C., Discover Interchange Rates (2023), Merchant Cost Consulting, Jan.
8, 2023, available at: Discover Interchange Rates (2023) | Merchant Cost Consulting (last visited April 3, 2023); Rej, M.,
Amex Interchange Rates and Processing Fees, Merchant Cost Consulting, Sept. 16, 2022, available at: Amex Interchange
Rates and Processing Fees (2023) | Merchant Cost Consulting (last visited April 3, 2023).
29
Forbes Article.
30
15 U.S.C. s. 1693 et. seq.
31
15 U.S.C. s. 1693(b); 12 C.F.R. s. 205.1(b).
32
15 U.S.C. s. 1693o-2.(c)(9) defines “issuer” as any person who issues a debit card, or credit card, or the agent of such
person with respect to such card.
33
15 U.S.C. s. 1693o-2.(a)(2); 12 C.F.R. s. 235.3(a).
34
15 U.S.C. s. 1693o-2.(a)(6)(B) limits the definition of “issuer,” for purposes of this provision, to the person holding the
asset account that is debited through an electronic debit transaction.
35
15 U.S.C. s. 1693o-2.(a)(6)(A).
36
12 C.F.R. s. 1693o-2.(a)(7) (providing that exemptions relating to certain transactions when debit and general-use prepaid
card are used by a person pursuant to a Federal, State, or local government-administered payment program).
37
15 U.S.C. s. 1693o-2.(a)(1).
BILL: CS/CS/SB 564 Page 7
The extent to which the occurrence of fraud depends on whether authorization in an
electronic debit transaction is based on signature, PIN, or other means;
The available and economical means by which fraud on electronic debit transactions may be
reduced;
The fraud prevention and data security costs expended by each party involved in electronic
debit transactions (including consumers, persons who accept debit cards as a form of
payment, financial institutions, retailers and payment card networks);
The costs of fraudulent transactions absorbed by each party involved in such transactions
(including consumers, persons who accept debit cards as a form of payment, financial
institutions, retailers and payment card networks);
The extent to which interchange transaction fees have in the past reduced or increased
incentives for parties involved in electronic debit transactions to reduce fraud on such
transactions; and
Such other factors as the Board considers appropriate.38
The Board issued regulations which limit the amount of interchange transaction fees that an
issuer may receive or charge for any electronic debit transaction to no more than $0.21 plus 0.05
percent multiplied by the value of the transaction,39 plus a $0.01 fraud prevention adjustment.40
The Federal Reserve has published data on the average debit card interchange fee from 2011 to
2022, which is summarized in the table below.41
38
15 U.S.C. s. 1693o-2.(a)(5)(B)(ii).
39
12 C.F.R. s. 235.3(b).
40
12 C.F.R. s. 235.4(a).
41
The Board, Regulation II (Debit Card Interchange Fees and Routing): Average Debit Card Interchange Fee by Payment
Card Network, available at: Federal Reserve Board - Regulation II - Average Debit Card Interchange Fee by Payment Card
Network (last visited April 3, 2023).
BILL: CS/CS/SB 564 Page 8
The Board reports that Visa, MasterCard, and Discover (exempt and covered transactions)42 have
an average debit card interchange fee per transaction of $0.36, $0.46, and $0.44, respectively,
with an interchange fee as a percentage of the average debit card transaction value of 0.76%,
0.94%, and 1.35%, respectively.43
The EFTA does not annul, alter, or affect the laws of any state44 relating to, amongst other
things, electronic funds transfers45 except to the extent that the laws are inconsistent with the
provisions under the EFTA, and then only to the extent of the inconsistency. 46 The Bureau of
Consumer Financial Protection may exempt from the provisions of the EFTA any class of
electronic fund transfers in state law if the Bureau determines that such law is “substantially
similar” to the EFTA and that there is adequate provision of enforcement.47 No state laws
regulating the amount of interchange fees that may be charged to the merchant for electronic
debit transactions have been identified.
42
Id. (noting that covered transaction are transactions processed by issuers that are subject to the interchange fee standard
that do not qualify for an exemption).
43
Id.
44
15 U.S.C. s. 1693a.(11) defines “State” as any state, territory, or possession of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, or any political subdivision of any of the foregoing.
45
15 U.S.C. s. 1693a.(7) defines “electronic fund transfer” as any transfer of funds, other than a transaction originated by
check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, or computer
or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes,
but is not limited to, point-of-sale transfers, automated teller machine transactions, direct deposits or withdrawals of funds,
and transfers initiated by telephone. Such term does not include (A) any check guarantee or authorization service which does
not directly result in a debit or credit to a consumer’s account; (B) any transfer of funds, other than those processed by
automated clearinghouse, made by a financial institution on behalf of a consumer by means of a service that transfers funds
held at either Federal Reserve banks or other depository institutions and which is not designed primarily to transfer funds on
behalf of a consumer; (C) any transaction the primary purpose of which is the purchase or sale of securities or commodities
through a broker-dealer registered with or regulated by the Securities and Exchange Commission; (D) any automatic transfer
from a savings account to a demand deposit account pursuant to an agreement between a consumer and a financial institution
for the purpose of covering an overdraft or maintaining an agreed upon minimum balance in the consumer’s demand deposit
account; or (E) any transfer of funds which is initiated by a telephone conversation between a consumer and an officer or
employee of a financial institution which is not pursuant to a prearranged plan and under which periodic or recurring transfers
are not contemplated; as determined under regulation of the Bureau. 15 U.S.C. s. 1693a.(9) defines “financial institution” as a
State or National bank, a State or Federal savings and loan association, a mutual savings bank, a State or Federal credit union,
or any other person who, directly or indirectly, holds an account belonging to a consumer.
46
15 U.S.C. s. 1693q; 12 C.F.R. s. 205.12(b)(1).
47
15 U.S.C. s. 1693r; 12 C.F.R. s. 205.12(c)(1).
BILL: CS/CS/SB 564 Page 9
Florida Taxes
Sales and Use Tax
Florida levies a 6 percent sales and use tax on the sale48 or rental of most tangible personal
property,49 admissions,50 transient rentals,51 and a limited number of services. Chapter 212, F.S.,
contains provisions authorizing the levy and collection of Florida’s sales and use tax, as well as
the exemptions and credits applicable to certain items or uses under specified circumstances.
Sales tax is added to the price of the taxable good or service and collected from the purchaser
and paid to the dealer52 at the time of sale.53 The tax amount must be separately stated on any
charge ticket, sales slip, invoice, or other tangible evidence of sale.54
In addition to the state tax, counties may levy a local discretionary surtax, comprised of separate
surtaxes.55 A surtax applies to “all transactions occurring in the county which transactions are
subject to the state tax imposed on sales, use, services, rentals, admissions, and other transactions
by [ch. 212, F.S.], and communications services as defined in ch. 202.”56 The discretionary sales
surtax is based on the tax rate imposed by the county where the taxable goods or services are
sold or delivered. Discretionary sales surtax rates currently levied vary by county in a range of
0.5 to 1.5 percent.57
48
Section 212.02(15), F.S., defines “sale” as (a) any transfer of title or possession, or both, exchange, barter, license, lease, or
rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a
consideration; (b) the rental of living quarters or sleeping or housekeeping accommodations in hotels, apartment houses or
roominghouses, or tourist or trailer camps, as hereinafter defined in ch. 212, F.S.; (c) the producing, fabricating, processing,
printing, or imprinting of tangible personal property for a consideration for consumers who furnish either directly or
indirectly the materials used in the producing, fabricating, processing, printing, or imprinting; (d) the furnishing, preparing, or
serving for a consideration of any tangible personal property for consumption on or off the premises of the person furnishing,
preparing, or serving such tangible personal property which includes the sale of meals or prepared food by an employer to his
or her employees; (e) a transaction whereby the possession of property is transferred but the seller retains title as security for
the payment of the price.
49
Section 212.05(1)(a)1.a., F.S. Section 212.02(19), F.S., defines “tangible personal property” as personal property which
may be seen, weighed, measured, or touched or is in any manner perceptible to the senses, including electric power or energy,
boats, motor vehicles and mobile homes as defined in s. 320.01(1) and (2), aircraft as defined in s. 330.27, and all other types
of vehicles.
50
Section 212.04(1)(b), F.S. Section 212.02(1), F.S., defines “admissions” as the net sum of money after deduction of any
federal taxes for admitting a person or vehicle or persons to any place of amusement, sport, or recreation or for the privilege
of entering or staying in any place of amusement, sport, or recreation, including, but not limited to, theaters, outdoor theaters,
shows, exhibits, games, races, or any place where charge is made by way of sale or tickets, gate charges, seat charges, box
charges, season pass charges, cover charges, greens fees, participation fees, entrance fees or other fees or receipts of anything
of value measured on an admission or entrance or length of stay or seat box accommodations in any place where there is any
exhibition, amusement, sport, or recreation, and all dues and fees paid to private clubs and membership clubs providing
recreational or physical fitness facilities, including, but not limited to, golf, tennis, swimming, yachting, boating athletic,
exercise, and fitness facilities, except physical fitness facilities owned or operated by any hospital licensed under ch. 395,
F.S.
51
Section 212.03(1)(a), F.S.
52
Section 212.06(2), F.S., defines “dealer” to mean (a) every person who manufactures or produces tangible personal
property for sale at retail; for use, consumption, or distribution; or for storage to be used or consumed in the state, (b) every
person who imports, or causes to be imported, tangible personal property from any state or foreign country for sale at retail;
for use, consumption, or distribution; or for storage to be used or consumed in this state, (c) every person who sells at retail or
who offers for sale at retail, or who has in his or her possession for sale at retail; or for use, consumption, or distribution; or
for storage to be used or consumed in this state, tangible personal property defined herein, including a retailer who transacts a
substantial number of remote sales or a marketplace provider that has a physical presence in this state or that makes or
BILL: CS/CS/SB 564 Page 10
Generally, tangible personal property that is sold in an isolated or occasional sale is exempt from
the state sales tax.58 A seller makes an isolated or occasional sale if the sale or series of sales
occurs no more than twice during any 12-month period.59 A seller is required to register as a
dealer if he or she completes more than three sales of the same type of item during a 12-month
period. The sale of mobile homes, aircrafts, boats, and motor vehicles are expressly excluded
from the isolated or occasional state sales and use tax exemption if certain circumstances are
met.60
According to estimates prepared by CMPSI, Revenue Estimating Conference reports suggest that
Florida sales tax revenue for FY 2020-2021 and FY 2021-2022 were $30.4 billion and $38.6
billion, respectively.61 CMSPI estimated the interchange fees on these taxes during the same
period to be $208.5 million and $288.2 million, respectively.62
facilitates through its marketplace a substantial number of remote sales, (d) any person who has sold at retail; or used, or
consumed, or distributed; or stored for use or consumption in this state, tangible personal property and who cannot prove that
the tax levied by ch. 212, F.S., has been paid on the sale at retail, the use, the consumption, the distribution, or the storage of
such tangible personal property, (e) any person who leases or rents tangible personal property for a consideration permitting
the use or possession of such property without transferring title thereto, except as expressly provided for to the contrary, (f)
any person who maintains or has within this state, directly or by a subsidiary, an office, distributing house, salesroom, or
house, warehouse, or other place of business, (g) every person who solicits business either by direct representatives, indirect
representatives, or manufacturer’s agents; by distribution of catalogs or other advertising matter; or by any other means
whatsoever, and by reason thereof receives orders for tangible personal property from consumers for use, consumption,
distribution, and storage for use or consumption in the state, (h) every person who , as a representative, agent, or solicitor of
an out-of-state principal or principals, solicits, receives, and accepts orders from consumers in the state for future delivery
and whose principal refuses to register as a dealer, (i) the state, county, municipality, and political subdivision, agency,
bureau or department, or other state or local government instrumentality, (j) any person who leases, or grants a license to use,
occupy, or enter upon, living quarters, sleeping or housekeeping accommodations in hotels, apartment houses,
roominghouses, tourist or trailer camps, real property, space or spaces in parking lots or garages for motor vehicles, docking
or storage space or spaces for boats in boat docks or marinas, or tie-down or storage space or spaces for aircraft at airports,
(k) any person who sells, provides, or performs a service taxable under ch. 212, F.S., (l) any person who solicits, offers,
provides, enters into, issues, or delivers any service warranty taxable under ch. 212, F.S., or who received, on behalf of such
person, any consideration from a service warranty holder, and (m) a forwarding agent as defined in s. 212.(5)(b)1., F.S. who
has applied for and received a Florida Certificate of Forwarding Agent Address. Section 212.02(19), F.S., defines “tangible
personal property” as personal property which may be seen, weighed, measured, or touched or is in any manner perceptible to
the senses, including electric power or energy, boats, motor vehicles and mobile homes as defined in s. 320.01(1) and (2),
aircraft as defined in s. 330.27, F.S., and all other types of vehicles. Section 212.06(5)(b)1., F.S., defines “forwarding agent”
as a person or business whose principal business activity is facilitating for compensation the export of property owned by
other persons.
53
Section 212.07(2) and (3), F.S.
54
Id.
55
Section 212.055, F.S.
56
Section 212.054(2)(a), F.S.
57
Office of Economic and Demographic Research, Florida Tax Handbook, 2022 Local Discretionary Sales Surtax Rates in
Florida’s Counties, 231-232 (2022), available at http://edr.state.fl.us/content/revenues/reports/tax-
handbook/taxhandbook2022.pdf (last visited April 3, 2023).
58
Fla. Admin. Code R. 12A01.037(1). See also, s. 212.02(2), defining “business” as activity engaged in by a person with the
object of private or public gain, benefit, or advantage.
59
Fla. Admin. Code R. 12A-1.037(3)(b).
60
See, s. 212.05(1)(a)1.b., and Fla. Admin. Code R. 12A-1.037(2)(a)1.
61
Email from French Brown, Attorney at Dean Mead, to Jacqueline Moody, Florida Senate Committee on Banking and
Insurance Senior Attorney, HB 677/SB 564, (Feb. 24, 2023) (on file with the Senate Committee on Banking and Insurance).
62
Id.
BILL: CS/CS/SB 564 Page 11
Tourist Development Tax63
A tourist development tax is a county tax on consideration paid on residential rentals of six
months or less.64 The tax funds tourism-related uses specified in the authorizing statute. The
Local Option Tourist Development Act65 authorizes counties to levy five separate taxes on
transient rental transactions. Depending on a county’s eligibility to levy such taxes, the
maximum tax rate varies from a minimum of 3 percent to a maximum of 6 percent:
The original TDT may be levied at the rate of 1 or 2 percent.66
An additional 1 percent tax may be levied by counties who have previously levied the
original TDT at the 1 or 2 percent rate for at least three years.67
A high tourism impact tax may be levied at an additional 1 percent.68
A professional sports franchise facility tax may be levied up to an additional 1 percent.69
An additional professional sports franchise facility tax no greater than 1 percent may be
imposed by a county that has already levied the professional sports franchise facility tax.70
Prior to the authorization of the original 1 or 2 percent tourist development tax, the levy must be
approved by a countywide referendum,71 and additional tourist development tax levies must be
authorized by a vote of the county’s governing authority or by voter approval of a countywide
referendum.72 The original tax may be repealed by a referendum initiated by a petition signed by
15 percent of voters73 subject to the interest of the holders of any revenue bonds repayment of
which is secured by the tax. Once the tax is in place, additional taxes may be levied by a vote of
the county commissioners.74
63
Section 125.0104, F.S.
64
Section 125.0104(3)(a)1., F.S.
65
Section 125.0104, F.S.
66
Section 125.0104(3)(c), F.S. All 67 of Florida’s counties are eligible to levy this tax, but only 62 counties have done so, all
at a rate of 2 percent. Office of Economic and Demographic Research (EDR), County Tax Rates: CY 2007-2023, available at
https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fedr.state.fl.us%2FContent%2Flocal-
government%2Fdata%2Fdata-a-to-z%2FLOTTrates.xls&wdOrigin=BROWSELINK (last visited April 3, 2023). These
counties are estimated to realize $612 million in revenue from these taxes in the 2022-2023 fiscal year. EDR 2022 Local
Government Financial Information Handbook (December 2022), p. 251, at http://edr.state.fl.us/Content/local-
government/reports/lgfih22.pdf (last visited April 3, 2023).
67
Section 125.0104(3)(d), F.S. Fifty-six of the eligible 59 counties levy this tax, with an estimated 2022-2023 state fiscal
year collection of $250 million in revenue. 2022 Local Government Financial Information Handbook at 255.
68
Section 125.0104(3)(m), F.S. All nine eligible counties levy this tax, with an estimated 2022-2023 state fiscal collection of
$162 million in revenue. 2022 Local Government Financial Information Handbook at 261.
69
Section 125.0104(3)(l), F.S. Revenue can be used to pay debt service on bonds for the construction or renovation of
professional sports franchise facilities, spring training facilities or professional sports franchises, and convention centers and
to promote and advertise tourism. Forty-five of the 67 counties levy this additional tax, with an estimated 2022-2023 state
fiscal year collection of $285 million in revenue. 2022 Local Government Financial Information Handbook at 259.
70
Section 125.0104(3)(n), F.S. Thirty-four counties levy the additional professional sports franchise facility tax, with an
estimated 2022-2023 state fiscal year collection of $17 million in revenue. 2022 Local Government Financial Information
Handbook at 265.
71
Section 125.0104(6), F.S.
72
Section 125.0104(3)(d), F.S.
73
Section 125.0104(6)(d), F.S.
74
Section 125.0104(3)(l), (m), and (n), F.S.
BILL: CS/CS/SB 564 Page 12
III. Effect of Proposed Changes:
Section 1 of the bill creates s. 501.0119, F.S., which prohibits an issuer, a payment card network,
an acquirer bank, or a processor from charging interchange fees on the tax amount of an
electronic payment transaction if the merchant informs the acquirer bank or its designee of such
tax amount as part of the authorization process for the transaction. Section 501.0119, F.S., does
not apply to an electronic payment transaction in which the tax amount is not separately stated on
the consumer’s payment invoice, sales slip, or other evidence of sale as required under s.
212.07(2), F.S.
A merchant must transmit the tax amount data as part of the authorization process to avoid being
charged interchange fees on the tax amount of an electronic payment transaction. A merchant
that does not transmit tax amount data on an eligible transaction as part of the authorization
process may transmit tax documentation for the transactions no later than 180 days after the date
of the electronic payment transaction and, within 30 days, the issuer must credit to the merchant
the amount of interchange fees charged on the tax amount of the electronic payment transaction.
This provision may be relied upon by smaller businesses that may not have the technology to
transmit the tax amount data electronically at the time of the authorization process.
An issuer, a payment card network, an acquirer bank, a processor, or other designated entity that
has received the tax amount data and violates s. 501.0119, F.S., is subject to a civil penalty of
$1,000 per electronic payment transaction and the issuer must refund to the merchant the amount
of interchange fees charged on the tax of an electronic payment transaction.
The following terms are defined for purposes of the section created under the bill:
“Acquirer bank” means a member of a payment card network which contracts with a
merchant for the settlement of electronic payment transactions. An acquirer bank may
contract directly with merchants or indirectly through a processor to process electronic
payment transactions.
“Authorization” means the process through which a merchant requests approval for an
electronic payment transaction from the issuer.
“Clearance” means the process of transmitting final transaction data from a merchant to an
issuer for posting to the cardholder’s account and the calculation of fees and charges,
including interchange fees, which apply to the issuer and merchant.
“Credit card” means a card, plate, coupon book, or other credit device existing for the
purpose of obtaining money, property, labor, or services on credit.
“Debit card” means:
o A card, or other payment code or device, issued or approved for use through a payment
card network to debit an asset account, regardless of the purpose for which the account is
established, whether authorization is based on signature, personal identification number,
or other means;
o Includes a general-use prepaid card75; and
75
15 U.S.C. s. 16931-1 defines “general-use prepaid card” to mean a card or other payment code or device issued by any
person that is (i) redeemable at multiple, unaffiliated merchants or service providers, or automated teller machines; (ii) issued
in a requested amount, whether or not that amount may, at the option of the issuer, be increased in value or reloaded if
requested by the holder; (iii) purchased or loaded on a prepaid basis; and (iv) honored, upon presentation, by merchants for
goods or services, or at automated teller machines.
BILL: CS/CS/SB 564 Page 13
o Excludes paper checks.
“Electronic payment transaction” means a transaction in which a person uses a debit card,
credit card, or other payment code or device, issued or approved through a payment card
network, to debit a deposit account or use a line of credit, whether authorization is based on a
signature, personal identification number, or other means.
“Interchange fee” means a fee established, charged, or received by a payment card network
for the purpose of compensating the issuer for its involvement in an electronic payment
transaction.
“Issuer” means a person, or the person’s agent, issuing a debit card or credit card.
“Merchant” has the same meaning as the term “dealer” in s. 212.06(2), F.S.
“Payment card network” means an entity that:
o Directly or through licensed members, processors, or agents, provides the proprietary
services, infrastructure, and software that routes information and data to conduct debit
card or credit card transaction authorization, clearance, and settlement; and
o A merchant or seller uses to accept as a form of payment a brand of debit card, credit
card, or other device that may be used to carry out debit or credit transactions.
“Processor” means an entity that facilitates, services, processes, or manages the debit or
credit authorization, billing, transfer, payment procedures, or settlement with respect to any
electronic payment transaction.
“Settlement” means the process of transmitting sales information to the issuing bank for
collection and reimbursement of funds to the merchant and calculating and reporting the net
transaction amount to the issuer and merchant for an electronic payment transaction that is
cleared.
“Tax” means all taxes and fees levied under ch. 212, F.S., and s. 125.0104, F.S.
“Tax documentation” means documentation sufficient for the payment card network to
determine the total amount of the electronic payment transaction and the tax amount of such
transaction. Tax documentation may be related to a single electronic payment transaction or
multiple electronic payment transactions aggregated over a period of time. Examples of tax
documentation include, but are not limited to, invoices, receipts, journals, ledgers, and tax
returns filed with the Department of Revenue or local taxing authorities.
Section 2 of the bill provides for an effective date of October 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
BILL: CS/CS/SB 564 Page 14
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
To the extent that the key players in processing credit card and debit card transactions
may be required to upgrade technology and security measures to be able to transmit tax
amount data, there is an indeterminate negative fiscal impact on them. To the extent that
merchants submit tax amount data to payment card networks, there is an indeterminate
positive fiscal impact on merchants and an indeterminate negative fiscal impact on
issuing banks because of the reduced interchange fees on tax amounts for credit card and
debit card transactions.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 501.0119 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Banking and Insurance Committee on March 15, 2023:
The committee substitute makes the following changes:
Moves the new section prohibiting the charge of interchange fees on taxes from s.
655.969, F.S., to s. 501.0119, F.S.;
BILL: CS/CS/SB 564 Page 15
Provides that the section does not apply to electronic payment transactions in which
the tax amount is not separately stated on the consumer’s evidence of sale;
Specifies that, in addition to a payment card network, an issuer, an acquirer bank, or a
processor may not receive or charge the merchant any interchange fees on the tax
amount of an electronic payment transaction if certain circumstances are met;
Requires the merchant to transmit the tax amount data as part of the clearance process
to avoid being charged interchange fees on the tax amount of an electronic payment
transaction;
Authorizes a merchant that does not, rather than cannot, transmit the tax amount data
as part of the clearance process to submit tax documentation for the electronic
payment transaction to the acquirer bank, its designee, or any other entity as provided
in the payment card network’s terms and conditions of service, no later than 180 days
after the date of the electronic payment transaction;
Requires the issuer, within 30 days, to credit to the merchant the amount of
interchange fees charged on the tax amount of the electronic payment transaction if
the merchant provides the tax documentation as provided under the bill;
Specifies that, in addition to a payment card network, an issuer, an acquirer bank, a
processor, or other designated entity that has received the tax amount data and
violates the section is subject to a civil penalty of $1,000 per electronic payment
transaction;
Specifies that when a violation occurs the issuer is the entity which must refund to the
merchant the interchange fee calculated on the tax amount relative to the electronic
payment transaction;
Amends the definition of “settlement;”
Defines the terms “acquirer bank,” “clearance,” “merchant,” “processor,” and “tax
document;” and
Amends the effective date from July 1, 2023 to October 1, 2023.
CS by Commerce and Tourism Committee on April 4, 2023:
The amendment defines the term “authorization” to mean the process through which a
merchant requests approval for an electronic payment transaction from the issuer.
The amendment prohibits certain entities from charging an interchange fee if the
merchant informs the specified entity of the tax amount as part of the authorization
process, rather than the clearance process.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 564 Bill No. CS for SB 564
Ì648060ÄÎ648060 Ì648060ÄÎ648060
LEGISLATIVE ACTION 11 including interchange fees, which apply to the issuer and
Senate . House 12 merchant.
Comm: RCS . 13 (d) “Credit card” means a card, plate, coupon book, or
04/04/2023 . 14 other credit device existing for the purpose of obtaining money,
. 15 property, labor, or services on credit.
. 16 (e) “Debit card”:
. 17 1. Means a card, or other payment code or device, issued or
18 approved for use through a payment card network to debit an
19 asset account, regardless of the purpose for which the account
20 is established, whether authorization is based on a signature, a
21 personal identification number, or other means;
22 2. Includes a general-use prepaid card, as defined in 15
23 U.S.C. s. 1693l-1; and
24 3. Excludes paper checks.
25 (f) “Electronic payment transaction” means a transaction in
The Committee on Commerce and Tourism (Hutson) recommended the 26 which a person uses a debit card, credit card, or other payment
following: 27 code or device issued or approved through a payment card network
28 to debit a deposit account or use a line of credit, whether
1 Senate Amendment 29 authorization is based on a signature, a personal identification
2 30 number, or other means.
3 Delete lines 26 - 105 31 (g) “Interchange fee” means a fee established, charged, or
4 and insert: 32 received by a payment card network for the purpose of
5 (b) “Authorization” means the process through which a 33 compensating the issuer for its involvement in an electronic
6 merchant requests approval for an electronic payment transaction 34 payment transaction.
7 from the issuer. 35 (h) “Issuer” means a person issuing a debit card or credit
8 (c) “Clearance” means the process of transmitting final 36 card or the issuer’s agent.
9 transaction data from a merchant to an issuer for posting to the 37 (i) “Merchant” has the same meaning as the term “dealer” in
10 cardholder’s account and the calculation of fees and charges, 38 s. 212.06(2).
39 (j) “Payment card network” means an entity:
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Florida Senate - 2023 COMMITTEE AMENDMENT Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 564 Bill No. CS for SB 564
Ì648060ÄÎ648060 Ì648060ÄÎ648060
40 1. That directly or through licensed members, processors, 69 transaction in which the tax amount is not separately stated on
41 or agents provides the proprietary services, infrastructure, and 70 the consumer’s payment invoice, sales slip, or other evidence of
42 software that route information and data to conduct electronic 71 sale as required under s. 212.07(2).
43 payment transaction authorization, clearance, and settlement; 72 (3) Except as provided in subsection (2), an issuer, a
44 and 73 payment card network, an acquirer bank, or a processor may not
45 2. That a merchant uses to accept as a form of payment a 74 receive or charge the merchant any interchange fees on the tax
46 brand of debit card, credit card, or other device that may be 75 amount of an electronic payment transaction if the merchant
47 used to carry out electronic payment transactions. 76 informs the acquirer bank or its designee of such tax amount as
48 (k) “Processor” means an entity that facilitates, services, 77 part of the authorization process for the electronic payment
49 processes, or manages the debit or credit authorization, 78 transaction. A merchant must transmit the tax amount data as
50 billing, transfer, payment procedures, or settlement with 79 part of the authorization process to avoid being charged
51 respect to any electronic payment transaction. 80 interchange fees on the tax amount of an electronic payment
52 (l) “Settlement” means the process of transmitting sales 81 transaction.
53 information to the issuing bank for collection and reimbursement 82 (4) A merchant that does not transmit the tax amount data
54 of funds to the merchant and calculating and reporting the net 83 in accordance with subsection (3) may submit tax documentation
55 transaction amount to the issuer and merchant for an electronic 84 for the electronic payment transaction to the acquirer bank or
56 payment transaction that is cleared. 85 its designee no later than 180 days
57 (m) “Tax” means all taxes and fees levied under chapter 212
58 and s. 125.0104.
59 (n) “Tax documentation” means documentation sufficient for
60 the payment card network to determine the total amount of the
61 electronic payment transaction and the tax amount of such
62 transaction. Tax documentation may be related to a single
63 electronic payment transaction or multiple electronic payment
64 transactions aggregated over a period of time. Examples of tax
65 documentation include, but are not limited to, invoices,
66 receipts, journals, ledgers, and tax returns filed with the
67 Department of Revenue or local taxing authorities.
68 (2) This section does not apply to an electronic payment
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Florida Senate - 2023 CS for SB 564 Florida Senate - 2023 CS for SB 564
By the Committee on Banking and Insurance; and Senator Hutson
597-02621-23 2023564c1 597-02621-23 2023564c1
1 A bill to be entitled 30 merchant.
2 An act relating to interchange fees on taxes; creating 31 (c) “Credit card” means a card, plate, coupon book, or
3 s. 501.0119, F.S.; defining terms; providing 32 other credit device existing for the purpose of obtaining money,
4 applicability; prohibiting issuers, payment card 33 property, labor, or services on credit.
5 networks, acquirer banks, and processors from 34 (d) “Debit card”:
6 receiving or charging merchants interchange fees on 35 1. Means a card, or other payment code or device, issued or
7 the tax amounts of electronic payment transactions if 36 approved for use through a payment card network to debit an
8 the merchant provides certain information in a 37 asset account, regardless of the purpose for which the account
9 specified manner; requiring an issuer to credit a 38 is established, whether authorization is based on a signature, a
10 merchant the amount of interchange fees on taxes 39 personal identification number, or other means;
11 within a certain timeframe if the merchant meets 40 2. Includes a general-use prepaid card, as defined in 15
12 certain conditions; providing a civil penalty; 41 U.S.C. s. 1693l-1; and
13 providing an effective date. 42 3. Excludes paper checks.
14 43 (e) “Electronic payment transaction” means a transaction in
15 Be It Enacted by the Legislature of the State of Florida: 44 which a person uses a debit card, credit card, or other payment
16 45 code or device issued or approved through a payment card network
17 Section 1. Section 501.0119, Florida Statutes, is created 46 to debit a deposit account or use a line of credit, whether
18 to read: 47 authorization is based on a signature, a personal identification
19 501.0119 Interchange fees on taxes prohibited.— 48 number, or other means.
20 (1) As used in this section, the term: 49 (f) “Interchange fee” means a fee established, charged, or
21 (a) “Acquirer bank” means a member of a payment card 50 received by a payment card network for the purpose of
22 network which contracts with a merchant for the settlement of 51 compensating the issuer for its involvement in an electronic
23 electronic payment transactions. An acquirer bank may contract 52 payment transaction.
24 directly with merchants or indirectly through a processor to 53 (g) “Issuer” means a person issuing a debit card or credit
25 process electronic payment transactions. 54 card or the issuer’s agent.
26 (b) “Clearance” means the process of transmitting final 55 (h) “Merchant” has the same meaning as the term “dealer” in
27 transaction data from a merchant to an issuer for posting to the 56 s. 212.06(2).
28 cardholder’s account and the calculation of fees and charges, 57 (i) “Payment card network” means an entity:
29 including interchange fees, which apply to the issuer and 58 1. That directly or through licensed members, processors,
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597-02621-23 2023564c1 597-02621-23 2023564c1
59 or agents provides the proprietary services, infrastructure, and 88 the consumer’s payment invoice, sales slip, or other evidence of
60 software that routes information and data to conduct electronic 89 sale as required under s. 212.07(2).
61 payment transaction authorization, clearance, and settlement; 90 (3) Except as provided in subsection (2), an issuer, a
62 and 91 payment card network, an acquirer bank, or a processor may not
63 2. That a merchant uses to accept as a form of payment a 92 receive or charge the merchant any interchange fees on the tax
64 brand of debit card, credit card, or other device that may be 93 amount of an electronic payment transaction if the merchant
65 used to carry out electronic payment transactions. 94 informs the acquirer bank, its designee, or any other entity as
66 (j) “Processor” means an entity that facilitates, services, 95 provided in the payment card network’s terms and conditions of
67 processes, or manages the debit or credit authorization, 96 service of such tax amount as part of the clearance process for
68 billing, transfer, payment procedures, or settlement with 97 the electronic payment transaction. A merchant must transmit the
69 respect to any electronic payment transaction. 98 tax amount data as part of the clearance process to avoid being
70 (k) “Settlement” means the process of transmitting sales 99 charged interchange fees on the tax amount of an electronic
71 information to the issuing bank for collection and reimbursement 100 payment transaction.
72 of funds to the merchant and calculating and reporting the net 101 (4) A merchant that does not transmit the tax amount data
73 transaction amount to the issuer and merchant for an electronic 102 in accordance with subsection (3) may submit tax documentation
74 payment transaction that is cleared. 103 for the electronic payment transaction to the acquirer bank, its
75 (l) “Tax” means all taxes and fees levied under chapter 212 104 designee, or any other entity as provided in the payment card
76 and s. 125.0104. 105 network’s terms and conditions of service no later than 180 days
77 (m) “Tax documentation” means documentation sufficient for 106 after the date of the electronic payment transaction, and within
78 the payment card network to determine the total amount of the 107 30 days, the issuer must credit to the merchant the amount of
79 electronic payment transaction and the tax amount of such 108 interchange fees charged on the tax amount of the electronic
80 transaction. Tax documentation may be related to a single 109 payment transaction.
81 electronic payment transaction or multiple electronic payment 110 (5) An issuer, a payment card network, an acquirer bank, a
82 transactions aggregated over a period of time. Examples of tax 111 processor, or other designated entity that has received the tax
83 documentation include, but are not limited to, invoices, 112 amount data and violates this section is subject to a civil
84 receipts, journals, ledgers, and tax returns filed with the 113 penalty of $1,000 per electronic payment transaction, and the
85 Department of Revenue or local taxing authorities. 114 issuer must refund the merchant the interchange fee calculated
86 (2) This section does not apply to an electronic payment 115 on the tax amount relative to the electronic payment
87 transaction in which the tax amount is not separately stated on 116 transaction.
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597-02621-23 2023564c1
117 Section 2. This act shall take effect October 1, 2023.
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CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1636
INTRODUCER: Transportation Committee and Senator Wright
SUBJECT: Rescission or Cancellation of a Motor Vehicle Sale
DATE: April 3, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Price Vickers TR Fav/CS
2. Baird McKay CM Favorable
3. FP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1636 establishes a process, within specified timeframes and using certain documentation,
which authorizes a motor vehicle dealer, a motor vehicle purchaser, and any lienholder to agree
to rescind or cancel the sale of a vehicle, if all fees, taxes, and other moneys associated with the
rescinded or canceled sale, less specified titling fees, are returned to the relevant parties. In such
event, the bill requires the Department of Highway Safety and Motor Vehicles (DHSMV) to
rescind, cancel, or revoke an application for a certificate of title or a title that has already been
issued.
An agreement among the parties subject to the rescinded or canceled sale invalidates any
subsequent requirements imposed on the dealer to submit an application for a certificate of title
or to remit any fees or taxes if all fees, taxes, and other moneys associated with the rescinded or
canceled sale are returned. A dealer is authorized to obtain a duplicate certificate of origin or a
duplicate certificate of title or obtain a new certificate of title, documents that would be required
for a re-sale. A dealer is prohibited from offering a vehicle subject to the authorized rescission or
cancelation until the dealer has received a certificate of title from the DHSMV. A rescission,
cancellation, or revocation does not negate the fact that the vehicle has been the subject of a
previous retail sale.
The fiscal impact is indeterminate. See the “Fiscal Impact Statement” heading below.
The bill takes effect July 1, 2023.
BILL: CS/SB 1636 Page 2
II. Present Situation:
Rescission or cancellation of a motor vehicle sale currently occurs when the contract for sale
authorizes such or when the motor vehicle dealer otherwise agrees to cancel the contract and
accept return of the vehicle. Current law makes no provision for refund of titling and registration
fees in the event of a rescission or cancellation agreement voluntarily entered into by the dealer,
the purchaser, and any lienholders.
Motor Vehicle Dealers and Motor Vehicle Sales and Use Taxes
Currently, a motor vehicle dealer1 may sell motor vehicles2 in this state if the dealer first
registers with the Florida Department of Revenue (FDOR) to collect and report specified taxes
and obtains a dealer’s license from the DHSMV.3 Florida sales and use tax,4 plus any applicable
discretionary sales surtax,5 is due on all new or used motor vehicles sold, leased, delivered into,
imported into, or used in Florida, unless a specific exemption applies.6
The sales and use tax is due on the sale price of the motor vehicle,7 including any separately
itemized charge or fee for items such as any accessory sold with the vehicle; preparation,
1
Defined in s. 320.27(1)(c), F.S., to mean any person engaged in the business of buying, selling, or dealing in motor vehicles
or offering or displaying motor vehicles for sale at wholesale or retail, or who may service and repair motor vehicles pursuant
to an agreement as defined in s. 320.60(1). Any person who buys, sells, or deals in three or more motor vehicles in any 12-
month period or who offers or displays for sale three or more motor vehicles in any 12-month period shall be prima facie
presumed to be engaged in such business. The terms “selling” and “sale” include lease-purchase transactions. According to
the FDOR, a motor vehicle dealer is any dealer registered with the FDOT to sell motor vehicles. See floridarevenue.com,
Sales and Use Tax on Motor Vehicles, available at gt800030.pdf (floridarevenue.com) (last visited April 3, 2023).
2
Defined in s. 320.27(1)(b), F.S., to mean any motor vehicle of the type and kind required to be registered and titled under
chapter 319 and this chapter, except a recreational vehicle, moped, motorcycle powered by a motor with a displacement of 50
cubic centimeters or less, or mobile home. According to the FDOR, a motor vehicle is an automobile, motorcycle, truck,
trailer, semi-trailer, truck tractor and semi-trailer combination, or any other vehicle operated on the roads of Florida used to
transport persons or property, and propelled by power other than muscle power. This includes recreational vehicles, such as a
travel trailer, camping trailer, truck camper, motor home, private motor coach, van conversion, park trailer, and fifth-wheel
trailer; and any other vehicle that is of a class or type that is required to be titled, licensed, or registered in Florida.
3
See generally s. 320.27, F.S., and floridarevenue.com, Sales and Use Tax on Motor Vehicles, available at gt800030.pdf
(floridarevenue.com) (last visited April 3, 2023).
4
The Florida Revenue Act of 1949, codified in Chapter 212, F.S., establishes and regulates taxes on sales, use, and other
transactions in Florida, including motor vehicle sales. The general state sales tax under the Act is currently set at 6 percent of
the sales price. Section 212.05(1)(a)1.a., F.S.
5
According to the FDOR, most counties impose a local option discretionary sales surtax, which is due when the purchaser’s
residing address on the registration or title to the motor vehicle is a location within a county imposing a surtax, applicable to
the first $5,000 of the purchase price. Id., floridarevenue.com.
6
Id. The FDOR document provides examples of motor vehicle sales that are exempt, or partially exempt, from the sales and
use tax. Section 212.08, F.S., sets out various exemptions for general groceries; medical products and supplies or medicine;
certain farm equipment; items bearing other excise taxes; items exempt on account of use; sales made to the United States
government, a state, or any county, municipality, or political subdivision of a state; and other miscellaneous exemptions. That
section also sets out a number of partial exemptions from the sales and use tax.
7
No title certificate may be issued on any motor vehicle, or, if no title is required by law, no license or registration may be
issued for any vehicle, unless there is filed with such application for title certificate or license or registration certificate a
receipt, issued by an authorized dealer or a designated agent of the FDOR, evidencing the payment of the tax imposed by
Chapter 212, F.S., where the same is payable. A presumption of sales and use tax applicability is created if the motor vehicle
is registered in this state. For the purpose of enforcing this provision, all county tax collectors and all persons or firms
authorized to sell or issue boat, mobile home, and motor vehicle licenses are hereby designated agents of the department and
BILL: CS/SB 1636 Page 3
settlement, or closing fees, and any other expense or cost of the dealer that the dealer required
the purchaser to pay.8 The taxes are generally due, along with a tax return,9 on the first day of the
month following each reporting period (whether monthly, quarterly, twice a year, or yearly), and
are late after the 20th day of the month following each reporting period.10 Any separately
itemized fee or charge required by a state law for titling, licensing, or registering the motor
vehicle, or for recording a lien on the motor vehicle, is not subject to the sales and use tax.11
Currently, under Chapter 212, F.S., if a motor vehicle purchase is returned to a dealer by the
purchaser after the sales tax has been collected from or charged to the account of the purchaser,
the dealer is entitled to reimbursement of the amount of tax collected or charged by the dealer, in
the manner prescribed by the FDOR.12
If the dealer has not remitted the sales tax to the FDOR, the dealer may deduct the same in
submitting his or her return upon receipt of a signed statement by the dealer as to the gross
amount of such refunds during the period covered by the signed statement, which may not
exceed 90 days.13 The FDOR must then issue to the dealer an official credit memorandum equal
to the net amount remitted by the dealer for such tax collected or paid. If a dealer has retired
from business and filed a final return, a refund of the tax may be made if it can be established to
the FDOR’ satisfaction that the tax was not due.14
Statements of Origin and Certificates of Title
A manufacturer’s statement of origin (MSO), also referred to as a manufacturer’s certificate of
origin (MCO), is the original ownership document for a vehicle. The document, provided by the
new vehicle dealer, provides specific vehicle information, such as the year, make, and vehicle
identification number. When the vehicle is sold at retail, the document is surrendered to the
appropriate jurisdiction, and a title is issued.15
Florida law currently prohibits a manufacturer, distributor, licensed dealer, or other person from
selling or otherwise disposing of a new motor vehicle to a distributor, licensed dealer, or other
person without delivering to such distributor, licensed dealer, or other person an MSO duly
executed and with such assignments thereon as may be necessary to show title in the purchaser
thereof, on forms approved by the DHSMV. An MSO must also contain a certification of the
identification and description of the motor vehicle delivered and the name and address of the
are required to perform such duty in the same manner and under the same conditions prescribed for their other duties by the
constitution or any statute of this state. Section 212.06(10), F.S.
8
Id.
9
See s. 212.11, F.S.
10
Id.
11
Id.
12
Section 212.17(1)(a), F.S. The suggestion is made, however, that a refund of the sales tax paid by the dealer on the sale of a
motor vehicle cannot occur after a dealer re-purchases a vehicle from a customer who wishes to return that vehicle, as
opposed to a rescission or cancellation of the sale.
13
Section 212.17(1)(b), F.S.
14
Section 212.17(1)(c), F.S.
15
See aamva.org, Manufacturer’s Certification of Origin - American Association of Motor Vehicle Administrators -
AAMVA (last visited April 3, 2023).
BILL: CS/SB 1636 Page 4
distributor, licensed dealer, or other person to whom the motor vehicle was originally sold, over
the signature of an authorized official of the manufacturer who made the original delivery.16
A certificate of title (COT) is the record that is evidence of ownership of a vehicle, whether in
paper or electronic form.17 Generally, application for a COT must be made upon a form
prescribed by the DHSMV, must be filed with that agency, and be accompanied by the
statutorily prescribed fee. If a COT has previously been issued for a motor vehicle in this state,
the application must be accompanied by the COT duly assigned. If the motor vehicle for which
COT application is made is a new vehicle for which an MSO is required, the application must be
accompanied by such MSO.18
In the case of the sale of a motor vehicle by a licensed dealer to a general purchaser, the COT
must be obtained in the name of the purchaser by the dealer upon application signed by the
purchaser. If such sale is to a general purchaser who resides in another state or country, the
dealer is not required to apply for a certificate of title for the motor vehicle; however, the dealer
must transfer ownership and reassign the COT or MSO to the purchaser, and the purchaser must
sign an affidavit, as approved by the DHSMV, that the purchaser will title and register the motor
vehicle in another state or country.19
Certificate of Title Fees and Service Charges
Section 319.32, F.S., requires the DHSMV to charge specified fees and service charges relating
to issuing, duplicating, or otherwise processing COTs, including, but not limited to:
For each original COT, $70;20
For each duplicate copy of a COT, $70;21
For each assignment by a lienholder, $3;
For noting a lien on a COT, $2.
For issuance of an original or duplicate COT to cover the cost of materials used for security
purposes;
For shipping and handling for each paper title mailed by the DHSMV, a service fee of $2.50;
and
For each application handled in connection with the issuance, duplication, or transfer of any
COT, a service charge of $4.25.22
16
Section 319.21(1), F.S.
17
Section 319.001(1), F.S.
18
Section 319.23(1), F.S.
19
Section 319.23(6)(a), F.S. A licensed dealer is required to apply for a registration and title within 30 days of delivery of the
vehicle. See flhsmv.gov, Buying from a Licensed Dealer - Florida Department of Highway Safety and Motor Vehicles
(flhsmv.gov) for additional tax, tag, and title information (last visited April 3, 2023).
20
Except for a COT for a motor vehicle for hire for which the title fee is $49.
21
Id.
22
This service charge must be collected by the DHSMV on any application handled directly from its office. Otherwise, these
service charges must be collected and retained by the tax collector who handles the application. Section 319.32(b), F.S. If the
tax collector contracts with a license plate agent, the tax collector is authorized to determine additional service charges to be
collected by the privately owned license plate agents approved by the tax collector. Section 319.32(c), F.S. The DHSMV
must also charge an additional fee of $10 for each original COT issued for a vehicle previously registered outside this state.
Section 319.32(3), F.S.
BILL: CS/SB 1636 Page 5
Motor Vehicle Registration and Related Fees
Florida’s definition of the term “motor vehicle” for registration purposes is quite broad,23 and all
vehicles meeting the definition, with some exceptions, are required to be registered in this state.24
Current law imposes an initial registration fee (a license tax) of $225 on automobiles and tri-
vehicles for private use, certain trucks, and motor homes and truck campers.25 Thereafter,
registration is generally based on the class and weight of the vehicle.26
Additional fees and service charges also apply.27 For example:
License plates are issued for a ten-year period and must be replaced upon registration
renewal. The license plate fee is $28, which is paid at the rate of $2.80 per each year before
the plate is replaced and credited toward the next $28 replacement fee.28
A service charge of $2.50 is imposed on each application handled in connection with original
issuance, duplicate issuance, or transfer of a license plate, or with transfer or issuance of a
registration certificate.29
Current DHSMV Refund Practices
The DHSMV advises:
If a dealer is requesting that a Florida Certificate of Title be cancelled for a
new vehicle/vessel because the customer (that the motor vehicle/vessel
was titled to) did not take delivery or possession of the motor
vehicle/vessel, the dealer and the customer must fill out and submit a
“Dealer Non-Delivery” affidavit to cancel the title. After canceling the
title for a new car, the dealer must contact the manufacturer and request a
duplicate MCO to re-title the vehicle. The dealer must also contact the
owner/lienholder to whom the incorrect MCO was assigned to request the
title be submitted to them. However, if the title is electronic, the dealership
should advise the lienholder to systematically satisfy its lien.
Currently, if the customer wants to cancel the sale or return a new
vehicle/vessel for any reason other than non-delivery, the return is handled
as a civil matter and the fees paid to the dealer are not refunded, including
title and registration fees. The only exception is the initial registration fee
for the license plate.30
23
Section 320.01(1), F.S.
24
Section 320.02, F.S.
25
Section 320.072, F.S.
26
Section 320.08, F.S.
27
See the DHSMV document provided to committee staff March 22, 2023, for a list of fees and service charges imposed on
all license plates, including additional fees imposed for specialty or personalized plates (on file in the Senate Transportation
Committee).
28
Section 320.06(1)(b)1., F.S.
29
Section 320.04(1)(a), F.S.
30
See the DHSMV’s 2023 Draft Agency Legislative Bill Analysis, SB 1636, received March 22, 2023 (on file in the Senate
Transportation Committee).
BILL: CS/SB 1636 Page 6
III. Effect of Proposed Changes:
The bill creates s. 319.255, F.S., authorizing a motor vehicle dealer, purchaser, and any
lienholders to rescind or cancel the sale before an application for a COT is submitted. An
agreement among the parties subject to the rescinded or canceled sale invalidates any subsequent
requirements imposed upon the dealer to submit an application or remit any fees or taxes if all
fees, taxes, and other moneys associated with the rescinded or canceled sale are returned to the
rightful parties.
The DHSMV must rescind, cancel, or revoke an application for a COT or a title that has already
been issued if, within 60 days after the sale of a motor vehicle, a notarized affidavit signed by the
dealer, the purchaser, and any lienholder is executed on a form prescribed by the DHSMV,
stating that the dealer, purchase, and any lienholder have rescinded or canceled the sale and that
all moneys associated with the transfer of the vehicle have been or will be returned to the
relevant parties. In such a case:
Fees paid to the DHSMV, less the above-described titling fees paid in accordance with s.
319.32, F.S., must be returned to the dealer.
If no such fees have been paid to the DHSMV, the dealer must pay the titling fees.
Sales taxes refunded or credited to the dealer must be refunded or credited to the dealer in the
manner prescribed by the FDOR.
If a COT has been issued, the dealer must obtain and surrender the COT to the DHSMV or
certify that the COT has been lost or destroyed or will be obtained and destroyed upon receipt. A
dealer may not offer a vehicle subject to the bill’s provisions for retail sale until the dealer has
received the title from the DHSMV.
Within seven days after the receipt of the form, the bill requires the DHSMV to process the
affidavit and issue a COT to the dealer reflecting the dealer’s name and the odometer reading
reflected on the most recent assignment before the rescinded, canceled, or revoked sale.
The affidavit stating that the sale has been rescinded or canceled must be filed no later than 30
days after the date of the affidavit’s execution by the dealer, the purchaser, and any lienholder,
whichever date is the latest. Any rescission, cancellation, or revocation under the new section of
law does not negate the fact that the vehicle has been the subject of a previous retail sale.
The bill also amends s. 212.17, F.S., relating to tax credits or refunds. The bill requires that a
motor vehicle dealer who rescinds, cancels, or revokes a sale or an application for a COT
pursuant to the provisions in new s. 319.255, F.S., discussed below, be reimbursed, in the
manner prescribed by the FDOR, for the amount of tax collected or charged by the dealer for
such sale or application. This provision appears to be consistent with current provisions for
dealer reimbursement of sales taxes, as described above.
Refund of the sales tax on any agreed-upon rescinded or cancelled motor vehicle sale as
provided in the bill will continue to occur as described above. The DHSMV would be required to
refund the initial registration fee (a license tax) of $225 under s. 320.072, F.S.; the “base”
registration fees generally dependent on the class and weight of the vehicle under s. 320.08, F.S.;
BILL: CS/SB 1636 Page 7
and any of the applicable miscellaneous fees and service charges discussed above.31 The
DHSMV would not be required to refund any fees paid in accordance with s. 319.32, F.S.,
relating to application for and issuance of a COT.
The bill takes effect July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Motor vehicle purchasers who rescind or cancel a sale with the concurrence of all
specified parties will be reimbursed for taxes, registration fees, and other ancillary fees
and service charges relating to vehicles the purchasers do not wish to own, less the
applicable fees or service charges described above in s. 319.32, F.S., relating to titling.
C. Government Sector Impact:
The DHSMV advises that registration fees and taxes that are not currently refunded will
be returned to the dealers after remittance and distribution. Such refunds would not
include the applicable fees or service charges in s. 319.32, F.S. However, because the
class and weight of a vehicle subject to the specified rescission or cancellation agreement
31
Supra note 27. See also the DHSMV’s Draft 2023 Legislative Bill Analysis, SB 1636, dated and received March 23, 2023
(on file in the Senate Transportation Committee).
BILL: CS/SB 1636 Page 8
is unknown, and because the exact amount applicable for registration fees and service
charges is unknown, and further because the number of specified rescission or
cancellation agreements that will occur is unknown, the fiscal impact to state revenues is
indeterminate.
The DHSMV also advises that the bill will require approximately 81 hours of
programming in support of its technology systems (the Florida Real-Time Vehicle
Information System, Electronic Filing System, estimated to cost $2,835 in full-time-
equivalent and contracted resources.32
VI. Technical Deficiencies:
None.
VII. Related Issues:
As noted by the DHSMV:33 “A service charge of $2.50 [is imposed] on each registration
pursuant s. 320.04, F.S., which is retained by the tax collector or the private license plate agent
that performs the transaction. The tax collector may also impose an additional service fee of
$0.50 if the transaction occurs in a branch office. In addition, pursuant to s. 320.04(3), F.S., the
tax collector may authorize a private license plate agent to charge additional services fees per
their authority to contract.”34 The bill does not expressly authorize a dealer to request a refund of
any fees and taxes retained by a county tax collector.
The DHSMV also recommends the following revisions:
Revise the effective date of the bill from July 1, 2023, to April 1, 2024, to allow the DHSMV
sufficient time to implement necessary programming and operational changes.
Allow additional time to process refund requests and issue titles in the dealer’s name by
providing the DHSMV 15 days, instead of 7, to rescind, cancel, or revoke any application for
a COT or an already-issued title.
Revise line 74 of the bill to acknowledge certain fees that are currently nonrefundable by
inserting after the reference to s. 319.32:
and nonrefundable fees paid in accordance with ss. 320.08 and 320.03, must be returned to
the motor vehicle
VIII. Statutes Affected:
This bill substantially amends the following section of the Florida Statutes: 212.17.
This bill creates the following section of the Florida Statutes: 319.255.
32
Infra note 34.
33
And supra note 22.
34
See the DHSMV’s Draft 2023 Legislative Bill Analysis, SB 1636, dated and received March 23, 2023 (on file in the Senate
Transportation Committee).
BILL: CS/SB 1636 Page 9
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Transportation on March 27, 2023:
The committee substitute removes some ambiguity relating to the fees and taxes to be
refunded and conforms to the House companion.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2023 CS for SB 1636 Florida Senate - 2023 CS for SB 1636
By the Committee on Transportation; and Senator Wright
596-03094-23 20231636c1 596-03094-23 20231636c1
1 A bill to be entitled 30 of title from the department; providing construction;
2 An act relating to rescission or cancellation of a 31 providing an effective date.
3 motor vehicle sale; amending s. 212.17, F.S.; 32
4 requiring a motor vehicle dealer who rescinds, 33 Be It Enacted by the Legislature of the State of Florida:
5 cancels, or revokes a sale or an application for a 34
6 certificate of title to be reimbursed by the 35 Section 1. Paragraph (d) is added to subsection (1) of
7 Department of Revenue for the amount of tax collected 36 section 212.17, Florida Statutes, to read:
8 or charged for such sale or application; creating s. 37 212.17 Tax credits or refunds.—
9 319.255, F.S.; authorizing a motor vehicle dealer, a 38 (1)
10 motor vehicle purchaser, and any person claiming a 39 (d) A motor vehicle dealer who rescinds, cancels, or
11 lien on a motor vehicle to rescind or cancel a motor 40 revokes a sale or an application for a certificate of title
12 vehicle sale before an application for a certificate 41 pursuant to s. 319.255 shall be reimbursed, in the manner
13 of title is submitted; providing for invalidation of 42 prescribed by the department, for the amount of tax collected or
14 certain subsequent requirements imposed on a motor 43 charged by the motor vehicle dealer for such sale or
15 vehicle dealer under certain circumstances; 44 application.
16 authorizing the motor vehicle dealer to obtain a 45 Section 2. Section 319.255, Florida Statutes, is created to
17 duplicate certificate of origin, duplicate certificate 46 read:
18 of title, or new certificate of title; requiring the 47 319.255 Rescission or cancellation of motor vehicle sale.—
19 Department of Highway Safety and Motor Vehicles to 48 (1) A motor vehicle dealer, a motor vehicle purchaser, and
20 rescind, cancel, or revoke an application for a 49 any person claiming a lien on a motor vehicle may rescind or
21 certificate of title or an issued certificate of title 50 cancel a motor vehicle sale before an application for a
22 after execution of a certain affidavit; providing 51 certificate of title is submitted. An agreement among the
23 requirements for the return or payment of certain fees 52 parties subject to the rescinded or canceled sale invalidates
24 and sales taxes; providing for the surrender or 53 any subsequent requirements imposed upon the motor vehicle
25 destruction of a certificate of title; providing 54 dealer to submit an application or remit any fees or taxes if
26 requirements for filing and processing the affidavit; 55 all fees, taxes, and other moneys associated with the rescinded
27 prohibiting a motor vehicle dealer from offering for 56 or canceled sale are returned to the rightful parties. The
28 retail sale a motor vehicle the sale of which has been 57 parties are not required to report the rescinded or canceled
29 rescinded or canceled until receipt of a certificate 58 sale to the department. A motor vehicle dealer may obtain a
Page 1 of 4 Page 2 of 4
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2023 CS for SB 1636 Florida Senate - 2023 CS for SB 1636
596-03094-23 20231636c1 596-03094-23 20231636c1
59 duplicate certificate of origin or a duplicate certificate of 88 dealer, the motor vehicle purchaser, and any person claiming a
60 title or obtain a new certificate of title in accordance with 89 lien on the motor vehicle, whichever date is latest.
61 subsection (2). 90 (e) The department shall process the affidavit within 7
62 (2) The department must rescind, cancel, or revoke an 91 days after receipt and issue a certificate of title to the motor
63 application for a certificate of title or a title that has been 92 vehicle dealer reflecting the name of the motor vehicle dealer
64 issued if, within 60 days after the sale of a motor vehicle, a 93 and the odometer reading reflected on the most recent assignment
65 notarized affidavit signed by the motor vehicle dealer, the 94 before the rescinded, canceled, or revoked sale.
66 motor vehicle purchaser, and any person claiming a lien on the 95 (f) A motor vehicle dealer may not offer a motor vehicle
67 motor vehicle is executed on a form prescribed by the department 96 subject to this subsection for retail sale until the motor
68 stating that the motor vehicle dealer, the motor vehicle 97 vehicle dealer has received a certificate of title from the
69 purchaser, and any person claiming a lien on the motor vehicle 98 department.
70 have rescinded or canceled the sale of the motor vehicle and 99 (3) A rescission, cancellation, or revocation of sale under
71 that all moneys associated with the transfer of the motor 100 this section does not negate the fact that the motor vehicle has
72 vehicle have been or will be returned to the relevant parties. 101 been the subject of a previous retail sale.
73 (a) Fees paid to the department, less fees paid in 102 Section 3. This act shall take effect July 1, 2023.
74 accordance with s. 319.32, must be returned to the motor vehicle
75 dealer. If no fees have been paid to the department, the motor
76 vehicle dealer must pay the fee required by s. 319.32.
77 (b) Sales taxes refunded or credited to the motor vehicle
78 purchaser must be refunded or credited to the motor vehicle
79 dealer in the manner prescribed by the Department of Revenue.
80 (c) If a certificate of title has been issued, the motor
81 vehicle dealer must obtain and surrender the certificate of
82 title to the department or certify that the certificate of title
83 has been lost or destroyed or will be obtained and destroyed
84 upon receipt.
85 (d) The affidavit stating that the motor vehicle sale has
86 been rescinded or canceled must be filed no later than 30 days
87 after the date of the affidavit’s execution by the motor vehicle
Page 3 of 4 Page 4 of 4
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
8:58:12 AM CS/SB 262 reported favorably
CourtSmart Tag Report 8:58:19 AM Tab 2 SB 1648 by Senator Bradley
8:58:26 AM Senator Bradley explains the bill
8:58:51 AM No questions
Room: SB 110 Case No.: Type: 8:58:55 AM Amendment 963930 explained by Senator Bradley
Caption: Senate Commerce and Tourism Committee Judge: 8:59:08 AM No questions
8:59:11 AM No appearance forms
Started: 4/4/2023 8:31:07 AM 8:59:16 AM Senator waives close on amendment
Ends: 4/4/2023 10:18:51 AM Length: 01:47:45 8:59:20 AM Amendment adopted
8:59:39 AM Senator Bradley waives close on bill as amended
8:31:10 AM Chair Trumbull calls meeting to order 8:59:44 AM Roll call CS/SB 1648
8:31:15 AM Senator Torres is excused 9:00:09 AM CS/SB 1648 reported favorably
8:31:19 AM Roll call 9:00:19 AM Tab 10 CS/SB 564 by Senator Hutson
8:31:44 AM Quorum present 9:00:44 AM Senator explains the bill
8:31:49 AM Chair makes opening remarks 9:01:20 AM No questions
8:32:11 AM Tab 7 SB 1242 by Senator Boyd 9:01:24 AM Amendment 648060 by Senator Hutson
8:32:20 AM Senator Boyd explains bill and amendment 852154 9:01:38 AM Senator Hutson explains the amendment
8:33:31 AM No questions on strike all amendment 9:01:49 AM No questions on amendment
8:33:41 AM Senator Boyd waives close on amendment 9:01:59 AM No debate
8:33:47 AM Amendment adopted 9:02:02 AM Senator waives close on amendment
8:33:50 AM No questions 9:02:07 AM Amendment adopted
8:33:54 AM Public testimony: 9:02:13 AM Back on bill as amended
8:34:00 AM Jeremy Parker, Parker Services Heating and Air Conditioning speaking for 9:02:18 AM Appearance forms:
8:35:18 AM Natalie King, FL Refrigeration and Air Conditioning Contractors Assoc. waiving in support 9:02:22 AM French Brown, FL Retail Federation and FL Restaurant and Lodging Assn. speaking for
8:35:24 AM No debate 9:03:53 AM Keri Rayborn Silver, Mastercard waiving in opposition
8:35:36 AM Senator Boyd closes on bill as amended 9:04:07 AM Justin Hof, speaking against
8:35:39 AM Roll call on CS/SB 1242 9:06:46 AM Senator Hutson with question
8:36:02 AM CS/SB 1242 reported favorably 9:07:23 AM Mr. Hof replies
8:36:09 AM Tab 3 CS/SB 628 by Senator Grall 9:07:26 AM Senator Hutson question
8:36:15 AM Senator Grall explains the bill 9:07:34 AM Mr. Hof answers
8:37:22 AM Chair turned over to Vice Chair Wright 9:07:39 AM Senator Hutson question
8:37:33 AM No questions 9:07:50 AM Mr. Hof reply
8:37:35 AM No appearance forms 9:07:54 AM Senator Hutson question
8:37:38 AM No debate 9:08:07 AM Mr. Hof replies
8:37:40 AM Senator Grall waives close on bill 9:08:23 AM Senator Hutson question
8:37:44 AM Roll call CS/SB 628 9:08:29 AM Mr. Hof replies
8:38:17 AM CS/SB 628 reported favorably 9:08:34 AM Michael Behm, The Payments Coalition speaking against
8:38:54 AM Tab 2 SB 262 by Senator Bradley 9:12:22 AM Senator Hutson question
8:39:06 AM Senator explains the bill 9:12:30 AM Mr. Behm answers
8:41:02 AM Questions: 9:12:35 AM Senator Hutson question
8:41:07 AM Senator Stewart 9:12:42 AM Mr. Behm replies
8:41:29 AM Senator Bradley 9:13:02 AM Senator Hutson question
8:42:20 AM Senator Stewart 9:13:10 AM Mr. Behm replies
8:42:28 AM Senator Bradley 9:13:12 AM Back and forth in questions
8:42:47 AM Senator DiCeglie 9:15:23 AM Randall Lashua speaking against
8:42:59 AM Take up amendment 164120 9:17:29 AM Anthony DiMarco, FL Bankers Assoc. speaking against
8:43:45 AM Amendment explained by Senator Bradley 9:19:13 AM Steven Raushenberger, Electronic Payment Coalition speaking against
8:44:01 AM No questions 9:23:09 AM Ned Bowman, FL Petroleum Marketers Assoc. waiving in support
8:44:07 AM No debate 9:23:17 AM David Roberts, FL Independent Sprits Assoc. waiving in support
8:44:11 AM Senator Bradley waives close on amendment 9:23:25 AM Lori Killinger, RaceTrac waives in support
8:44:15 AM Amendment adopted 9:23:32 AM Samantha Padgett, FL Restaurant and Lodging Assoc. speaking in support
8:44:25 AM Appearance forms: 9:24:43 AM Senator Jones with question
8:44:26 AM Austin Stowers, CFC Jimmy Patronis waiving in support 9:25:03 AM Ms. Padgett answers
8:44:31 AM Sal Nuzzo, James Madison Institute speaking against 9:25:45 AM Senator Jones question
8:46:14 AM Adam Basford, Associated Industries of FL speaking against 9:25:57 AM Ms. Padgett answers
8:48:39 AM Zachary Lilly, NetChoice speaking against 9:26:45 AM Chair Wright continues to read cards waiving
8:51:34 AM Sarah Suskey, TechNet waiving against 9:26:47 AM John Rothell, FL Credit Union Assoc. waiving against
8:51:46 AM Khara Buender, Computer and Communications Industry Assoc. speaking against 9:26:50 AM Joseph Mulano waiving against
8:54:29 AM Debate: 9:27:11 AM Jim Daughton waiving against
8:54:35 AM Senator Hooper 9:27:22 AM Will McKinley, Discover Financial Services, waiving against
8:55:30 AM Senator Bradley closes on bill as amended 9:27:29 AM Grace Lovett, FL Retail Federation waiving in support
8:57:39 AM Roll call CS/SB 262 9:27:39 AM No debate
9:27:42 AM Senator Hutson closes on the bill as amended 9:46:02 AM Take up amendment 805210 by Senator Yarborough
9:28:54 AM Roll call CS/CS/SB 564 9:46:16 AM Senator Yarborough explains the amendment
9:29:18 AM CS/CS/SB 564 reported favorably 9:47:26 AM Take up amendment 817718 by Senator Gruters
9:29:35 AM Tab 5 CS/SB 752 by Senator Calatayud 9:47:46 AM Senator Gruters explains the amendment
9:29:51 AM Senator Calatayud explains the bill 9:48:57 AM Questions:
9:30:12 AM Amendment 358156 by Senator Calatayud 9:49:03 AM Senator Hooper
9:30:30 AM Senator Calatayud explains the amendment 9:49:07 AM Senator Gruters
9:31:10 AM No questions 9:49:14 AM Appearance forms:
9:31:14 AM Appearance form: 9:49:28 AM Grace Lovett, FL Retail Federation waiving against amendment 817718
9:31:19 AM Samantha Padgett, FL Restaurant and Lodging Assoc. waives speaking in support 9:50:57 AM Alexis Buese, FL Justice Reform Institute speaking against amendment 817718
9:31:33 AM No debate 9:53:03 AM Senator Hutson comments
9:31:36 AM Senator Calatayud waives close on amendment 9:53:09 AM Senator Yarborough comments on amendment
9:31:44 AM Amendment adopted 9:53:35 AM Senator Jones
9:31:51 AM Back on bill as amended 9:53:41 AM Senator Gruters closes on amendment
9:31:55 AM No questions 9:54:05 AM Amendment adopted
9:31:59 AM Appearance forms: 9:54:15 AM Back on amendment 805201 as amended
9:32:02 AM Samantha Padgett waiving in support 9:54:24 AM Appearance forms on amendment 805210:
9:32:09 AM Chris Stranburg, Americans for Prosperity waiving in support 9:54:27 AM Billy Howard, CEO The Consumer Protection Firm speaking against amendment
9:32:22 AM Debate: 9:56:35 AM No debate
9:32:24 AM Senator Hooper 9:56:38 AM Senator waives close
9:33:01 AM Senator Calatayud closes on bill as amended 9:56:41 AM Amendment adopted
9:33:13 AM Roll call CS/CS/SB 752 9:57:00 AM No questions
9:33:37 AM CS/CS/SB 752 reported favorably 9:57:02 AM Appearance forms:
9:33:48 AM Tab 6 SB 940 by Senator Calatayud 9:57:07 AM John Forehart, FL Automobile Dealers Assoc. waives in support
9:33:59 AM Senator Calatayud explains the bill 9:57:14 AM Ted Serbousek waives in support
9:35:03 AM No questions 9:57:18 AM Greg Douglas waives in support
9:35:07 AM Appearance form: 9:57:22 AM Cara Vaughan waives in support
9:35:10 AM Joseph Salzburg, AvMed waiving in support 9:57:28 AM Greg Soulliere waives in support
9:35:19 AM No debate 9:57:33 AM Alexis Buese, FL Justice Reform Institute speaking for
9:35:24 AM Senator waives close 9:58:55 AM Adam Basford, Assoc. Industries of FL speaking for
9:35:27 AM Roll call SB 940 9:59:26 AM Julie Fess waiving in support
9:35:46 AM SB 940 reported favorably 9:59:30 AM Grace Lovett, FL Retail Federation waiving in support
9:35:57 AM Chair turned to Senator Gruters 9:59:35 AM Andy Gonzalez, FL Realtors waiving in support
9:36:22 AM Tab 11 CS/SB 1636 by Senator Wright 9:59:46 AM Samantha Padgett, FL Restaurant and Lodging Assoc. waiving in support
9:36:31 AM Senator Wright explains the bill 9:59:49 AM Adam Basford, Associated industries of FL waiving against
9:37:31 AM No questions 9:59:57 AM George Feijoo, Rocket Mortgage waiving in support
9:37:36 AM Appearance form: 10:00:02 AM Gary Guzzo, US Chamber Institute for Legal Reform waiving in support
9:37:40 AM Angela Bond, Carvana waiving in support 10:00:08 AM Casey Reed, AT&T waiving in support
9:37:44 AM No debate 10:00:21 AM Back on the bill as amended
9:37:46 AM Senator Wright waives close on bill 10:00:27 AM No question
9:37:49 AM Roll call CS/SB 1636 10:00:31 AM No debate
9:38:23 AM CS/SB 1636 reported favorably 10:00:34 AM Senator Yarborough closes on bill as amended
9:38:38 AM Chair turned back to Vice Chair Wright 10:00:46 AM Roll call CS/SB 1308
9:38:45 AM Tab 8 SB 1246 by Senator Yarborough 10:01:17 AM CS/SB 1308 reported favorably
9:38:51 AM Senator Yarborough explains the bill 10:01:30 AM Chair turned back to Chair Trumbull
9:40:38 AM No questions 10:01:40 AM Tab 4 CS/SB 712 by Senator Avila
9:40:41 AM Appearance forms: 10:01:51 AM Senator Avila explains the bill
9:40:51 AM Jared Willis, Alliance for Patient Access waives in support 10:02:08 AM Senator explains amendment 224252 by Senator Avila
9:40:59 AM Jarrod Fowler, FL Medical Assoc. waiving in support 10:06:33 AM Amendment to amendment 335364 explained by Senator Avila
9:41:06 AM Sarah Massey, FL Chamber of Commerce waiving in support 10:06:54 AM Amendment to amendment 335364 explained by Senator Avila
9:41:13 AM Chris Lyon, FL Osteopathic Medical Assoc. waiving in support 10:06:54 AM No questions
9:41:22 AM Ashely Kalfer, FL Justice Institute waiving in support 10:06:57 AM No appearance forms
9:41:36 AM George Feijoo, US Chamber Institute for Legal Reform waiving in support 10:07:02 AM Senator Avila waives close
9:41:49 AM Debate: 10:07:06 AM Amendment adopted
9:41:52 AM Senator Stewart 10:07:14 AM Back on amendment
9:42:24 AM Senator Yarborough waives close 10:07:25 AM Senator Avila waives close on amendment
9:42:33 AM Becca Timmons, FL Justice Assoc. speaking against 10:07:30 AM Amendment adopted
9:44:36 AM No debate 10:07:35 AM Back on bill as amended
9:44:39 AM Senator Yarborough closes on bill 10:07:40 AM Appearance forms:
9:45:27 AM Roll call SB 1246 10:07:44 AM Winn Peeples speaking against
9:45:42 AM SB 1246 reported favorably 10:08:39 AM Senator Trumbull
9:45:51 AM Tab 9 SB 1308 by Senator Yarborough 10:08:45 AM Mr. Peeples
10:09:36 AM Ron Book, Auto Nation waiving in support
10:09:46 AM Cara Vaughan waives in support
10:09:50 AM Greg Douglas, waives in support THE FLORIDA SENATE COMMITTEES:
10:09:55 AM Ted Serbousek, waives in support Tallahassee, Florida 32399-1100 Appropriations Subcommittee on Criminal and Civil
10:10:00 AM Adam Basford, Associated Industries of FL speaking against Justice
Children, Families, and Elder Affairs
10:10:59 AM Nicole Barranco speaking against
Commerce and Tourism
10:12:48 AM Jon Johnson, Alliance of Automotive Innovation speaking against Governmental Oversight and Accountability
10:14:04 AM Fred Baggett, Ford Motor Co. waives against Military and Veterans Affairs, Space,
10:14:11 AM Marlene William, General Motors waives in opposition and Domestic Security
JOINT COMMITTEES:
10:14:18 AM Brian Shack waives in support
Joint Select Committee on Collective Bargaining
10:14:23 AM No debate
10:14:26 AM Senator Avila closes on bill
10:17:16 AM Roll call on CS/CS/SB 712
10:17:37 AM CS/CS/SB 712 reported favorably
10:17:48 AM Senator Jones vote after motion
10:18:01 AM Senator DiCeglie vote after motion
10:18:09 AM Senator Rodriguez vote after motion
10:18:20 AM Senator Gruters vote after motion SENATOR VICTOR M. TORRES, JR.
10:18:28 AM Chair Trumbull vote after motion 25th District
10:18:41 AM Meeting adjourned
March 30th, 2023
Jay Trumbull, Chair
Commerce and Tourism
404 S Monroe Street
Tallahassee, FL 32399
RE: Request for excusal from April 4th committee meeting
Dear Chair Trumbull:
Due to a previously scheduled medical appointment, I am unable to attend the April 4th meeting
of the Commerce and Tourism Committee. Please accept this letter as a formal request for
excusal of this absence. Please let me know if you have any questions or need any additional
information.
Respectfully submitted,
Victor M. Torres, Jr.
Florida State Senator
District 25
C: Todd Mckay, Staff Director
Renita Hayes, Committee Administrative Assistant
REPLY TO:
❒ 101 Church Street,
Suite 305, Kissimmee, Florida 34741 (407) 846-5187 FAX: (850) 410-4817
❒ 226 Senate Building,
404 South Monroe Street, Tallahassee, Florida 32399-1100 (850) 487-5015
Senate’s Website: www.flsenate.gov
Kathleen Passidomo Dennis Baxley
President of the Senate President Pro Tempore
The Florida Senate
Hayes, Renita Meeting Date
APPEARANCE RECORD 56 A6)" Bill Number orTopic
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From: Oleksak, Joseph
Committee
\rn Amendment Barcode (if applicable)
Sent: Monday, April 3, 202311:44 AM
To: Hayes, Renita
Name Kvrafa. EJcncl.,"f Phone 8os -1rs" t
Cc: McKay, Todd; Davis, Miles
Subject: Senator Jones - Bill Presentation Tomorrow
Address
Street
{ Email Vny4-afQ a-<*\ <,r, ei,",q
Hi Renita, o
City State Zip
I just wanted to let you know that Senator Jones will be late to Commerce and Tourism as he has a bill presentation in
Criminal Justice at the same time.
Speaking: I for Against ! lnformation OR Waive Speaking: I tn Support ! Against
Thank you!
Joe PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without 1fl t u^a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship. representrng: something ofvalue for my appearance
Joseph Oleksak, MPP (travel, meals, lodging, etc.),
Oulrng ,A4r f
sponsored by:
Senior Legislotive Aide C-itmn^..nn\Catt <'J
tt
State Senator Shevrin D. Jones (SD-34)
While it is a tradition to encourage public testimony, time may not permit all persons wishing to to be heard at this hearing.Those who do speak may be asked to limit their remarks so
606 NW 183'd Street
Miami Gardens, FL 33159
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cell: 814-397-740O I District: 305-493-6002
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(travel, meals, lodging. etc.),
4L t,\/"r sponsored by:
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\ l+ /z= APPEARANCE RECORD SB 76.L-
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Name kncL^ [,1 Phone {zs (zo El6}
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lam appearing without
compensation or sponsorship.
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lobbyist,
X I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
p 4" cL,.o:i ,z
sponsored by:
Mat (hu, 1o-
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I zs
'l l'(Meeting APPEARANCE RECORD zb2
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Name Asl'n Sloxet: Phone 950 Ll 13 51s7
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Tallohassee F L 323q1
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I representrng: something ofvalue for my appearance
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CFo t mmu
(
Paf'onis sponsored by:
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414t23 APPEARANCE RECORD 262
1.,!ct,'Tinc.l Datt: 3ill Nlnrber i:rTci:ic
D+l:vei hcth crrF:tl: of this forr"r't to
Commerce and Tourism Senattl irrofe :;:;ior-i,:l slaff corllL;rtrnir thn nreetino
l.Jn.rnrilt0$ Arnt:nin rr,'nl Sarr-cr1t.: (if ;:pplir:al:la)
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Adam Basford Phone
850.224.7173
Address 516 N Adams ,*u,, abasford@aif.com
ii.!.ei
Tallahassee FL 32301
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speaking: ffi"r-or" ffi ,+clainst ffi tnformation OR waive speaking, ffi ln support A.oainst
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lam a reqistered lobbyist.
representing:
t+ somethirrg
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(travel. rneals, lodging, etc.),
Associated lndustries of Florida spr:nsored by:
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too Du vttt- Email Sr..tr.lZZo e fArnenn ADsoru'
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lam appearing without lam a registered lobbyist I am not a lobbyis! but received
F compensation or sponsorship. representing: something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
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Y >3 APPEARANCE RECORD u2,V
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Name tQrtLq M^,ll(a{ Phone 9Q) 3
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104 tfi6+ Joftzrson ekc**^, CU
City
& fL 3>ao Zip
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- compensation or sponsorship. ^registered " something of value for my appearance
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fina,rtt"..l %un;elt ffissocutJ:a.t .f frfvWri'6s,
a sponsored by:
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mlawl FL jllsl
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I
K For ! Against I lnformation OR waive Speaking: !
Speaking: tn Support Against
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fy{ ,ur appearins without I am a registered lobbyist. I am not a lobbyist, but received
'f\ compensation or sponsorship. representing: something of value for my appearance
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ltz Bill Number orTopic
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PLEASE C ECK ONE OF THE FOLLOWING:
lam appearing without am a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorshi p. representing: something ofvalue for my appearance
(travel, meals, lodging, etc.),
6enerq\ ttutors sponsored by:
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//r/za / Meeting Date
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// 7tz Bill Number orTopic
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o .A/ Email
T///on ". /t/
(,f- "- state
7 Zv/s /
Zip
Speaking: ! ror I Against ! lnformation OR Waive Speaking: ! ln Support Against
PLEASE CHECK ONE OFTHE FOLLOWING:
l-l tam appearing without rl{an"/a registered lobbyist, I am not a lobbyist, but received
-
lJ l
- compensation or sponsorship. representin| something ofvalue for my appearance
feft / ilot, b
(travel, meals, lodging, etc.),
sponsored by:
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414123 712
APPEARANCE RECORD
Meeting Date Bill Number orTopic
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Jon Johnson 850 224-1900
Name Phone
537 E. Park Avenue jon@teamjb.com
Address Email
Street
Tallahassee FL 32301
Reset Form
City State Zip
I:-
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PLEASE CHECK ONE OF THE FOLLOWING:
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compensation or sponsorship.
t/ lam a registered lobbyist,
representing:
am
I not a lobbyist, but received
Itr- something ofvalue for my appearance
(travel, meals, lodging, etc.),
sponsored by:
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The Florida Senate
4 4-zz Meeting Date
APPEARANCE RECORD
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Name Y'-cancn Phone 8\03- bZL -lnZLO
Address t Pcnn w+12;s Email Nrcole. (3Ar CA^CA G
Street
VW"Cern
O
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PLEASE CHECKONE OFTHE FOLLOWING:
s lam appearing without
compensation or sponsorship.
lam a registered lobbyist,
representing:
I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
This form is part of the public record for this meeting. s-001 (08/10/2021)
DtIPl,ICA"I'}].
The Florida Senate
4t4t23 APPEARANCE RECORD 712
!ieeti:rcJ Date Bill iiJuriiber or'lbpii.
Delii,+r blth c::rpie:i ':'i tl-ri:; rcrnr lo
Commerce and Tourism ljeu te i:iole:;:;rr.:na I stai'i c:'ni:-iucl inq t he :leet inq
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Adam Basford Phone
850.224.7173
Name
Address 516 N Adams ,*",, abasford@aif.com
) ir;r6.1
Tallahassee FL 32301
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Speaking: jI to' {fl agairrst ffi triibrnration OR Waive Speaking, ffi lrr Supiport Against
PLEASE CHECK ONE OFTHE FOLLOWING
iil I arn ilfipearing without
conlpensati0n or sponsorship^
th/l lanr a registered lobbyist,
representing:
Iain not a lobbyist, hut received
rffi sornething of value for my appeilrance
(travel, meals, lodging, etc.),
Associated lndustries of Florida sponsored by:
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->3
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q I am appearing without
compensation or sponsorship.
! t am a registered
represenflng:
lobbyist, I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
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*1" lvt
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PLEASE CHECK ONE OF THE FOLLOWING:
Wu appearingwithout
+ .ompensation lam a registered lobbyist I am not a lobbyisf but received
or sponsorship. representing: something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
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q13 The Florida Senate
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/A7 //r 7r?a
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Name fa ra Va udtan Phone
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Address /lLl To rnalz Dr
Street
Email fa.
Patw llatbor fd
dy State
96rc Zip
Ol,qvrat?r' e'1*4
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t amappearing without lam a registered lobbyist, I am not a lobbyist but received
compensation or sponsorship. representing: something ofvalue for my appearance
- (travel, meals, lodging, etc.),
sponsored by:
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8So - zzq-r€-l
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PLEASE ONE OFTHE FOLLOWING:
lam appearing without a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship. representing: something of value for my appearance
(travel, meals. lodging, etc.),
A.lh l..l.Jf't,r.t h o-'l sponsored by:
-rtb s+
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au Zip
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PLEAS HECK ONE OF THE FOLLOWING:
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compensation or sponsorshi p. representing: something of value for my appearance
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r9
\./
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)
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K lam a registered lobbyist,
representing:
I am not a lobbyist, but received
something of value for my appearance
flcrl" A"lauwnf h (travel, meals, lodging, etc.),
sponsored by:
bdfy 6596ialf cn
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q 11 70
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G. o"l
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io'l e Ct U- Email csLre.nh' ea L
-f-lt^u^sk- l:L 373rt
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Q^oa*ns t"
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sponsored by:
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ivleeting Date
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3O
Ctty State Zip
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I lam appearing without
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' reoresenttno:
I am not a lobbyist, but received
dnj'a.,v^t* t
compensation or sponsorship. something of value for my appearance
flJi""
''
(travel, meals, lodging, etc.),
sponsored by:
l"q'\ llTYahcvt
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1LV TL 3a3"t
aty Stote Zip
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PLEASE CHECK ONE OFTHE FOLLOWING:
lam appearing without
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representing:
I am not a lobbyist but received
something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
AvN"!
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4t4123 1242
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Jeremy Parker Phone
8505452498
Name
Address 1600 Mill st. Ema ,,
jparker@pstallahassee.com
Street
Tallahassee FL 32310
City State Zip
speaking: -E lV ro, ln nguinrt |[- tnformation OR waivespeakins: lEi ln support [[nsalnst
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lam appearing without
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Itr- lam a registered
representing:
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ln I am not a lobbyist, but received
something ofvalue for my appearance
(travel, mealt lodging, etc.),
sponsored by:
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4t4123 APPEARANCE RECORD 1242
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Name
Natalie King Phone
Address 1 13 E. College Ave Emait natalie@teamrsa.com
Street
Tallahassee FL 32301
atv State zip
speakins: - lV ro, -lI nguintt ! lnformation OR waive speakins, lEi ln support E[ nsainst
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am not lobbyist, but
lam appearing without
IE compensation sponsorship.
or
am registered lobbyist,
@ representing:
I a
IE something
I a
of value for
received
my appearance
(travel, meals, lodging, etc.),
Florida Refrigeration and Air Conditoning sponsored by:
Contractors Association
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naaress l/6
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5 5+ Email h{^,unt Q I [-- U r C,at,
0<ns, ) o Ft- LL1A\
City State Zip
Speaking: ! ror Against ! lnformation OR Waive Speaking: I tn Support I Against
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without I t am a registered lobbyist, {, a lobbyist, but received
..- something
"^not of value for my appearance
compensation or sponsorship. representlng:
(travel, meals, lodging, etc.),
sponsored by:
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APPEARANGE REGORD
58 lzlb
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Name BeU-p trh fTtar'tS
Job Title
Address 3/ I s+ Phone gfi
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Ft' Emai t bh'^t*ns It vtn lqu,cen
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Speaking: f] ror ffigainst f] lnformation Waive Speaking ln Support Against
(The Chair will read this information into the record.)
Representing Ft- fr,ta'lt 'c-e ll=."u"a-ho^'
Appearing at request of Chair: Yes o Lobbyist registered with Legislature ves pffifl
White it ls a Senafe tradition to encourage pubtic testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as posslb/e can be heard.
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414123 APPEARANCE RECORD 1246
Meeting Date Bill Number orTopic
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George Feijoo Phone
3057207099
Name
Address 108 S Monroe St emair gd€ijoo @flapartners.com
Street
Tallahassee FL 32312
City State Zip
Speaking [fl ro' In Against [fl tnformation OR waive Speaklng: ffi ln Support F,onu'nu
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without
lE. compensation or sponsorship.
W lam a registered lobbyist,
representing:
m I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
US Chamber lnstitute for Legal Reform sponsored by:
This form is part of the public record for this meeting. s-001 (08/10/2021\
The Florida Senate
APPEARANCE RECORD 2 bBill Number orTopic
Meeting Date
Deliver both copies of this form to
Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name Phone D7r
Address .)/, Email ,)h 4
Street
lea il3
aty State zip
Speaking: I ror ! Against I lnformation OR Waivespeaking: ln Support I Against
PLEASE CH ONE OFTHE FOLLOWING:
lam appearing without a registered lobbyist, I am not a lobbyist but received
compensation or sponsorship. representing: something of value for my appearance
f,*/n u (travel, meals, lodging, etc.),
sponsored by:
While it is a tradition to encourcge public testimony, time may not persons wishing to speakto be heard at this hearing.Those who do speak may be asked to limit their remarks so
that as many persons as possible can be heard. lfyou have questions about registeing to lobby ptease see Fla. Stat. 51 .045 and Joint Rule l. 2020-2022Joit1tRules.Ddf flsenate.gov)
1
This form is part of the public record for this meeting. s-001 (08/10/2021)
The Florida Senate
April 4,2A23 APPEARANCE RECORD 1246
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Commerce and Tourism Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Chris Lyon Phone
222-5702
Name
Address 106 E. College Ave., Suite 1500 ,n.,u,, clyon@llw-law.com
Street
Tallahassee FL 32301
Ctty State Zip
Speakins: -ll_Jt ror Against m lnformation OR waive Speaking: ln Support Flonu'nu
PLEASE CHECK ONE OFTHE FOLLOWING:
Fi I am appearing without
compensation or sponsorship. tr lam a registered lobbyist,
representing:
E I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
Florida Osteopathic Medical sponsored by:
Association
This form is part of the public record for this meeting. s-001 (08/10/2021)
The Florida Senate
APPEARANCE RECORD Sg \24\o
Meeting Date Bill Number orTopic
Deliver both copies of this form to
lgrnrnovcc Tgt",s t . Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name kvrr r,.g a(S Phone fl<o 51s o 547
Address (, tovlQ,tl K I Email C5e
Street
7" ttahar\ ea
City
6State
7t. 3 /6t
Zip
Speaking: ! ror I Against ! lnformation OR waive Speaking: ffippo,t I Against
PLEASE ONE OFTHE FOLLOWING:
lam appearing without am a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship. representing: something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
fcor&" Cho'.' er o C (o^r't*w
This form is part of the public record for this meeting. s-001 (08/10/202r)
The Florida Senate
,t-1 -Z.3 APPEARANCE RECORD lz1 a
Meeting Date Bill Number orTopic
Co^nhe nC g cl\", r tJ
Deliver both copies of this form to
Senate professional staff conducting the meeting
\
od\E [-cu1 le -
Committee pplicable)
Name Phone
)85<) - I
Address I V3'- F\ d Mo,o)- f)c , F- Email )F-\r[r.o "F't $ftd l."l ( Bn
Street
City Stote Zip
Speaking: f] ror I Against I lnformation OR waive Speaking'
Hrn Support ! Against
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without robbYist' I am not a lobbyist, but received
compensation or sponsorship. Bg*,*istered something of value for my appearance
F\" orA\ Metric J A=>*--tr{io 1-'
(travel, meals, lodging, etc.),
sponsored by:
This form is part of the public record for this meeting. S-OOI (OB/1O/2021)
The Florida Senate
oLl 6 L6?-3 APPEARANCE RECORD 3g llt{b - Leqal Ad"S
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Se vrar-t€ fr)v?h^r\rc€- Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
'650- z-fu - \q,q v
Name
'Javeol UNrrlr\ Phone
Address \ Y M alrrot- 3az Email
Street
-T^\\,tW4S.5€e 3zao i
City State Zip
Speaking: f, ro, ! Against I lnformation OR waive Speaking: ! ln Support ! Against
PLEASE CHECK ONE OFTHE FOLLOWING:
lam appearing without
compensation or sponsorshi p.
pl lam a registered lobbyist,
representrng:
T I am not a lobbyist, but received
something of value for my appearance
/dt\ a\we4 w
(travel, meals, lodging, etc.),
sponsored by:
?n*t'<wt 4CctSS
This form is part of the public record for this meeting. 5-001 (o8/1o/2o21)
Tne FIonIoA SENATE
APPEARANGE REGORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the meeting)
5g ltuP
Date Bill Number (if applicable)
5zt
Topic Amendment Barcode (if applicable)
Name
Job Title CEO
Address Llnt .T,rk'<."^ (+ Phone
g() 7
Sfreef
L 6e Ema ( F"
City Sfafe Zip (om
Speaking: I ror E Against E lnformation Waive Speaking: E tn Support l-l Against
(The Chairwill read this information into the record.)
Representing f,"^
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes [Xl ruo
White itis a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possib/e can be heard.
This form is part of the public record for this meeting. 5-001 (10/14114)
The Florida Senate
L/,LI A3 APPEARANCE RECORD t30Y
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Senate professional staff conducting the meeting
Committee Amendment Ba (if applicable)
Name tlry, slu< ? Phone 7l= 731 /a?{
Address
Street
lrl tr{fr Lt,.,_ [+ 4/.ffir,.n.,, C
a
City State Zip
Speaking: ! ror ainst ! lnformatlon OR Waive Speaking: ! tn Support ! Against
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without
,-
a registered lobbyist, I am not a lobbyist, but received
l1lt6m
\/ representing: something of value for my appearance
compensation or sponsorship.
flN
(travel, meals, lodging, etc.),
sponsored by:
While it is a tradition to encourage public testimony, time may not permit all persons wishing to speakto be heard ot this hearing.Those who do speak may be asked to limittheir remarks so
This form is part of the public record for this meeting. 5-001 (08/10/2021)
.4 /L\
The Florida Senate
"l APPEARANCE RECORD \3oY Bill Number orTopic
Meeting Date Deliver both copies of this form to
4 Senate professional staff conducting the meeting
'71<
Amendment Barcode (if applicable)
Committee
Name
(<(a(e L origfi- Phone *5a 72> 4nY Z
Address
Street
J Email Ce" a, o
,L
aLli
City State Zip
Speaking: f] ror I Against I lnformation OR Waive Speaking: I ln Support Against
PLEASE CHECK ONE OFTHE FOLLOWING:
I am appearing without V,ur a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship. something of value for my appearance
/\representins: (travel, meals, lodging, etc.),
sponsored by:
L, ?*t",
This form is part of the public record for this meeting. 5-001 (08/10/2021)
The Florida Senate
,1 14 APPEARANCE RECORD l3 ot
/ / N,t.[tins o.t" Deliver both copies of this form to
Bill Number orTopic
Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name
(^
Phone 9sr:, ?t{,1 , oo?r
Address 6 Email
Street
u0io,{ar- lr,( (< 3L
-?,
97
City State Zip
Speaking I Rgainst ! lnformation OR waive Speaking: ! tn Support I ngainst
/ror
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without
compensation or sponsorship.
r
((,r,L
lam a registered lobbyist,
representing:
I am not a lobbyist, but received
something ofvalue for my appearance
(travel, meals, lodging, etc.),
by:
At*olo,(e t Jdc t
This form is part of the public record for this meeting. 5-001 (08/10/2021)
The Florida Senate
/73 APPEARANCE RECORD fzog
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name P Phone 7Rb 5L1 9S .fD
Address tZt- M Email Te&a,a /
Street
^rAA
Dac,{nrrn Qwch TL-3il11 v
t *arc Zip
Speaking: ror l_-l Against I lnformation OR waiveSpeaking: I tnSupport I Against
ff
PLEASE CHECKONE OFTHE FOLLOWING:
lam appearing without t am a registered lobbyist, I am not a lobbyist but received
! something ofvalue for my appearance
K compensation or sponsorship. repreSentrng:
(travel, meals, lodging, etc.),
sponsored by:
This form is part of the public record forthis meeting S-gOt (08/10/2021)
The Florida Senate
t l-r/rs APPEARANCE RECORD J0 ilo r
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Senate professional staff conducting the meeting
t a'r*m.6't.<ttJ'
Committee Amendment Barcode (if applicable)
Name
Gtwn- {oUie.iK Phone
4+l -vfiy -t'?ot
Address
Street
+ 6L 0ovr, ) ^rL o.^/ u rJ Email
^
r-e
^
/ a J, *rl ,s)oon
I
.r't'\
L tlfasnvuvg AWtr.pu l.>-L f VVo)
aty Stote Zip
Speaking: $ror I Against f] lnformation OR Waive Speaking: I tn Support I Against
PLEASE CHECK ONE OF THE FOLLOWING:
tr lam appearing without
compensatiqn or sponsorshi p.
f] tam a registered lobbyist,
representrng:
I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
This form is part of the public record for this meeting. s-001 (08/10/2021)
L/. 4'tr 3
Meeting Date
The Florida Senate
APPEARANCE RECORD
Deliver both copies of this form to
/sofBill Number orTopic
nA L((k Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name Phone
Address 7vq tVro Email
Street
N .f{0f3 rOt2* " c4.g
State Zip
Speaking: d, ! Against I lnformation OR Waive Speaking: I tn Support ! Agalnst
PLEASE CHECK ONE OF THE FOLLOWING:
appearing without I am a registered lobbyist, I am not a lobbyist but received
Mu compensation or sponsorship. representing: something of value for my appearance
- (travel, meals, lodging, etc.),
sponsored by:
This form is part of the public record for this meeting. 5-001 (08/10/2021)
,l The Florida Senate
APPEARANCE RECORD o
Meeting Date BiII N orTopic
Deliver both copies of this form to
Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name /i(r--, Phone 797./t t-.)ct7r
Address l7t 7 Email Jau /r;Ci'e p rfu*l*-,-
Street
(4un.ate-'- C*t
9'Qnr
City
th'bar Stl('qf
J zip
'u
stote
Speaking: ffro, ! Against I lnformation OR Waive Speaking: ! ln Support I Against
PLEASE CHECK ONE OF THE FOLLOWING:
am appearing without lam a registered lobbyist, I am not a lobbyist, but received
or sponsorship. representing: something of value for my appearance
(travel, meals, lodging. etc.),
sponsored by:
This form is part of the public record for this meeting. s-001 (08/10/2021\
The Florida Senate
04.04.23 APPEARANCE RECORD 1 308
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Commerce Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name
Alexis Buese Phone
813-739-6985
Address 401 E. Jackson Street, Suite 1500 Emait abuese@gunster.com
Street
Tampa FL 33602
City State Zip
Speaking: ffi ro. lfl nsainst ff, tnformation OR waive speakins: ln tn support ffi nsainst
PLEASE CHECK ONE OF THE FOLLOWING:
I am appearing without
compensation or sponsorship.
ffi I am a registered
representing:
lobbyist,
IE something
am not lobbyist, but received
I a
ofvalue for my appearance
(travel, meals, lodging, etcJ,
sponsored by:
Florida Justice Reform lnstitute
This form is part of the public record for this meeting. s-001 (08/10/20211
The Florida Senate
4t4t23 APPEARANCE RECORD 1 308
Mcr:iinc,; i.1;li: Sill l.lun'iber or Tc;i-.ic
Drl:r,ei blth c.rp;r: of thi:r Forn-r tc
Commerce and Tourism liena te trcf e:rio":al siafl colidr:,:tini2 iht rrieeting
i:rn rn iilt*r Ailrcnin i(:nt Barr:cdrl (il',rpplir-aL,.k:)
Name
Adam Basford Phone
850.224.7173
Adcrress 516 N Adams rmait abasford@aif.com
':ir:ei
Tallahassee FL 32301
(,iiy li;t
tl-
Speaking: ffi- ro, !l
ltJ
I Ailairst ffi i"fnr",',"'utin,-. OR waive speakinq: ffi" tn Support Aoa;nst
PLEASE CHECK ONT OF THE FOLLOWING:
fi::::; n::::
tli I an] appearing lvithoLrt
r:ornpensation or sponsorship.
lic, lanr a registered bbbyist,
representing:
ITJL I anr not a lobbyist, but received
IU
sornething of value for my appearance
(travel, rneals, lodging, etc.),
Associated lndustries of Florida sponsored by:
This forni is part of the public recr:rd fr:r this nreetirrg. s-001 (08110i2021)
The Florida Senate
APPEARANCE RECORD l.io h
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name Phone
a
Address Email
Street
City
I Stote Zip
Speaking: ! ror f] Against ! lnformation OR Waive Speaking: p/tn support ! Against
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without registered lobbyist, I am not a lobbyist but received
compensation or sponsorship.
W^a
' representrng: something of value for my appearance
(travel, mealt lodging, etc.),
sponsored by:
This form is part of the public record for this meeting. s-00r (08/10/2021)
The Florida Senate
ql'+lzt APPEARANCE RECORD hoY
Mdttins ott" Bill Number orTopic
/
( .f
Deliver both copies of this form to
C" rY'l tAt?t s{n Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name Ls Phone 86o - Zz 40YL
Address 2>1 S, Adarvr \ St
Street
Email t
(L 6270t
City Stote Zip
Speaking: ! ror I ngainst ! lnformation OR waive speaking' support ! Against
X.
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without
\-/ lam a registered lobbyist, I am not a lobbyist, but received
!l
compensation or sponsorship. I representing: something of value for my appearance
(travel, meals, lodging, etc.),
FL,Rtfa, i ftdtrch'rn
sponsored by:
This form is part of the public record for this meeting. 5-001 (08/10/2021)
The Florida Senate
'7/, APPEARANCE RECORD SB (, )oK
Date Bill Number orTopic
Deliver both copies of this form to
Senate professional staff conducting the meeting
Committee I Amendment Barcode (if applicable)
Name Phone 7cS 3o+ o8 [*o
(^
Address 2A2 S fi'apQ-ot- )+, Email A 5
Street
G.r\,tn h f,q* Dt 3zsot
City State Zip
Speaking: I For I Against ! lnformation OR waive Speak,ng'
S,n Support ! Against
/
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without
compensation or sponsorship. fi I am a registered
representing:
lobbyist, I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
r9k (U+" sponsored by:
This form is part of the public record for this meeting. 5-001 (08/10/2021)
The Florida Senate
APPEARANCE RECORD 58 Bo(
Meeting Date Bill Number orlbpic
Deliver both copies of this form to
Senate professional staff conducting the meeting
Conlmittee Amendment Barcode (if applicable)
Name Phone KSb. 2,\4 -
Address S Harur tl Email
SUeet
^10
'f"tla\.sa< il,30t
Fr.
City State Zip
Speaking: l-] ror ! Against I lnformation OR w;ive Speaking: ffinsuppo,t I ngainst
PLEASE CHECK ONE OFTHE FOLLOWING:
I am appearing without a registered lobbyist I am not a lobbyist, but received
compensation or sponsorship.
m lam
representing: something of value for my appearance
Rzr)r.uont )
(travel, meals, lodging, etc.),
/lovvlo
'' sponsored by:
(tilTlAssocr ahm
This form is part of the public record forthis meeting. s-001 (o8/1o/2o2't)
The Florida Senate
7< t36#
u APPEARANCE RECORD 3i ll NJr.rn''ber or Toi-.ic
*o < 2/o
1.,!.reiin!;
D*livei both cotl;l. of this forrt to
n al, lienate i:rcfe:sional siaff cclclucting the l1leetin.)
ailn rliil.tr.{-' Amcr':iiment Eiar:<-'iJel (if apr;.:lir:ablt)
Adam Basford Phone
850.224.7173
Name
Address 516 N Adams
St ,*u,, abasford@aif.com
Tallahassee FL 32301
:)ttti;: )/in
{-riy
fH
Speakino: ll
t._: I
ilI
For lL-l Aclainst ffi lnformation OR Waive Speaking ln Support ffieg^'nst
PLEASE CHECK ONE OF THE FOLLOWING:
I ;]m appearing without ily'1, I am a registered lobbYist, rT
t.+
am not lobbyist, but received
I a
of value for appearance rny
r:ompensatirin or sponsorshiP. representing: something
(travel, meals, lodging, etc.),
Associated lndustries of Florida sponsored by:
This fornr is part of the public recr:rri for thls meeting. 5-001 lOg1Ai2O21j
The Florida Senate
414123 APPEARANCE RECORD 1 308
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Commerce Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name
George Feijoo Phone
3057207099
Address 108 S Monroe St rmair grfeijoo @flapartners.com
Strcet
Tallahassee FL 32312
Ctty State Zip
Speaking: - - nguintt l_IJ- tnformation OR
lE ror l_I,_ waive speakins, @. tn support lE nguinst
PLEASE CHECK ONE OF THE FOLLOWING:
m lam appearing without
compensation or sponsorship. W- lam a registered lobbyist,
representing: m I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
Rocket Mortgage
This form is part of the public record for this meeting. 5-ool (o8/10/2021)
The Florida Senate
414123 APPEARANCE RECORD 1 308
Meeting Date Bill Number orTopic
Deliver both copies of this form to
Commerce Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name
Gary Guzzo Phone
3057207099
Address 108 S Monroe St Email
gguzzo @f ap art ne rs. co m
I
Street
Tallahassee FL 32312
Ctty State Zip
speaking: ffi-ror. [Fonu,nu ffi tnformation OR waivespeaking: [@ lnsupport ffingainst
PLEASE CHECK ONE OF THE FOLLOWING:
r.r a registered lobbyist,
lam appearing without
compensation or sponsorship.
[f,
'- - representrng: m I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
US Chamber lnstitute for Legal Reform sponsored by:
This form is part of the public record for this meeting. s-001 (o8/1o/2o21\
The Florida Senate
,/-q - z3 APPEARANCE RECORD t3D6
Meeting Date Bill Number orTopic
Deliver both copies of this form to
'tlA) Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name .-b Phone tq t-
Address LfO S ilo,l ea.- S-t-- S",l'z ?ao Email
(K8L4\e kT((-*.,-
Street
fA-/ l^-4 rK5ee-- Fu SLscL-
City State Zip
Speaking: I for ! Against I lnformation OR .Waive Speaking: Support I Against
X.
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without
compensation or sponsorship. H$"::::::;*ffi*f I am not a lobbyist, but received
something ofvalue for my appearance
(travel, meals, lodging, etc.),
sponsored by:
This form is part of the public record for this meeting. s-oo1 (08/10/2021)
'll 4 L3
Meeting Date
The Florida Senate
APPEARANCE RECORD
Deliver both copies of this form to
sgb Bill Number or
@u. A lbncsrtn
Committee
Senate professional staff conducting the meeting
Amendment Barcode (if applicable)
Name
CH &rc** Phone
.-Q 7/
Address
Street
IA@ C,h [Po^^u f,bn- " d )an,*) - ce'<
TxfAe( ktJnL 3>zo \
ary Stote Zip
Speaking: ! Against I lnformation OR waiveSpeaking: ! tnSupport ! Against
{"r
PLEASE CHECK ONE OFTHE FOLLOWING:
lam appearing without
compensation or sponsorship. F lam a registered lobbyist,
representing:
I am not a lobbyist but received
something ofvalue for my appearance
(travel, meals, lodging, etc.),
I
sponsored by'
Tioanm Wlv'L ln **ta e Q.ou glr 9rsu+ n$D V ,As:ru.
This form is part of the public record for this meeting. S-OO1 (O8/1O/2O21)
The Florida Senate
93 APPEARANCE RECORD ,f61 /n kltLta4e,
Bill NumberorTopic
lq- Deliver both copies of this form to
t / ,urtstrl Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name R II vt Phone 8SO-5e4- ?4
Address P o Bor tst" s Email a) ,lrfw
Strcet
T"//"ltssct, F- 3t3o >
City State Zp
Speaking: ffiro, ffi^r, ffi lnformation OR Waive Speaking: ffi: ln Support Against
PLEASE CHECK ONE OFTHE FOLLOWING:
lam appearing without
compensation or sponsorship.
lffi an a registered tobbylst
""* representing: ffi I am not a lobbyist, but recelved
somethlng of value for my appearance
(travel, meals, lodging, etc),
illas4t&.r/ sponsored by:
This form is part of the publlc record for this meeting. 5-001 (O8lIOl2O21)
The Florida Senate
q ["1 >r'>j APPEARANCE RECORD sB TG"/
Meeting Date Bill Number orTopic
Deliver both copies of this form to
( ontrr.^ot c{ + Tw.}syn Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name \u<rrd l+otr ,I
Phone 7Tc-'13 d* 5^637
Address L9 8c F[ eon\\o^ C, -. -\.(- Email o e Co CLt"O
Strcet
'T^t\o\.^< .e pu jl3tz-
City State Zip
Speaking: I ror S Against I lnformation OR Waive Speaking: I tn Support ! ngainst
PLEASE CHECK ONE OFTHE FOLLOWING:
lam appearing without lam a registered lobbyist, I am not a lobbyist, but received
E compensation or sponsorshi p. representing: something ofvalue for my appearance
(travel, meals. lodging, etc.),
sponsored by:
This form is part of the public record for this meeting. S-OOI (08/10/2021)
The Florida Senate
20 APPEARANCE RECORD ab sul.
Meetino Date Bill Number orTopic
Deliver both copies of this form to
a-oworccwlfru"trsr4 Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name Phone 401-b74-A9O
Address tl ol trJibat VNJ Email b@6+*nb,cvta
Street
Avh
City State Zip
Speaking: fl ror fl egainst I Information OR waive Speaking: I ln Support ! Against
PLEASE CHECK ONE OFTHE FOLLOWING:
lam appearing without tana registered lobbyist, I am not a lobbyist, but received
fr representrng:
compensation or sponsorship. / something ofvalue for my appearance
(travel, meals, lodging, etc.),
-Wfoyl*o coal sponsored by:
This form is part of the public record for this meeting. s-oo I (o9/jol2o21)
The Florida Senate
u - t) - &) APPEARANcE REcoRD
Bill Number orTopic
Meeting Date
Deliver both copies of this form to
Senate professional staff conducting the meeting
Col'l\ \
Committee Amendment Barcode (if applicable)
Name Phone +{O -t{rr} --loss
Address \6({ cGP,\s.t ) \ C IE Email \
Street
aty State Zip
Speaking: I ror (egainst I lnformation OR WaiveSpeaking: ! tnSupport ! Against
PLEASE CHECK ONE OF THE FOLLOWING:
I am not a lobbyist, but received
1y't^ appearing without
compensation or sponsorship.
lam a registered lobbyist,
representing: something of value for my appearance
- (travel, meals, lodging, etc.),
sponsored by:
This fonn is part of the public record for this meeting. s-oo l (08/10/2o2't)
The Florida Senate
{n,.
L APPEARANCE RECORD .: L.u
Date Bill Number orTopic
Deliver both copies of this form to
LI Senate professional staff conducting the meeting
Name .-4- Phone
(iz ZL+ - Amendment Barcode (if applicable)
Address /cat ,'u Email /r,Art
I a!.y.
ft
Street
a?
City State Zip
Speaking: ! for ainst ! lnformation OR WaiveSpeaking: ! tnSupport I Against
PLEA HECK ONE OF THE FOLLOWING:
lam appearing without a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship. representing: something of value for my appearance
(travel, meals, lodging, etc.),
,L Z^l,/tr a
sponsored by:
This form is part of the public record for this meeting. s-001 (o8/1o/2o21)
The Florida Senate
,e'{bq/}o>\ APPEARANCE RECORD S
riat"irg Dut. Deliver both copies of this form to
Bill Number orTopic
-T 6U Senate professional staff conducting the meeting
Committee Amendment Barcode (if applicable)
Name USC i) 2 Phone 8lZ - ?se* ?ko
Address '{n
Street
llJouw A,r Email SEr.rr.rt-oAdS't?r v.!,(Vepl?tr/20,A2" c o tlL
O,,J^J {lltralt 6o te7
city
A Stote Zip
Speaking: ! ror ff'Rgainst I lnformation OR WaiveSpeaking: I tnSupport ! Against
PLEASE CHECK ONE OF THE FOLLOWING:
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tam appearing without
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representing:
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something ofvalue for my appearance
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sponsored by:
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L
APPEARANCE RECORD 56ul
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Speaking M4", ! Rsainst I tnformation OR waivespeakins: ffirurro,, I Against
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I am appearing without p! I am a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship. representrng: something ofvalue for my appearance
F loni$4 Pe{ (travel, meals, lodging, etc.),
"olew* sponsored by:
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Speaking: ! ror I Against ! lnformation OR WaiveSpeaking: ln Support I Against
P ECK ONE OF THE FOLLOWING:
lam.appearing without lam a registered lobbyist, I am not a lobbyis! but received
something of value for my appearance
ft olltDq T,'t\Cmtst
compensation or sponsorship. representing:
(travel, meals, lodging, etc.),
sponsored by:
T/o
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PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without I am not a lobbyist, but received
compensation or sponsorship. *;"*tste.redrobbYis! something of value for my appearance
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YVI
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Speaking: d: rO Against I lnformation OR waivespeaking: VtnSupport I Against
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without am a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship.
ffi trepresentrng: something ofvalue for my appearance
Flcrrt"- k*aurrt^+ [ (travel, meals, lodging, etc.),
sponsored by:
t4\ hsscxia\ctn
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Speaking: E ror. ! Against ! lnformation OR WaiveSpeaking: I tnSupport flngainst
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without lam a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship.
[[ something of value for my appearance
if;";,=Ja Udle
(travel, meals, lodging, etc.),
sponsored by:
6lL oc;o*i Ol\
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The Florida Senate
q f+ lzg APPEARANCE RECORD €6 5@4
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J&<sK"nvtll€ f> ?qs.o4
Qty Stote Zip
Speaking: ! ror ! Against ! lnformation OR WaiveSpeaking: f] tnSupport Kgainst
PLEASE CHECK ONE OFTHE FOLLOWING:
6^t^ appearingwithout
ry ! I am a registered lobbyist, I am not a lobbyist, but received
.o.p"nsation or sponsorship. representrnq: something of value for my appearance
(travel, meals, lodging. etc.),
sponsored by:
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./zllpla*c lo
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A2r?/
Zip
Speaking: I ror I ngainst ! Information OR Waive Speaking: I tn Support inst
PLEASE K ONE OF THE FOLLOWING:
lam appearing without lam a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship. representing: something ofvalue for my appearance
(travel, meals, lodging, etc.),
sponsored by:
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04104123 APPEARANCE RECORD SB 564
Meeting Date Bill NumberorTopic
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Commerce and Tourism Senate professional staff conducting the meeting
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Will McKinley Phone
850-681-1980
Name
Address 106 E. College Avenue Suite 1100 Email will@poolemckinley.com
Street
Tallahassee FL 32301
City State Zip
Speaking: [l ror. E- ngainst [[ Information OR Waive Speaklng: fi ln Support @ ngalnst
PLEASE CHECK ONE OF THE FOLLOWING:
tr lam appearing without
compensation or sponsorship.
W representing:
am registered lobbyist,
I a am not lobbyist but received
IE something
I a
of value for my appearance
(travel, mealt lodging, etc.),
Discover Financial Services sponsored by:
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APPEARANCE RECORD 5t" 4
Bill Number orTopic
Meeting Date
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Name
Committee
Phone
y56 - 7z'Z / Jo?z
Amendment Barcode (if applicable)
Address >>7 S. MnnE 5P
Street
Email Arot(? e.AQ 'o(&,
J J
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City State Zip
Speaking: ! ror ! Against ! lnformation OR Waive Speaking support I Against
{'t
PLEASE CHECK ONE OF THE FOLLOWING:
lam appearing without ffi' tam a registered lobbyist, I am not a lobbyist, but received
compensation or sponsorship. /\ representing: something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
FL, Refal | fta,tffiv'
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The Florida Senate
4t412023 1 636
APPEARANCE RECORD
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Angela Bonds Phone
850-999-4100
Name
Address 106 E College Suite 1200 ,n.'r,, abonds@deanmead.com
Sueet
Tallahassee FL 32301
City State Zip
Speaking: ! ror Ei nsainst [fl tnformation OR waive speaking' lZ] ln support ffi nsalnst
PLEASE CHECK ONE OFTHE FOLLOWING:
lam appearing without
compensation or sponsorship.
V I am a registered
representing:
lobbyist,
ln I am not a lobbyist, but received
something of value for my appearance
(travel, meals, lodging, etc.),
Carvana sponsored by:
This form is part of the public record for this meeting. s-001 (08/10/2021)
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