The proposed rulemaking amends forms incorporated by reference, updates form references, and establishes a procedure for certain veterans, the spouses of such veterans, or business entities that have a majority ownership held by such veterans or ...

 

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-6.015Security Requirements

PURPOSE AND EFFECT: The proposed rulemaking amends forms incorporated by reference, updates form references, and establishes a procedure for certain veterans, the spouses of such veterans, or business entities that have a majority ownership held by such veterans or spouses to obtain a waiver of their initial registration fee.

SUMMARY: The proposed rules update department forms incorporated by reference and provide guidance to applicants seeking a military veteran’s waiver of an initial registration fee. These amendments will ensure statutory compliance with ch. 2016-166, Laws of Florida and the Florida Telemarketing Act.

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 update department forms and provide guidance on how military veterans may obtain a fee waiver. There are no increased 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: 501.611(3), (5), 501.626, 570.07(23) FS.

LAW IMPLEMENTED: 501.604, 501.605, 501.607, 501.608, 501.609, 501.611 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, Director, Division of Consumer Services, 2005 Apalachee Parkway, Tallahassee, Florida, 32399-6500, email at “[e-mail]” or by 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 department FDACS-10001, Commercial Telephone Seller Business License Application, Rev. 03/17 01/15, 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.asp?No=Ref-      05126.

(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 department by submitting FDACS-10005, Commercial Telephone Salesperson Individual License Application, Rev. 03/17 08/13, 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 https://www.flrules.org/gateway/reference.asp?No=Ref-     03520. Salespersons may also apply or renew their license online at: www.FreshFromFlorida.com.

(b) The interim operating authority shall be effective until such time as the dDepartment notifies the applicant of denial or approval of license. In no event shall the interim operating authority exceed a period of 90 days.

(c) No change.

(3)  An honorably discharged veteran, the spouse of such a veteran, or a business entity that has a majority ownership held by such a veteran or spouse requesting a waiver of the initial registration fee pursuant to Section 501.605(5)(b), F.S., shall complete FDACS-10991, Military Veteran Fee Waiver Request, 10/16, incorporated by reference in Rule 5J-26.001, F.A.C.  An applicant requesting a fee waiver shall submit a completed Military Veteran Fee Waiver Request and all required supporting documentation at the time the applicant submits the Commercial Telephone Seller Business License Application referenced in subsection (1) or the Commercial Telephone Salesperson Individual License Application referenced in subsection (2).

(4)(3) The licensee shall notify the department 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 FDACS-10006, Florida Telemarketing Act Material Change Form, Rev. 03/17 07/13, 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: https://www.flrules.org/gateway/reference.asp?No=Ref-    03521. FDACS-10006 may also be completed and submitted online at: www.800helpfla.com/registeronline.

(5)(4) In the event that a salesperson licensee changes his/her company affiliation, the salesperson shall utilize FDACS-10006, Florida Telemarketing Act Material Change Form, Rev. 03/17 07/13 incorporated in subsection (4)(3), above, and pay the prescribed $10 fee. Such change in status shall be submitted to the department within 10 days of the change.

(6)(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 FDACS-10005, Commerial Telephone Salesperson Individual License Application, Rev. 03/17 08/13, incorporated in subsection (2), above, for each commercial telephone seller with which the salesperson intends to affiliate.

Rulemaking Authority 501.626, 570.07(23) 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, 1-19-14, 4-16-15,              .

 

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 department the executed Affidavit of Exemption included in FDACS-10001, Rev. 03/17 08/13, 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.asp?No=Ref-03519.

(2) Any business entity claiming to be exempt under Section 501.604(22), F.S., shall furnish the dDepartment copies of occupational licenses, lease agreements, or tax returns which verify the entity has been operating a retail establishment at least one year under the same name as that used in connection with telemarketing; and

(a) No change.

(b) Shall furnish the dDepartment copies of sales records, customer lists, purchase orders, general ledger entries, journals, or other documents which verify that a majority of the seller’s business involves the buyer obtaining such products or services at the seller’s location. For the purposes of this rule, a “majority of the seller’s business” shall mean that at least 51% of each of the following occurs at the seller’s business establishment:

1. through 3.  No change.

Rulemaking Authority 501.626, 570.07(23) FS. Law Implemented 501.604, 501.608 FS. History–New 6-26-94, Amended 2-11-98, 1-20-03, 3-29-12, 1-19-14,              .

 

5J-6.015 Security Requirements.

(1) If filing a bond, letter of credit, or assignment of certificate of deposit pursuant to Section 501.611, F.S., the applicant shall use the applicable forms included in FDACS-10001, Commercial Telephone Seller Business License Application, Rev. 03/17 01/15, incorporated by reference in Rule 5J-6.005, F.A.C.

(2) Claims against a bond, letter of credit, or certificate of deposit shall be submitted on FDACS-10984, Telemarketing Claim Affidavit, Rev. 03/17 12/14, 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.asp?No=Ref-               05127.

Rulemaking Authority 501.611(3), (5), 501.626, 570.07(23) FS. Law Implemented 501.611 FS. History–New 4-16-15, Amended        .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Amy Topol, 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: March 22, 2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 18, 2016