The purpose of this rulemaking is to amend the forms incorporated by reference in Rule 5J-6.005, F.A.C., to implement statutory changes and general cleanup; to remove the duplicative form incorporation in Rule 5J-6.014, F.A.C.; and to make ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

5J-6.005Licensing Requirement, Commercial Telephone Seller, Salesperson

5J-6.013Exemption

5J-6.014Denials

PURPOSE AND EFFECT: The purpose of this rulemaking is to amend the forms incorporated by reference in Rule 5J-6.005, F.A.C., to implement statutory changes and general cleanup; to remove the duplicative form incorporation in Rule 5J-6.014, F.A.C.; and to make department criteria for denial of telemarketing salesperson’s application consistent with the guidelines provided by the Rules for Executive Clemency by amending the timeframe an applicant can be denied for certain criminal activity.

SUMMARY: The proposed rule updates FDACS-10001 Commercial Telephone Seller Business License Application, FDACS-10005 Commercial Telephone Salesperson Individual License Application, and FDACS-10006 Florida Telemarketing Act Material Change Form to ensure statutory compliance and to make the registration process more efficient; and amends the timeframe an applicant can be denied for certain criminal activity when registering as a Commercial Telephone Seller Business or a Commercial Telephone Salesperson Individual.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed revisions adopt a newly revised form, which was revised to conform to recent statutory changes, correct technical errors, and amend the criminal history activity timeframe. There are no regulatory costs associated with these revisions. Additionally, no interested party submitted additional information regarding the economic impact.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 501.626 FS.

LAW IMPLEMENTED: 501.604, 501.605, 501.607, 501.608, 501.609, 501.612 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Amy Topol, Assistant Director, Division of Consumer Services, Terry L. Rhodes Building, 2005 Apalachee Parkway, Tallahassee, Florida 32399-6500. Phone [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5J-6.005 Licensing Requirement, Commercial Telephone Seller, Salesperson.

(1) No person may act as a commercial telephone seller or salesperson unless licensed by the Department of Agriculture and Consumer Services. All applicants for a license shall submit to the dDepartment in writing on DACS Form FDACS-10001, Commercial Telephone Seller Business License Application Packet, Rev. 07/13 07/11, hereby incorporated by reference, along with the required non-refundable fee. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Telemarketing, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at http://www.flrules.org/Gateway/reference http://www.flrules.org/Gateway/reference.asp?No=Ref-01057.

(2)(a) In the event a licensed commercial telephone seller hires an employee to function as a salesperson, but the employee does not possess a current commercial telephone salesperson license, the licensed commercial telephone seller may obtain interim operating authority for the unlicensed salesperson from the dDepartment by submitting DACS Form FDACS-10005, Commercial Telephone Salesperson Individual License Application Packet, Rev. 07/13 07/11, including the Statement of Verification, hereby incorporated by reference, along with a written request that the applicant be granted interim operating authority. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Telemarketing, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at http://www.flrules.org/Gateway/reference http://www.flrules.org/Gateway/reference.asp?No=Ref-01058. Salespersons may also apply or renew their license online at: www.800helpfla.com/registeronline.

(2)(b) through (c) No change.

(3) The licensee shall notify the dDepartment of all material changes in the information submitted in either the original application for licensure, or any application for renewal of the license within 10 days of the material change. The licensee shall utilize DACS Form FDACS-10006, Florida Telemarketing Act Material Change Form, Rev. 07/13 07/11, hereby incorporated by reference. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Telemarketing, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at: http://www.flrules.org/Gateway/reference http://www.flrules.org/Gateway/reference.asp?No=Ref-01059. DACS Form FDACS-10006 may also be completed and submitted online at www.800helpfla.com/registeronline.

(4) In the event that a salesperson licensee changes his/her company affiliation, the salesperson shall utilize DACS Form FDACS-10006, Florida Telemarketing Act Material Change Form, Rev. 07/13 07/11 incorporated in subsection (3), above, and pay the prescribed $10 fee. Such change in status shall be submitted to the dDepartment within 10 days of the change.

(5) In the event that a salesperson intends to affiliate with more than one company, the salesperson shall execute a separate Statement of Verification, as found in DACS Form FDACS-10005, Commercial Telephone Salesperson Individual License Application Packet, Rev. 07/13 07/11, incorporated in subsection (2), above, for each commercial telephone seller with which the salesperson intends to affiliate.

Rulemaking Authority 501.605, 501.626 FS. Law Implemented 501.605, 501.607, 501.608, 501.609 FS. History–New 4-12-92, Amended 2-15-93, 6-26-94, 5-15-95, 2-11-98, 1-20-03, 3-29-12,_________.

 

5J-6.013 Exemption.

(1) Any business entity claiming an exemption from the commercial telephone seller laws pursuant to Section 501.608(1)(b), F.S., shall, prior to offering its services, file with the dDepartment the executed Affidavit of Exemption included in FDACS-10001 DACS Form 10001, Rev. 07/13 07/11, hereby incorporated by reference in Rule 5J-6.005, F.A.C. Copies of this form may be obtained from the Department of Agriculture and Consumer Services, Division of Consumer Services, Attention: Telemarketing, 2005 Apalachee Parkway, Terry L. Rhodes Bldg., Tallahassee, Florida 32399-6500, or accessed online at: http://www.flrules.org/Gateway/reference http://www.flrules.org/Gateway/reference.asp?No=Ref-01057.

(2) No change.

Rulemaking Authority 501.626 FS. Law Implemented 501.604, 501.608 FS. History–New 6-26-94, Amended 2-11-98, 1-20-03, 3-29-12,__________.

 

5J-6.014 Denials.

The purpose of this rule part is to implement Section 501.612(1), Florida Statutes. The department shall not issue an initial or renewal license to any person applying for a commercial telephone seller or salesperson license if the department finds that the applicant, or any of its owners, operators, officers, directors, partners, or other individuals engaged in the management activities of the applicant, has:

(1) Been convicted or found guilty of, or entered a plea of guilty or nolo contendere to, any misdemeanor crime within the last three (3) 5 years that involves racketeering or any offense involving fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, or any other crime involving moral turpitude.

(2) Been convicted or found guilty of, or entered a plea of guilty or nolo contendere to, any violation of Section 832.05(2) or Section 832.05(4), F.S. within the last three (3) years and and has not successfully completed or satisfied all the conditions and/or terms of his or her sentencing, including any probation or parole.

(3)(2) Been convicted or found guilty of, or entered a plea of guilty or nolo contendere to, any felony crime within the last five (5) 7 years that involves racketeering or any offense involving fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property.

(4) Been convicted or found guilty of, or entered a plea of guilty or nolo contendere to, any felony crime within the last seven (7) years that involves racketeering or any offense involving robbery, carjacking, attempted carjacking, home invasion, or misappropriation of moneys by commisioners to make sales.

(5)(3) Been convicted or found guilty of, or entered a plea of guilty or nolo contendere to any capital offense within the last 10 years.

(6)(4) Been convicted or found guilty of, or entered a plea of guilty or nolo contendere to, any crime that involves racketeering, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, or involving moral turpitude, and who has not successfully completed or satisfied all the conditions and/or terms of his or her sentencing, including any probation or parole.

(7)(5) Had entered against him or her, or any business for which he or she has been affiliated as an owner, operator, officer, director, partner, or worked in the management activities, an injunction, a temporary restraining order, or a final judgment or order, including a stipulated judgment or order, an assurance of voluntary compliance, or any similar document, in any civil or administrative action involving racketeering, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, or the use of any untrue or misleading representation in an attempt to sell or dispose of real or personal property or the use of any unfair, unlawful, or deceptive trade practice and who has not satisfied all the conditions and/or terms of his or her judgment or order.

Rulemaking Authority 501.626 FS. Law Implemented 501.612 FS. History–New 1-20-03, Amended_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Amy Topol, Assistant Director, Division of Consumer Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 26, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 27, 2013