501.059 Telephone solicitation.— 

(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. 

(g) “Prior express written consent” means a written agreement that: 

1. Bears the signature of the called party; 
2. 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; 
3. Includes the telephone number to which the signatory authorizes a telephonic sales call to  be delivered; and 
4. Includes a clear and conspicuous disclosure informing the called party that: a. 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 b. 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.

(h) “Signature” includes an electronic or digital signature, to the extent that such form of  signature is recognized as a valid signature under applicable federal law or state contract law.

(i) “Telephone solicitor” means 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. 

(j) “Telephonic sales call” means 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. 

(k) “Unsolicited telephonic sales call” means a telephonic sales call other than a call made: 1. In response to an express request of the person called; 

2. 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; 
3. To a person with whom the telephone solicitor has a prior or existing business relationship;  or 
4. By a newspaper publisher or his or her agent or employee in connection with his or her  business. 

(l) “Voicemail transmission” means technologies that deliver a voice message directly to a  voicemail application, service, or device. 

(2) Any telephone solicitor who makes an unsolicited telephonic sales call to a residential,  mobile, or telephonic paging device telephone number shall identify himself or herself by his or her  true first and last names and the business on whose behalf he or she is soliciting immediately upon  making contact by telephone with the person who is the object of the telephone solicitation. 

(3)(a) If any residential, mobile, or telephonic paging device telephone subscriber notifies the  department of his or her desire to be placed on a “no sales solicitation calls” listing indicating that  the subscriber does not wish to receive unsolicited telephonic sales calls, the department shall  place the subscriber on that listing. 

(b) The department shall update its “no sales solicitation calls” listing upon receipt of initial  consumer subscriptions or renewals and provide this listing for a fee to telephone solicitors upon  request. 

(c) All fees imposed pursuant to this section shall be deposited in the General Inspection Trust Fund for the administration of this section. 

(d) If the Federal Trade Commission, pursuant to 15 U.S.C. s. 6102(a), establishes a national  database that lists the telephone numbers of subscribers who object to receiving telephone 

solicitations, the department shall include those listings from the national database which relate to  Florida in the listing established under this section. 

(4) No telephone solicitor shall make or cause to be made any unsolicited telephonic sales call  to any residential, mobile, or telephonic paging device telephone number if the number for that  telephone appears in the then-current quarterly listing published by the department. Any  telephone solicitor or person who offers for sale any consumer information which includes  residential, mobile, or telephonic paging device telephone numbers, except directory assistance  and telephone directories sold by telephone companies and organizations exempt under s.  501(c)(3) or (6) of the Internal Revenue Code, shall screen and exclude those numbers which  appear on the division’s then-current “no sales solicitation calls” list. This subsection does not  apply to any person licensed pursuant to chapter 475 who calls an actual or prospective seller or  lessor of real property when such call is made in response to a yard sign or other form of  advertisement placed by the seller or lessor. 

(5) A telephone solicitor or other person may not initiate an outbound telephone call, text  message, or voicemail transmission to a consumer, business, or donor or potential donor who has  previously communicated to the telephone solicitor or other person that he or she does not wish to  receive an outbound telephone call, text message, or voicemail transmission: 

(a) Made by or on behalf of the seller whose goods or services are being offered; or (b) Made on behalf of a charitable organization for which a charitable contribution is being  solicited. 

(6)(a) A contract made pursuant to a telephonic sales call is not valid and enforceable against a  consumer unless made in compliance with this subsection. 

(b) A contract made pursuant to a telephonic sales call: 

1. Shall be reduced to writing and signed by the consumer. 
2. Shall comply with all other applicable laws and rules. 
3. Shall match the description of goods or services as principally used in the telephone  solicitations. 
4. Shall contain the name, address, and telephone number of the seller, the total price of the  contract, and a detailed description of the goods or services being sold. 
5. Shall contain, in bold, conspicuous type, immediately preceding the signature, the following  statement: 

“You are not obligated to pay any money unless you sign this contract and return it to the seller.” 6. May not exclude from its terms any oral or written representations made by the telephone  solicitor to the consumer in connection with the transaction. 

(c) The provisions of this subsection do not apply to contractual sales regulated under other  sections of the Florida Statutes, or to the sale of financial services, security sales, or sales 

transacted by companies or their wholly owned subsidiaries or agents, which companies are  regulated by chapter 364, or to the sale of cable television services to the duly franchised cable  television operator’s existing subscribers within that cable television operator’s franchise area, or  to any sales where no prior payment is made to the merchant and an invoice accompanies the  goods or services allowing the consumer 7 days to cancel or return without obligation for any  payment. 

(7)(a) A merchant who engages a telephone solicitor to make or cause to be made a telephonic  sales call shall not make or submit any charge to the consumer’s credit card account or make or  cause to be made any electronic transfer of funds until after the merchant receives from the  consumer a copy of the contract, signed by the purchaser, which complies with this section. 

(b) A merchant who conducts a credit card account transaction pursuant to this section shall be  subject to the provisions of s. 817.62. 

(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: 
4. The name, address, and telephone number of the merchant; 
5. A description of the goods or services being sold; and 
6. Any limitations or restrictions that apply to the offer; or 
7. In which the merchant is a bona fide charitable organization or a newspaper as defined in  chapter 50. 

(8)(a) 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. 

(b) It shall be unlawful for any person who makes a telephonic sales call or causes a telephonic  sales call to be made to fail to transmit or cause not to be transmitted the originating telephone  number and, when made available by the telephone solicitor’s carrier, the name of the telephone  solicitor to any caller identification service in use by a recipient of a telephonic sales call. 

However, it is not a violation to substitute, for the name and telephone number used in or billed  for making the call, the name of the seller on behalf of which a telephonic sales call is placed and  the seller’s customer service telephone number, which is answered during regular business hours. If  a telephone number is made available through a caller identification service as a result of a  telephonic sales call, the solicitor must ensure that telephone number is capable of receiving  telephone calls and must connect the original call recipient, upon calling such number, to the  telephone solicitor or to the seller on behalf of which a telephonic sales call was placed. For  purposes of this section, the term “caller identification service” means a service that allows a  telephone subscriber to have the telephone number and, where available, the name of the calling  party transmitted contemporaneously with the telephone call and displayed on a device in or  connected to the subscriber’s telephone. 

(c) It shall be unlawful for any person who makes a telephonic sales call or causes a telephonic  sales call to be made to intentionally alter the voice of the caller in an attempt to disguise or  conceal the identity of the caller in order to defraud, confuse, or financially or otherwise injure  the recipient of a telephonic sales call or in order to obtain personal information from the recipient  of a telephonic sales call which may be used in a fraudulent or unlawful manner. 

(d) There is a rebuttable presumption that a telephonic sales call made to any area code in this  state is made to a Florida resident or to a person in this state at the time of the call. (9)(a) The department shall investigate any complaints received concerning violations of this  section. If, after investigating a complaint, the department finds that there has been a violation of  this section, the department or the Department of Legal Affairs may bring an action to impose a  civil penalty and to seek other relief, including injunctive relief, as the court deems appropriate  against the telephone solicitor. The civil penalty shall be in the Class IV category pursuant to  s. 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). 

(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. 

History.—s. 1, ch. 87-253; s. 1, ch. 90-143; ss. 3, 5, ch. 91-237; s. 1, ch. 92-186; s. 59, ch. 92-291; s. 3, ch. 94- 298; s. 616, ch. 97-103; s. 4, ch. 2003-179; s. 4, ch. 2006-165; s. 20, ch. 2012-67; s. 16, ch. 2013-251; s. 1, ch. 2014- 75; s. 7, ch. 2014-147; s. 41, ch. 2014-150; s. 26, ch. 2017-85; s. 1, ch. 2018-23; s. 9, ch. 2018-84; s. 1, ch. 2021- 185.