(1) As used in this section, the term:(a) “Called party” means a person who is the regular user of the telephone number that receives a telephonic sales call.
(b) “Consumer” means an actual or prospective purchaser, lessee, or recipient of consumer goods or services.
(c) “Consumer goods or services” means real property or tangible or intangible personal property that is normally used for personal, family, or household purposes, including, but not limited to, any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed, as well as cemetery lots and timeshare estates, and any services related to such property.
(d) “Department” means the Department of Agriculture and Consumer Services.
(e) “Doing business in this state” means businesses that conduct telephonic sales calls from a location in Florida or from other states or nations to consumers located in Florida.
(f) “Merchant” means a person who, directly or indirectly, offers or makes available to consumers any consumer goods or services.
(c) The provisions of this subsection do not apply to a transaction:1. Made in accordance with prior negotiations in the course of a visit by the consumer to a merchant operating a retail business establishment which has a fixed permanent location and where consumer goods are displayed or offered for sale on a continuing basis;
2. In which the consumer may obtain a full refund for the return of undamaged and unused goods or a cancellation of services notice to the seller within 7 days after receipt by the consumer, and the seller will process the refund within 30 days after receipt of the returned merchandise by the consumer;
3. In which the consumer purchases goods or services pursuant to an examination of a television, radio, or print advertisement or a sample, brochure, or catalog of the merchant that contains:a. The name, address, and telephone number of the merchant;
b. A description of the goods or services being sold; and
c. Any limitations or restrictions that apply to the offer; or
4. In which the merchant is a bona fide charitable organization or a newspaper as defined in chapter 50.
(8)570.971 for each violation and shall be deposited in the General Inspection Trust Fund if the action or proceeding was brought by the department, or the Legal Affairs Revolving Trust Fund if the action or proceeding was brought by the Department of Legal Affairs. This civil penalty may be recovered in any action brought under this part by the department, or the department may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The department or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation. (b) The department may, as an alternative to the civil penalties provided in paragraph (a), impose an administrative fine in the Class III category pursuant to s. 570.971 for each act or omission that constitutes a violation of this section. An administrative proceeding that could result in the entry of an order imposing an administrative penalty must be conducted pursuant to chapter 120. (10)(a) A called party who is aggrieved by a violation of this section may bring an action to:1. Enjoin such violation.
2. Recover actual damages or $500, whichever is greater.
(b) If the court finds that the defendant willfully or knowingly violated this section or rules adopted pursuant to this section, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount available under paragraph (a).
1(c) Before the commencement of any action for damages under this section for text message solicitations, the called party must notify the telephone solicitor that the called party does not wish to receive text messages from the telephone solicitor by replying “STOP” to the number from which the called party received text messages from the telephone solicitor. Within 15 days after receipt of such notice, the telephone solicitor shall cease sending text message solicitations to the called party and may not send text messages to the called party thereafter, except that the telephone solicitor may send the called party a text message to confirm receipt of the notice. The called party may bring an action under this section only if the called party does not consent to receive text messages from the telephone solicitor and the telephone solicitor continues to send text messages to the called party 15 days after the called party provided notice to the telephone solicitor to cease such text messages. (11)(a) In any civil litigation resulting from a transaction involving a violation of this section, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his or her reasonable attorney’s fees and costs from the nonprevailing party.
(b) The attorney for the prevailing party shall submit a sworn affidavit of his or her time spent on the case and his or her costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
(c) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
(d) Any award of attorney’s fees or costs shall become a part of the judgment and subject to execution as the law allows.
(e) In any civil litigation initiated by the department or the Department of Legal Affairs, the court may award to the prevailing party reasonable attorney’s fees and costs if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or if the court finds bad faith on the part of the losing party.
(12) Telecommunications companies shall inform their customers of the provisions of this section. The notification may be made by:(a) Annual inserts in the billing statements mailed to customers; and
(b) Conspicuous publication of the notice in the consumer information pages of the local telephone directories.
(13) The department may adopt rules to implement this section.