F.S. 1987 FOOD PRODUCTS Ch.500

(d) If any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight , or reduce its quality or strength or make it ap­pear better or of greater value than it is.

(3) If it is confectionery and it bears or contains any alcohol or non nutritive article or substance except harm­less coloring , harmless flavoring , harmless resinous glaze not in excess of 0.4 percent, harmless natural gum, and pectin ; however, this subsection shall not ap­ply to any chewing gum by reason of its containing harmless nonnutritive masticatory substances; to any confectionery by reason of its containing less than 0.5 percent by volume of alcohol derived solely from the use of flavoring extracts ; or to any candy by reason of its containing more than 0.5 percent but less than 5 percent by volume of alcohol derived from any source, if such candy:

(a) Is not sold to persons under 21 years of age; (b) Is labeled with the following statement written in

conspicuous print on the principal display panel of the package, or if sold in individual units, in a conspicuous manner adjacent to the product: "This product may not be sold to anyone under 21 years of age";

(c) Is not sold in a form containing liquid alcohol so that it constitutes an alcoholic beverage under the Bev­erage Law; and

(d) Is distributed directly to Florida consumers only from permanent facilities owned or controlled by the product 's manufacturer, or from a vendor licensed pur­suant to chapter 565, or from a vendor approved by the Department of Business Regulation consistent with rules adopted by such department establishing stand­ards for such vendors.

(4) If it is or bears or contains any color additive which is unsafe within the meaning of the federal act or s. 500.13.

Hlstory.- s. 10, ch. 19656, 1939; CGL 1940 Supp. 41 51(678); s. 2, ch. 63- 259; s. 1, ch . 87-269. ct.- s. 865.07 Adulterated syrup.

500.11 Food deemed misbranded.-(1) A food is deemed to be misbranded: (a) If its labeling is false or misleading in any particu­

lar; however, corn meal shall not be considered mis­branded because of its being labeled "Water Ground ," where such corn meal so labeled has been ground on rocks having a diameter of not less than 42 inches and which revolve during the grinding of same at a speed not greater than 186 revolutions per minute.

(b) If it is offered for sale under the name of another food .

(c) If it is an imitation of another food , unless its label bears, in type of uniform size and prominence, the words "imitation" and, immediately thereafter, the name of the food imitated.

(d) If its container is so made, formed, or filled as to be misleading .

(e) If in package form , unless it bears a label contain­ing :

1. The name and place of business of the manufac­turer, packer, or distributor;

2. An accurate statement of the quantity of the con­tents in terms of weight, measure, or numerical count ; however, under this subparagraph reasonable varia-

tions shall be permitted , and exemptions as to small packages shall be established, by regulations pre­scribed by the department.

(f) If any word , statement, or other information re­quired by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

(g) If it purports to be or is represented as a food for which a definition and standard of identity has been pre­scribed by rules as provided by s. 500.09, unless:

1. It conforms to such definition and standard; and 2. Its label bears the name of the food specified in

the definition and standard and, insofar as may be re­quired by such rules , the common names of optional in­gredients (other than spices, flavoring , and coloring) present in such food.

(h) If it purports to be or is represented as: 1. A food for which a standard of quality has been

prescribed by rules as provided by s. 500.09 and its quality falls below such standard unless its label bears, in such manner and form as such rules specify, a state­ment that it falls below such standard; or

2. A food for which a standard or standards of fill of container have been prescribed by rule as provided by s. 500.09 and it falls below the standard of fill of con­tainer applicable thereto, unless its label bears, in such manner and form as such rules specify, a statement that it falls below such standard .

(i) If it is not subject to the provisions of subsection (7) , unless its label bears :

1. The common or usual name of the food , if any there be; and

2. In case it is fabricated from two or more ingredi-ents, the common or usual name of each such ingredi­ent; except that spices, flavorings, and colorings, other than those sold as such , may be designated as spices, flavorings , and colorings, without naming each; provid­ed , that , to the extent that compliance with the require­ments of this paragraph is impractical or results in de­ception or unfair competition, exemptions shall be es­tablished by regulations promulgated by the depart­ment with the advice and consent of the state chemist.

(j) If it purports to be or is represented for special dietary uses , unless its label bears such information con­cerning its vitamin , mineral , and other dietary properties as the department determines to be, and by regulations prescribes as, necessary in order to fully inform purchas­ers as to its value for such uses.

(k) If it bears or contains any artificial flavoring , artifi­cial coloring , or chemical preservative, unless it bears la­beling stating that fact; provided that , to the extent that compliance with the requirements of this paragraph is impracticable, exemptions shall be established by regu­lations promulgated by the department with the advice and consent of the state chemist.

(I) If it is a fresh fruit or vegetable or a package of honey or bee pollen not labeled in accordance with the provisions of s. 504.012 or not otherwise labeled in such

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a manner as to indicate to an ultimate purchaser the country of origin .

(2) When soft drinks are offered for sale in sanitary returnable or nonreturnable containers, sealed or se­curely capped, impervious to contamination by leakage or contact with foreign substances, and when the trade name, net content , and declaration of artificial flavor or color , when used, appear on the principal display panel , which may be the cap, crown , lid , or side of the container of such drinks, and when the manufacturer, at least once every year and oftener when required by the de­partment, files with the department an affidavit stating the trade names of such drinks manufactured by him and the territorial limits in the state within which such drinks are offered for sale, the provisions of this chapter requiring additional labeling and branding of such drinks do not apply. However, nothing in this subsection shall in any manner otherwise restrict , modify, or impair the jurisdiction and authori ty of the department over such drinks as food products and the conditions pertaining to the manufacture of same.

History.-s. 11,ch. 19656, 1939; CGL 1940Supp. 4151(674); s. 1, ch. 26723, 1951 : s. 1, ch . 28269, 1953: s. 30, ch. 63-572: s. 1, ch. 69-26: ss. 14, 35, ch. 69-106; s. 1, ch. 80-76; s. 1, ch. 83-1 4; s. 7, ch. 87-388. cf.-s. 601 .99 Misbranding ci trus fruit packages or containers.

500.115 Advertisement of food deemed false.-An advertisement of a food is deemed to be false if it is false or misleading in any particular.

History.-s. 19, ch. 19656, 1939: CGL 1940 Supp. 4151(682): ss. 19, 35, ch. 69- 106: s. 424, ch. 77-147: s. 13, ch. 82-225.

Note.-Former s. 500.19.

1500.12 Food permits.-(1) No person , firm , or corporation not operating un­

der continuous inspection of a state or federal agency, except persons subject to the provisions of subsection (2) , may engage in the business of manufacturing , pro­cessing , packing, holding , or selling at retail any food in any manner without first obtaining a food permit from the department. The permit shall be issued upon appli­cation to the department on forms furnished by the de­partment and upon such conditions prescribed by regu­lations of the department governing the manufacturing , processing , packing , holding , or selling at retail of food as may be necessary to protect the public health and promote public welfare by protecting the purchasing public from injury by merchandising deceit. Such permit shall be renewed annually on or before January 1.

(2) Any person selling or distributing for sale any candy containing more than 0.5 percent but less than 5 percent by volume of alcohol shall apply for a food per­mit pursuant to subsection (1) and disclose to the de­partment any intent to sell or distribute such candy. If the person already holds a permit , written disclosure of intent to sell or distribute such candy shall be provided to the department and the person shall comply with all ru les promulgated by the department relating to such candy. If the product is sold by a person licensed under chapter 565, the Department of Business Regulation shall inspect, sample, and verify compliance with the provisions of this chapter. The Department of Agricul­ture and Consumer Services and the Department of Business Regulation shall enter into a cooperative agreement relative to the enforcement of this chapter,

including delegation of the provisions of ss. 500.173-500.175 relating to seizure and condemnation of adulter­ated or misbranded products.

(3) The department may suspend immediately upon notice any permit issued under authority of this section if it is found that any of the conditions of the permit have been violated. The holder of a permit so suspended may at any time apply for the reinstatement of such permit; and the department shall , immediately after prompt hearing and an inspection of the establishment, rein­state such permit if it is found that adequate measures have been taken to comply with and maintain the condi­tions of the permit , as originally issued, or as amended .

(4) The state chemist or assistant state chemist or any officer or inspector duly designated by the depart­ment shall have access to any factory or establishment the operator of which holds a permit from the depart­ment, for the purpose of ascertaining whether or not the conditions of the permit are being complied with ; and denial of access for such inspection shall be ground for suspension of the permit until such access is freely giv­en by the operator.

(5) The department shall promulgate rules exempt­ing from any labeling requirement of this chapter:

(a) Small open containers of fresh fruits and fresh vegetables; and

(b) Food which is, in accordance with the practice of the trade, to be processed, labeled , or repacked in substantial quantities at establishments other than those where originally processed or packed, on condi­tion that such food is not adulterated or misbranded un­der the provisions of this chapter upon removal from such processing , labeling , or repacking establishment.

History.-s. 12, ch. 19656, 1939: CGL 1940 Supp. 4151(675): ss. 14, 35, ch . 69-106; s. 3, ch. 70-994; s. 3, ch. 76-168; s. 1, ch. 77-457: ss. 2, 3, ch . 81 -318; ss. 11 , 39, ch. 82-225: ss. 1, 3, 4, ch . 83- 8: s. 2, ch. 87-269: s. 8, ch. 87- 388.

1Note.-Expires October 1, 1993, pursuant to s. 4, ch . 83- 8, and is scheduled for review pursuant to s. 11 .61 in advance of that date.

1500.121 Disciplinary procedures.-(1) In addition to the suspension procedures provid­

ed in s. 500.12, the department may impose a fine not exceeding $5,000 against any retail food store or food manufacturer, processor, packer, or holder, which fine, when imposed and paid , shall be deposited by the de­partment into the General Inspection Trust Fund. The department may revoke or suspend the permit of any such retail food store or food manufacturer, processor, packer, or holder when it is satisfied that the retail food store or food manufacturer, processor, packer, or holder has :

(a) Violated any of the provisions of this chapter . (b) Violated or aided or abetted in the violation of

any law of this state governing or applicable to retail food stores or food manufacturers, processors, packers, or holders or any lawful rules or regulations of the de­partment.

(c) Knowingly committed , or been a party to, any material fraud , misrepresentation , conspiracy, collusion, trick, scheme, or device whereby any other person , law­fully relying upon the word, representation , or conduct of a retail food store or food manufacturer, processor, packer, or holder, acts to his injury or damage.

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F.S. 1987 FOOD PRODUCTS Ch.500

(d) Committed any act or conduct of the same or dif­ferent character of that enumerated which constitutes fraudulent or dishonest dealing.

(2) Whenever any administrative order has been made and entered by the department imposing a fine pursuant to this section, such order shall specify the amount of fine and time limit for payment thereof, not ex­ceeding 15 days, and, upon failure of the retail food store or food manufacturer, processor, packer, or holder involved to pay the fine within that time, the permit of such retail food store or food manufacturer, processor, packer, or holder shall be subject to suspension .

(3) In any court proceeding relating to administrative orders, the burden of proving violations of this chapter and of upholding administrative orders shall be with the department.

History.- s. 1, ch. 72-73; s. 6, ch . 78-95; s. 2, ch . 81 -318; ss. 12, 39, ch. 82-225; ss . 2, 3, 4, ch. 83-8; s. 9, ch. 87-388.

1Note.-Expires October 1, 1993, pursuant to s. 4, ch . 83-8, and is scheduled for review pursuant to s. 11 .61 in advance of that date.

500.13 Addition of poisonous or deleterious sub­stance to food.-

(1 ) Any added poisonous or deleterious substance, any food additive, any pesticide chemical in or on a raw agricultural commodity, or any color additive, shall, with respect to any particular use or intended use , be deemed unsafe for the purpose of application of s. 500.1 0(1 )(b) with respect to any food , unless there is in effect a regulation pursuant to subsection (2) limiting the quantity of such substance, and the use or intended use of such substance conform to the terms prescribed by such regulation . While such regulation relating to such substance is in effect , a food shall not, by reason of bearing or containing such substance in accordance with the regulation, be considered adulterated within the meaning of s. 500.10(1)(a).

(2) The department, whenever public interest in the state so requires , is authorized to adopt, amend , or re­peal regulations whether or not in accordance with regu­lations promulgated under the federal act , prescribing therein tolerances for any added poisonous or deleteri­ous substances, for food additives , for pesticide chemi­cals in or on raw agricultural commodities or for color ad­ditives, including , but not limited to , zero tolerances, and exemptions from tolerances in the case of pesticide chemicals in or on raw agricultural commodities , and prescribing the conditions under which a food additive or color additive may be safely used and exemptions where such food additive or color additive is to be used solely for investigational or experimental purposes, upon his own motion or upon the petition of any interested party requesting that such a regulation be established , and it shall be incumbent upon such petitioner to estab­lish by data submitted to the department that a necessi­ty exists for such regulation, and that its effect will not be detrimental to the public health . If the data furnished by the petitioner is not sufficient to allow the department to determine whether such regulation should be promul­gated, the department may require additional data to be submitted and a failure to comply with the request shall be sufficient grounds to deny the request. In adopting , amending or repealing regulations relating to such sub­stances the department shall consider among other rei-

evant factors, the following which the petitioner, if any, shall furnish :

(a) The name and all pertinent information concern­ing such substance including where available, its chemi­cal identity and composition , a statement of the condi­tions of the proposed use, including directions, recom­mendations and suggestions and including specimens of proposed labeling, all relevant data bearing on the physical or other technical effect and the quantity re­quired to produce such effect.

(b) The probable composition of, or other relevant exposure from the article and of any substance formed in or on a food , resulting from the use of such substance.

(c) The probable consumption of such substance in the diet of man and animals taking into account any chemically or pharmacologically related substance in such diet.

(d) Safety factors which , in the opinion of experts qualified by scientific training and experience to evalu­ate the safety of such substances for the use or uses for which they are proposed to be used, are generally rec­ognized as appropriate for the use of animal experimen­tation data.

(e) The availability of any needed practicable meth­ods of analysis for determining the identity and quantity of such substance in or on an article, any substance formed in or on such article because of the use of such substance, and the pure substance and all intermedi­ates and impurities.

(f) Facts supporting a contention that the proposed use of such substance will serve a useful purpose.

History.- s. 13, ch . 19656, 1939; CGL 1940 Supp. 4151 (676); s. 3, ch. 83-259; ss. 14, 35, ch. 69-106. cf.-s. 562.455 Adul terating liquor; penalty.

500.146 Department may promulgate rules; analyt­ical work.-

(1) The authority to promulgate rules for the efficient enforcement of this chapter as they relate to foods is vested in the department. The department may promul­gate such rules as will conform with those promulgated under the federal act in regard to foods and, to this end , may promulgate by reference any rules promulgated un­der the federal act insofar as applicable and practicable.

(2) The analytical work incident to the proper en­forcement of this law in regard to foods and rules pro­mulgated by the department in regard to foods shall be done under the direction of the state chemist or his as­sistants and , when properly verified , shall be prima facie evidence in any court of law or equity in this state.

History.-s. 20, ch . 19656, 1939; CGL 1940 Supp. 4151(683); s. 2, ch. 59-302; s. 4. ch. 63-259; ss. 14, 35, ch. 69-106; s. 6, ch. 78- 95; s. 14, ch. 82-225; s. 10, ch. 87-388.

Note.-Former s. 500.20.

500.147 Inspection of factories and warehouses by department.-

. (1) The department or its duly authorized agent shall have free access at all reasonable hours to any factory, warehouse, or establishment in which foods are manu­factured , processed , packed , or held for introduction into commerce, or to enter any vehicle being used to transport or hold such foods in commerce, for the pur­pose of inspecting such factory, warehouse, establish­ment, or vehicle to determine if any of the provisions of

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Ch.500 FOOD PRODUCTS F.S. 1987

this chapter or any rule promulgated under its authority is being violated; to secure a sample or a specimen of any food after paying or offering to pay for such sample; and to see that all sanitary rules promulgated by the de­partment are complied with .

(2) The department or its duly authorized agent may appoint inspectors for making such inspections and tak­ing such samples as are necessary for the proper en­forcement of this chapter. The department shall make or cause to be made examination of samples secured under the provisions of this section to determine wheth­er or not any provision of this chapter is being violated.

Hlatory.-s. 21 , ch. 19656, 1939; CGL 1940 Supp. 4151(684); s. 4, ch. 59-302; ss. 14, 19, 35, ch. 69-106; s. 426, ch. 77-147; s. 15, ch. 82-225; s. 11 , ch. 87-388.

Note.-Former s. 500.21 .

500.148 Reports and dissemination of information. (1) The department may cause to be published from

time to time reports summarizing all judgments, de­crees, and court orders which have been rendered un­der the provisions of this chapter, including the nature of the charges and the disposition thereof.

(2) The department may also cause to be dissemi­nated such information regarding food as it deems nec­essary in the interest of public health and the protection of the consumer against fraud. Nothing in this section shall be construed to prohibit the department from col­lecting , reporting , and illustrating the results of these in­vestigations.

Hlstory.-s. 22, ch. 19656, 1939; CGL 1940 Supp. 4151(685); ss. 14, 19, 35, ch. 69-106; ss . 3, 5, ch. 76-47; s. 427 , ch. 77-147; s. 16, ch. 82-225; s. 12, ch. 87-388.

Note.-Former s. 500.22.

500.149 Employment of help; expenses and sala­ries.-The department may employ all help necessary to carry out and enforce the provisions of this chapter relating to foods and may designate any employee of the department to perform any duties necessary to carry out such provisions. All expenses and salaries shall be paid out of the General Inspection Trust Fund.

Hlstory.-s. 23, ch. 19656, 1939; CGL 1940 Supp. 4151(686); s. 5, ch. 59-302; s. 2, ch . 61-119; ss. 14, 19, 35, ch . 69-106; s. 428, ch . 77-147; s. 17, ch. 82-225; s. 13, ch. 87-388.

Note.-Former s. 500.23.

500.166 Records of interstate shipment-For the purpose of enforcing the provisions of this chapter, carri­ers engaged in interstate commerce and persons re­ceiving food in interstate commerce shall , upon the re­quest in the manner set out below by an officer or em­ployee duly designated by the department, permit the officer or employee to have access to and to copy all rec­ords showing the movement in interstate commerce of any food, and the quantity, shipper, and consignee thereof.

Hlstory.-s. 11 , ch. 59-302; ss. 14, 19, 35, ch. 69-106; s. 433, ch. 77-147; s. 22, ch. 82-225; s. 14, ch. 87-388.

Note.-Former s. 500.39.

500.167 Carriers in interstate commerce; excep­tion.-Carriers engaged in interstate commerce are not subject to the provisions of this chapter, other than s. 500.166, by reason of their receipt, carriage, or delivery of food in the usual course of business as carriers .

Hlatory.-s. 12, ch. 59-302; s. 23, ch. 82-225; s. 15, ch. 87-388. Note.-Former s. 500.40.

500.171 Injunction to restrain violation.-ln addi­tion to the remedies herein provided, the department may apply to a circuit court for, and such court shall have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction restraining any person from violating any provision of s. 500.04, irre­spective of whether or not there exists an adequate rem­edy at law.

Hlatory.-s. 4, ch . 19656, 1939; CGL 1940 Supp. 4151(668); ss. 14, 19, 35, ch. 69-106; s. 418, ch. 77-147; s. 1, ch. 81-36; s. 7, ch. 82-225.

Note.-Former s. 500.05.

500.172 Embargoing, detaining, destroying of food or food processing equipment which is in violation.­

(1) When a duly authorized agent of the department finds, or has probable cause to believe, that any food or food processing equipment is in violation of any provi­sion of this chapter or any rule adopted hereunder as to be dangerous, unwholesome, fraudulent, or insanitary within the meaning of this chapter, he may issue and en­force a stop-sale, stop-use, removal, or hold order, which order gives notice that such article or processing equipment is, or is suspected of being, in violation and has been detained or embargoed and which order warns all persons not to remove, use, or dispose of such article or processing equipment by sale or otherwise un­til permission for removal, use, or disposal is given by such agent or the court. It is unlawful for any person to remove, use, or dispose of such detained or embargoed article or processing equipment by sale or otherwise without such permission.

(2) When an article or processing equipment de­tained or embargoed under subsection (1) has been found by such agent to be in violation of law or rule, he may, within a reasonable period of time after the issu­ance of such notice, petition the circuit court, in the juris­diction of which the article or processing equipment is detained or embargoed , for an order for condemnation of such article or processing equipment. When such agent has found that an article or processing equipment so detained or embargoed is not in violation, he shall re­scind the stop-sale, stop-use, removal, or hold order.

(3) If the court finds that the detained or embargoed article or processing equipment is in violation, such arti­cle or processing equipment shall, after entry of the de­cree, be destroyed or made sanitary at the expense of the claimant thereof under the supervision of such agent; and all court costs, fees, and storage and other proper expenses shall be taxed against the claimant of such article or processing equipment or his agent. How­ever, when the violation can be corrected by proper la­beling of the article or sanitizing of processing equip­ment and after such costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that such article be so labeled or processed or such pro­cessing equipment so sanitized, has been executed, the court may by order direct that such article or processing equipment be delivered to the claimant thereof for such labeling, processing, or sanitizing under the supervision of an agent of the department. The expense of such su­pervision shall be paid by the claimant. Such bond shall be returned to the claimant of the article or processing equipment on representation to the court by the depart­ment that the article or processing equipment is no long-

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F.S. 1987 FOOD PRODUCTS Ch.500

er in violation of this chapter and that the expenses of such supervision have been paid.

(4) When the department or any of its authorized agents finds in any room, building, vehicle of transporta­tion, or other structure any meat, seafood, poultry, vege­table, fruit , or other perishable articles which are un­sound or contain any filthy, decomposed, or putrid sub­stances, or which may be poisonous or deleterious to health or otherwise unsafe, the same being hereby de­clared to be a nuisance, the department, or its author­ized agent, shall forthwith condemn or destroy the same, or in any other manner render the same unsalable as human food.

Hlstory.-s. 6, ch . 19656, 1939; CGL 1940 Supp. 4151(669); s. 18, ch . 59-302; ss. 14, 19, 35, ch. 69-106; s. 2, ch. 70-994; s. 8, ch. 82-225; s. 16, ch. 87-388.

Note.-Former s. 500.06.

500.173 Causes for seizure and condemnation of foods.-Any article of food that is adulterated or mis­branded under the provisions of this chapter is subject to seizure and condemnation by the department or by its duly authorized agents designated for that purpose in regard to foods .

Hlstory.-s. 13, ch. 59-302; s. 3, ch. 61-456; ss. 14, 19, 35, ch. 69-106; s. 434, ch . 77-147; s. 24, ch. 82-225; s. 17, ch. 87-388.

Note.-Former s. 500.41 .

500.17 4 Seizure; procedure; prohibition on sale or disposal of article; penalty.-

(1) Whenever a duly authorized officer or employee of the department finds cause, or has probable cause to believe that cause exists, for the seizure of any food as set out in this chapter, he shall affix to the article a tag, stamp, or other appropriate marking, giving notice that the article is, or is suspected of being, subject to seizure under the provisions of this chapter and that it has been detained and seized by the department. Such agent shall also warn all persons not to remove or dis­pose of the article by sale or otherwise, until permission of the department, or of the court of competent jurisdic­tion in the jurisdiction of which the article was detained or seized, is given. It is unlawful for any person to remove or dispose of the detained or seized article by sale or otherwise without permission of the department or of the court in such cases. Any person who violates this 1subsection is guilty of a misdemeanor of the second de­gree, punishable as provided ins. 775.082 or s. 775.083.

(2) Any person who sells candy containing more than 0.5 percent by volume of alcohol in violation of sub­section (3) of s. 500.10 is guilty of a misdemeanor of the second degree, punishable as provided in ss. 775.082-775.084.

Hlstory.-s. 14, ch. 59-302; ss. 14, 19, 35, ch. 69-106; s. 465, ch. 71-136; s. 435, ch . 77-147; s. 25, ch. 82-225; s. 121 , ch . 83-218; s. 3, ch. 87-269; s. 18, ch. 87-388.

1Note.-The word "subsection· was substituted by the editors for the word "sec­tion:

Note.-Former s. 500.42.

500.175 Condemnation and sale; release of seized article.-

(1) When any article detained or seized under s. 500.17 4 has been found by the department to be sub­ject to seizure and condemnation under s. 500.17 4, the department may petition a court for an order of condem­nation or sale, as the court may direct. The proceeds of the sale of food used for human consumption, less the

legal costs and charges, shall be deposited in the State Treasury into the General Inspection Trust Fund.

(2) Upon the payment of the costs of the condemna­tion proceeding and upon the execution and delivery of a surety bond to the effect that the goods shall not be sold or otherwise disposed of contrary to the provisions of this chapter, the department or court may order that the goods be delivered to the owner thereof instead of being condemned or sold.

(3) If the department finds that any article seized un­der the provisions of s. 500.174 was not subject to sei­zure under that section, the department or the designat­ed officer or employee shall remove the tag or marking.

Hlatory.-s. 15, ch. 59-302; s. 1, ch. 61-31 ; ss. 14, 19, 35, ch. 69-106; s. 436, ch. 77-147; s. 26, ch. 82-225; s. 19, ch. 87-388.

Note.-Former s. 500.43.

500.177 Punishment for violation of s. 500.04; dis­semination of false advertisement.-

( 1) Any person who violates any of the provisions of s. 500.04 is guilty of a misdemeanor of the second de­gree, punishable as provided ins. 775.082 or s. 775.083; but, if the violation is committed after a conviction of such person under this section has become final, such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) No person shall be subject to the penalties of subsection (1) for having violated s. 500.04(1) or (3) if he establishes a guaranty or undertaking, which guaranty or undertaking is signed by and contains the name and address of the person residing in the state or the manu­facturer from whom he received the article in good faith , to the effect that such article is not adulterated or mis­branded within the meaning of this chapter-:_citing the appropriate section thereof.

(3) No publisher, radio-broadcast licensee, or agen­cy or medium for the dissemination of an advertisement, except the manufacturer, packer, distributor, or seller of the article to which a false advertisement relates, shall be liable under this section by reason of the dissemina­tion by him of such false advertisement, unless he has refused , on the request of the department, to furnish to the department the name and post-office address of the manufacturer, packer, distributor, seller, or advertising agency, residing in the state, which caused him to dis­seminate such advertisement.

Hlstory.-s. 5, ch. 19656, 1939; CGL 1940 Supp. 7678(1); ss. 14, 19, 35, ch. 69-106; s. 451 , ch . 71-136; s. 429, ch. 77-147; s. 3, ch . 81-36; s. 18, ch. 82-225; s. 122, ch . 83-218; s. 20, ch. 87-388.

Note.-Former s. 500.24.

500.178 Duty of prosecuting officer.-Each state attorney, county attorney, or city attorney to whom the department or its designated agent reports any violation of this chapter shall cause appropriate proceedings to be instituted in the proper courts without delay and to be prosecuted in the manner required by law.

Hlstory.-s. 7, ch. 19656, 1939; CGL 1940 Supp. 4151(670); s. 1, ch. 65-402; ss. 14, 19, 35, ch . 69-106; s. 419, ch. 77-147: s. 6, ch. 78-95: s. 9, ch. 82-225; s. 21 , ch. 87-388.

Note.-Former s. 500.07.

500.179 Issuance of warnings for minor violations. -Nothing in this chapter shall be construed as requiring the department to report, for the institution of proceed­ings under this chapter, minor violations of this chapter when it believes that the public interest will be ade-

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Ch.500 FOOD PRODUCTS F.S. 1987

quately served in the circumstances by a suitable writ­ten notice or warning .

History.-s. 8. ch . 19656, 1939; CGL 1940 Supp. 4151(671); ss. 14, 19, 35, ch. 69-106; s. 420, ch. 77-147; s. 10, ch. 82-225; s. 22, ch. 87-388.

Note.-Former s. 500.08.

500.301 Standards of enrichment for grain prod­ucts; definitions.-As used in this chapter, unless the context otherwise requires:

(1) "Department" means the Department of Agricul­ture and Consumer Services.

(2) "Enrichment" means the replacement of those essential nutrients removed in the processing and refin­ing of grain products. The nutrients specified in state bread and cereal enrichment laws and stipulated in fed­eral standards of identity are iron, thiamine, riboflavin, and niacin .

(3) "Federal standard of enrichment" means the defi­nition and standard of identity for a food established pur­suant to the provisions of the Federal Food , Drug, and Cosmetic Act and acts amendatory thereof.

(4) "State standard" means rules promulgated and adopted by this state and now in effect under the Feder­al Food , Drug , and Cosmetic Act and Fair Packaging and Labeling Act as amended in 21 U.S.C. ss. 301 et seq .

(5) "Wheat flour" includes, and is limited to , the fol­lowing foods made from wheat, as defined in federal standards heretofore or hereafter in effect: flour (white flour, wheat flour, plain flour) ; enriched flour; bromated flour; enriched bromated flour; durum flour; self-rising flour (self-rising white flour, self-rising wheat flour); en­riched self-rising flour; phosphated flour (phosphated white flour , phosphated wheat flour); instantized flours (instant blending flours , quick mixing flours) ; whole wheat flour (graham flour, entire wheat flour) ; bromated whole wheat flour; whole durum wheat flour; crushed wheat (coarse ground wheat) ; cracked wheat ; farina; en­riched farina ; and semolina.

(6) "Enriched flour" includes, and is limited to, the fol­lowing kinds of wheat flour, as defined in federal stand­ards for enrichment: enriched flour; enriched bromated flour ; enriched self-rising flour (including instantized, in­stant blending, and quick-mixing forms of each of the foregoing) ; enriched farina ; and any other enriched wheat flour for which a federal standard for enrichment is established after January 1, 1975.

(7) "Corn flour and related products" includes, but is not limited to , foods made from corn meeting standards heretofore and hereafter in effect for white cornmeal, yellow cornmeal , bolted white cornmeal , bolted yellow cornmeal , degerminated white cornmeal , degermed white cornmeal , degerminated yellow cornmeal, degermed yellow cornmeal, self-rising white cornmeal , self-rising yellow cornmeal , white corn flour, yellow corn flour, grits, corn grits, hominy grits, yellow grits, yellow corn grits, yellow hominy grits , quick grits, quick­cooking grits, and instant grits.

(8) "Rice" includes the following kinds of products defined in the federal standards : all forms of milled rice, except rice coated with talc and glucose and known as coated rice , to which nutrients may be added .

(9) "White bread" includes, and is limited to, any bread made with wheat flour, whether baked in a pan or

on a hearth or screen , which is commonly known or usu­ally represented as white bread.

(10) "Rolls" includes, but is not limited to , rolls and buns of the semibread type, such as soft rolls , hamburg­er rolls, hot dog rolls, Parker House rolls , and hard rolls .

(11) "Macaroni products" means, and is limited to, foods which are prepared by drying formed units of dough made from semolina, durum flour, or farina, or any combination of two or more of these, and water and with or without one or more of the ingredients as identified by the Federal Food and Drug Administration. These products include macaroni, spaghetti, and vermicelli .

(12) "Noodle products" includes, and is limited to, foods which are prepared by drying formed units of dough made from semolina, durum flour, or farina, or any combination of two or more of these, with liquid eggs, frozen eggs, dried eggs, egg yolks, frozen yolks, or dried yolks, or any combination of two or more of these, with or without water and with or without one or more of the optional ingredients identified by the Federal Food and Drug Administration. These products include noodles , egg noodles, egg macaroni , egg spaghetti , and egg vermicelli .

(13) "Person" means an individual, a corporation, a partnership, an association, a joint stock company, a trust , or any group of persons , whether incorporated or not.

(14) "Sell at retail, " when used with reference to a food intended for human consumption , means sale of the food to a purchaser for his personal , family, or household consumption , and not for resale .

Hlstory.-s. 1, ch. 74-41 ; s. 27. ch. 82-225; s. 43, ch. 83-216; s. 23, ch. 87-388. Note.-Former s. 500.500.

500.302 Unlawful retail sales.-After January 1, 1975, it shall be unlawful for any person to sell at retail in this state any products for which there is a state stan­dard of enrichment which do not conform to state stand­ards of enrichment.

History.- s. 3, ch. 74-41 ; s. 29, ch . 82-225. Note.-Former s. 500.504.

500.303 Standards established by departmental regulation.-The department shall by regulation estab­lish a state standard for each product defined in s. 500.301 (5)-(12), which shall conform so far as practica­ble with , and shall not be inconsistent with , the federal standard of enrichment for the same product . State standards shall , from time to time, be amended to con­form similarly to the federal standard of enrichment.

History.-s. 2, ch. 74- 41 ; s. 30, ch. 82-225. Note.-Former s. 500.501.

500.304 Enforcement.-The department is charged with the duty of enforcing the provisions of this chapter and is authorized and directed to promulgate, amend, or rescind rules , regulations, and orders for their efficient enforcement. The department is further authorized to:

(1) Suspend the requirement of s. 500.302 for a tem­porary period if it finds that there is an existing or immi­nent shortage of any vitamin or mineral required by state standards of enrichment.

(2) Permit the omission, in whole or in part, of any vi ­tamin or mineral from a food in the class of foods to which s. 500.303 applies if it finds that the inclusion of

1806

F.S. 1987 FOOD PRODUCTS Ch.500

such class may adversely affect one or more desirable characteristics of the food.

(3) Exempt, in whole or in part, from the provisions of this chapter sales to hospitals or other such institu­tions, or foods served by these institutions, if it is found that good reason for such exemption exists.

History.-s 5, ch. 74-41; s. 31, ch. 82-225; s. 24, ch. 87-388. Note.-Former s. 500.502.

500.305 Investigations; inspections.-For the pur-poses of this chapter, the department is authorized to:

(1) Take samples for analysis . (2) Conduct examinations and investigations. (3) Enter at reasonable times any factory, mill , bak­

ery, warehouse, shop, or establishment where any wheat flour, cornmeal, corn grits, or rice, or any food con­taining these products , is manufactured, processed , packed , sold, or held or any vehicle being used for the transportation thereof.

(4) Inspect any such place or vehicle; any such wheat flour, cornmeal, corn grits, rice, or food therein; and any and all pertinent equipment, materials, contain­ers, and labeling .

History.-s. 6, ch. 74-41 ; s. 28, ch . 82-225; s. 25, ch . 87-388. Note.-Former s. 500.503.

500.306 Violations of this chapter; penalty.-Any person who violates any of the provisions of this chapter is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 7, ch. 74-41; s. 32, ch. 82-225; s. 26, ch . 87-388. Note.-Former s. 500.505.

500.451 Horse meat; sale for human consumption. (1) It shall be unlawful for any person, firm or corpo­

ration to sell horse meat for human food in the markets of Florida for human consumption ; provided, however, this section shall not apply to the sale of horse meat where the same is clearly stamped, marked and de­scribed as such .

(2) Any person , firm or corporation violating the pro­visions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 1, 2, ch. 21986, 1943; s. 11 , ch. 25035, 1949; s. 454, ch. 71-136; s. 19, ch . 82-225.

Note.-Former s. 500.33 .

500.455 Bottled waters; definitions; operating standards for collection and processing; labeling re­quirements.-

(1) DEFINITIONS.-As used in this section: (a) "Department" means the Department of Agricul­

ture and Consumer Services, unless otherwise speci­fied .

(b) "Artesian well water" means natural water that is obtained from a natural underground aquifer that is forced by natural underground pressure to rise to the surface in a well that penetrates the aquifer.

(c) "Distilled water" means bottled water which has been produced by a process of distillation and meets the definition of "purified water," as determined by rule of the Department of Health and Rehabilitative Services.

(d) "Drinking water" means bottled water which is obtained from an approved source or which has under­gone minimum treatment by filtration through activated

carbon or particulate, or both , and by ozonation or an equivalent disinfection process .

(e) "Mineral water" means bottled water that con­tains not less than 500 parts per million of dissolved min­eral solids and has been obtained from an approved source.

(f) "Natural water" means bottled spring water, arte­sian well water, or well water which is not altered with water from another source or which is unmodified by mineral addition or deletion, except for alteration which is necessary to treat such water through ozonation or an equivalent disinfection and filtration process.

(g) "Purified water" means bottled water produced by distillation , deionization , reverse osmosis, or other suitable process which meets the requirements of puri­fied water, as determined by rule of the Department of Health and Rehabilitative Services.

(h) "Spring water" means bottled natural water that is obtained from a natural underground stratum that flows naturally to the surface through a natural orifice.

(i) "Fluoridated water" means bottled water which contains naturally occurring or added fluoride in an amount not less than 0.7 milligrams and not more than 1.4 milligrams of fluoride ions per liter and which other­wise complies with water-quality standards established by rule of the Department of Health and Rehabilitative Services.

(j) "Well water" means bottled natural water that is obtained from a hole which is bored, drilled, or otherwise constructed in the ground and which taps the water of an aquifer.

(2) OPERATING STANDARDS.-(a) Mineral water shall not contain contaminants in

quantities, as established by the Department of Health and Rehabilitative Services , which may be injurious to the public health.

(b) The spring water may be obtained from a natural orifice or from a borehole adjacent to the natural orifice. If spring water is obtained from a natural orifice by, or from a borehole adjacent to the natural orifice with the assistance of, external force, the water shall be from the same underground stratum and shall be of the same quality and composition as the water obtained from the natural orifice without external force. If the natural flow of water from the natural orifice ceases to flow for a peri­od of 90 days, any water obtained from such orifice or borehole shall not be labeled "spring water." Spring wa­ter may not be altered by the addition or deletion of min­erals or dissolved solids, or by blending it with water from another source, except for alteration which is nec­essary to treat water through ozonation or an equivalent disinfection and filtration process.

(c) Artesian well water may be extracted through the use of an external pump to enhance the natural un­derground pressure so long as the quality and composi­tion of the water are not changed . If the natural flow of water from the artesian well ceases to flow for a reason­able period of time, any water obtained from such well may not be labeled "artesian well water." Artesian well water shall not be altered by:

1. Blending it with water from another source; or 2. The addition or deletion of minerals or dissolved

1807

Ch. 500 FOOD PRODUCTS F.S. 1987

solids, except as related to ozonation or equivalent dis­infection and filtration .

(d) Natural water may be collected and transported by pipes, tunnels, trucks, or other similar devices.

(e) All bottled water shall be processed and pack­aged in accordance with standards established by rule of the department.

(3) LABELING REQUIREMENTS.-AII bottled water shall conform to applicable labeling laws and shall be la­beled in compliance with the following standards:

(a) Mineral water shall be labeled "mineral water" or "natural mineral water." If mineral solids are added, such addition shall be noted on the label with the words "minerals added ."

(b) No bottled water, with the exception of spring water, may be labeled "spring water" or "natural spring water." The use of the words "spring ," "spring fresh ," "spring brand ," or "spring type," or other language con­taining the word "spring" to describe water that is not spring water, is prohibited.

(c) Well water may be labeled "well water" or "natural well water."

(d) Artesian well water may be labeled "artesian well water," "natural artesian well water," "well water," or "na­tural well water."

(e) Purified water shall be labeled "purified water," and the method of preparation shall be stated on the label. If the purified water is produced by distillation, it may be labeled "distilled water."

(f) Drinking water may be labeled "drinking water." (g) Fluoridated water shall be labeled "fluoridated

water," and the label shall specify whether the fluoride occurs naturally or is added .

(h) Bottled water that contains carbon dioxide as such water emerges from the source and is bottled di­rectly with its entrapped gas or from which the gas is mechanically separated and later reintroduced at a level not higher than that occurring naturally into the water at the time of bottling may be labeled "naturally carbon­ated" or "naturally sparkling ."

(i) Bottled water which contains carbon dioxide oth­er than that naturally occurring in the source of the prod­uct shall be labeled with only the words "carbonated" or "sparkling" whether the carbonation is obtained from a natural or manufactured source.

U) Any bottler, distributor, or vendor of bottled wa­ter whose corporate name, brand name, or trademark contains the words "spring" or "springs," or any deriva­tive of either of those words, or the words "well ," "arte­sian well ," or "natural" shall label each bottle in typeface at least equal to the size of the typeface of the corporate name, brand name, or trademark, if the source of the bottled water is different from the type stated in the cor­porate name, brand name, or trademark.

(k) A product meeting more than one definition may be identified by any of the applicable product names, except where otherwise specifically prohibited.

(I) Supplemental printing information and graphics concerning recognized uses of the water may appear on the label , but shall not imply properties of the product or preparation methods which are not factual.

Hletory.-s. 3, ch. 85-300.

1808

F.S. 1987

501 .001 501 .011

501 .0115

501.0117

501.012 501.021 501.022 501.025

501 .031 501 .035 501.041

501 .045 501.046

501.047 501 .052

501 .053 501 .055 501.059 501 .061 501.065 501.071

501 .075

501 .081 501.085 501 .091

501 .095

501 .101 501 .105

501.111

501.115 501 .121

CONSUMER PROTECTION Ch. 501

CHAPTER 501

CONSUMER PROTECTION

PART I GENERAL PROVISIONS (ss . 501.001-501 .142)

PART II DECEPTIVE AND UNFAIR TRADE PRACTICES (ss. 501.201-501.213)

PART Ill MISCELLANEOUS (ss. 501.90-501 .925)

PART I

GENERAL PROVISIONS

Florida Anti-Tampering Act. Credit cards; unsolicited delivery or mailing

prohibited . Service station credit cards and franchise

agreements; certain restrictions on sales and purchasers prohibited.

Credit cards; transactions in which seller or lessor prohibited from imposing sur­charge; penalty.

Contracts for health studio services. Home solicitation sale; definitions. Home solicitation sale; permit required. Home solicitation sale; buyer's right to can-

cel. Home solicitation sale; written agreement. Home solicitation sale; exclusions. Home solicitation sale; restoration of down­

payment. Home solicitation sale; duty of buyer. Home solicitation sale; duty of businesses

conducting home solicitation sales . Home solicitation sale; prohibited practices. Home solicitation sale; enforcement authori-

ty; injunctive relief. Home solicitation sale; judicial review. Home solicitation sale; penalties. Residential telephone solicitation . Hazardous Substances Law; short title. Hazardous Substances Law; definitions. Hazardous Substances Law; declaration,

variation, and exemptions. Hazardous Substances Law; prohibited

acts. Hazardous Substances Law; penalties. Hazardous Substances Law; injunction. Hazardous Substances Law; embargo and

seizure. Hazardous Substances Law; hearing before

report of violation. Hazardous Substances Law; rules. Hazardous Substances Law; examinations

and investigations . Hazardous Substances Law; records of ship­

ment. Hazardous Substances Law; publicity. Hazardous Substances Law; legislative in­

tent.

501 .122

501.124

501.131 501 .135 501.137

501 .1375

501 .138

501 .141

501 .142

Control of nonionizing radiations; laser; pen­alties.

Art or craft material containing toxic sub-stances; labeling requirements .

Consumer protection organizations. Consumer unit pricing. Mortgage lenders; tax and insurance pay­

ments from escrow accounts; duties . Deposits received for purchase of residential

dwelling units ; placement in escrow re­quired; exceptions.

Advertising of previews or trailers ; stand­ards.

Delivery of crated item; written statement of satisfaction ; right to cancel.

Retail sales establishments; notice of refund policy; exceptions.

501.001 Florida Anti-Tampering Act.-(1) DEFINITIONS.-As used in this section: (a) "Consumer product" includes: 1. "Food," which means: a. Any article used for food or drink for man or other

animals; b. Chewing gum; or c. Any article intended for use as a component of

any article specified in subparagraph a. or subpara­graph b.

2. "Drug," which means: a. Any agent or product recognized in the official

United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement thereof;

b. Any agent or product intended for use in the di­agnosis, cure, mitigation , treatment , therapy, or preven­tion of disease in man or other animals;

c. Any agent or product, other than food , intended to affect the structure or any function of the body of man or other animals; or

d. Any agent or product intended for use as a com-ponent of any agent or product specified in subpara­graph a., subparagraph b. , or subparagraph c., but does not include devices or their components , parts, or ac­cessories.

3. "Device," which means any instrument, appara-tus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part , or accessory, which is:

a. Recognized in the official National Formulary or the United States Pharmacopoeia, or any supplement thereof;

1809

Ch. 501 CONSUMER PROTECTION F.S. 1987

b. Intended for use in the diagnosis, cure, mitiga­tion , treatment , therapy, or prevention of disease in man or other animals; or

c. Intended to affect the structure or any function of the body of man or other animals,

and which does not achieve any of its principal intended purposes through chemical action within or on the body of man or other animals and is not dependent upon be­ing metabolized for the achievement of any of its princi­pal intended purposes.

4. "Cosmetic," which means: a. Any substance or product intended to be

rubbed, poured , sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing , beautifying , promoting attractive­ness, or altering the appearance, but does not include soap; or

b. Any substance or product intended for use as a component of any substance or product specified in subparagraph a.

(b) "Labeling" means all labels and other written , printed , or graphic matter upon any article, agent, prod­uct, or substance, or any of its containers or wrappers, or accompanying such article , agent, product, or sub­stance .

(c) "Bodily injury" means: 1. A cut , abrasion , bruise, burn, or disfigurement; 2. Physical pain; 3. Illness; 4. Impairment of the function of a bodily member,

organ , or mental faculty ; or 5. Any other injury to the body, no matter how tem-

porary. (2) TAMPERING; PENALTIES.-(a) Whoever, with reckless disregard for the risk that

another person will be placed in danger of death or bodi­ly injury, tampers with , or conspires or attempts to tam­per with, any consumer product or the labeling of, or container for, any such product is guilty of a felony of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) Whoever, with intent to cause serious injury to the business of any person , tampers with any consumer product or renders materially false or misleading the la­beling of , or container for , a consumer product is guilty of a felony of the second degree, punishable as provid­ed in s. 775.082 or s. 775.083.

(c)1 . Whoever knowingly communicates false infor­mation that a consumer product has been tampered with , if such tampering, had it occurred, would create a risk of death or bodily injury to another person , is guilty of a felony of the second degree, punishable as provid­ed in s. 775.082 or s. 775.083.

2. "Communicates false information" means to com-municate information that is false, and that the commu­nicator knows is false , under circumstances in which the information may reasonably be expected to be believed.

(d) Whoever knowingly threatens , under circum­stances in which the threat may reasonably be expected to be believed, that he will commit or cause to be com­mitted an act which would violate paragraph (a) is guilty

of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

(3)(a) In addition to any other agency which has au­thority to investigate and prosecute violations of this section , the Department of Agriculture and Consumer Services, under chapter 500, shall initiate actions neces­sary to safeguard the public welfare by identifying and removing suspect foods from consumer channels and shall coordinate such actions with other interested agencies if food tampering is identified, alleged, or sus­pected.

(b) In addition to any other agency which has author­ity to investigate and prosecute violations of this sec­tion, the Department of Health and Rehabilitative Ser­vices, under chapter 499, shall initiate actions necessary to safeguard the public welfare by identifying and re­moving suspect drugs, devices, or cosmetics from con­sumer channels if drug , device, or cosmetic tampering is identified , alleged , or suspected.

History.-s. 2, ch . 87- 57.

501.011 Credit cards; unsolicited delivery or mail­ing prohibited.-

(1) As used in this section the term "credit card" means any credit card or other document or device in­tended or adopted for the purpose of establishing the identity and credit of any person in connection with the purchase or rental on credit of goods or services or the obtaining of loans.

(2) Except as provided in subsection (3), it shall be unlawful for any financial institution , retail merchant, or other person to mail or otherwise deliver any credit card in this state. Any violation of this subsection shall consti­tute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3) This section shall not apply to any credit card when mailed or otherwise delivered:

(a) In response to a request or application for a cred­it card ; or

(b) As a replacement for a credit card previously is­sued to the person to whom the credit card is shipped or mailed .

(4) No credit card bearer shall be liable for the unau­thorized use of any credit card issued on an unsolicited basis, after July 5, 1970.

History.-ss. 1, 2, ch. 70-352; s. 456, ch. 71-1 36.

501.0115 Service station credit cards and fran­chise agreements; certain restrictions on sales and purchasers prohibited.-lt shall be unlawful and shall be deemed a deceptive trade practice for any producer or refiner or a subsidiary of any producer or refiner to dis­tribute credit cards, as defined in s. 501 .011 , intended to be used by credit card holders for the purchase of mo­tor fuel , goods, or services from retail service stations, whether or not owned or operated by the producer or re­finer or a subsidiary thereof, unless such credit card is valid for purchases of all motor fuel at each such retail service station . It shall be unlawful for any producer or refiner or a subsidiary thereof to include any restrictions on credit card sales in any franchise agreements with re­tail service stations wh ich restrictions are not equally ap­plicable to sales of all types of motor fuels sold at such retail service stations. Any person violating the provi-

1810

F.S. 1987 CONSUMER PROTECTION Ch. 501

sions of this section is guilty of a felony of the third de­gree, punishable as provided ins. 775.082 or s. 775.083. The Department of Legal Affairs or any state attorney is authorized to seek an injunction to prevent the distribu­tion or continued use of credit cards in violation of this section during any litigation contesting the validity thereof. The penalties provided by this section are in ad­dition to any civil remedies otherwise provided by law.

History.-s. 12, ch. 80-77.

501.0117 Credit cards; transactions in which seller or lessor prohibited from imposing surcharge; penalty.

(1) A seller or lessor in a sales or lease transaction may not impose a surcharge on the buyer or lessee for electing to use a credit card in lieu of payment by cash, check, or similar means, if the seller or lessor accepts payment by credit card. A surcharge is any additional amount imposed at the time of a sale or lease transac­tion by the seller or lessor that inc~sases the charge to the buyer or lessee for the privilege of using a credit card to make payment. Charges imposed pursuant to ap­proved state or federal tariffs are not considered to be a surcharge, and charges made under such tariffs are exempt from this section. The term "credit card" includes those cards for which unpaid balances are payable on demand. This section does not apply to the offering of a discount for the purpose of inducing payment by cash, check, or other means not involving the use of a credit card , if the discount is offered to all prospective custom­ers .

(2) A person who violates the provisions of subsec­tion (1) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 1, 2, ch. 87-43.

501.012 Contracts for health studio services.­(1) The Legislature finds and declares that there ex­

ist in connection with a substantial number of contracts for health studio services certain practices and business and financing methods which have worked undue finan­cial hardship upon some of the citizens of our state and that existing legal remedies are inadequate to correct existing problems in the industry. The Legislature finds and declares that the health studio industry has a signifi­cant impact upon the economy and well-being of the people of the state and that the provisions of this section regulating health studio contracts are necessary for the public welfare.

(2) For purposes of this section , the following terms shall have the following meanings, unless the context re­quires otherwise:

(a) "Health studio" means any person who is en­gaged in the sale of future services for instruction, train­ing , or assistance in a program of physical exercise or in the sale of future services for the right or privilege to use equipment or facilities in furtherance of a program of physical exercise. The following businesses or activi­ties are exempt from the provisions of this section :

1. A bona fide nonprofit organization which has been granted tax-exempt status by the Internal Reve­nue Service.

2. A gymnastics school which engages only in in-struction and training and in which exercise is only inci­dental to such instruction and training .

3. A golf, tennis, or racquetball club in which sports play is the only activity offered by the club. If the facility offers the use of physical exercise equipment, this ex­emption shall not apply.

4. A program or facility which is offered and used solely for the purpose of dance, aerobic exercise, or mar­tial arts, and which utilizes no physical exercise equip­ment.

5. A business, otherwise defined as a health studio, which sells a single contract of 30 days or less to any member without any option for renewal or any other con­dition which establishes any right in the member beyond the term of such contract. This exemption shall not ap­ply if the business offers any other health studio contract of whatever duration at any time during , or prior to, the existence of such single contract of 30 days or less.

(b) "Health studio services" means services, privi­leges, or rights offered for sale or provided by a health studio.

(c) "Department" means the Department of Agricul­ture and Consumer Services.

(3) Every contract for the sale of future health studio services which are paid for in advance or which the buy­er agrees to pay for in future installment payments shall be in writing and shall contain , contractual provisions to the contrary notwithstanding , the following:

(a) A provision for the penalty-free cancellation of the contract within 3 days, exclusive of holidays and weekends , of its making , upon the mailing or delivery of written notice to the health studio, and refund upon such notice of all moneys paid under the contract , except that the health studio may retain an amount computed by di­viding the number of complete days in the contract term or, if appropriate, the number of occasions health studio services are to be rendered into the total contract price and multiplying the result by the number of complete days that have passed since the making of the contract or, if appropriate, by the number of occasions that health studio services have been rendered.

(b) A provision for the cancellation of the contract if the health studio goes out of business and fails to pro­vide facilities within 5 miles of, or moves its facilities more than 5 miles from , the location designated in such contract , upon written notice by the buyer, with refund upon such notice of funds paid or accepted in payment of the contract in an amount computed by dividing the contract price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term . The health studio shall not be deemed to have gone out of business and to have failed to provide facilities when temporarily closed for repair and renovation of the premises :

1. Upon sale, for not more than 14 consecutive days ; and

2. During ownership, for not more than 7 consecu-tive days and not more than two periods of 7 consecu­tive days in any calendar year.

(c) A provision for the cancellation of the contract if the buyer dies or becomes physically unable to avail himself of a substantial portion of those services which he used from the commencement of the contract until the time of disability, with refund of funds paid or ac­cepted in payment of the contract in an amount comput-

1811

Ch. 501 CONSUMER PROTECTION F.S. 1987

ed by dividing the contract price by the number of partment shall decide whether the security furnished in weeks in the contract term and multiplying the result by lieu of bond by the health studio is in compliance with the number of weeks remaining in the contract term. The the requirements of this section. contract may require a buyer or the buyer's estate seek· (c) Pay a filing fee of $100 for each location to the ing relief under this subsection to provide proof of dis· department upon filing of a surety bond or other security ability or death. A physical disability sufficient to warrant furnished in lieu thereof, as required by this section . cancellation of the contract by the buyer shall be estab· (d) If the health studio furnishes the department with lished if the buyer furnishes to the health studio a certifi· evidence satisfactory to the department that the aggre· cation of such disability by a physician licensed under gate dollar amount of all current outstanding contracts chapter 458 or chapter 459. of the health studio is less than $5,000, the department

(d) A provision that the initial contract will not be for may, in its discretion, reduce the principal amount of the a period in excess of 36 months, and thereafter shall surety bond or other sufficient financial responsibility re· only be renewable annually. Such renewal contracts quired in paragraphs (a) and (b) to a sum not less than may not be executed and the fee therefor paid until 60 $1 0,000; however, at any time the aggregate dollar days or less before the preceding contract expires. amount of such contracts exceeds $5,000, the health

(e) A provision that if the health studio requires a studio shall so notify the department and shall there· buyer to furnish identification upon entry to the facility upon provide the bond or other documentation as re· and as a condition of using the services of the health stu- quired in paragraphs (a) and (b). dio the health studio shall provide the buyer with the (e) For purposes of this section, a health studio shall means of such identification. be considered a new health studio and shall be subject

(4) Upon entering into a contract for health studio to the requirement of a bond or other financial security services, the buyer shall be provided with a written con· each time the health studio changes ownership or, in tract, which shall include the name, address, and prima· case of corporate ownership, each time the stock own· ry place of business of the health studio. Prior to enter· ership is changed so as to effectively put the health stu· ing into any such contract, the health studio shall also dio under new management and control. provide the buyer with a current copy of any rules and (7) Whenever the ownership of a health studio is regulations applicable to the buyer's use of the health changed or, in the case of corporate ownership, when­studio. ever the stock ownership is changed so as to effectively

(5) The provisions of this section do not apply to any contracts for health studio services entered into before put the health studio under new management or control ,

the new owner or manager within 10 days of such the effective date of this act, or to the subsequent re· change shall provide each buyer then under contract newals of such contracts.

(6) Every health studio which sells contracts for with the studio with notice of the rights and obligations health studio services shall during any period before of the buyer and the health studio affected by such opening and for a period of 3 years after commence- change. ment of business: (8) No health studio may, orally or in writing, make

(a) Maintain for each separate business location a any representation that a health studio contract for fu· bond issued by a surety company admitted to do busi· ture services is for a lifetime or is a perpetual member· ness in this state . The principal sum of the bond shall ship or use any words or combination of words which be $50,000, and the bond , when required, shall be ob· may tend to give a prospective buyer the impression tained before an occupational license may be issued un- that a contract or membership entitles the buyer to ser· der chapter 205. Upon issuance of an occupational li· vices or the use of facilities for an indefinite term. cense, the licensing authority shall immediately notify (9) Any health studio or any owner or manager there· the department of such issuance in a manner estab· of, or, in the case of corporate ownership, any substan­lished by the department by rule. The bond shall be in tial stockholder of the corporation owning the health stu· favor of the state for the benefit of any person injured dio, who violates the provisions of this section is guilty as a result of a violation of this section . The aggregate of a misdemeanor of the first degree, punishable as pro· liability of the surety to all persons for all breaches of the vided in s. 775.082, s. 775.083, or s. 775.084. conditions of the bonds provided herein shall in no event (1 0) The department may institute proceedings in the exceed the amount of the bond. The original surety bond appropriate circuit court for injunctive relief to enforce required by this section shall be filed with the depart· this act. ment. No health studio which is in existence on October (11) The department shall promulgate such rules as 1, 1985, and in compliance with this section shall be re· may be necessary to carry out the provisions of this sec· quired to increase its bond or other security to $50,000. tion.

(b) In lieu of maintaining the bond required in para· (12)(a) The amendments to this section by chapter graph (a), the health studio may furnish to the depart· 78-419, Laws of Florida, do not apply to any contracts ment: for health studio services entered into before July 1 ,

1. A letter of credit from any foreign or domestic 1978, or to subsequent renewals of such contracts. bank in the amount of $50,000; or (b) The amendments to this section by chapter 80-

2. A guaranty agreement which is secured by a cer· 49, Laws of Florida, and by chapter 85-275, Laws of Flor· tificate of deposit in the amount of $50,000. The original ida, do not apply to a health studio which has operated letter of credit or certificate of deposit submitted in lieu at the same location under the same ownership since of the bond shall be filed with the department. The de· July 1, 1977.

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F.S. 1987 CONSUMER PROTECTION Ch. 501

(13) All fees imposed pursuant to this section shall be deposited in the General Inspection Trust Fund as creat­ed in s. 570.20.

Hlstory.-s. 1, ch. 77-432; ss. 1, 2, ch. 78-419; s. 1, ch. 80-49; s. 1, ch. 83-236; s. 1, ch. 85-4; s. 1, ch. 85-275; s. 62, ch. 87- 225.

501.021 Home solicitation sale; definitions.-As used in ss. 501 .021-501 .055:

(1) "Division" means the Division of Consumer Ser­vices of the Department of Agriculture and Consumer Services.

(2) "Home solicitation sale" means a sale, lease, or rental of consumer goods or services with a purchase price in excess of $25 which includes all interest, service charges, finance charges, postage, freight, insurance, and service or handling charges, whether under single or multiple contracts , made pursuant to an installment contract, a loan agreement, other evidence of indebted­ness, or a cash transaction or other consumer credit transaction, in which:

(a) The seller or a person acting for him engages in a personal solicitation of the sale, lease, or rental at a place other than at the seller's fixed location business establishment where goods or services are offered or exhibited for sale, lease, or rental , and

(b) The buyer's agreement or offer to purchase is given to the seller and the sale, lease, or rental is con­summated at a place other than at the seller's fixed loca­tion business establishment,

including a transaction unsolicited by the consumer and consummated by telephone and without any other con­tact between the buyer and the seller or its representa­tive prior to delivery of the goods or performance of the services. It does not include a sale, lease, or rental made at any fair or similar commercial exhibit or a sale, lease, or rental that results from a request for specific goods or services by the purchaser or lessee or a sale made by a motor vehicle dealer licensed under s. 320.27 which occurs at a location or facility open to the general public or to a designated group.

(3) "Business day" means any calendar day except Sunday or the following business holidays: New Year's Day, Washington 's Birthday, Memorial Day, Indepen­dence Day, Labor Day, Columbus Day, Veteran 's Day, Thanksgiving Day, and Christmas Day.

(4) "Future delivery" means delivery more than 3 business days after the buyer signs an agreement or of­fer to purchase.

Hlstory.-ss. 1, 4, ch. 70-363; s. 1, ch . 71-65; s. 1, ch . 77-350; s. 1, ch . 86- 144; s. 1, ch. 87-344.

501.022 Home solicitation sale; permit required.­(1 )(a) It is unlawful for any person to conduct any

home solicitation sale, as defined in s. 501 .021 (2}, or to supervise excluded minors conducting such sales pro­vided in subparagraph (b)5., in this state without first ob­taining a valid home solicitation sale permit as provided in this section.

(b) The following are excluded from the operation of this section:

1. Bona fide agents, business representatives , or salesmen making calls or soliciting orders at the usual place of business of a customer regarding products or

services for use in connection with the customer's busi­ness.

2. Solicitors, salesmen , or agents making a call or business visit upon the express invitation, oral or writ­ten, of an inhabitant of the premises or his agent.

3. Telephone solicitors, salesmen, or agents mak­ing calls which involve transactions that are unsolicited by the consumer and consummated by telephone and without any other contact between the buyer and the seller or its representative prior to delivery of the goods or performance of the services.

4. Solicitors , salesmen, or agents conducting a sale, lease, or rental of consumer goods or services by sample, catalog, or brochure for future delivery.

5. Minors, as defined in s. 1.01 (14), conducting home solicitation sales under the supervision of an adult supervisor who holds a valid home solicitation sale per­mit. Minors excluded from operation of this section must, however, carry personal identification which in­cludes their full name, date of birth , residence address, and employer and the name and permit number of their adult supervisor.

6. Those sellers or their representatives that are currently regulated as to the sale of goods and services by chapter 470, chapter 475, chapter 497 , or chapter 639.

7. Solicitors, salesmen, or agents making calls or soliciting orders on behalf of a religious , charitable, sci­entific , educational , or veterans ' institution or organiza­tion holding a sales tax exemption certificate under s. 212.08(7)(a).

(2) Applicants for permits shall file sworn applica­tions in writing with the clerk of the circuit court for the county in which applicants intend to conduct home so­licitation sales. The clerk of the circuit court for the coun­ty is authorized to impose a reasonable permit fee suffi­cient to offset the administrative costs associated with the permitting procedure. Each application shall be on a form as required by the clerk of the circuit court for the county receiving the application, but shall contain the following as a minimum:

(a) Full name of applicant. (b) Date of birth of applicant. (c) Race and sex of applicant. (d) Permanent residence address of applicant. (e) Local residence address of applicant. (f) Name and address of applicant's employer. (g) Two recent color photographs of applicant. (h) A statement as to whether or not the applicant

has been convicted of or has pleaded guilty or nolo con­tendere to any crime, the nature of the offense, and the punishment or penalty assessed therefor.

(i) A complete set of fingerprints taken by an authorized law enforcement agency.

(3) Upon receipt of a sworn application for a home solicitation sale permit, the clerk of the circuit court for the county shall submit the fingerprints to the Depart­ment of Law Enforcement for state processing and a copy of the application to the sheriff for a local criminal background investigation. Both the Department of Law Enforcement and the sheriff shall report any criminal jus­tice information to the clerk of the circuit court for the

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Ch. 501 CONSUMER PROTECTION F.S. 1987

county within 60 days after receipt of the fingerprints and copy of application.

(4) A clerk of the circuit court for the county may re­voke, suspend, or deny the issuance of any home solici­tation sale permit if it is determined that an applicant or permitholder has:

(a) Been convicted of, or entered a plea of guilty or nolo contendere to, a crime against the laws of this state or any other state or the United States, involving moral turpitude, fraudulent or dishonest dealing, or the illegal use or sale of a controlled substance, or been convicted of, or entered a plea of guilty or nolo contendere to, a violation of any of the provisions of ss. 501.021-501.055.

(b) Has obtained a permit by fraud, false statement, misrepresentation , or failure to truthfully answer any question in the required permit application.

(c) Has failed to obtain required county or municipal occupational licenses.

(d) Has failed in any material respect to comply with the provisions of ss. 501 .021-501.055.

(5) Whenever any person, after applying for or re­ceiving a home solicitation sale permit, moves from the address named in such application or in the permit is­sued to him or when the name of a permitholder is changed by marriage or otherwise, such person shall within 15 days thereafter notify the issuing clerk of the circuit court for the county in writing of his old and new addresses or of which former and new names and of the number of his permit.

(6) The issuing clerk of the circuit court for the coun­ty shall notify each applicant or permitholder of a deci­sion to deny, suspend, or revoke a permit by certified mail sent to any one of the last addresses submitted by the applicant or permitholder. A copy of the notice shall be sent to the division.

(7) If the investigation provided for in subsection (3) reveals no grounds for denial of a home solicitation sale permit, the clerk of the circuit court for the county shall issue a home solicitation sale permit in the form of a lami­nated identification card which shall bear the photo­graph of the permitholder; the permitholder's full name, date of birth, race , and sex; the name and address of the permitholder 's employer or the statement "self­employed"; the signature of the permitholder; a permit number; an expiration date; and a telephone number of the issuing clerk's office which consumers may call to verify the validity of the permit. A permit issued hereun­der shall be valid for a period of 1 year from the date of issuance unless earlier revoked as provided for in this section.

(8) Any person who intends to engage in home solic­itation sales in more than one county or on a statewide basis shall first obtain a home solicitation sale permit from the clerk of the circuit court for the county in the county where the applicant's fixed location businesses­tablishment is located or, if the applicant has no such lo­cation in this state, from any clerk of the circuit court of the applicant's choice. The holder of a county home so­licitation sale permit may register said permit with the di­vision, and after receipt of a reasonable fee to be estab­lished by the division and verification of the validity of the permit, the division shall issue a certificate which shall permit the holder to solicit on a statewide basis. A

certificate issued hereunder shall expire on the expira­tion date of the permit registered with the division .

(9) Every permitholder shall carry the permit and certificate required by this section at all times while en­gaged in home solicitation sales and shall display the same to all prospective buyers before initiating the solic­itation of a sale, lease, or rental.

History.-s. 2, ch. 86-144; s. 2, ch . 87-344.

501.025 Home solicitation sale; buyer's right to cancel.-ln addition to any other right to revoke an offer, the buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to pur­chase. Cancellation is evidenced by the buyer giving written notice of cancellation in person, by telegram, or by mail to the seller at the address stated in the agree­ment or offer to purchase. The written notice of cancella­tion given by mail shall be effective upon postmarking. The notice of cancellation need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale. Notice of a buyer's right to cancel must appear on every note or other evidence of indebtedness given pursuant to any home solicitation sale.

History.- s. 2, ch. 70-363; s. 1, ch. 77-350; s. 1, ch. 84-63.

501.031 Home solicitation sale; written agreement. -Every home solicitation sale shall be evidenced by a writing as provided in this section .

(1) In a home solicitation sale, the seller must pres­ent to and obtain from the buyer his signature to a writ­ten agreement or offer to purchase which designates, as the date of the transaction , the date on which the buyer actually signs and which contains a statement of the buyer 's rights, which statement complies with sub­section (2) .

(2) The statement must: (a) Appear under the conspicuous caption,

"BUYER'S RIGHT TO CANCEL"; (b) Read as follows: "This is a home solicitation sale,

and if you do not want the goods or services, you may cancel this agreement by providing written notice to the seller in person , by telegram, or by mail. This notice must indicate that you do not want the goods or services and must be delivered or postmarked before midnight of the third business day after you sign this agreement. If you cancel this agreement, the seller may not keep all or part of any cash downpayment."

Hlstory.-s. 3, ch. 70-363; s. 2, ch. 84-63; s. 1, ch. 85-5.

501.035 Home solicitation sale; exclusions.­There shall be excluded from the operation of ss . 501 .021-501 .055:

(1) The sale of insurance; and (2) The sale of farm equipment or machinery.

History.-s. 5, ch. 70-363.

501.041 Home solicitation sale; restoration of downpayment.-Within 10 days after a home solicita­tion sale has been canceled or an offer to purchase re­voked , the seller must tender to the buyer any payments made by the buyer and any note or other evidence of in-

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F.S. 1987 CONSUMER PROTECTION Ch. 501

debtedness. If the downpayment includes goods traded in , the goods must be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement. Until the seller has complied with the obliga­tions imposed by this section, the buyer may retain pos­session of goods delivered to him by the seller and has a lien on the goods in his possession or control for any recovery to which he is entitled.

History.-s. 6, ch. 70-363: s. 2, ch. 85-5.

501.045 Home solicitation sale; duty of buyer.-Ex­cept as provided ins. 501.041, within a reasonable time after a home solicitation sale has been canceled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale, but he is not obligated to tender at any place other than his residence. If the seller fails to demand possession of goods within a reasonable time after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them. For the purposes of this section, 40 days is pre­sumed to be a reasonable time. The buyer has the duty to take reasonable care of the goods in his possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are other­wise at the seller's risk. If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation , the seller is entitled to no compensation for such services.

History.-s. 7, ch. 70-363: s. 3, ch. 85-5.

501.046 Home solicitation sale; duty of businesses conducting home solicitation sales.-

(1) All businesses conducting home solicitation sales in this state shall :

(a) Ensure that all employees engaged in home so­licitation sales obtain the permit required in s. 501.022 and direct all such employees to comply with all provi­sions of said section .

(b) Direct all employees engaged in home solicita­tion sales to leave with the buyer a "business card," con­tract, or receipt , which shall include:

1. The disclosure required in s. 501.031. 2. The name, address, and telephone number of

the parent company or sponsor. 3. The name, address, and telephone number of

the employee making the home solicitation sale. (2) In the case of telephone sales solicitations, the

name, address, and telephone number of the parent company or sponsor shall be clearly and conspicuously disclosed on sales materials and contracts sent to or de­livered to the buyer.

History.-s. 2, ch. 77-350: s. 3, ch. 86-144.

501.047 Home solicitation sale; prohibited prac­tices.-ln conducting a home solicitation , no person shall :

(1) Misrepresent the terms or conditions of the sale, lease, or rental.

(2) Misrepresent the seller 's affiliation with the par­ent company or sponsor.

(3) Misrepresent the seller 's reasons for soliciting the sale, lease, or rental of goods or services, such as participation in a contest or inability to perform any other job, when such is not a fact.

(4) Allege or imply that the agreement to purchase, lease, or rent goods or services is noncancellable when such is not a fact.

(5) Perform any other act which constitutes misrep­resentation .

History.-s. 2, ch. 77-350: s. 4, ch. 86-144.

501.052 Home solicitation sale; enforcement au­thority; injunctive relief.-The division shall investigate any complaints received concerning violations of ss . 501 .021-501 .055 and report the results of its investiga­tion to the Attorney General or state attorney, and it may institute proceedings to enjoin any person found by the division to be violating the provisions of ss. 501.021-501 .055.

History.-s. 2, ch. 77-350.

501.053 Home solicitation sale; judicial review.­Any person , firm, corporation, or agency aggrieved by any decision of a clerk of the circuit court under authority granted in ss . 501.021-501 .055 may appeal to the courts, as provided by general law, within 90 days from the date of the decision sought to be reviewed.

History.-s. 3, ch. 87-344 .

501.055 Home solicitation sale; penalties.-(1) Violation of any of the provisions of ss . 501 .025-

501 .047 is a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any person who conducts or attempts to con­duct a home solicitation sale without first obtaining and having in his possession a valid, current permit as re­quired by s. 501.022 or who uses or attempts to use an expired , suspended, or revoked home solicitation sale permit in a home solicitation sale is guilty of a misde­meanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Upon second or sub­sequent conviction for violation of this subsection , the offender is guilty of a felony of the third degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Any person who uses a false or fictitious name in any application for a home solicitation sale permit or certificate as provided for in s. 501 .022 or who makes a false statement, conceals a material fact , or otherwise commits a fraud in any such application is guilty of a mis­demeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Upon a second or subsequent conviction for violation of this subsection, the offender is guilty of a felony of the third degree, pun­ishable as provided in s. 775.082 , s. 775.083, or s. 775.084. The obtaining of two or more permits which are in different names or the possession of two or more such permits shall be prima facie evidence that this subsec­tion has been violated .

History.- s. 8, ch. 70-363: s. 457, ch . 71-136: s. 5, ch. 86-144: s. 4, ch. 87-344.

501.059 Residential telephone solicitation.­(1) As used in this section: (a) "Consumer telephone call" means a call made by

a telephone solicitor for the purpose of soliciting a sale

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Ch. 501 CONSUMER PROTECTION F.S. 1987

of any consumer goods or services to the person called, or for the purpose of soliciting an extension of credit for consumer goods or services to the person called, or for the purpose of obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services to the person called or an extension of credit for such purposes.

(b) "Consumer goods or services" means any tangi­ble personal property which is normally used for person­al , family, or household purposes, including, without limi­tation , 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 time-share estates, and any services related to such property.

(c) "Unsolicited consumer telephone call" means a consumer telephone 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 , payment or performance of which has not been completed at the time of such call ;

3. To any person with whom the telephone solicitor has an existing business relationship; or

4. By a newspaper publisher or his agent or em-ployee in connection with his business.

(d) "Commission" means the Florida Public Service Commission .

(e) "Telephone solicitor" means any natural person, firm , organization , partnership, association, or corpora­tion who makes or causes to be made a consumer tele­phone call , including, but not limited to, calls made by use of automated dialing or recorded message devices.

(f) "Division" means the Division of Consumer Ser­vices of the Department of Agriculture and Consumer Services.

(2) Any telephone solicitor who makes an unsolicit­ed consumer telephone call to a residential telephone number shall:

(a) Identify himself or herself 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 ; and

(b) Within 30 seconds after beginning the conversa­tion, inquire whether the person being solicited is inter­ested in listening to a sales presentation and immediate­ly discontinue the solicitation if the person being solic­ited gives a negative response.

(3) Any residential telephone subscriber desiring a directory listing indicating that the subscriber does not wish to receive unsolicited consumer telephone calls may notify the serving local exchange company and or­der an extra line listing effective with the next telephone directory issue. Such extra line listing shall appear di· rectly beneath the primary listing and shall read "No Sales Solicitation Calls." The charge for such extra line listings shall be the tariffed rates as approved by the commission for additional or extra line listings.

(4) No telephone solicitor shall make or cause to be made any unsolicited consumer telephone call to any residential telephone number if the number for that tele· phone appears in the then-current directory published by the telephone company and such listing indicates

that the subscriber does not wish to receive unsolicited consumer telephone calls .

(5) No telephone solicitor shall attempt to contact by telephone any person whose residential telephone num­ber is not included in the most recently published tele­phone directory as the result of a request for an unpub­lished telephone number, unless the person making such solicitation has had previous business experience with the person solicited.

(6) The division shall investigate any complaints re­ceived concerning violations of this section . If, after in­vestigating any complaint , the division finds that there has been a violation of this section, it may bring an ac­tion to impose a civil penalty and to seek such other re­lief, including injunctive relief, as the court deems appro­priate against the telephone solicitor. The civil penalty shall not exceed $10,000 per violation and shall be de­posited in the General Revenue Fund, unallocated.

(7) Telephone companies shall not be responsible for the enforcement of the provisions of this section and shall not be liable for any error or omission in the listings made pursuant hereto.

Hletory.-s. 1, ch. 87- 253.

501.061 Hazardous Substances Law; short title.­Sections 501 .061-501 .121 may be cited as the "Florida Hazardous Substances Law."

Hletory.-s. 1, ch. 70- 374.

501.065 Hazardous Substances Law; definitions. -For the purpose of ss. 501 .061-501 .121 :

(1) "Department" means the Department of Health and Rehabilitative Services.

(2) "Secretary" means the secretary of the Depart­ment of Health and Rehabilitative Services or his legally authorized representative or agent.

(3) "Person" includes an individual, partnership, cor­poration, or association, or its legal representative or agent.

(4) "Commerce" means any and all commerce within the state and subject to the jurisdiction thereof and in­cludes the operation of any business or service estab­lishment.

(5)(a) "Hazardous substance" means: 1. Any substance or mixture of substances which

is toxic, corrosive, an irritant, a strong sensitizer, or flam­mable or which generates pressure through decomposi­tion , heat, or other means, if such substances or mixture of substances may cause substantial personal injury or substantial illness during, or as a proximate result of, any customary or reasonably foreseeable handling or use, in­cluding reasonably foreseeable ingestion by children.

2. Any substances which the department by regu-lation finds, pursuant to the provisions of s. 501 .071 (1 ), meet the requirements of paragraph (a)1 .

3. Any radioactive substance, whether as used in a particular class of article or as packaged, which the department determines by regulation to be sufficiently hazardous to require labeling in order to protect the pub­lic health.

4. Any toy or other article intended for use by chil-dren which the department determines to meet the re­quirements of subsection (16)(a)1.

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F.S. 1987 CONSUMER PROTECTION Ch. 501

(b) "Hazardous substance" does not apply to eco- currence and severity of the reaction, shall find that the nomic poisons subject to the Federal Insecticide, Fungi- substance has a significant potential for causing hyper­cide, and Rodenticide Act or the Florida Pesticide Law, sensitivity. to foods , drugs, and cosmetics subject to the Florida (11) "Extremely flammable" applies to any substance Food, Drug and Cosmetic Law, or to substances intend- which has a flash point at or below 20° Fahrenheit as de­ed for use as fuels when stored in containers and used termined by the Tagliabue open cup tester, and the term in the heating, cooking , or refrigeration system of a "flammable" shall apply to any substance which has a house; but such term shall apply to any article which is flash point of above 20° to and including 80° Fahrenheit, not itself an economic poison within the meaning of the as determined by the Tagliabue open cup tester; except Federal Insecticide, Fungicide, and Rodenticide Act or that the flammability of solids and of the contents of the Florida Pesticide Law, but which is a hazardous sub- self-pressurized containers shall be determined by stance within the meaning of paragraph (a)1 . by reason methods found by the department to be generally appli­of bearing or containing such an economic poison . cable to such materials or containers, respectively , and

(c) "Hazardous substance" does not include any established by regulations issued by it, which regula­source material , special nuclear material , or byproduct tions shall also define the terms "flammable" and "ex­material , as defined in the Atomic Energy Act of 1954, tremely flammable" in accord with such methods. as amended , and regulations issued pursuant thereto (12) "Radioactive substance" means a substance by the Atomic Energy Commission . which emits ionizing radiation.

(6) "Toxic" applies to any substance (other than a ra- (13) "Label" means a display of written, printed, or dioactive substance) which has the capacity to produce graphic matter upon the immediate container of any personal injury or illness to man through ingestion, inha- substance or, in the case of an article which is unpack­lation , or absorption through any body surface. aged or is not packaged in an immediate container in-

(?)(a) "Highly toxic" means any substance which tended or suitable for delivery to the ultimate consumer, falls within any of the following categories: a display of such matter directly upon the article in-

1. Produces death within 14 days in one-half or valved or upon a tag or other suitable material affixed more than one-half of a group of 10 or more laboratory thereto, and a requirement , made by or under authority white rats, each weighing between 200 and 300 grams, of ss . 501 .061 _501.121 , that any word , statement, or at a single dose of 50 milligrams or less per kilogram of other information must appear on the label shall not be body weight, when orally administered.

2. Produces death within 14 days in one-half or considered to be complied with unless such word , state-more than one-half of a group of 10 or more laboratory ment, or other information also appears on the outside white rats, each weighing between 200 and 300 grams, container or wrapper, if there be any, unless it is easily when inhaled continuously for a period of 1 hour or less legible through the outside container or wrapper and on at an atmosphere concentration of 200 parts per million all accompanying literature where there are directions by volume or less of gas or vapor or 2 milligrams per liter for use, written, or otherwise. by volume or less of mist or dust if such concentration (14) "Immediate container" does not include package is likely to be encountered by man when the substance liners. is used in any reasonably foreseeable manner. (15)(a) "Misbranded hazardous substance" means a

3. Produces death within 14 days in one-half or hazardous substance (including a toy or other article in-more than one-half of a group of 10 or more rabbits test- tended for use by children , which is a hazardous sub­ed in a dosage of 200 milligrams or less per kilogram of stance or which bears or contains a hazardous sub­body weight , when administered by continuous contact stance in such manner as to be susceptible of access with the bare skin for 24 hours or less. by a child to whom such toy or other article is entrusted)

(b) If the department finds that available data on hu- intended or packaged in a form suitable for use in the man experience with any substance indicate results dif- household or by children, which substance, except as ferent from those obtained on animals in the above- otherwise provided by or pursuant to s. 501.071, fails to named dosages or concentrations, the human data shall bear a label which states conspicuously: take precedence. 1. The name and place of business of the manufac-

(8) "Corrosive" means any substance which in con- turer, packer, distributor, or seller . tact with living tissue will cause destruction of tissue by 2. The common or usual name or the chemical chemical action; but does not refer to action on inani- name, if there is no common or usual name, of the haz­mate surfaces. ardous substance or of each component which contrib-

(9) "Irritant" means any substance not corrosive utes substantially to its hazard, unless the department within the meaning of subsection (8) which on immedi- by regulation permits or requires the use of a recognized ate, prolonged, or repeated contact with normal living generic name. tissue will induce a local inflammatory reaction . 3. The signal word "DANGER" on substances which

(1 0) "Strong sensitizer" means a substance which will are extremely flammable, corrosive, or highly toxic . cause on normal living tissue, through an allergic or pho- 4. The signal word "WARNING" or "CAUTION" on all todynamic process, a hypersensitivity which becomes other hazardous substances . evident on reapplication of the same substance and 5. An affirmative statement of the principal hazard which is designated as such by the department. Before or hazards, such as "Flammable," "Vapor Harmful ," designating any substance as a strong sensitizer, the "Causes Burns," "Absorbed Through Skin ," or similar department, upon consideration of the frequency of oc- wording descriptive of the hazard .

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Ch. 501 CONSUMER PROTECTION F.S. 1987

6. Precautionary measures describing the action to be followed or avoided, except when modified by regula­tion of the department pursuant to s. 501 .071 .

7. Instruction, when necessary or appropriate, for first aid treatment.

8. The word "Poison" for any hazardous substance which is defined as "highly toxic" by subsection (7) .

9. Instructions for handling and storage of pack-ages which require special care in handling or storage.

10. The statement "Keep out of the reach of children" or its practical equivalent or, if the article is intended for use by children and is not a banned hazardous sub­stance, adequate directions for the protection of chil ­dren from the hazard.

(b) Any statement required under this subsection shall be located prominently and be in the English lan­guage in conspicuous and legible type in contrast by ty­pography, layout, or color with other printed matter on the label.

(16)(a) "Banned hazardous substance" means : 1. Any toy or other article intended for use by chil-

dren which is a hazardous substance, which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted , which is otherwise hazard­ous because of the presence of electrical , mechanical , or thermal hazards , or which may cause substantial per­sonal injury or illness by, during , or as a result of, fore­seeable use of the toy or article, even if unintended by the manufacturer, when such injury or illness is attribut­able to electrical , mechanical, or thermal aspects of de­sign, processing, or assembly of that toy or article; or

2. Any hazardous substance intended or packaged in a form suitable for use in household, which the depart­ment by regulation classifies as a "banned hazardous substance" on the basis of a finding that , notwithstand­ing such cautionary labeling as is or may be required un­der ss. 501 .061-501 .121 for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households is such that the objec­tive of the protection of the public health and safety can be adequately served only by keeping such substance, when so intended or packaged , out of the channels of commerce.

(b) The department, by regulation , shall exempt from paragraph (a)1 . articles, such as chemical sets, which by reason of their functional purpose require the inclusion of the hazardous substance involved and which bear labeling giving adequate directions and warnings for safe use and are intended for use by chil ­dren who have attained sufficient maturity and may rea­sonably be expected to read and heed such directions and warnings. The department shall also exempt from paragraph (a)1 ., and provide for the labeling , of common fireworks , including toy paper caps, cone fountains , cyl­inder fountains, whistles without report, and sparklers, to the extent that it determines that such articles can be labeled to protect the purchasers and users thereof.

(c) Proceedings for the issuance, amendment, or re­peal of regulations pursuant to paragraphs (a)2. and (b) shall be governed by the provisions of s. 501 .071.

(17) The term "electrical" pertains to the flow of an electrical charge or to electrons in motion ; and the term

"electrical hazard" means a condition or circumstance that may cause substantial personal injury or substantial illness from electric shock or electrocution during , or as a proximate result of , any customary or reasonably fore­seeable use.

(18) The term "mechanical" pertains to the design, construction, or structure of a substance; and the term "mechanical hazard" means a condition or circumstance that may cause substantial personal injury or substantial illness during, or as a proximate result of, any customary or reasonably foreseeable use, because of sharp sur­faces or protrusions, fragmentation , explosion, strangu­lation , suffocation , asphyxiation , or other mechanical means .

(19) The term "thermal" pertains to the transfer or manifestation of heat energy; and the term "thermal haz­ard" means a condition or circumstance that may cause substantial personal injury or substantial illness during, or as a proximate result of, any customary or reasonably foreseeable use of articles which contain heated sur­faces or which , if ignited , burn so intensely that extreme­ly high temperatures are reached or they cannot be readily extinguished by means ordinarily at hand.

Hlstory.-s. 2, ch. 70-374; s. 1, ch . 70-439.

501.071 Hazardous Substances Law; declaration, variation, and exemptions.-

(1) Whenever in the judgment of the department such action will promote the objectives of ss. 501 .061-501 .121 by avoiding or resolving uncertainty as to appli­cation, the department may by regulation declare to be a hazardous substance, for the purposes of ss. 501 .061-501 .121, any substance or mixture of substances which it finds meets the requirements of s. 501.065(5)(a)1.

(2) If the department finds that the requirements of s. 501 .065(15)(a) are not adequate for the protection of the public health and safety in view of the special hazard presented by any particular hazardous substance, it may by regulation establish such reasonable variations or additional label requirements as it finds necessary for the protection of the public health and safety; and any such hazardous substance intended, or packaged in a form suitable, for use in the household or by children which fails to bear a label in accordance with such regu­lations shall be deemed to be a misbranded hazardous substance.

(3) If the department finds that, because of the size of the package involved or because of the minor hazard presented by the substance contained therein or for oth­er good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under ss . 501 .061-501 .121 is impracticable or is not necessary for the adequate protection of the public health and safety, the department shall promulgate regulations exempting such substances from these requirements to the extent it determines to be consistent with adequate protection of the public health and safety.

(4) If the department finds that the hazard of an arti­cle subject to ss. 501.061-501 .121 is such that labeling adequate to protect the public health and safety cannot be devised or that the article presents an imminent dan­ger to the public health and safety, it may declare such article to be a banned hazardous substance and require

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F.S. 1987 CONSUMER PROTECTION Ch. 501

its removal from commerce. History.-s. 3, ch. 70-374; s. 1, ch. 70-439.

501.075 Hazardous Substances Law; prohibited acts.-The following acts and the causing thereof are prohibited :

(1) The introduction or delivery for introduction into commerce of any misbranded hazardous substance or banned hazardous substance.

(2) The alteration , mutilation , destruction, oblitera­tion, or removal of the whole or any part of the label of, or the doing of any other act with respect to , a hazard­ous substance if such act is done while the substance is in commerce or while the substance is held for sale (whether or not the first sale) after shipment in com­merce and results in the hazardous substance being a misbranded hazardous substance or a banned hazard­ous substance .

(3) The receipt in commerce of any misbranded haz­ardous substance or banned hazardous substance and the delivery or proffered delivery thereof for pay or other­WISe.

(4) The giving of a guarantee or undertaking referred to in s. 501 .081 (2)(b) which guarantee or undertaking is false , except by a person who relied upon a guarantee or undertaking to the same effect signed by and contain­ing the name and address of the person residing in the United States from whom he received in good faith the hazardous substance.

(5) The failure to permit entry or inspection as authorized by s. 501 .1 05(1) or to permit access to and copying of any record as authorized by s. 501 .111 .

(6) The introduction or delivery for introduction into commerce, or the receipt in commerce and subsequent delivery or proffered delivery for pay or otherwise, of a hazardous substance in a reused food, drug , or cosmet­ic container or in a container which , though not a reused container, is identifiable as a food , drug, or cosmetic container by its labeling or by other identification . The reuse of a food , drug , or cosmetic container as a con­tainer for a hazardous substance shall be deemed to be an act which results in the hazardous substance being a misbranded hazardous substance. As used in this subsection , the terms "food ," "drug ," and "cosmetic" have the same meanings as in the Florida Food , Drug, and Cosmetic Law.

(7) The use by any person to his own advantage, or revealing, other than to the department or employees of the department, or to the courts when relevant in any ju­dicial proceeding under ss. 501 .061-501 .121 , of any in­formation acquired under authority of s. 501.105 con­cerning any method of process which , as a trade secret , is entitled to protection .

History.-s. 4, ch. 70-374; s. 1, ch. 70-439.

501.081 Hazardous Substances Law; penalties.­( 1) Any person who violates any of the provisions of

s. 501.075 shall be guilty of a misdemeanor of the sec­ond degree, punishable as provided in s. 775.082 or s. 775.083, but for offenses committed with intent to de­fraud or mislead , or for second and subsequent of­fenses, the violator shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) No person shall be subject to the penalties of subsection (1) of this section:

(a) For having violated s. 501 .075(3) if the receipt , delivery, or proffered delivery of the hazardous sub­stance was made in good faith unless he refuses to fur­nish on request of an officer or employee duly designat­ed by the department the name and address of the per­son from whom he purchased or received such hazard­ous substance and copies of all documents, if there be any, pertaining to the delivery of the hazardous sub­stance to him; or

(b) For having violated s. 501.075(1) if he establishes a guarantee or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the hazardous substance, to the effect that the hazc.rdous substance is not a misbranded hazardous substance or a banned hazardous substance within the meaning of those terms in ss. 501 .061-501 .121 .

History.-s. 5, ch. 70-374; s. 1, ch . 70-439; s. 458, ch. 71-136.

501.085 Hazardous Substances Law; injunction.­ln addition to the remedies hereinafter provided , the de­partment is authorized to apply to the circuit court, and such court shall have jurisdiction , upon hearing and for cause shown, to grant a temporary or permanent injunc­tion restraining any person from violating any provision of s. 501 .075, whether or not there exists an adequate remedy at law, and such injunction shall issue without bond.

History.-s. 5, ch. 70-374; s. 1, ch. 70-439.

501.091 Hazardous Substances Law; embargo and seizure.-

(1) Whenever a duly authorized agent of the depart­ment finds or has probable cause to believe that any hazardous household substance is misbranded or is a banned hazardous substance within the meaning of ss. 501 .061-501 .121 , he shall affix to such article a tag or other appropriate marking giving notice that such article is, or is suspected of being , misbranded or is a banned hazardous substance and has been detained or embar­goed and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by such agent or the court. It is unlawful for any person to remove or dispose of such detained or embargoed article by sale or otherwise with­out such permission .

(2) When an article detained or embargoed under subsection (1) has been found by an agent to be mis­branded or a banned hazardous substance, he shall pe­tition the judge of the circuit court in whose jurisdiction the article is detained or embargoed for a libel of con­demnation of such article. When an agent has found that an article so detained or embargoed is not a misbranded or banned hazardous substance, he shall remove the tag or other marking.

(3)(a) If the court finds that a detained or embargoed article is a misbranded or banned hazardous substance, the article shall, after entry of the decree, be destroyed at the expense of the claimant thereof under supervision of the agent, and all court costs and fees and storage and other proper expenses shall be taxed against the claimant of such article or his agents.

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Ch. 501 CONSUMER PROTECTION F.S. 1987

(b) When the misbranding can be corrected by prop­er labeling of the article, the court , after entry of the de­cree and after costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that such article shall be so labeled , has been executed, may by order direct that the article be delivered to the claimant thereof for such labeling under the supervision of an agent of the department. The expense of such supervi­sion shall be paid by claimant. The article shall be re­turned to the claimant on the representation to the court by the department that the article is no longer in viola­tion of ss. 501 .061-501 .121 and that the expenses of such supervision have been paid.

History.- s. 7. ch . 70-374; s. 1, ch. 70- 439.

501.095 Hazardous Substances Law; hearing be­fore report of violation.-lt is the duty of each state at­torney, county attorney, or city attorney to whom the de­partment reports any violation of ss. 501 .061-501.121 to cause appropriate proceedings to be instituted in the proper courts without delay and to be prosecuted in the manner required by law. Before any violation is reported to any such attorney for the institution of a criminal pro­ceeding , the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views before the department or its designated agent, either orally or in writing, in per­son or by attorney, with regard to such contemplated proceeding .

History.- s. 8, ch. 70- 374; s. 1, ch. 70-439.

501.101 Hazardous Substances Law; rules.-(1) The authority to promulgate regulations for the

efficient enforcement of ss. 501 .061-501 .121 is vested in the department.

(2) The department shall cause the regulations pro­mulgated under ss. 501.061-501.121 to conform , insofar as practicable, with the regulations established pursu­ant to the Federal Hazardous Substances Act.

History.- s. 9, ch. 70-374; s. 1, ch. 70-439.

501.105 Hazardous Substances Law; examina­tions and investigations.-

(1) For the purposes of enforcement of ss. 501 .061-501 .121, officers or employees duly designated by the department, upon presenting appropriate credentials to the owner, operator, or agent in charge, are authorized :

(a) To enter, at reasonable times, any factory, ware­house, or establishment in which hazardous substances are manufactured , processed, or packed or held for in­troduction into commerce or held after such introduction or to enter any vehicle being used to transport or hold such hazardous substances in commerce.

(b) To inspect, at reasonable times and within rea­sonable limits and in a reasonable manner such factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials, and label­ing therein.

(c) To obtain samples of such materials or packages thereof or of such labeling .

(2) If the officer or employee obtains any sample pri­or to leaving the premises, he shall pay or offer to pay the owner, operator, or agent in charge for such sample

and give a receipt describing the samples obtained. History.-s. 10, ch. 70- 374; s. 1, ch. 70-439.

501.111 Hazardous Substances Law; records of shipment-For the purpose of enforcing the provisions of ss. 501 .061-501 .121 , carriers engaged in commerce and persons receiving hazardous substances in com­merce or holding such hazardous substances so re­ceived shall, upon the request of an officer or employee duly designated by the department, permit such officer or employee at reasonable times to have access to and to copy all records showing the movement in commerce of any such hazardous substances or the holding there­of during or after such movement and the quantity, ship­per, and consignee thereof . It is unlawful for any such carrier or person to fail to permit such access and copy­ing of any record so requested when the request is ac­companied by a statement in writing specifying the na­ture or kind of the hazardous substance to which the re­quest relates . Evidence obtained under this section shall not be used in a criminal prosecution of the person from whom obtained. Carriers shall not be subject to the other provisions of ss. 501 .061-501 .121 by reason of their receipt , carrying , holding , or delivery of hazardous substances in the usual course of business as carriers.

History.- s. 11 , ch . 70-374; s. 1, ch. 70-439.

501.115 Hazardous Substances Law; publicity.­(1) The department may cause to be published from

time to time reports summarizing any judgments, de­crees, or court orders which have been rendered under ss. 501 .061-501 .121 , including the nature of the charge and the disposition thereof.

(2) The department may also cause to be dissemi­nated information regarding hazardous substances in situations involving imminent danger to health . Nothing in this section shall be construed to prohibit the depart­ment from collecting , reporting , and illustrating the re­sults of the investigations of the department.

History.-s. 12, ch. 70- 374; s. 1, ch. 70-439.

501.121 Hazardous Substances Law; legislative in­tent.-Nothing in ss . 501 .061-501 .121 shall be con­strued to remove the authority or jurisdiction of any other state agency with respect to products or services regu­lated or controlled under other provisions of law.

History.-s. 13, ch. 70-374.

501.122 Control of nonionizing radiations; laser; penalties.-

(1) DEFINITIONS.-For the purposes of this section : (a) "Laser" means light amplification by stimulated

emission of radiation, encompassing wavelengths above and below those in visual range, if produced by laser devices.

(b) "Laser device" means any device designed or used to amplify electromagnetic radiation by stimulated emission .

(c) "Nonionizing radiation" means electromagnetic or sound waves which do not produce or result in ioniza­tion .

(d) "Ionizing radiation" means gamma and X rays, al­pha and beta particles, high-speed electrons, neutrons, protons, and other nuclear particles.

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F.S. 1987 CONSUMER PROTECTION Ch. 501

(e) "Department" means the Department of Health and Rehabilitative Services.

1(2) AUTHORITY TO ISSUE REGULATIONS.-Ex­cept for electrical transmission and distribution lines and substation facilities subject to regulation by the Depart­ment of Environmental Regulation pursuant to chapter 403, the Department of Health and Rehabilitative Ser­vices shall promulgate such rules and regulations as it may determine to be necessary to protect the health and safety of persons exposed to laser devices and oth­er nonionizing radiation , including the user or any others who might come in contact with such radiation. The De­partment of Health and Rehabilitative Services is further authorized:

(a) To develop a program for registration of laser de­vices and uses and of identifying and controlling sources and uses of other nonionizing radiations.

(b) To maintain liaison with , and receive information from, industry, industry associations, and other organi­zations or individuals relating to present or future radia­tion-producing products or devices.

(c) To study and evaluate the degree of hazard as­sociated with the use of laser devices or other sources of radiation .

(d) To establish and prescribe performance stand­ards for laser and other radiation control if it determines that such standards are necessary for the protection of the public health .

(e) To amend or revoke any performance standard established under the provisions of this section .

(3) PENAL TIES FOR USING UNREGISTERED LA­SER DEVICE OR PRODUCT.-

(a) No person licensed to practice the healing arts, nor any other person , may use a Class Ill or a Class IV laser device or product as defined by federal regulations unless he has complied with the rules governing the reg­istration of such devices with the department promul­gated pursuant to subsection (2).

(b) Any person who violates the provisions of this subsection is guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-ss. 1, 2. ch. 71-189; s. 437, ch. 77-147; s. 94, ch. 83-329; s. 7, ch. 86-173; s. 54 , ch. 86-186.

1Note.-As amended by s. 7, ch. 86-173, and s. 54, ch . 86-186; s. 10, ch. 86-173, and s. 57, ch . 86-186, provide that the amendments to s. 501.122 provided in those acts, respectively, "are not intended to reflect the prior legislative intent of ss. 403.52-403.539 . . . or imply in any manner what procedures were proper" prior to the effective dates of those acts, respectively.

1501.124 Art or craft material containing toxic sub­stances; labeling requirements.-

(1) LEGISLATIVE INTENT.-(a) It is hereby found and declared that there exists

a significant danger to the public health and safety from exposure to art or craft material which contains toxic chemicals. This health risk threatens not only profes­sional artists and craftspersons, but art teachers, stu­dents at every educational level , hobbyists, and chil­dren.

(b) It is further found that present labeling of ingredi­ents and hazards of art or craft material is insufficient to adequately protect the consumers of this state from chronic adverse health effects. Because many persons do not know with what toxic chemical substances they

work, proper precautionary actions cannot be taken . Disclosure of toxic ingredients, their possible adverse effects on health , and instructions for safe handling will substantially minimize unnecessary exposure to exces­sive risk .

(c) It is also found that it is consistent to impose upon those who manufacture, repackage, and principal­ly import art or craft material a duty to convey to con­sumers information about the potential health hazards of such products.

(d) Therefore, the Legislature intends to ensure that consumers be provided information concerning the na­ture of the toxic substances with which they are working and the known and suspected health hazards of these substances and to ensure the uniformity of labeling standards so that materials with similar hazards have essentially similar labels.

(e) The Legislature further intends that manufactur­ers, repackagers, and principal importers be primarily responsible for ensuring that art and craft material be appropriately labeled and that they take reasonable measures to ensure that their retail or wholesale distrib­utors are aware of and comply with the Florida arts and crafts labeling law so as to avoid the need for instituting a comprehensive government regulatory program to monitor these products offered for sale at the retail level.

(2) DEFINITIONS.-As used in this section: (a) "Art or craft material" means any raw or pro­

cessed material or manufactured product marketed or being represented by the manufacturer, repackager, or principal importer as being suitable for use in any phase of the creation of any work of visual or graphic art of any medium. These media may include, but shall not be limit­ed to, paintings, drawings, paints, sculpture, ceramics, enamels, jewelry, stained glass, plastic sculpture, pho­tographs, leather, and textile goods. Art or craft material does not include economic poisons as defined in the Federal Insecticide, Fungicide, and Rodenticide Act, as amended , or drugs, devices, or cosmetics as defined in the Federal Food, Drug , and Cosmetic Act, as amended , except that the term "art or craft material" shall include the material used for the affixing of artificial nails.

(b) "Department" means the Department of Health and Rehabilitative Services.

(c) "Label" means a display of written, printed , or graphic matter upon the container of any art or craft ma­terial or, in the case of an art or craft material which is unpackaged or not packaged in an immediate container intended or suitable for delivery to the ultimate consum­er, a display of such matter directly upon the article in­volved or upon a tag or other suitable material affixed thereto.

(d) "Secretary" means the Secretary of Health and Rehabilitative Services.

(e) "Toxic substance" means any substance includ­ed in the Florida Substance List pursuant to s. 442.103, notwithstanding exemptions made for substances on the list which are used in particular forms, circum­stances, or concentrations, if the health hazard pres­ented by the substance is not the subject of label state­ments required by federal law.

(3) DISTRIBUTION OF ART OR CRAFT MATERIAL; LABELING; PACKAGE INSERT.-

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Ch. 501 CONSUMER PROTECTION F.S. 1987

(a) No person shall distribute, sell , or offer for sale any art or craft material containing toxic substances on which the person:

1. Has failed to affix a conspicuous label containing the signal word "WARNING" to alert users of potential adverse health effects.

2. Has failed to affix a conspicuous label warning of the health-related dangers of the art or craft material. If the product contains a toxic substance, the warning shall contain , but not be limited to, the following state­ment or statements where applicable:

a. "May cause sterility or damage to reproductive organs."

b. "May cause birth defects or harm to developing fetus ."

c. "May be excreted in human milk causing harm to nursing infant. "

d. "May cause central nervous system depression or injury."

e. "May cause numbness or weakness in the ex-tremities."

f. "Overexposure may cause damage to (specify organ). "

g. "Heating above (specify degrees) may cause hazardous decomposition products ."

If a product contains more than one chronically toxic substance, or if a single substance can cause more than one chronic health effect , the required statements may be combined into one warning statement.

3. Has failed to affix on the label a list of ingredients which are toxic substances.

4. Has failed to affix on the label a statement or statements of safe use and storage instructions, con­forming to the following list. The label shall contain , but not be limited to, as many of the following risk state­ments as are applicable:

a. "Keep out of reach of children ." b. "When using , do not eat , drink, or smoke." c. "Wash hands after use and before eating , drink-

ing , or smoking ." d. "Keep container tightly closed ." e. "Store in well ventilated area." f. "Avoid contact with skin ." g. "Wear protective clothing (specify type) ." h. "Wear National Institute of Occupational Safety

and Health (NIOSH) certified masks for dusts, mists, or fumes ."

i. "Wear NIOSH certified respirator with appropri-ate cartridge for (specify type). "

j. "Wear NIOSH certified supplied air respirator." k. "Use window exhaust fan to remove vapors and

assure adequate ventilation (specify explosion-proof if necessary) ."

I. "Use local exhaust hood (specify type)." m. "Do not heat above (specify degrees) without ad­

equate ventilation ." n. "Do not use or mix with (specify material) ." 5. Has failed to affix on the label a statement on

where to obtain more information , such as "call your local poison control center for more health information ."

6. Has failed to affix on the label the name and ad-dress of the manufacturer.

(b)1 . If the information listed in sub-subparagraphs 4.a.-n . cannot fit on the package label, a package insert shall be required to convey all the necessary information to the consumer. In this event, the label shall contain a statement to refer to the package insert, such as "CAU­TION: See package insert before use." The language on this insert shall be nontechnical and nonpromotional in tone and content.

2. For purposes of this subsection , "package insert" means a display of written, printed , or graphic matter upon a leaflet or suitable material accompanying the art or craft material.

(c) The requirements of this subsection shall not be considered to be complied with unless:

1. The required words, statements, or other infor-mation appears on the outside container or wrapper, or on a package insert which is easily legible through the outside container or wrapper and is printed in a color in contrast with the product or the package containing the product.

2. All required words, statements, or other informa-tion accompanies art or craft materials from manufactur­er, repackager, and principal importer to consumer.

(d) If an art or craft material complies with labeling standards D-4236 of the American Society for Testing and Materials, the material complies with the provisions of this section , unless the department determines that the label on an art or craft material does not satisfy the purposes of this section .

(4) ARTIFICIAL NAILS.-The provisions of this sec­tion shall also apply to the distribution , sale, or offer for sale of any material used in any phase of any procedure or process for the affixing of artificial nails, except those nails which may be applied solely by use of a simple ad­hesive. The department shall adopt rules necessary to carry out the provisions of this subsection .

(5) NOTIFICATION BY THE DEPARTMENT.-The department shall cause appropriate notification of the existence and general requirements of this section by mailing written notice at least 45 days prior to October 1, 1986, and from time to time thereafter, to such manu­facturers , repackagers , and principal importers as ap­pear on the appropriate trade association mailing lists, each of whom shall in turn be required to notify its re­spective wholesale or retail distributors of the provisions of this section .

(6) RULES.-The department shall have the authori­ty to promulgate rules which are necessary for the en­forcement of this section.

(7) CIVIL PENALTY.-(a)1. Any person who fails to comply with the provi-

sions of this section is liable for a civil penalty not to ex­ceed $1,000 per violation in addition to other damages for which the violator may be liable pursuant to any other provision of law. The civil penalty shall be assessed by the secretary in accordance with the provisions of chap­ter 120.

2. Fines collected pursuant to this subsection shall be deposited in the Florida Drug, Device, and Cosmetic Trust Fund to be used for the administration of this sec­tion.

(b) Any retailer or wholesaler not engaged in repack­aging who receives an art or craft material which said re-

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F.S. 1987 CONSUMER PROTECTION Ch. 501

501.135 Consumer unit pricing.-tailer or wholesaler has reason to believe should be la­beled pursuant to this section and who promptly notifies the department of the name of its manufacturer, repack­ager, or principal importer and withholds the said materi­al from sale shall not be considered in violation of this section.

(1) SHORT TITLE.-This act shall be known and cit­ed as "The Consumer Unit Pricing Act."

History.-ss. 1, 2, 3, 4, 5, 6, 7, ch. 86-244. 'Note.-As created by ss. 1-7, ch. 86-244: s. 8, ch. 86-244, provides that "[t]his

act shall take effect applicable to manufacturers, repackagers, and principal import· ers of art or craft materials October 1, 1986: provided that, in order to allow for liqui· dation of existing stock and stock ordered prior to October 1, 1986, this act shall take effect applicable to wholesalers not involved in packaging and retailers January 1, 1987."

(2) PURPOSES; RULE OF INTERPRETATION.-This act shall be liberally construed to effectively promote the following purposes and policies:

(a) Protect the interests of consumers and encour­age constructive and useful competition in the sale of consumer commodities .

(b) Encourage, to the extent that it will facilitate the consumer's choice of consumer commodities, the devel­opment and use of a method of unit pricing for consumer

1501.131 Consumer protection organizations.- commodities. (1) DEFINITION.-For the purposes of this section, (c) Prohibit the use of unit pricing of consumer com-

a consumer protection organization shall be defined as modities when it would tend to mislead or deceive con-every nonprofit corporation , organization , or association sumers. in the state which has as its purpose: (d) Encourage competition among sellers of con-

(a) The education of persons regarding unfair or un- sumer commodities through the use of uniform units of just business practices; quantity for unit pricing of consumer commodities.

(b) The coordination of persons or organizations for (e) Encourage the development and use, by sellers, the purpose of protection of consumers, or for the en- of consumer education programs with respect to factors hancement of consumer buying power; which should be considered in the purchase of consum­

(c) The promotion or preparation of legislation for er commodities which are offered for sale or sold on a the protection of Florida consumers. unit price basis, with special attention to the needs of

(2) REGISTRATION.-No consumer protection orga- disadvantaged consumers for such consumer educa-nization shall solicit funds or anything of value for what- tion programs. . ever purpose in this state unless a certificate of registra- (f) Provide for a state-approved program of un1t tion has been first secured from the Department of State pricing of consumer commodities. on a form prescribed by the department. Such certifi- (3) DEFINITIONS.-As used in this act: cate shall state the name and address of the applicant, (a) "Seller" means any person engaged in the busi-its board of directors, its officers, the place and type of ness of selling a consumer commodity at retail. proposed solicitations, the proposed use of receipts (b) "Consumer commodity" means any article, prod-from same, and such other pertinent information as may uct, or commodity of any kind or class, other than dura-be required by the Department of State. ble articles , textiles , items of apparel, appliances,

(3) ISSUANCE OF CERTIFICATE.-If the applicant paints, writing supplies, and articles specially ordered is found to have submitted all the information required from the seller , including prescription drugs, which is pursuant to subsection (2), the Department of State customarily produced or distributed for sale at retail for shall issue a certificate of registration on a form pre- consumption by individuals or use by individuals for pur-scribed by it which shall include at least the name and poses of personal care or in the performance of routine address of the consumer protection organization and services ordinarily rendered regularly within the house-the purpose of the solicitation of funds . hold , and which is usually consumed or expended in the

(4) FE E.-Each applicant for registration shall pay to course of such consumption or use. the Department of State for the filing of its application • (c) "Unit price" means the pricing of, or expression and for the issuance of the certificate of registration pro- of the price of, a consumer commodity as the price per vided for by this section the same fee as for making a an approved unit of quantity. certificate with seal, as provided by s. 15.09. (d) "Department" means the Department of Agricul-

(5) FINANCIAL STATEMENT-All registrants under ture and Consumer Services. this section shall file with the Department of State, on (4) RESPONSIBILITY OF DEPARTMENT.-The de-or before January 1 of each year, an annual certified fi- partment shall have the authority, duty and responsibili-nancial statement which shall set forth the total receipts ty of administering and enforcing this act. of the registrant and an itemized list of all expenses, in- (5) APPROVED UNIT OF QUANTITY AND COMPU-cluding salaries and wages, and such other information TATION OF UNIT PRICE.-as the department may require. Should a consumer pro- (a) The price of all consumer commodities offered tection organization fail to file such statement, the De- for sale or sold by a seller shall be expressed as the partment of State shall forthwith revoke such organiza- price per approved unit of quantity, which shall be the tion 's certificate of registration. price per:

(6) PENAL TY.-Any consumer protection organiza- 1. Avoirdupois ounce; tion violating any of the provisions of this section is guilty 2. Fluid ounce; of a misdemeanor of the second degree, punishable as 3. Unit; provided in s. 775.082 or s. 775.083. 4. Square foot ;

History.-ss. 1. 2, 3, 4, 5, 6, ch. 70-416: s. 459, ch. 71-136: s. 1. ch . 84-94. 5. Linear foot; 'Note.-Repealed effective October 1, 1994, by s. 1, ch . 84-94, and scheduled for 6. Pound·, or

review pursuant to s. 11 .61 in advance of that date.

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Ch. 501 CONSUMER PROTECTION F.S. 1987

7. Such substitute unit or units of quantity as may be approved by the department upon a finding of need for such substitute unit.

(b) Unit prices shall be computed to the nearest one-hundredth of 1 cent rounded to the nearest one­tenth of 1 cent for purposes of display to consumers. Five one-hundredths of 1 cent shall be rounded to the next highest one-tenth of 1 cent.

(c) This act shall not apply to any seller unless he voluntarily establishes a system of unit pricing.

(6) DISPLAY AND ADVERTISING OF CONSUMER COMMODITY UNIT PRICES.-A seller shall conspicu­ously and clearly display the price per package or unit and the unit price in close proximity to the display of the commodity in such manner as may be established by rules of the department. However, the display of the prices may not obliterate or conceal any other informa­tion required by law or regulation . Nothing contained herein shall be construed to require that a seller unit price any consumer commodity other than those with re­gard to which he has voluntarily established a system of unit pricing .

(7) PENAL TIES.-Any person who offers for sale, or sells , any consumer commodity in violation of this act is guilty of a misdemeanor of the second degree, punish­able as provided in s. 775.082 or s. 775.083.

(8) INJUNCTIVE RELIEF.- The department may in­stitute proceedings in the appropriate circuit court for in­junctive relief to enforce this act.

History.-ss. 1, 2. 3, 4, 5. 6, 7, 8, ch . 72-325: s. 6, ch. 78-95.

501.137 Mortgage lenders; tax and insurance pay­ments from escrow accounts; duties.-Every lender of money, whether a natural person or an artificial entity, whose loans are secured by a mortgage on real estate located within the state and who receives funds inciden­tal thereto or in connection therewith for the payment of property taxes or hazard insurance premiums when such funds are held in escrow by or on behalf of the lender, shall promptly pay such taxes or insurance pre­miums when such taxes or premiums become due and adequate escrow funds are deposited, so that the maxi­mum tax discount available may be obtained with regard • to the taxable property and so that insurance coverage on the property does not lapse. If an escrow account for such taxes or insurance premiums is deficient, the lend­er shall notify the property owner within 15 days after the lender receives the notification of taxes due from the county tax collector or receives the notification from the insurer that a premium is due. If the lender, as a result of neglect, fails to pay any tax or insurance premium when the tax or premium is due and there are sufficient escrow funds on deposit to pay the tax or premium, and if the property owner suffers a loss as a result of such failure, then the lender will be liable for such loss; ex­cept, however, that with respect to any loss which would otherwise have been insured, the extent of such liability shall not exceed the coverage limits of any insurance policy which has lapsed. At the expiration of the annual accounting period, the lender shall issue to the property owner an annual statement of the escrow account.

Hlstory.-s. 1, ch. 76-12: s. 1, ch. 77-174; s. 1, ch. 84-52.

501.1375 Deposits received for purchase of resi· dential dwelling units; placement in escrow required; exceptions.-

(1) DEFINITIONS.-(a) "Building contractor" means any person who, for

compensation, constructs and sells one-family or two­family residential dwelling units, except for a person who sells or constructs less than 10 units per year statewide.

(b) "Developer" means either a building contractor who offers new residential dwelling units for sale or any person who offers a new one- or two-family residential dwelling unit for sale, except for a person who sells or constructs less than 10 units per year statewide.

(c) "Closing" means that point in time at which legal title to the real property shall transfer from grantor there­of to grantee.

(d) "Default" means the failure of the buyer to close the transaction after issuance of the certificate of occu­pancy or the failure of the buyer to comply with any of the buyer's obligations under the terms of the purchase contract.

(e) "Escrow" or "to place in escrow" means the deliv­ery to or deposit with a third party, the escrow holder, of money or documents to be held and disbursed by such escrow agent consistent with the provisions of this section.

(2) NOTICE TO BUYER OF RIGHT TO HAVE DE­POSIT PLACED IN ESCROW ACCOUNT.-In all offers to purchase, sales agreements, or written contracts made between a building contractor or a developer and a prospective buyer of a one-family or two-family resi­dential dwelling unit, the building contractor or develop­er shall notify the prospective buyer that any deposit (up to 1 0 percent of the purchase price) made by the buyer to the building contractor or developer shall, unless waived in writing by the buyer, be deposited in an es­crow account with a savings and loan association, bank, or trust company, an attorney who is a member of The Florida Bar, a licensed Florida real estate broker, or a ti­tle insurance company authorized to insure title to real property in this state. The escrowed funds may be de­posited in separate accounts or commingled with other escrow or trust accounts. Any such offer, agreement, or contract used by the building contractor or developer with respect to the sale of a one-family or two-family residential dwelling unit shall contain the following leg­end in conspicuous type: THE BUYER OF A ONE­FAMILY OR TWO-FAMILY RESIDENTIAL DWELLING UNIT HAS THE RIGHT TO HAVE ALL DEPOSIT FUNDS (UP TO 10 PERCENT OF THE PURCHASE PRICE) DE­POSITED IN AN INTEREST -BEARING ESCROW AC­COUNT. THIS RIGHT MAY BE WAIVED, IN WRITING, BY THE BUYER.

(3) ESCROW ACCOUNTS; INTEREST RATE ; WITH­DRAWALS.-In the event that the buyer of a one-family or two-family residential dwelling unit does not waive his right to have deposits placed in an escrow account, the building contractor or developer shall place the funds (up to 10 percent of the purchase price) in an escrow ac­count bearing interest at no less than the passbook rate of interest. The account shall be in the name of the build­ing contractor or developer and the purchaser and shall be clearly denoted on the records of the escrow holder

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F.S. 1987 CONSUMER PROTECTION Ch. 501

as an escrow account. All withdrawals from the account shall require the signatures of both the building contrac­tor or developer and the buyer or his agent, except as provided herein .

(4) RIGHT TO INTEREST; USE OF ESCROWED FUNDS; SURETY BOND .-When money has been placed in an interest-bearing escrow account pursuant to this section, the building contractor or developer shall be entitled to all interest accrued by the account, pay­able at closing. When the building contractor or develop­er desires to use escrowed funds for building purposes, after notification to the buyer, the building contractor or developer shall acquire a surety bond issued by a com­pany licensed to do business in this state, if such a bond is readily available in the open market, payable to the buyer in the amount of the escrow deposit; and the funds in the escrow deposit shall thereafter be released to the building contractor or developer for construction purposes only. In the case where no surety bond is avail­able, the building contractor or developer may borrow money in an amount equal to the funds held in escrow for construction purposes only, in which case any inter­est which the building contractor or developer pays on such a loan for a period not to exceed 12 months shall be paid by the buyer at the time of closing, but the buyer shall be credited for any interest accrued on the escrow account.

(5) MASTER SURETY BOND.-In lieu of and as an alternative to the requirements of subsection (4), a blan­ket or master surety bond issued by a company licensed to do business in this state may be acquired by the builder or developer, in an amount equal to or greater than the total amount of escrow deposits received by the builder or developer pursuant to this section . The buyer shall be debited at closing in an amount equal to the premium for the applicable portion of the bond se­curing his deposit. Bond rates charged under this sub­section shall be subject to the provisions of part I of chapter 627 of the Florida Insurance Code.

(6) ACCOUNT ABILITY OF ESCROW HOLDER FOR USE OF ESCROWED FUNDS.-No escrow holder, bonding company, or lending institution referred to in this section shall be chargeable with the use to which a builder or developer puts escrowed funds.

(7) RELEASE OF DEPOSIT MONEYS.-Funds in an interest-bearing escrow account shall be released with­out the signature of both the building contractor or de­veloper and the buyer only under the following condi­tions:

(a) Pursuant to subsection (4). (b) Pursuant to subsection (5). (c) If the buyer properly terminates the contract pur­

suant to its terms, the funds, including accrued interest, shall be paid to the buyer.

(d) If the buyer defaults in the performance of his ob­ligations under the contract of purchase and sale, the funds shall be paid to the building contractor or develop­er together with any interest earned, in the following manner: The builder or developer may, upon default of the buyer to comply with the terms and conditions of the written contract between the parties, and if the builder or developer is not in default , withdraw any funds being held in escrow pursuant to said written agreement. In or-

der to make such withdrawal , the builder or developer shall send written notice by certified mail to the buyer of his intention to make said withdrawals at least 72 hours prior to the intended time of withdrawal. After this 72-hour period, the builder or developer, upon presenta­tion to the escrow holder of a withdrawal slip and the passbook, if any, together with an affidavit certifying that the buyer is in default and that the builder or devel­oper is not in default , may withdraw the escrowed funds . The escrow holder, upon receipt of these items, shall re­lease the funds to the builder or developer. The escrow holder shall not be liable for the release of the funds pur­suant to this subsection.

(e) If the funds of the buyer have not been previously disbursed in accordance with this subsection, they shall be disbursed to the building contractor or developer at the closing of the transaction.

(8) NO RIGHT OF LIEN, SUBROGATION, OR CLAIM. (a) An escrow deposit or surety bond purchased

pursuant to this section shall not be subject to any me­chanic 's lien or lien of any lending institution (except if contracted for by the buyer) or subrogation in the case of default.

(b) In the event that closing occurs with respect to a sale under this section , the buyer shall then have no right to place a claim on any escrowed funds for breach of contract.

(9) PENAL TIES.-Any person who removes any es­crowed funds from an account in violation of the provi­sions of this section and without the signature of the building contractor or developer and the buyer, except as provided in this section, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(10) CIVIL ACTIONS.-In the event of any civil litiga­tion arising under this section, the prevailing party shall be entitled to attorney 's fees and costs. Escrow­account interest shall continue to accrue to the benefit of the building contractor or developer on said escrow account during the pendency of any such litigation, ex­cept in the event of a ruling adverse to the building con­tractor or developer.

(11) STATE STANDARDS.-The provisions of this section constitute maximum statewide standards.

(12) EXEMPTIONS.-This section shall not apply to those deposits, as defined herein, which are placed in an escrow account required by the Federal Housing Ad­ministration or the Veterans Administration, and those deposits made to licensed real estate brokers pursuant to this section shall be deposited in accordance with the provisions of chapter 475.

History.-ss. 1, 2, 3, 4, 5, 6, 7, ch . 80-386: s. 385, ch. 81-259. cf.-s. 718.202 Sales or reservation deposits prior to closing .

501.138 Advertising of previews or trailers; stand­ards.-

(1) Any motion picture theater owner or operator who desires to exhibit, on the same program, a motion picture which has received a "G" rating and which he ad­vertises as "G" rated, and a preview or trailer of a motion picture which has not received a "G" rating, shall in all such advertising of the program give notice to the public

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Ch. 501 CONSUMER PROTECTION F.S. 1987

of the exhibition of the preview or trailer in the manner provided in subsections (2) and (3).

(2) The advertisement of the preview or trailer which is required by subsection (1) shall conform to the follow­ing standards :

(a) In the case of printed matter or marquees, such advertising shall be contiguous to and in the same type size as, and shall contain the same kind of information as, the advertisement for the motion picture which has received a "G" rating and is to be shown on the same program.

(b) In the case of oral advertising and television ad­vertising, the text used for the broadcast of such trailer or preview shall contain the same kind of information as, and be broadcast in the same manner, form, detail, and time as, the text advertising the motion picture which has received a "G" rating and is to be shown on the same program.

(c) In the case of any other form of advertisement, such dissemination shall be in the same manner, form , detail, time, and place as that used for the motion pic­ture which has received the "G" rating and is to be shown on the same program.

(3) For the purposes of this act , advertisement or ad­vertising shall include, but not be limited to, marquee, poster, flier, newspaper, television, radio, and billboard .

(4) Any person violating the provisions of this sec­tion is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-ss. 1, 2, ch. 77-220; s. 212, ch . 79-400.

501.141 Delivery of crated item; written statement of satisfaction; right to cancel.-

(1) As used in this section, "statement of satisfac­tion" means any receipt, statement, or document by which any retail noncommercial buyer of goods, which goods are to be delivered or are delivered in any box, crate, or other covering which hides the goods from view, is requested or required, as a condition upon re­ceipt of any such purchased goods, to attest satisfac­tion with the condition or operation of any goods deliv­ered or to be delivered by a seller or his representative.

(2) Every statement of satisfaction requested or re­quired to be attested or agreed to in this state shall be evidenced by a writing as provided in this section.

(a) The person or business entity requesting or re­quiring any such statement of satisfaction shall present to and obtain from the buyer his signature to the state­ment of satisfaction which designates, as the date of the attestation of or agreement to the statement, the date on which the buyer actually signs and which contains a statement of buyer's rights which complies with para­graph (b).

(b) The statement must: 1. Appear under the conspicuous caption,

"BUYER'S RIGHT TO CANCEL." 2. Read as follows: "If the goods you have received

are not in satisfactory condition or operation, you may cancel this statement of satisfaction by mailing a notice to the seller. This notice must indicate that you do not want the goods in the condition in which they were deliv-

ered and must be postmarked before midnight of the fifth business day after you sign this statement."

(3) Any statement of satisfaction agreed or attested to which is not in compliance with the provisions of this section shall be null , void, and of no force or effect.

History.-s. 1, ch. 77-346.

501.142 Retail sales establishments; notice of re­fund policy; exceptions.-

(1) Every retail sales establishment offering goods for sale to the general public that offers no cash refund, credit refund, or exchange of merchandise must post a sign so stating at the point of sale. Failure of a retail sales establishment to exhibit a "no refund" sign under such circumstances at the point of sale shall mean that a refund or exchange policy exists, and the policy shall be presented in writing to the consumer upon request. Any retail establishment failing to comply with the provi­sions of this section shall grant to the consumer, upon request and proof of purchase, a refund on the merchan­dise, within 7 days of the date of purchase, provided the merchandise is unused and in the original carton, if one was furnished. Nothing herein shall prohibit a retail sales establishment from having a refund policy which ex­ceeds the number of days specified herein.

(2) The provisions of this section shall not apply to the sale of food , perishable goods, goods which are cus­tom made, goods which are custom altered at the re­quest of the customer, or goods which cannot be resold by the merchant because of any law, rule, or regulation adopted by a governmental body.

History.-ss. 1, 2, ch. 78-148.

501 .201 501.202 501 .203 501 .204 501.2045 501.205 501.206 501 .207 501 .2075 501 .208 501 .209 501.2091 501 .2101

501 .2105 501.211 501 .212 501 .213

PART II

DECEPTIVE AND UNFAIR TRADE PRACTICES

Short title. Purposes; rules of construction. Definitions. Unlawful acts and practices. Sale of used goods as new; penalty. Rulemaking power. Investigative powers of enforcing authority. Remedies of enforcing authority. Civil penalty. Cease and desist orders; procedures. Other supervision. Stay of proceedings pending trial. Enforcing authorities; moneys received in

certain proceedings; Consumer Frauds Trust Fund .

Attorney's fees . Other individual remedies. Application. Effect on other remedies.

501.201 Short title.-This part shall be known and may be cited as the "Florida Deceptive and Unfair Trade Practices Act."

Hlstory.-s. 1, ch. 73-124.

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F.S. 1987 CONSUMER PROTECTION Ch. 501

501.202 Purposes; rules of construction.-The pro­visions of this part shall be construed liberally to pro­mote the following policies:

(1) To simplify, clarify, and modernize the law gov­erning consumer sales practices.

(2) To protect consumers from suppliers who com­mit deceptive and unfair trade practices .

(3) To make state regulation of consumer sales prac­tices consistent with established policies of federal law relating to consumer protection .

History.-s. 1, ch. 73-124.

501.203 Definitions.-As used in this chapter, un­less the context otherwise requires, the term:

(1) "Consumer transaction" means a sale, lease, as­signment, award by chance, or other disposition of an item of goods, a consumer service, or an intangible to an individual for purposes that are primarily personal , family, or household or that relate to a business opportu­nity that requires both his expenditure of money or prop­erty and his personal services on a continuing basis and in which he has not been previously engaged, or a solici­tation by a supplier with respect to any of these disposi­tions .

(2) "Final judgment" means a judgment, including any supporting opinion, that determines the rights of the parties and concerning which appellate remedies have been exhausted or the time for appeal has expired.

(3) "Supplier" means a seller, lessor, assignor, or oth­er person who regularly solicits, engages in, or enforces consumer transactions, whether or not he deals directly with the consumer.

(4) "Enforcing authority" means the office of the state attorney if a violation of this part occurs in or af­fects the judicial circuit under the office 's jurisdiction and if a complaint of such violation has been referred to the state attorney by the Department of Legal Affairs. "Enforcing authority" means the Department of Legal Af­fairs if the violation occurs in or affects more than one judicial circuit or if the office of state attorney fails to act upon a violation within 90 days after a written complaint has been filed with the state attorney.

(5) "Violation of this part" means either a violation of a provision of this part or a violation of any rule promul­gated pursuant to this part.

(6) "Department" means the Department of Legal Af­fairs.

(7) "Order" means a cease and desist order issued by the enforcing authority as set forth in s. 501.208.

(8) "Interested party or person" means any person affected by a violation of this part or any person affected by an order of the enforcing authority.

(9) "Consumer" means an individual ; child, by and through its parent or legal guardian ; firm; association ; joint adventure; partnership; estate; trust; business trust; syndicate; fiduciary; corporation; or any other group or combination .

History.-s. 1, ch . 73-124; s. 1. ch. 79-386.

501.204 Unlawful acts and practices.-(1) Unfair methods of competition and unfair or de­

ceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

(2) It is the intent of the Legislature that, in constru­ing subsection (1 ), due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. 45(a)(1 ), as amended and in effect on April 1, 1983.

History.-s. 1, ch . 73-124; s. 1, ch. 83-117; s. 4, ch. 85-63.

501.2045 Sale of used goods as new; penalty.­(1) It is unlawful for a seller in a consumer transac­

tion, as defined in s. 501.203, where the purchase price of goods exceeds $100, to misrepresent orally, in writ­ing , or by failure to speak that the goods are new or origi­nal when they are used, repossessed, or where they have been used for sales demonstration .

(2) Whoever violates the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 86-53.

501.205 Rulemaking power.-(1) The department shall propose rules to the Gover­

nor and Cabinet which prohibit with specificity acts or practices that violate this part and which prescribe pro­cedural rules for the administration of this part. Such rules shall be adopted by the department upon a majori­ty vote of the Governor and Cabinet. All rules and admin­istrative actions taken by the department shall be pursu­ant to chapter 120. The Department of Legal Affairs shall , at least 30 days before the meeting at which such rules are to be considered by the Governor and Cabinet, mail a copy of such rules to any person filing a written request with the Department of Legal Affairs to receive copies of proposed rules .

(2) All substantive rules promulgated under this part shall be consistent with the rules, regulations, and deci­sions of the Federal Trade Commission and the federal courts-J.n interpreting the provisions of s. 5(a)(1) of the Federal 'Trade Commission Act , 15 U.S.C. 45(a)(1), as amended and in effect on April 1, 1983.

History.-s. r , ch. 73-124; s. 22, ch. 78-95; s. 2, ch. 79-386; s. 2, ch. 83-117.

501.206 Investigative powers of enforcing authori­ty.-

(1) If, by his own inquiries or as a result of com­plaints, the enforcing authority has reason to believe that a person has engaged in, or is engaging in, an act or practice that violates this part , he may administer oaths and affirmations, subpoena witnesses or matter, and collect evidence. Within 10 days after the service of a subpoena or at any time before the return date speci­fied therein , whichever is longer, the party served may file in the circuit court in the county in which he resides or in which he transacts business and serve upon the enforcing authority a petition for an order modifying or setting aside the subpoena. The petitioner may raise any objection or privilege which would be available un­der this chapter or upon service of such subpoena in a civil action . The subpoena shall inform the party served of his rights under this subsection.

(2) If matter that the enforcing authority seeks to ob­tain by subpoena is located outside the state, the per­son subpoenaed may make it available to the enforcing authority or his representative to examine the matter at

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Ch. 501 CONSUMER PROTECTION F.S. 1987

the place where it is located. The enforcing authority may designate representatives , including officials of the state in which the matter is located , to inspect the mat­ter on his behalf, and he may respond to similar requests from officials of other states.

(3) Upon failure of a person without lawful excuse to obey a subpoena and upon reasonable notice to all per­sons affected , the enforcing authority may apply to the circuit court for an order compelling compliance.

(4) The enforcing authority may request that an indi­vidual who refuses to comply with a subpoena on the ground that testimony or matter may incriminate him be ordered by the court to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or mat­ter after asserting a privilege against self-incrimination to which he is entitled by law shall not have the testimo­ny or matter so provided , or evidence derived therefrom, received against him in any criminal investigation or pro­ceeding.

History.-s. 1, ch. 73-124; s. 1, ch. 85- 3.

501.207 Remedies of enforcing authority.­(1) The enforcing authority may bring: (a) An action to obtain a declaratory judgment that

an act or practice violates this part. (b) An action to enjoin a supplier who has violated,

is violating , or is otherwise likely to violate, this part. (c) An action on behalf of one or more consumers for

the actual damages caused by an act or practice per­formed in violation of this part. However, no damages shall be recoverable under this section against a retailer who has in good faith engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this part.

(2) Before bringing an action under paragraphs (a) or (c) of subsection (1 ):

(a) The enforcing authority shall conduct an investi­gation and shall provide the party or parties being inves­tigated with notice of the substance of the alleged viola­tion and a reasonable opportunity to respond .

(b) The head of the enforcing authority shall review the matter and determine if an enforcement action serves the public interest. This determination shall be made in writing , but shall not be subject to the provi­sions of chapter 120.

(3) Upon motion of the enforcing authority or any in­terested party in any action brought under subsection (1 ), the court may make appropriate orders, including appointment of a master or receiver or sequestration of assets, to reimburse consumers found to have been damaged; to carry out a consumer transaction in ac­cordance with consumers ' reasonable expectations; to strike or limit the application of clauses of contracts to avoid an unconscionable result ; or to grant other appro­priate relief. The court may assess the expenses of a master or receiver against a supplier. Any injunctive or­der, whether temporary or permanent, issued by the court shall be effective throughout the state unless oth­erwise provided in the order.

(4) If a violator shows that a violation of this part re­sulted from a bona fide error notwithstanding the main­tenance of procedures reasonably adapted to avoid the

error , recovery under this section is limited to the amount, if any, by which the violator was unjustly en­riched by the violation.

(5) No action may be brought by the enforcing au­thority under this section more than 2 years after the oc­currence of a violation of this part , or more than 1 year after the last payment in a consumer transaction in­volved in a violation of this part, whichever is later.

(6) The enforcing authority may terminate an investi­gation or an action upon acceptance of a person 's writ­ten assurance of voluntary compliance with this part. Acceptance of an assurance may be conditioned on a commitment to reimburse consumers or to take other appropriate corrective action. An assurance is not evi­dence of a prior violation of this part. However, unless an assurance has been rescinded by agreement of the parties or voided by a court for good cause, subsequent failure to comply with the terms of an assurance is prima facie evidence of a violation of this part. No such assur­ance shall act as a limitation upon any action or remedy available to a person aggrieved by a violation of this part.

Hlstory.-s. 1, ch. 73-124; s. 3, ch. 79-386; s. 2, ch. 85- 3.

501.2075 Civil penalty.-Any person, firm , corpora­tion , association, or entity, or any agent or employee of the foregoing , who engages in any act or practice de­clared in this part to be unlawful , or who violates any of the rules of the Department of Legal Affairs promulgated under this part, with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive or is prohibited by rule , is liable for a civil penalty of not more than $5,000 for each such violation . This civil penalty may be recov­ered in any action brought under this part by the enforc­ing authori ty; or the enforcing authority may terminate any investigation or action upon agreement by the per­son , firm, corporation , association, or entity, or the agent or employee of the foregoing , to pay a stipulated civil penalty. The department or the court may waive any such civil penalty if the person, firm , corporation, associ­ation , or entity, or the agent or employee of the forego­ing , has previously made full restitution or reimburse­ment or has paid actual damages to the consumers who have been injured by the unlawful act or practice or rule violation . A civil penalty so collected shall accrue to the state and shall be deposited as received into the Gener­al Revenue Fund unallocated.

History.-s. 3, ch. 83-1 17.

501.208 Cease and desist orders; procedures.­(1) Whenever the Department of Legal Affairs has

reason to believe that a person has been , or is, violating this part, and if it appears to the department that a cease and desist order against such violation would be in the interest of the public , it shall issue and serve upon such person a complaint and order stating its charges in that respect and containing a notice of a hearing upon a day and at the place therein fixed at least 30 days after the service of said complaint. Said hearing shall be held in conformity with the provisions of chapter 120.

(2) The department may modify or set aside its order at any time by rehearing upon its own motion when such rehearing is in the interest of the public welfare.

1828

F.S.1987 CONSUMER PROTECTION Ch.501

(3) Judicial review of orders of the department shall be in accordance with the provisions of s. 120.68 and shall take precedence over other civil cases pending and shall be expedited in every way.

(4) An order of the department to cease and desist shall not become effective until10 days after all adminis­trative action has been concluded or, if appeal is made to the district court of appeal and bond is posted, until a final order has been entered by that court.

(5) No cease and desist order shall act as a limitation upon any other action or remedy available to a person aggrieved by a violation of this act.

(6) When a court remands an order of the depart­ment for rehearing, such rehearing shall be held within 45 days after the remand.

(7) Any person who violates a cease and desist or­der of the department after it has become final and while such order is in effect shall forfeit and pay to the state a civil penalty of not more than $5,000 for each violation which shall accrue to the state and may be recovered in a civil action brought by the state. Each separate vio­lation of such an order shall be a separate offense, ex­cept that in the case of a violation through continuing failure or neglect to obey a final order of the department, each day of continuance of such failure or neglect shall be deemed a separate offense.

History.-s. 1, ch . 73-124; s. 22, ch. 78-95; s. 4, ch. 79-386.

501.209 Other supervision.-lf the enforcing au­thority receives a complaint or other information relating to noncompliance with this act by a supplier who is sub­ject to other supervision in this state, the enforcing au­thority shall inform the official or agency having that su­pervision.

History.-s. 1, ch. 73-124.

501.2091 Stay of proceedings pending triai.-Not­withstanding anything in this act to the contrary, any person made a party to any proceeding brought under the provisions of this part by any enforcing authority may obtain a stay of such proceedings at any time by filing a civil action requesting a trial on the issues raised by the enforcing authority in the circuit court in the county of said party's residence. All parties shall be bound by the final order of the circuit court.

History.-s. 1, ch. 73-124.

501.2101 Enforcing authorities; moneys received in certain proceedings; Consumer Frauds Trust Fund.

( 1) Any moneys received by an enforcing authority as reimbursement for attorney's fees and costs of inves­tigation and litigation in proceedings brought under the provisions of s. 501.207, s. 501 .208, or s. 501.211 shall be deposited as received in the Consumer Frauds Trust Fund in the State Treasury.

(2) There is created in the State Treasury a trust fund to be known as the Consumer Frauds Trust Fund. Money deposited therein shall be disbursed to the en­forcing authority responsible for its collection for the funding of activities conducted by enforcing authorities pursuant to ss. 501 .201-501.213, inclusive.

(3) Any moneys received by an enforcing authority and neither received as reimbursement for attorney's fees and costs of investigation and litigation nor used to

reimburse consumers found under this law to be dam­aged shall accrue to the state and be deposited as re­ceived in the General Revenue Fund unallocated.

History.-s. 6, ch. 79-386.

501.2105 Attorney's fees.-(1) In any civil litigation resulting from a consumer

transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney's fees and costs from the nonprevailing party.

(2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.

(3) 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.

(4) Any award of attorney's fees or costs shall be­come a part of the judgment and subject to execution as the law allows.

(5) In any civil litigation initiated by the enforcing au­thority, 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.

(6) In any administrative proceeding or other non­judicial action initiated by an enforcing authority, the at­torney for the enforcing authority may certify by sworn affidavit the number of hours and the cost thereof to the enforcing authority for the time spent in the investigation and litigation of the case plus costs reasonably incurred in the action . Payment to the enforcing authority of the sum of such costs may be made by stipulation of the parties a part of the final order or decree disposing of the matter. The affidavit shall be attached to and be­come a part of such order or decree.

History.-s. 1, ch. 73-124; s. 5, ch . 79-386. Note.-Former s. 501 .210.

501.211 Other individual remedies.-(1) Without regard to any other remedy or relief to

which a person is entitled, anyone aggrieved by a viola­tion of this part may bring an action to obtain a declara­tory judgment that an act or practice violates this part and to enjoin a supplier who has violated, is violating, or is otherwise likely to violate this part.

(2) In any individual action brought by a consumer who has suffered a loss as a result of a violation of this part, such individual may recover actual damages, plus attorney's fees and court costs as provided in 1s. 501 .21 05; however, no damages, fees , or costs shall be recoverable under this section against a retailer who has, in good faith, engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this part.

(3) In any action brought under this section, upon motion of the party against whom such action is filed al­leging that the action is frivolous , without legal or factual merit, or brought for the purpose of harassment, the court may, after hearing evidence as to the necessity

1829

Ch. 501 CONSUMER PROTECTION F.S. 1987

therefor, require the party instituting the action to post a bond in the amount which the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney's fees . This subsection shall not apply to any action initiated by the enforcing authority.

History.-s. 1, ch. 73-124. 'Note.-The reference 1o "s. 501 .2105" was subs1itu1ed by the editors for a refer·

ence to "s. 501 .210" to conform to the renumbering by the reviser incident to compil· ing the Florida Statutes, 1979.

501.212 Application.-This part does not apply to : (1) An act or practice required or specifically permit­

ted by federal or state law. (2) A publisher, broadcaster, printer, or other person

engaged in the dissemination of information or the re­production of printed or pictorial matter, insofar as the information or matter has been disseminated or repro­duced on behalf of others without actual knowledge that it violated this part.

(3) A claim for personal injury or death or a claim for damage to property other than the property that is the subject of the consumer transaction .

(4) The holder in due course of a negotiable instru­ment or the transferee of a credit agreement received in good faith without knowledge of a violation of this part.

(5) Any person or activity regulated under laws ad­ministered by the Department of Insurance or the Florida Public Service Commission or banks and savings and loan associations regulated by the Department of Bank­ing and Finance or banks or savings and loan associa­tions regulated by federal agencies .

History.-s. 1, ch. 73-124; s. 7, ch. 79-386.

501.213 Effect on other remedies.-(1) The remedies of this part are in addition to reme­

dies otherwise available for the same conduct under state or local law.

(2) This part is supplemental to, and makes no at­tempt to preempt, local consumer protection ordinances not inconsistent with this part.

History.-s. 1, ch. 73- 124.

501 .90 501 .91 501 .911 501 .912 501 .913 501 .914 501 .915 501 .916 501.917

501 .918 501.919 501 .92 501 .921 501 .922 501 .923 501.925

PART Ill

MISCELLANEOUS

Treated fence posts. Short title. Administration of act. Definitions. Registration. Cancellation of registration . Adulteration of antifreeze. Mislabeling of antifreeze. Inspection by department; sampling and anal-

ysis . Prohibited activity. Enforcement; stop-sale order. Formula may be required. Standards. Violation. Injunctive rel ief. Used watches; sales regulated .

1501.90 Treated fence posts.-(1) SHORT TITLE.- This section shall be known and

may be cited as the "Florida Treated Fence Post Act. " (2) DEFINITIONS.-As used in this section , unless

the context otherwise requires : (a) "Preservative" means any chemical used in treat­

ing wood to retard or prevent untimely deterioration or destruction by insects, fungi, bacteria, or other wood­destroying organisms .

(b) "Brand" means an identification mark of a proces­sor approved by the department and used to mark a fence post after treatment.

(c) "Department" means the Department of Agricul­ture and Consumer Services .

(d) "Treated fence post" means roundwood having a 2-inch or greater top diameter and a length of 16 feet or less, which has been chemically treated with a preser­vative.

(e) "Person" means an individual , partnership, corpo­ration, association , or other group.

(3) LICENSING REQUIREMENTS.-(a) Each person , firm , or corporation which shall en­

gage in the business of treating fence post products with preservatives in this state shall secure an annual processor's license from the department before such treatment is undertaken. The annual fee for this license shall be $25.

(b) Each person , firm , or corporation which shall ship into the state for sale or which shall bring into the state for sale any treated fence post processed outside the state shall secure an annual dealer's license from the de­partment. The annual fee for this license shall be $25.

(4) SALE OF TREATED FENCE POSTS.-(a) Every treated fence post sold or offered for sale

in this state shall be clearly marked with a brand ap­proved by the department.

(b) Every sale of a treated fence post consummated in this state, except for sales between farmers , shall have documentation available which shall be supplied to the purchaser disclosing the following information:

1. The method or process used in treating the fence posts.

2. The name of the preservative and the average minimum net retention of preservative per cubic foot of treated wood .

3. The name and location of the wood-preserving plant.

(c) No person shall sell or offer to sell treated fence posts in this state unless they have been treated as de­scribed in the disclosure required by paragraph (b), and all provisions of this section and rules of the department are complied with .

(5) INSPECTION AND SAMPLING.-For the purpose of carrying out the provisions of this section and rules promulgated hereunder, the department or its author­ized representative may enter into or upon any place during reasonable business hours, may open any pack­age or container containing, or believed to contain, treat­ed fence posts , and may take reasonable samples consistent with current industry sampling standards for the purpose of testing treated fence posts. The depart­ment or its authorized representative is authorized to in­spect any treated fence post upon request of any pur-

1830

F.S. 1987 CONSUMER PROTECTION Ch. 501

chaser thereof for compliance with the information dis­closed under paragraph (4)(b), provided that such in­spection is performed within 60 days from date of pur­chase.

(6) VIOLATIONS; PENALTIES.-(a) The department, after notice and hearing in ac­

cordance with chapter 120, may suspend or revoke the registration of any person for violation of any of the provi­sions of this section.

(b) Any person who violates any of the provisions of this section shall be subject to a civil penalty not ex­ceeding $100, payable to the department, in addition to any civil damages that may be assessed.

(c) Nothing in this section shall be construed as re­quiring the department to report any person for prosecu­tion as a result of minor violations of this section when it believes that the public interest will be best served by other methods, procedures, or actions.

(d) To enforce the provisions of this section, the de­partment may seek injunction, without bond, before a court of competent jurisdiction.

(7) RULES.-The department may adopt such rules as necessary to implement the provisions of this section.

(8) STOP-SALE, STOP-USE, REMOVAL, OR HOLD ORDERS.-

(a) When treated fence posts are being offered for sale or exposed for sale in violation of any provision of this section , the department may issue and enforce a stop-sale, stop-use, removal, or hold order to the owner or custodian of said treated fence posts ordering them to be held at a designated place until this section has been complied with and said treated fence posts are re­leased in writing by the department or said violation has been disposed of by court order.

(b) Any person receiving written notice of such stop-sale, stop-use, removal, or hold order shall scrupu­lously refrain from moving, altering, or interfering with said treated fence posts or from altering, defacing, or in any way interfering with such notice itself or permitting the same to be done.

(c) It shall be unlawful for any person to willfully vio­late any of the provisions of paragraph (b), and such vio­lation shall be punishable as provided in subsection (6).

(d) The department shall release the treated fence posts so withdrawn when the provisions of this section have been complied with.

(e) The owner or custodian, with the consent and au­thorization of the department, may correct a documen­tation or branding violation to conform with this section or may transfer said treated fence posts to the producer or dealer for the purpose of bringing the products into compliance with the law; provided that such correction or return shall be under the direction and supervision of the department.

History.-ss. 1, 2, 3, 4, 5, 6, 8, ch. 78-179; s. 1, ch. 79-181; s. 2, ch. 81-318. 1Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.91 Short title.-Sections 501.91-501.923 may be cited as the "Antifreeze Act of 1978."

History.-s. 1, ch. 78-199; s. 2, ch. 81-318. 1Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.911 Administration of act.-Sections 501.91-501.923 shall be administered by the Department of Ag­riculture and Consumer Services .

History.-s. 2, ch. 78-199; s. 2, ch . 81-318. 'Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11.61 in advance of that date.

1501.912 Definitions.-As used in ss. 501.91-501.923:

(1) "Antifreeze" means any substance or preparation sold, distributed, or intended for use as the cooling liq­uid, or to be added to the cooling liquid, in the cooling system of internal combustion engines of motor vehicles to prevent freezing of the cooling liquid or to lower its freezing point.

(2) "Antifreeze-coolant," "antifreeze and summer coolant," or "summer coolant" means any substance as defined in subsection (1) which also is sold, distributed, or intended for raising the boiling point of water or for the prevention of engine overheating whether or not used as a year-round cooling system fluid. Unless otherwise stated , the term "antifreeze" includes "antifreeze," "anti­freeze-coolant, " "antifreeze and summer coolant ," and "summer coolant."

(3) "Person" means any individual, partnership, asso­ciation , firm , or corporation .

(4) "Department" means the Department of Agricul­ture and Consumer Services.

(5) "Distribute" means to hold with intent to sell , offer for sale, sell, barter, or otherwise supply to the consum­er.

(6) "Package" means a sealed, tamperproof retail package , drum, or other container designed for the sale of antifreeze directly to the consumer or a container from which the antifreeze may be installed directly by the sell­er into the cooling system, but does not include shipping containers containing properly labeled inner containers.

(7) "Label" means any display of written, printed, or graphic matter on , or attached to, a package or to the outside individual container or wrapper of the package.

(8) "Labeling" means the labels and any other writ­ten , printed , or graphic matter accompanying a pack­age.

History.-s. 3, ch. 78-199; s. 2, ch. 81-318. 'Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.913 Registration.-On or before July 1 of each year, and before any antifreeze may be distributed, the manufacturer, packager, or person whose name ap­pears on the label shall make application to the depart­ment on forms provided by the department for registra­tion for each brand of antifreeze which he desires to dis­tribute. The application shall be accompanied by speci­mens or facsimiles of its labeling , an inspection fee of $200 for each product, and a properly labeled sample of the antifreeze. The department may inspect, test , or an­alyze the antifreeze and review the labeling. If the anti­freeze is not adulterated or misbranded, the department shall issue a certificate of registration, authorizing the distribution of such antifreeze in this state for the permit year. If the antifreeze is adulterated or misbranded, the department shall refuse to register the antifreeze and shall return the application stating how the antifreeze or labeling is not in conformity .

1831

Ch. 501 CONSUMER PROTECTION F.S. 1987

History.-s. 4, ch . 78-199; s. 2, ch. 81-318. 'Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.914 Cancellation of registration.-The depart­ment may cancel any registration after due notice and opportunity to be heard if it finds the antifreeze is adul­terated or mislabeled or that the registration has failed to comply with any of the provisions of this act or the rules promulgated pursuant to this act.

Hlstory.-s. 4, ch. 78-199; s. 2, ch. 81-318. 'Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.915 Adulteration of antifreeze.-Antifreeze shall be deemed to be adulterated :

(1) If, in the form in which it is sold and directed to be used, it would be ineffective in or injurious to the cool­ing system in which it is to be installed or if, when used in such cooling system, it would make the operation of the engine dangerous to the user.

(2) If its strength, quality, or purity falls below the standard of strength, quality, or purity under which it is sold or offered for sale.

History.-s. 5, ch. 78-199; s. 2. ch. 81-318. 'Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.916 Mislabeling of antifreeze.-Antifreeze shall be deemed to be mislabeled:

(1) If it does not bear a label which specifies the identity of the product, which states the name and ad­dress of the manufacturer, packager, or distributor, which states the net quantity of contents (in terms of liq­uid measure) separately and accurately in a uniform lo­cation upon the principal display panel, and which con­tains a statement warning of any hazard of substantial injury to human beings which may result from the intend­ed use or reasonably foreseeable misuse of the anti­freeze.

(2) If the product is to be diluted with another sub­stance for use and the label on a container of less than 5 gallons, or the labeling for a container of 5 gallons or more, does not contain a statement or chart showing the appropriate amount, percentage, proportion, or concen­tration of the antifreeze to be used to provide claimed protection from freezing at a specified degree or de­grees of temperature, claimed protection from corro­sion, or claimed increase of boiling point or protection from overheating .

(3) If its labeling contains any claim that it has been approved or recommended by the department.

(4) If its labeling is false, deceptive, or misleading . History.-s. 6, ch. 78-199; s. 2, ch. 81-318.

1Note.-Repealed effective October 1, 1989, by s. 2. ch. 81-318, and schedulec for review pursuant to s. 11 .61 in advance of that date.

1501.917 Inspection by department; sampling and analysis.-The department or its authorized agents shall have the right to have access at reasonable hours to all places and property where antifreeze is stored, dis­tributed, or offered or intended to be offered for sale, in­cluding the right to inspect and examine all antifreeze there found and to take reasonable samples of such an­tifreeze for analysis together with specimens of labeling. All samples so taken shall be properly sealed and sent to a laboratory designated by the department for exami-

nation together with all labeling appertaining to such samples. It shall be the duty of said laboratory to exam­ine promptly all samples received in connection with the administration and enforcement of this act.

Hlstory.-s. 7, ch. 78-199; s. 2, ch. 81-318. 1Note.-Repealed effective October 1, 1989, by s. 2. ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.918 Prohibited activity.-lt is unlawful for any person to:

(1) Distribute any antifreeze which has not been reg­istered in accordance with s. 501.913 or whose labeling is different from that accepted for registration; however, registration is not required for the orderly disposal , with­in a reasonable period of time, of stocks of discontinued brands of antifreeze not adulterated or otherwise mis­branded which were properly registered in the immedi­ately preceding registration period.

(2) Distribute any antifreeze which is adulterated or mislabeled .

(3) Refuse to permit entry or inspection or to permit the acquisition of a sample of the antifreeze as author­ized by s. 501.917.

(4) Dispose of any antifreeze which is under a stop­sale order in accordance with s. 501.919.

(5) Distribute any antifreeze unless it is in the regis­trant's or manufacturer's unbroken package; or is in­stalled by the seller in the cooling system of the purchas­er's vehicle directly from the registrant's or manufactur­er's package and the label on such package is less than 5 gallons, or the labeling of such package, if 5 gallons or more, does not bear the information required by s. 501.916; however, the department may by regulation es­tablish labeling and other reasonable requirements for the sale of a properly registered antifreeze from a bulk container into a container supplied by or for the purchas­er.

(6) Use the term "ethylene glycol" in connection with the name of a product which contains other glycols un­less it is qualified by the word "base" or "type" or some such word and unless the product meets the following requirements :

(a) It consists essentially of ethylene glycol. (b) If it contains suitable glycols other than ethylene

glycol , that no more than a maximum of 15 percent of such other glycols be present.

(c) It contains a minimum total glycol content of 93 percent by weight.

(d) The specific gravity is corrected to give reliable freezing-point readings on a commercial ethylene gly­col-type hydrometer.

(e) The freezing point of 50 percent by volume of the antifreeze shall not be above -34 °F.

(7) Refill any container bearing a registered label, other than a customer's container, without first obtain­ing permission from the registrant.

(8) Refuse, when requested, to permit a purchaser to see the container from which antifreeze is drawn for installation into the purchaser's vehicle.

(9) Distribute any antifreeze for which a practical, rapid means for measuring the freeze protection by the user is not readily available, whether by hydrometer or other means.

1832

F.S. 1987 CONSUMER PROTECTION Ch.501

(10) Disseminate any false or misleading advertise­ment relating to an antifreeze product.

History.-s. 8, ch . 78-1 99; s. 2, ch. 81-318. 1Note.- Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.919 Enforcement; stop-sale order.-(1) When the department finds any antifreeze being

distributed in violation of s. 501.918 or of any of the rules duly promulgated and adopted under this act , the de­partment shall issue and enforce a written "stop-sale" order, warning the distributor not to dispose of any of the lot of antifreeze in any manner until written permis­sion is given by the department or the court. Copies of such orders shall also be sent to the registrant and to the person whose name and address appears on the la­beling of the antifreeze. The department shall release for distribution the lot of antifreeze under a stop-sale order when s. 501 .918 and applicable rules have been com­plied with. If compliance is not obtained within 30 days, the department may begin proceedings for confiscation .

(2) Any lot of antifreeze not in compliance with said provi sions and rules shall be subject to confiscation upon complaint of the department, or any of its agents, to the circuit court in the county in which said antifreeze is located. In the event the court finds the antifreeze to be in violation of this act , it may then order the condem­nation of the antifreeze, and the same shall be disposed of in any manner consistent with the rules of the depart­ment and the laws of the state.

(3) Nothing in this act shall be construed to require the department to report for prosecution or for institution of libel proceedings any minor violations of the act when­ever it believes that the public interest will be best served by a suitable notice of warning in writing to the registrant or the person whose name and address ap­pears on the label.

History.-s. 9, ch. 78-1 99; s. 2, ch. 81-318. 1Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.92 Formula may be required.- The department may, if required for the analysis of antifreeze by the labo­ratory designated by the department for the purpose of registration , require the applicant to furnish a statement of the formula of such antifreeze, unless the applicant can furnish other satisfactory evidence that such anti­freeze is not adulterated or misbranded. Such state­ment need not include inhibitor or other minor ingredi­ents which total less than 5 percent by weight of the an­tifreeze; and , if over 5 percent , the composition of the inhibitor and such other ingredients may be given in ge­neric terms .

History.-s. 10, ch . 78-199; s. 2, ch. 81-318. 1Note.- Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11.61 1n advance of that date.

1501.921 Standards.-The standards , definitions, and test procedures for antifreeze shall be the same as those specified by the American Society forT esting and Materials in its "Standard Specification for Ethylene Gly­col Base Engine Coolant" and designated as D 3306. The department may by rule, pursuant to chapter 120, amend such standards for antifreeze to bring the act into conformance with the most current published ver­sion of American Society for Testing and Materials Stan-

dard D 3306. History.-s. 11 , ch. 78-199; s. 2, ch. 81-318.

1Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled for review pursuant to s. 11 .61 in advance of that date .

1501.922 Violation.-The registration with the de­partment of any person who violates this act or fails to comply with any of the provisions of this act shall be sub­ject to suspension or revocation. Such suspension or revocation shall be for not less than 15 days or more than 90 days. For each such violation , the department may levy a fine which shall not exceed $5,000 per viola­tion. If the person in violation of this act fails to pay the fine , then his registration shall be suspended for suc,h period of time as the department may specify. All fines collected by the department shall be deposited in the General Revenue Fund .

History.- s. 12, ch. 78-199; s. 2, ch. 81-318. ' Note.-Repealed effective October 1, 1989, by s. 2. ch. 81-318, and scheduled

for review pursuant to s. 11 .61 in advance of that date.

1501.923 Injunctive relief.-ln addition to the reme­dies provided in this act, and notwithstanding the exist­ence of any adequate remedy at law, the department is hereby authorized to make application for injunction to a circuit court. Such circuit court shall have jurisdiction , upon hearing and for cause shown, to grant a temporary or permanent injunction, to be issued without bond, re­straining any person from violating or continuing to vio­late any of the provisions of this act or from fail ing or re­fusing to comply with the requirements of this act or any rule duly promulgated under the provisions of this act.

History.-s. 13, ch . 78-199; s. 2, ch. 81-318. 1Note.-Repealed effective October 1, 1989, by s. 2, ch. 81-318, and scheduled

for review pursuant to s. 11.61 in advance of that date.

501.925 Used watches; sales regulated.-(1) The purpose of this law is to identify all watches

other than new, with a label or designation of "used" in order to safeguard the public from being misled in pur­chasing used, rebuilt or reconditioned watches as new.

(2) Any person, firm , partnership, association or cor­poration engaged in the business of buying or selling watches , or any agent or servant thereof, who shall sell or exchange, or offer for sale or exchange, expose for sale or exchange, possess with the intent to sell or ex­change, or display with the intent to sell or exchange any used watch , shall affix and keep affixed to the same a tag with the word "used" clearly and legibly written or printed thereon , and the said tag shall be so placed that the word "used" shall be in plain sight at all times .

(3) Any person , firm , partnership, association or cor­poration engaged in the business of buying or selling watches , or any agent or servant thereof, who shall sell a used watch or in any other way pass title thereto shall deliver to the vendee a written invoice bearing the words "used watch" in bold letters larger than any of the other written matter upon said invoice. Said invoice shall fur­ther set forth the name and address of the vendor , the name and address of the vendee, the date of the sale, the name of the watch or its maker, and the serial num­bers, if any, and any other distinguishing numbers or identification marks upon its case and movement. If the serial numbers or other distinguishing numbers or identi­ficat ion marks shall have been erased , defaced, re­moved, altered or covered , said invoice shall so state.

1833

Ch. 501 CONSUMER PROTECTION F.S. 1987

The vendor shall keep on file a duplicate of said invoice for at least 2 years from the date of the sale thereof, which shall be open to inspection during all business hours by the sheriff or any prosecuting officer of the county in which the vendor is engaged in business.

(4) Any person , firm, partnership, association or cor­poration , or any agent or servant thereof, who may ad­vertise or display in any manner a used watch for sale or exchange shall state clearly in such advertisement or display that said watch is a used watch.

(5) A watch shall be deemed to be used if: (a) It as a whole or the case thereof or the movement

thereof has been previously sold to or acquired by any person who bought or acquired the same for his use or the use of another, but not for resale; provided, however, that a watch which has been so sold or acquired and is thereafter returned either through an exchange or for credit to the original individual, firm, partnership, associ­ation or corporation who sold or passed title to such watch within 10 days after the sale or acquisition there­of, shall not be deemed to be a used watch for the pur­pose of this section , if such vendor shall keep a written or printed record setting forth the name of the purchaser

thereof, the date of the sale or transfer thereof and the serial number, if any, on the case and the movement, and any other distinguishing numbers or identification marks, which said record shall be kept for at least 2 years from the date of such sale or transfer and shall be open for inspection during all business hours by the sheriff or any prosecuting officer of the county in which such vendor is engaged in business; or

(b) Its case serial numbers or movement numbers or other distinguishing numbers or identification marks shall be erased, defaced, removed, altered or covered; or

(c) Its movement is more than 5 years old and has been repaired by any person or persons, including the vendor. Cleaning and oiling a watch movement or recas­ing the movement in a new case shall not be deemed a watch repair for the purpose of this section.

(6) Any person, firm , partnership, association or cor­poration , or any agent or servant thereof, who shall vio­late any of the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 1, 2, 3, 4, 5, 6, ch . 22040, 1943; s. 689, ch. 71-136. Note.-Former s. 726.10.

1834

F.S. 1987 MILK AND MILK PRODUCTS Ch. 502

CHAPTER 502

MILK AND MILK PRODUCTS

502.012 502.021

502.032

502.042 502055

502.091 502.121 502 .165

502.171 502.181 502.191 502.201 502.211

502.222

Definitions. Reconstituted or recombined milk, adulterat­

ed or misbranded milk or milk products. Milk fat testers ; permit , application, suspen­

sion or revocation , records. Labeling of shelf life. Dairy farms and milk plants; departmental ju-

risdiction for onsite inspections. Milk and milk products which may be sold. Future dairy farms and milk plants. Imitation and substitute milk and milk prod-

ucts . Enforcement and expenses. Prohibited acts . Rules. Purpose. Declaration of policy and cooperation be­

tween the Department of Agriculture and Consumer Services and the Department of Health and Rehabilitative Services.

Information relating to trade secrets confiden­tial.

502.231 Penalty and injunction . 502.232 Local regulations superseded .

502.012 Definitions.-(1) The following definitions shall apply in the inter­

pretation and enforcement of this law: (a) "Department" is the Department of Agriculture

and Consumer Services, which has jurisdiction and con­trol over the matters embraced within this chapter.

(b) "Raw milk" is the lacteal secretion, practically free from colostrum , obtained by the complete milking of one or more healthy cows, which contains not less than 8.25 percent milk solids-not-fat and not less than 3 percent milkfat. Milkfat or butterfat is the fat of milk.

(2) The department shall by rule establish definitions for the products known as "cottage cheese ," "dry curd cottage cheese ," and "lowfat cottage cheese" which shall conform so far as practicable with , and shall not be inconsistent with , the federal definitions found in 21 C.F.R. ss. 133.128, 133.129, 133.131, respectively. State definitions for these products shall be amended from time to conform similarly to the federal definitions.

History.-s. 2. ch. 67-263: ss. 14, 35, ch. 69-106: s. 1, ch. 70-247; ss. 2. 3, ch. 71-211 ; s. 187, ch . 71-377 : s. 1, ch. 73-356; s. 1, ch. 75-14; s. 1, ch. 76-282; s. 1, ch. 77-174 ; ss. 1, 7, ch. 80-83: s. 4, ch . 85-94.

502.021 Reconstituted or recombined milk, adul­terated or misbranded milk or milk products.-

(1) No person shall, in this state or its police jurisdic­tion, produce, provide, sell, offer or expose for sale, or have in possession with intent to sell any reconstituted or recombined milk, or any milk or milk product which is adulterated or misbranded; provided, that in an emer­gency, the sale of pasteurized milk and milk products which have not been graded, or the grade of which is unknown, may be authorized by the department , in which case such products shall be labeled "ungraded."

(2) Any reconstituted or recombined milk, or any adulterated or misbranded milk or milk product may be impounded by the department and made unsalable, or otherwise disposed of as may be deemed proper. Dispo­sition shall be accomplished so as not to create a nui­sance and to prevent their being used for human con­sumption .

History.-s. 2, ch. 67-263: ss. 14, 35, ch. 69-106.

1502.032 Milk fat testers; permit, application, sus­pension or revocation, records.-lt is unlawful for any person to test milk or milk products for milk fat content by weight , volume, chemical , electronic, or other meth­od when the result of such test is used as a basis for payment for the milk or milk products unless such per­son has been issued a milk fat tester 's permit by the de­partment.

(1) Said permit shall be issued for a period of 2 years from date of first issue upon application to the depart­ment on a form furnished by the department.

(2) To qualify for a permit , the applicant shall demon­strate a sufficiency of knowledge, ability, and equipment to perform adequately milk fat tests .

(3) Said permit is nontransferable between persons or locations and is subject to suspension or revocation upon a showing of violation of conditions upon which the permit was issued.

(4) Each milk fat tester shall keep records of milk fat tests conducted by him for a period of 1 year, and such records shall be available for inspection by the depart­ment at all reasonable hours.

History.-s. 1, ch. 73-357 : s. 6, ch . 78-95; s. 2, ch. 81-318; ss. 1, 2, ch. 83-11 . •Note.-Repealed effective October 1, 1993, by s. 2, ch . 83-11 , and scheduled for

review pursuant to s. 11.61 in advance of that date .

502.042 Labeling of shelf life.-(1) It is the legislative intent to assure continuation

of the normal flow of fresh wholesome milk and milk products from farmer to the consumer by uniform regu­lation of the shelf life of milk and milk products through­out this state.

(2) All dairy processors shall establish , and legibly label on the package or container, in a manner pre­scribed by rule or regulation of the department, the max­imum shelf-life period during which such products may be offered for sale, to ensure consumers full disclosure of the date beyond which such product may no longer be offered for sale. For purposes of this requirement, "legibly label" means to label with conspicuous and easi­ly legible boldfaced print or type in distinct contrast to the background , by color. The department shall periodi­cally review the keeping quality of milk and milk prod­ucts by scientific shelf-life studies, recognizing the dif­ferent methods of pasteurization , processing, and pack­aging , and shall sample periodically the products of the dairy processors to determine if the shelf-life dating used by the processors complies with the minimum standards of quality.

(3) All general laws, special or local acts, general laws of limited application , county ordinances or resolu-

1835

Ch. 502 MILK AND MILK PRODUCTS F.S. 1987

tions, municipal ordinances, or municipal charter provi­sions authorizing regulation of the sale of milk or milk products through the establishment of shelf-life termi­nation dates are hereby repealed and any such regula­tion is superseded by this section.

History.-s. 1. ch. 72-60; s. 2, ch. 76-282.

502.055 Dairy farms and milk plants; departmental jurisdiction for onsite inspections.-lt is the intent of the Legislature to eliminate, to the extent practicable, overlapping and duplicative inspections of dairy farms and milk plants as defined by rule of the department pur­suant to s. 502.191, performed by the several agencies of state and local governments. In furtherance of this goal , primary responsibility and jurisdiction for all onsite inspections of dairy farms and milk plants required by this chapter shall be in the Department of Agriculture and Consumer Services. However, the Department of Health and Rehabilitative Services and local health agencies shall cooperate with and advise the Depart­ment of Agriculture and Consumer Services in all mat­ters relating to preservation of public health. The Depart­ment of Agriculture and Consumer Services shall desig­nate members of the department who shall be certified by the U.S. Public Health Service, Food and Drug Ad­ministration , as state milk sanitation officers and who shall conduct routine sanitation-compliance survey rat­ings of milk producers and milk plants. These ratings shall be made in accordance with recommendations of the U.S. Department of Health, Education , and Welfare, Public Health Service, Food and Drug Administration , published in "Methods of Making Sanitation Ratings of Milk Sheds."

History.-s. 1, ch. 74-370; s. 2, ch. 76-235; s. 3, ch. 80-83; s. 386, ch. 81-259.

502.091 Milk and milk products which may be sold. (1) Only grade A pasteurized milk and milk products

or certified pasteurized milk shall be sold to the final con­sumer or to restaurants, soda fountains, grocery stores, or similar establishments. In an emergency, however, the sale of pasteurized milk and milk products which have not been graded, or the grade of which is un­known, may be authorized by the department, in which case such milk and milk products shall be labeled "un­graded." Further, if the milk from a producer is less than grade A for reasons of failure on the part of the producer to comply with sanitation or bacterial standards, as de­fined in this chapter, or if any specific shipment of milk from points beyond routine supervision fails to comply with standards of the Grade A Pasteurized Milk Ordi­nance, 1978, Recommendations of the United States Public Health Service, Food and Drug Administration , but is determined by the department to be fit for human consumption , such milk may be received into a milk plant, under written permit issued by the department, for use in ungraded products, such as frozen desserts, which are being processed by such milk plant. During processing of such milk, it shall be pasteurized at a tem­perature of at least 175° F. for at least 15 seconds or at least 160° F. for at least 30 minutes.

(2) Certified pasteurized milk is derived from certi­fied raw milk which meets the latest requirements of the North American Association of Medical Milk Commis­sions, Inc.

(3) Milk that is in final package form for beverage use shall have been pasteurized and shall contain not less than 8.25 percent milk solids-not-fat and not less than 3.25 percent milkfat.

History.-s. 2, ch. 67-263; ss. 14, 35, ch. 69-106; s. 1, ch. 75-14; s. 4, ch. 80-83.

502.121 Future dairy farms and milk plants.-(1) All milk houses, milking barns, stables, parlors,

transfer stations, and milk plants regulated under this chapter which are hereafter constructed, reconstructed, or extensively altered , must meet certain minimum spec­ifications and requirements which the Department of Agriculture and Consumer Services shall from time to time establish and keep on file in its office in Tallahas­see.

(2) Anyone desiring to make such construction shall give written notification to the department in which he states that he is going to construct, reconstruct, or ex­tensively alter his milk house, milking barns, stables, parlors, transfer stations , or milk plants, the date he in­tends to begin said construction , and the legal descrip­tion of the property on which such construction is planned.

(3) The minimum specifications which shall apply are those on file at the date of the original notification. If the construction does not meet the current require­ments and specifications, then the department shall di­rect the owner to alter the construction to conform to such specifications.

Hlstory.- s. 2, ch. 67-263; ss. 14, 35, ch . 69-106.

502.165 Imitation and substitute milk and milk products.-

(1) DEFINITIONS.-(a) "Imitation milk and imitation milk products"

means those foods that have the physical characteris­tics , such as taste, flavor, body, texture, or appearance, of milk or milk products as defined in this chapter and the Grade A Pasteurized Milk Ordinance, 1978, Recom­mendations of the United States Public Health Service, Food and Drug Administration , but do not come within the definition of "milk" or a "milk product," and are nutri­tionally inferior to the product imitated.

(b) "Substitute milk and substitute milk products" means those foods that have the physical characteris­tics , such as taste, flavor , body, texture, or appearance, of milk or milk products as defined in this chapter and the Grade A Pasteurized Milk Ordinance, 1978, Recom­mendations of the United States Public Health Service, Food and Drug Administration, but do not come within the definition of "milk" or a "milk product," and are nutri­tionally equivalent to the product for which they are sub­stitutes.

(2) LABELING.-(a) All labeling requirements for imitation and substi­

tute milk and milk products shall be in accordance with 21 C.F.R . pts. 101-105 (1983).

(b) Imitation or substitute milk or milk products con­taining no milk-derived ingredients shall be labeled "nondairy ." Additionally, all imitation and substitute milk and milk products shall be nutritionally labeled in the for­mat as outlined in 21 C.F.R. pt. 101.9 (1983), even though no minerals, vitamins, or proteins have been added or no nutritional claims have been made.

1836

F.S. 1987 MILK AND MILK PRODUCTS Ch. 502

(3) DISPLAY.-AII imitation and substitute milk and milk products sold in retail food stores shall be physical­ly separated from milk or milk products by a partition or other device or divider in the dairy display case or other display-and-sale area.

(4) HEALTH STANDARDS.-In the interest of public health , imitation or substitute milk and milk products shall comply with the following standards:

(a) Temperature.-Cooled to 45° F. or 7° C. or less and maintained thereat.

(b) Bacterial /imits.-20 ,000 per ml, not applicable to cultured products.

(c) Co/iform.-Not to exceed 10 per mi.

Sanitation standards for imitation and substitute milk and milk products shall be at least the minimum as authorized in 21 C.F.R. pt. 110 (1983).

(5) UNLAWFUL LABELING OR ADVERTISING.-It is unlawful for any person to advertise, package, label, sell , or offer for sale, or cause to be advertised, packaged , labeled , sold , or offered for sale, any imitation or substi­tute milk or milk product the advertising, packaging, or labeling of which contains any assertion , representation, or statement which is untrue, deceptive, or misleading and which could cause consumers to think they are pur­chasing a grade A milk or milk product.

(6) PERMIT.-Any person engaged in the manufac­ture of imitation or substitute milk or milk products within this state shall obtain a permit from the Florida Depart­ment of Agriculture and Consumer Services . Manufac­turers of imitation or substitute milk or milk products from points beyond the police jurisdiction of this state shall hold a valid permit from the regulatory authority in the political jurisdiction of manufacture and shall furnish the department a copy of same.

(7) PRODUCTS FOR SPECIAL DIETARY PUR­POSES.-Products for special dietary purposes shall not be held or construed to mean or include any milk or cream from which no part of the milk or butterfat has been extracted, whether or not condensed, evaporated, concentrated , powdered, dried , or desiccated, to which has been added any substance rich in vitamins, or any distinctive proprietary food compound not readily mis­taken for milk or cream or for condensed , evaporated , concentrated, powdered , dried , or desiccated milk or cream , provided such compound is:

(a) Prepared and designed for the feeding of infants, young children, or sick or infirm persons and customarily used on the order of a physician.

(b) Packed in individual containers bearing a label which states in bold type that the contents are to be used for said purposes.

(8) CONSTRUCTION.-Nothing in this section shall be held or construed to prevent the use, blending, or compounding of flavors with milk, cream, or skimmed or desiccated milk, whether in bulk or in containers, her­metically sealed or unsealed, to or with which has been added , blended, or compounded no other fat or oil than milk or butterfat.

History.- s. 1, ch. 85-94.

502.171 Enforcement and expenses.-This chap­ter shall be enforced by the department, and, in connec-

tion therewith, the department is authorized to incur necessary expenses which shall be paid from the Gener­al Revenue Fund.

History.- s. 2, ch. 67-263; ss . 14, 35, ch. 69-106; s. 3, ch. 76-235; s. 6, ch. 80-83; s. 2, ch. 85-94.

502.181 Prohibited acts.-lt is unlawful: (1) To repasteurize milk; or (2) To obstruct or resist any authorized inspector

while in performance of his duties. History.-s. 2, ch. 67-263; s. 4, ch . 70-247.

502.191 Rules.-The department is authorized to define and establish standards for milk and milk prod­ucts and goat milk and to adopt rules to implement, in­terpret, and make specific the provisions of this chapter. Such rules shall include provisions for the regulation of the production , transportation, processing , handling , sampling , examination, grading, labeling, and sale of all milk and milk products and goat milk sold for ultimate consumption within the state or its jurisdiction; the in­spection of dairy herds , dairy farms, and milk plants; and the issuance and revocation of permits to milk produc­ers , haulers, and distributors. In adopting such rules and standards, the department shall be guided by, and may, to the extent practicable, conform to, the definitions and standards and all or any part of the administrative proce­dures and provisions of the appendices contained in the Grade A Pasteurized Milk Ordinance, 1978, Recommen­dations of the United States Public Health Service, Food and Drug Administration , and any addendum thereto.

History.-s. 2, ch. 67-263; ss. 14, 35, ch. 69-106; s. 5, ch. 70-247; s. 1, ch. 70-439; s. 7, ch. 80- 83; s. 1, ch. 81-20.

502.201 Purpose.-The purpose of this chapter is : (1) To secure to the people of this state, without be­

ing unduly burdensome to either the regulatory agency or the dairy industry, the assurance that milk and milk products sold or offered for sale to the public are pro­duced under sanitary conditions and are wholesome and fit for human consumption and are being offered to the public under correct designation as to grade, quality and source of production .

(2) To encourage a greater uniformity and a higher level of excellence of milk sanitation practice in the state.

(3) To facilitate the shipment and acceptance of milk and milk products of high sanitary quality in interstate and intrastate commerce.

History.-s. 2, ch. 67-263.

502.211 Declaration of policy and cooperation be­tween the Department of Agriculture and Consumer Services and the Department of Health and Rehabilita­tive Services.-ln order to more effectively utilize the agencies of the state in the public interest and without unnecessary duplication and expense, the relationship between the production, processing , and distribution of milk and milk products and the public health is recog­nized. It is therefore hereby declared to be the public policy of the state that:

(1) The duty of administration and enforcement of all regulatory legislation now enacted applying to the pro­duction, processing , and distribution of milk and milk

1837

Ch.502 MILK AND MILK PRODUCTS F.S. 1987

products shall be performed by the department, except as otherwise provided in this law.

(2) The administration and enforcement of all regula­tory legislation now enacted, apply1ng to the san1tat1on and sanitary practices of establishments where food and drink including milk and milk products are sold for consumption on the premises where sold , or to the sani­tary and healthful condition of such food and dnnk sold or offered for sale by such establishment, also, such lab­oratory work of testing and analyzing milk and milk prod­ucts, may be performed by the Department of Health and Rehabilitative Services and local health depart­ments of various municipalities and counties; provided , that nothing contained herein shall limit the authority conferred on the Department of Agriculture and Con­sumer Services by provisions of this chapter.

(3) There shall be the fullest cooperation and e~­change of information between the Department of Agn­culture and Consumer Services and the Department of Health and Rehabilitative Services in the making of any surveys, investigations and inquiries to be made for the purpose of determining whetheror in what manner the production, processing and d1stnbut1on of m1lk and m1lk products may affect the public health . Whenever the findings in the report of any survey, 1nvest1gat1on or In­quiry made by the Department of Agriculture and Con­sumer Services or the Department of Health and Reha­bilitative Services show any hazard to public health ex­isting, incident to the production, processing or distribu­tion of milk and milk products, the Department of Agn­culture and Consumer Services shall take such action as may be necessary and within the scope of the resources of the Department of Agriculture and Consumer Ser­vices, to remove such hazard; prov1ded , that noth1ng herein contained shall limit the authority of the Depart-

ment of Health and Rehabilitative Services to take imme­diate action when it appears necessary in the interest of public health.

History.-s. 2, ch. 67-263; ss . 14, 19, 35, ch. 69-106; s. 4, ch. 76-235; s. 438, ch. 77-147.

502.222 Information relating to trade secrets confi­dential.-The records of the department regarding mat­ters encompassed by this chapter are public records, subject to the provisions of chapter 119, except that any information which would reveal a trade secret, as de­fined in s. 812.081 , of a dairy industry business is confi­dential and may not be disclosed. If the department de­termines that any information requested by the public will reveal a trade secret, it shall , in writing, inform the person making the request of that determination. The determination is an order as defined ins. 120.52(10).

Hlstory.-s. 2, ch . 80-83; s. 1, ch. 87-49.

502.231 Penalty and injunction.-Any person who shall violate any of the provisions of this chapter shall be guilty of a misdemeanor of the second degree, punish­able as provided in s. 775.082 or s. 775.083. Such per­sons may also be enjoined by the circuit courts of this state on complaint of the department from cont;nu;ng such violations, and injunction shall issue without bond. Each day upon which such a violation occurs shall con­stitute a separate violation.

History.-s. 1, ch. 67-555; ss. 14, 35, ch. 69-106; s. 460, ch. 71-136.

502.232 Local regulations superseded.-This chapter and all rules and regulations promulgated here­under supersede all municipal or county regulat;ons or laws pertaining to milk and milk products that are 1n con­flict herewith.

History.-s. 2, ch . 74-370; s. 5, ch. 76-235.

1838

F.S. 1987 FROZEN DESSERTS Ch. 503

CHAPTER 503

FROZEN DESSERTS

503.011 503 021 503.031 503.041 503.051 503.062

503.071 503.081 503.091

Definitions. Legislative intent. Powers of department. License fee. Suspension or revocation of license. Food products in semblance of frozen des-

serts . Penalty and injunction. Preemption. Exemptions.

1503.011 Definitions.-The following definitions shall apply in the interpretation and enforcement of this chap­ter :

(1) "Department" means the Department of Agricul­ture and Consumer Services.

(2) "Dairy plant" or "plant" means any place, premise, or establishment where milk or dairy products are re­ceived or handled for processing or manufacturing. When "plant" is used in connection with the production , transportation, classifying, or use of milk, it means any plant that handles or purchases milk for manufacturing purposes; when used in connection with specifications for plants or licensing of plants, it means only those plants that manufacture or mix frozen desserts.

(3) "Dairy products" means butter, cream (fluid , dry, or plastic) , dry whole milk, nonfat dry milk, dry butter­milk, dry whey, evaporated milk (whole or skim), con­densed whole milk and condensed skim milk (plain or sweetened), and such other products derived from milk, as may be defined under the federal standards of identi­ty as ingredients for frozen desserts.

(4) "Frozen desserts" means the foods which con­form to the provisions of "definitions and standards of identity for frozen desserts ," United States Food and Drug Administration , 21 C.F.R. pt. 135.

(5) "Quiescently frozen confection" means a clean and wholesome frozen, sweetened, flavored product in the manufacture of which freezing has not been accom­panied by stirring or agitation (generally known as quies­cent freezing) . This confection may be acidulated with food grade acid , may contain milk solids or water, or may be made with or without added harmless pure or imita­tion flavoring and with or without harmless coloring . The finished product may contain not more than 0.5 percent by weight of stabilizer composed of wholesome edible material. The finished product shall contain not less than 17 percent by weight of total food solids. In the produc­tion of this confection, no processing or mixing prior to quiescent freezing shall be used that develops in the fin­ished confection mix any physical expansion in excess of 1 0 percent.

(6) "Quiescently frozen dairy confection" means a clean and wholesome frozen product made from water, milk products, and sugar, with added harmless pure or imitation flavoring , with or without added harmless color­ing, with or without added stabilizer, with or without add­ed emulsifier, and in the manufacture of which freezing has not been accompanied by stirring or agitation (gen-

erally known as quiescent freezing) . It contains not less than 13 percent by weight of total milk solids, not less than 33 percent by weight of total food solids , not more than 0.5 percent by weight of stabilizer, and not more than 0.2 percent of weight by emulsifier. Stabilizer and emulsifier must be composed of wholesome, edible ma­terial. In the production of quiescently frozen dairy con­fections , no processing or mixing prior to quiescently freezing shall be used that develops in the finished con­fection mix any physical expansion in excess of 10 per­cent.

(7) "Frozen dietary dairy dessert and frozen dietary dessert" means a food for any special dietary use, pre­pared by freezing , with or without agitation , and com­posed of a pasteurized mix which may contain fat, pro­tein , carbohydrates, natural or artificial sweeteners, fla­voring , stabilizers, emulsifiers, vitamins , and minerals.

(8) "Frozen desserts manufacturer" means any per­son who manufactures, processes, converts , partially freezes , or freezes any mix or frozen desserts for distri­bution or sale.

(9) "Frozen desserts plant" means any place or premises where frozen desserts or mix are manufac­tured , processed , or frozen for distribution or sale at wholesale.

(1 0) "Frozen desserts retail establishment" means any place or premises, including retail stores, stands , hotels, restaurants , and vehicles or mobile units, where frozen desserts are frozen or partially frozen or dis­pensed for sale at retail.

History.-s. 2, ch. 69-398; ss. 14, 35, ch. 69-106; s. 188, ch . 71-377; s. 3, ch. 76-168; s. 1, ch. 77-457: ss. 1, 3, ch. 79- 38; ss. 2. 3, ch. 81 -318; ss. 1, 5, 6, ch. 83-12.

1Note.- Expires October 1, 1993, pursuant to s. 6, ch. 83- 12, and is scheduled for review pursuant to s. 11 .61 in advance of that date.

1503.021 Legislative intent.-lt is the intent of this chapter to encourage the sanitary production of frozen desserts and other foods defined in this chapter in order to ensure that they are made from safe, suitable ingredi­ents and are palatable and properly labeled .

History.-s. 2, ch . 69-398; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 2, 5, 6, ch. 83-12.

1Note.-Expires October 1, 1993, pursuant to s. 6, ch . 83- 12, and is scheduled for review pursuant to s. 11 .61 in advance of that date.

1503.031 Powers of department.-The department shall administer the provisions of this chapter and is authorized :

(1) To establish and promulgate minimum standards for milk for use in the manufacture of frozen desserts ; for its transportation , classification, use, and processing; and for the manufacture, packaging , labeling , storage, and handling of frozen desserts made therefrom.

(2) To inspect frozen desserts and frozen dessert plants and to license frozen dessert plants to handle and process mix and to manufacture frozen desserts .

(3) To require the keeping of appropriate books and records by plants licensed hereunder.

(4) To issue order of stop-sale on any frozen dessert when sold or offered for sale in violation of the provisions of this chapter or rules adopted hereunder. It is unlawful to remove any such order of stop-sale or to dispose of

1839

Ch.503 FROZEN DESSERTS F.S. 1987

a product to which an order of stop-sale is attached without authority of the department or order of court.

History.-s. 2, ch. 69-398: ss. 14, 35, ch . 69-106; ss. 1, 2, ch. 73-318; s. 3, ch . 76-168: s. 1, ch. 77-457: ss. 2, 3, ch. 81-318: ss. 3, 5, 6, ch. 83-12.

' Note.-Expires October 1, 1993, pursuant to s. 6, ch. 83-12, and is scheduled for review pursuant to s. 11 .61 in advance of that date.

1503.041 License fee.-The license fee shall be $50 for each manufacturing plant shown in the application of a frozen desserts or frozen desserts mix manufacturer doing a wholesale business. There shall be no fee for the issuance of a license to a hotel , restaurant, or boarding­house or for the manufacture of frozen desserts or fro· zen desserts mix sold to the patrons thereof for con· sumption exclusively on the premises where manufac­tured. The fee shall be tendered to the department with the application and, upon the issuance of the license, shall be remitted by the department to the Treasurer to the credit of the General Inspection Trust Fund.

History.-s. 2, ch. 69-398: ss. 14, 35, ch. 69-106: s. 3, ch. 76-168: s. 1, ch. 77-457; ss. 2, 3, ch. 81 - 318; ss. 4, 5, 6, ch. 83-12: s. 3, ch. 85- 94.

'Note.-Expires October 1, 1993, pursuant to s. 6, ch. 83-12, and is schedulec for review pursuant to s. 11 .61 in advance of that date.

1503.051 Suspension or revocation of license.-The department may for good cause suspend or revoke cer· tifications and licenses issued hereunder.

History.-s. 2, ch. 69-398: ss. 14, 35, ch. 69-106; s. 3, ch . 76-168: s. 1, ch. 77-457: s. 6, ch. 78-95; ss. 2, 3, ch. 81-318; ss. 5, 6, ch. 83-12.

'Note.-Aepealed effective October 1, 1993, by s. 6, ch. 83-12, and scheculed for review pursuant to s. 11 .61 in advance of that date.

1503.062 Food products in semblance of frozen desserts.-Any food product which has the semblance of ice cream , frozen custard , French ice cream , French custard ice cream, ice milk, fru it sherbet, water ice, a quiescently frozen dairy confect ion , a frozen dietary dairy dessert, or a frozen dietary dessert, but does not conform to the definition of the preceding products, whether in frozen , powdered , or liquid mix form, shall be subject to inspection , order of stop sale, and licensing

and to manufacturing , sanitation , bacteriological , and health standards required for frozen desserts in this chapter. Such food products shall be labeled with an ac­curate ingredient legend. There shall be no picture or representation by picture, symbol , mark, word , or de­sign commonly associated with defined frozen desserts.

History.-s. 1, ch. 73-317; s. 3, ch. 76-168; s. 1, ch. 77- 457; ss. 2, 3, ch . 81-318; ss. 5, 6, ch. 83-12.

' Note.-Aepealed effective October 1, 1993, by s. 6, ch. 83- 12, and scheduled for review pursuant to s. 11 .61 in advance of that date.

1503.071 Penalty and injunction.-Any person, firm , or corporation that willfully violates any provision of this chapter or the rules and regulations promulgated here­under shall be guilty of a misdemeanor of the first de­gree, punishable as provided in s. 775.083, and each and every violation shall constitute a separate offense. In addition thereto, any such person or persons may also be enjoined by the circuit courts of this state on com­plaint of the department from continuing such violations, and injunction shall issue without bond .

History.-s. 2, ch. 69-398; ss. 14, 35, ch. 69- 106; s. 461 , ch. 71 -136; s. 3, ch. 76-168; s. 1, ch. 77-457: ss. 2, 3, ch. 81-318: ss. 5, 6, ch. 83-12.

' Note.-Repealed effective October 1, 1993, by s. 6, ch. 83-t 2, and scheduled for review pursuant to s. 11.61 in advance of that date.

1503.081 Preemption.-This chapter and all rules and regulations promulgated hereunder preempt all mu­nicipal or county laws pertaining to frozen desserts that are in conflict herewith .

History.-s. 2, ch . 69- 398; s. 3, ch. 76-1 68; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318: ss. 5, 6, ch. 83-12.

'Note.- Aepealed effective October 1, 1993, by s. 6, ch. 83-1 2, and schedulec for review pursuant to s. 11.61 in advance of that date.

1503.091 Exemptions.-Frozen dessert retail estab­lishments as defined in s. 503.011 (1 0) are exempt from the provisions of this chapter .

History.- s. 2, ch . 69- 398; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 5, 6, ch. 83- 12.

' Note.-Aepealec effective October 1, 1993, by s. 6, ch. 83-1 2, and scheduled for review pursuant to s. 11 .61 in advance of that date.

1840

F.S. 1987 PRODUCE Ch. 504

CHAPTER 504

PRODUCE

504.011 504.012 504.013 504.014

Short title. Label marking permitted; removal prohibited. Penalties. Enforcement.

504.011 Short title.-This act shall be known and may be cited as the "Produce Labeling Act of 1979."

History.-s. 1, ch. 79-121 .

504.012 Label marking permitted; removal prohibit­ed.-

(1) All producers, growers, and shippers of fresh fruits and vegetables and bee pollen and honey in this state shall be permitted to mark each individual fruit or vegetable, package of bee pollen, or package of honey in a conspicuous place as legibly, indelibly, and perma­nently as the nature of the fruit or vegetable, package of bee pollen , or package of honey will permit, in such manner as to indicate to an ultimate purchaser that the product was produced in Florida. Any fresh fruit or vege­table, package of bee pollen, or package of honey, in­cluding any package containing foreign honey blended with domestic honey, produced in any country other than the United States and offered for retail sale in Flori­da shall be marked individually in a conspicuous place

as legibly, indelibly, and permanently as the nature of the fruit or vegetable, package of bee pollen , or package of honey will permit, in such manner as to indicate to an ultimate purchaser the country of origin. Markings shall be done prior to delivery into Florida.

(2) All retail vendors engaged in the business of sell­ing products labeled or identified as to origin shall be prohibited from willfully and knowingly removing such la­bels or identifying marks.

History.-ss. 2, 3, ch. 79-121 ; s. 387, ch. 81 -259; s. 2, ch. 83-14 .

504.013 Penalties.-Any person , firm, or corpora­tion engaged in the business of the retail vending of fresh fruits, fresh vegetables, bee pollen, or honey who willfully and knowingly removes any labels or identifying marks from fruits , vegetables , bee pollen, or honey so labeled is guilty of a noncriminal violation as defined in s. 775.08(3) and upon conviction shall be punished as provided in s. 775.082(5) by a civil fine of not more than $500.

History.-s. 4, ch. 79-121 ; s. 3, ch. 83-14.

504.014 Enforcement.-The Department of Agricul­ture and Consumer Services shall be responsible for en­forcing the provisions of this act.

History.- s. 5, ch. 79-121 .

1841

Ch.506

506.01 506.02 506.03 506.04

506.05

506.06 506.07

506.08 506.09 506.10

506.11 506.12

506.13 506.14

506.15

506.16

506.17

506.18 506.19

506.20

506.21

506.22

506.23 506.24

506.25

506.26

506.27

506.28

506.29 506.30 506.31 506.32 506.33

506.34 506.35 506.36

STAMPED OR MARKED CONTAINERS AND BASKETS F.S. 1987

CHAPTER 506

STAMPED OR MARKED CONTAINERS AND BASKETS

Devices to be filed in offices. Presumptive evidence of unlawful use. Search warrant. Deposit on bottles or other specified contain­

ers not a sale of property. Unlawful use of bottles or other specified con­

tainers when label is registered; penalty. Unlawful to counterfeit trademark. Filing of trademark or other form of advertise-

ment for record with Department of State. Fee for filing. Civil remedies . Counterfeiting or improperly using trademark

or other form of recorded advertisement; penalty.

Unlawful use of trademark; penalty. Procuring the filing of trademark or other form

of advertisement by fraudulent representa­tions; penalty.

Using the name or seal of another; penalty. Sale or distribution of milk in marked bottles

by person other than owner. Possession of marked milk bottles may be

presumptive evidence of unlawful use. Proceedings by owner to recover possession

of milk bottles and to protect rights . Certain acts not to constitute sale of milk con­

tainer. Penalty for violations. Protection of owners of marked or branded

field boxes or other specified containers; re­cordation .

Filing and recording of marks and brands on field boxes.

Filing fee ; issuance of certificate of recorda­tion .

Transfer, release, or sale of registered mark or brand .

Application of law. Unauthorized possession of field boxes or

other specified containers ; penalty. Alteration or obliteration of marks or brands

on field boxes or other specified containers. Purchase of marked field boxes or other spec­

ified containers from one other than owner. Refusal to deliver marked field boxes or other

specified containers to owner upon de­mand.

Sending marked field boxes or other specified containers out of state; penalty.

Short title . Application of law. Registration of names, marks, and devices. Notice of intention to register. Certified copies of registration ; use as evi-

dence. Proof of publication ; notice of intention . Containers; illegal use. Penalties for illegal use.

506.37 506.38 506.39 506.40 506.41 506.42

506.43 506.44 506.45 506.501

506.502 506.503

506.505 506.506 506.507 506.508

506.509

506.511

506.513

506.514 506.515

506.517 506.518 506.519

Containers; obtaining possession . Complaints before county court judge. Search warrants; procedure to obtain. Presumptive evidence of violations. Deposit for container not a sale. Penalties, generally; judgments and plead-

ings. Executions on judgments. Prior registrations recognized. Statutes and laws unaffected. Carts, Cases, Baskets, Boxes, and Contain­

ers Act ; short title. Definitions. Shopping carts, laundry carts , dairy cases,

egg baskets, poultry boxes, and bakery containers; registration .

Egg baskets; designation of owner. Poultry boxes; designation of owners. Bakery containers ; designation of owners . Illegal use of dairy cases, egg baskets, poultry

boxes, or bakery containers. Possession of shopping carts, laundry carts,

dairy cases, egg baskets, poultry boxes, or bakery containers.

Transportation of dairy cases, egg baskets, poultry boxes, or bakery containers; bill of lading.

Illegal use of shopping carts and laundry carts.

Unlawful removal of dairy cases. Unlawful removal of egg baskets, poultry box-

es, or bakery containers. Deposits. Penalty. Scope of ss. 506.501-506.519.

506.01 Devices to be filed in offices.-Any person engaged in manufacturing, bottling or selling soda wa­ters , mineral or aerated waters, porter, ale, beer, cider, ginger ale, small beer, lager beer, weiss beer, white beer or other beverages or medicine, medical preparations, perfumery, oils , compounds or mixtures, in bottles, si­phons, fountains , tins or kegs, with his name or other marks or devices branded, stamped, engraved, etched, blown, impressed or otherwise produced upon such bot­tles, siphons, fountains, tins or kegs, or the boxes used by him may file in the office of the clerk of the county in which his principal place of business is situated, or if such person shall manufacture or bottle out of this state, then in any county in this state, and also with the Depart­ment of State, a description of the name, marks or de­vices so used by him and cause such description to be printed once each week, for three weeks successively, in a newspaper published in the county in which said no­tice may have been filed.

History.-s. 1, ch . 4584, 1897; GS 3165; RGS 4991 ; CGL 7080; ss. 10, 35, ch. 69-106.

506.02 Presumptive evidence of unlawful use.­The use by any person other than the person whose de-

1842

F.S. 1987 STAMPED OR MARKED CONTAINERS AND BASKETS Ch. 506

vice, name or mark shall be or shall have been upon the same, without written consent or purchase, of any marked or distinguished bottle, box, siphon, fountain, tin or keg, a description of which shall have been filed and published, as provided in s. 506.01, for the sale therein of soda waters, mineral or aerated waters, porter, ale, ci­der, ginger ale, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or any article of mer­chandise, medicines, medical preparations, perfumery, oils, compounds, mixtures or preparations, or for the fur­nishing of such or similar beverages to customers; or the buying, selling, using, disposing of or trafficking in any such bottles, boxes, siphons, fountains, tins or kegs by any person other than said persons having a name, mark or device thereon of such owner without written con­sent, or the possession by any junk dealer or dealers in secondhand articles of any such bottles, boxes, si­phons, fountains, tins or kegs, a description of which shall have been so filed and published as aforesaid, without such written consent, is presumptive evidence of the unlawful use, purchase and traffic in of such bot­tles, boxes, siphons, fountains, tins or kegs.

History.-s. 3, ch. 4584, 1897: GS 3166, 3346: RGS 4992,5189: CGL 7081 , 7292.

506.03 Search warrant-When any person or his agent shall make oath before any judge having jurisdic­tion in the district where the offense is committed that he has reason to believe and does believe that any of his bottles, boxes, siphons, fountains, tins, or kegs, a de­scription of which has been filed and published as afore­said, are being unlawfully used or filled or had by any person manufacturing or selling soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, small beer, lager beer, weiss beer, white beer, or other beverages or medicine, medical preparations, perfumery, oils, com­pounds, or mixtures, or that any junk dealer or dealers in secondhand articles, vendor of bottles, or other per­son, has any such bottles, boxes, siphons, fountains, tins, or kegs in his possession or secreted in any place, the said judge shall thereupon issue a search warrant signed by him with his name of office, to any sheriff and his deputies or any police officer or other person author­ized by law to execute process, commanding the officer or person forthwith to search the property described in the warrant or the person named, for the property speci­fied, and to bring the same before the court having juris­diction of the offense.

History.-s. 4, ch. 4584, 1897: GS 3167: RGS 4993: CGL 7082: s. 26, ch. 73-334. cf.-s. 508.39 Procedure to obtain.

s. 901 .01 All judicial officers shall be committing magistrates. ss. 933.01 et seq. Issuance of search warrants.

506.04 Deposit on bottles or other specified con­tainers not a sale of property.-The requiring, taking, or accepting of any deposit, for any purpose, upon any bottle, box, siphon, fountain, tin, or keg is not a sale of such property, either optional or otherwise, in any pro­ceedings under ss. 506.01-506.09.

History.-s. 5, ch. 4584, 1897: GS 3168: RGS 4994: CGL 7083.

506.05 Unlawful use of bottles or other specified containers when label is registered; penalty.-No per­son shall fill with soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, beer, small beer, lager beer, weiss beer, white beer or other beverages, or with medi-

cine, medical preparations, perfumery, oils, compounds or mixtures, any bottle, box, siphon, fountain , tin or keg, which has been marked or distinguished under the pro­visions of s. 506.01, or deface, erase, obliterate, cover up or otherwise remove or conceal any such name, mark or device thereon, or sell , buy, give, take, or otherwise dispose of, or wantonly destroy, or traffic in the same without the written consent of, or unless the same shall have been purchased from the person whose mark or device shall be or shall have been in or upon the bottle, box, siphon, fountain, tin or keg so filled , trafficked in , used or handled as aforesaid . Any person violating the provisions of this section shall be guilty of a misdemean­or of the second degree, punishable as provided in s. 775.082 or s. 775.083, and for each subsequent offense shall be guilty of a misdemeanor of the first degree, pun­ishable as provided in s. 775.082 or s. 775.083.

History.-s. 2, ch . 4584, 1897: GS 3345; RGS 5188: CGL 7291: s. 7, ch. 22858, 1945: s. 462, ch . 71-136.

506.06 Unlawful to counterfeit trademark.-When any person or any association or union of working men adopts or uses and files as provided in s. 506.07 any label, trademark, term, wording, design, device, color or form of advertisement for the purpose of designating, making known or distinguishing any goods, wares, mer­chandise or other products of labor as having been made, manufactured , produced, prepared, packed or put on sale by such person or association or union of working men, or by a member or members of such asso­ciation or union , it shall be unlawful to counterfeit or imi­tate such label, trademark, term, wording, design, de­vice, color or form of advertisement, or knowingly to use, sell, offer for sale, or in any other way utter or circulate any counterfeit or imitation of any such label , trademark, term, wording, design, device, color or form of advertise­ment.

History.-s. 1, ch. 4974, 1901 : GS 3169: RGS 4995: CGL 7084.

506.07 Filing of trademark or other form of adver­tisement for record with Department of State.-Every person, association or union that adopts or uses a label, trademark, term, wording, design, device, color or form of advertisement as provided in s. 506.06, may file the same for record with the Department of State, by leaving two copies, counterparts or facsimiles thereof, with said department, and by filing therewith a sworn application specifying the name or names of the person, association or union on whose behalf such label, trademark, term , wording, design , device, color or form of advertisement shall be filed, the class of merchandise and a description of the goods to which it has been or is intended to be appropriated, stating that the party so filing or on whose behalf such label, trademark, term, wording, design, de­vice, color or form of advertisement shall be filed, has the right to the use of the same; that no other person, association or union has the right to use either in the identical form or in any such near resemblance thereto as may be calculated to deceive and that the facsimiles or counterparts filed therewith are true and correct.

History.-s. 3, ch. 4974, 1901 : GS 3170: RGS 4996: CGL 7085; ss. 10, 35, ch. 69-106.

506.08 Fee for filing.-There shall be paid for such filing and recording a fee of $15. The Department of

1843

Ch. 506 STAMPED OR MARKED CONTAINERS AND BASKETS F.S. 1987

State shall deliver to such person , association or union so filing or causing to be filed any label, trademark, term, wording, design, device, color or form of advertisement so many duly attested certificates of the recording of the same as such person, association or union may apply for, for each of which the department shall receive a fee of $15. Any certificate of record shall , in all suits and prosecutions hereunder, be sufficient proof of the adop­tion of such label, trademark, term, wording, design, de­vice, color or form of advertisement. The Department of State shall not record for any person, union or associa­tion any label, trademark, term , wording, design, device, color or form of advertisement that would probably be mistaken for any label , trademark, term, wording, de­sign, device, color or form of advertisement theretofore filed by or on behalf of any other person, union or associ­ation.

History.-s. 3, ch. 4974, 1901 ; GS 3171; RGS 4997; CGL 7086; ss. 10, 35, ch. 69-106; s. 8. ch. 71-114.

506 09 Civil remedies.-(1) A person , association, or union that adopts or

uses, and files as provided in s. 506.07, a label , trade­mark, term, wording, design, device, color, or form of ad­vertisement may proceed by suit to enjoin the manufac­ture, use, display, or sale of any counterfeits thereof. Any court of competent jurisdiction may grant an injunc­tion to restrain such manufacture, use, display, or sale as may be deemed just and reasonable and shall require the defendant to pay to the owner up to 3 times its prof­its from, and up to 3 times all damages suffered by rea­son of, the wrongful manufacture, use, display, or sale. The court may order the destruction of all such counter­feits , all means of making the counterfeits, and all goods, articles, or other matter bearing the counterfeits, which are in the possession or control of the court or any party to the action; or, after obliteration of the counter­feits , the court may dispose of those materials by order­ing their transfer to the state, a civil claimant, an elee­mosynary institution, or any appropriate private person other than the person from whom the materials were ob­tained.

(2) The court, upon motion or ex parte application by a plaintiff in a suit to enjoin the manufacture, use, dis­play, or sale of counterfeits, may order seizure of the counterfeit goods from persons manufacturing , display­ing for sale, or selling the goods, upon a showing that the counterfeit goods are likely to be destroyed, sold, or removed from the jurisdiction of the court and that there is a probability of success on the merits and upon the posting of an undertaking pursuant to subsection (5). If it appears from the ex parte application that there is good reason for proceeding without notification to the defendant, the court may, for good cause shown, waive the requirement of notice for the ex parte proceeding. The order of seizure shall specifically set forth:

(a) The date or dates on which the seizure is ordered to take place;

(b) A description of the counterfeit goods to be seized;

(c) The identity of the persons or class of persons to effect the seizure;

(d) A description of the location or locations at which the seizure is to occur; and

(e) A date, not more than 10 court days after the last date on which seizure is ordered , for a hearing at which any person from whom goods were seized may appear and seek release of the seized goods.

Any person from whom a seizure is to be effected shall be served with the order at the time of the seizure.

(3) Any person who causes the seizure of goods which are not counterfeit is liable in an amount equal to the following:

(a) Any damages proximately caused by the seizure of goods which are not counterfeit to any person having a financial interest in the seized goods.

(b) Costs incurred in defending against seizure of such goods.

(c) Upon a showing that the person who caused the seizure to occur acted in bad faith, expenses, including reasonable attorney's fees , in defending against the sei­zure of such goods.

(d) Punitive damages, if warranted. (4) A person entitled to recover may seek a recovery

pursuant to subsection (3) by cross-claim or motion made in the trial court. A person seeking a recovery pur­suant to this section may join any surety on an undertak­ing posted pursuant to subsection (2), and any judg­ment of liability will bind the person liable pursuant to subsection (3) and the surety jointly and severally, but the liability of the surety is limited to the amount of the undertaking.

(5) The court shall set the amount of the undertaking required by subsection (2) in accordance with the proba­ble recovery of damages, costs, and expenses under subsection (3) if it is ultimately determined that the goods seized are not counterfeit.

(6) Any person entitled to recover under subsection (3) may, within 30 days after the date of seizure, object to the undertaking on the ground that the surety or the amount of undertaking is insufficient.

(7) The motion or application filed pursuant to sub­section (2) shall include a statement advising the person from whom the goods are seized that the undertaking has been filed, informing him of his right to object to the undertaking on the ground that the surety or the amount of the undertaking is insufficient, and advising him that such objection to the undertaking must be made within 30 days after the date of seizure.

History.-s. 5, ch. 4974, 1901 ; GS 3172; RGS 4998; CGL 7087; s. 1, ch. 84-132. cf.-ch. 60 Injunctions.

506.10 Counterfeiting or improperly using trade­mark or other form of recorded advertisement; penalty. -Whoever counterfeits or imitates any label, trade­mark, term, wording, design, device, color or form of ad­vertisement; or knowingly sells, offers for sale, or in any way utters or circulates any counterfeit or imitation of any label, trademark, term, wording, design, device, col­or or form of advertisement, which has been filed for rec­ord according to law, or knowingly purchases and keeps or has in his possession, with intent that the same shall be sold or disposed of, any goods, wares, merchandise or other product of labor to which or on which any such counterfeit or imitation is printed, painted, stamped or

1844

F.S. 1987 STAMPED OR MARKED CONTAINERS AND BASKETS Ch. 506

impressed; or knowingly purchases with intent to sell or dispose of any goods, wares, merchandise or other product of labor contained in any box, case, can or pack­age, to which or on which any such counterfeit or imita­tion is attached, affixed , printed, painted, stamped or impressed, shall be guilty of a misdemeanor of the sec­ond degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 2, ch. 4974, 1901 ; GS 3347; RGS 5190; CGL 7293; s. 463, ch. 71-136. cf.-s. 831 .03 Forging or counterfeiting private labels.

506.11 Unlawful use of trademark; penalty.-Every person who shall use or display the genuine label, trade­mark, term, wording, design, device, color or form of ad­vertisement of any person, association or union , when legally filed for record , in any manner, not being author­ized so to do by such person , union or association, shall be guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.082 or s. 775.083.

History.-s. 6, ch. 4974, 1901 ; GS 3348; RGS 5191 ; CGL 7294; s. 464, ch. 71 -136.

506.12 Procuring the filing of trademark or other form of advertisement by fraudulent representations; penalty.-Any person who shall , for himself or on behalf of any other person, association or union , procure the fil­ing of any label, trqdemark, term , wording, design, de­vice, color or form of advertisement with the Department of State, by making any false or fraudulent representa­tions or declaration, verbally or in writing, or by any fraudulent means, shall be liable to pay any damage sus­tained in consequence of such filing , to be recovered by or on behalf of the party injured thereby in any court hav­ing jurisdiction, and shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083.

History.-s. 4, ch. 4974, 1901 ; GS 3349; RGS 5192; CGL 7295; ss. 10, 35, ch. 69-106; s. 465, ch . 71-136.

506.13 Using the name or seal of another; penalty. -Any person who shall, in any way, use the name or seal of any person , association or union or officer there­of, in and about the sale of goods or otherwise, not being authorized to so use the same, shall be guilty of a misde­meanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 7, ch. 4974, 1901 ; GS 3350; RGS 5193; CGL 7296; s. 466, ch. 71-136.

506.14 Sale or distribution of milk in marked bottles by person other than owner.-No person, without the written consent of the owner, shall sell or offer for sale or distribute milk, cream, or other milk products, in bot­tles, cans or crates of another person, whose name, label or mark is permanently fixed thereon; mar, or cover up such label, name or mark; sell, dispose of or traffic in such receptacle, or refuse upon demand to return the same to the owner, except milk or cream bottles perma­nently marked by the manufacturer "5¢ Store Bottle ," and on which a 5-cent charge is made whenever the bottle changes hands.

Hlstory.-ss. 1, 2, ch. 17104, 1935; CGL 1936 Supp. 3219(60).

506.15 Possession of marked milk bottles may be presumptive evidence of unlawful use.-The use for the sale and distribution of milk, cream or milk products by any other than the person whose label, name or mark

shall be or shall have been upon the same, or the pos­session by any dealer in secondhand articles, of any such receptacle without the written consent of the own­er is presumptive evidence of the unlawful use or traffic in such article.

History.-s. 3, ch. 17104, 1935; CGL 1936 Supp. 7677(6).

506.16 Proceedings by owner to recover posses­sion of milk bottles and to protect rights.-The owner of such receptacle as is described in ss. 506.14 and 506.15 shall have the right to take and recover the same from any person unlawfully possessing the same, and may maintain actions of replevin, or other appropriate actions, to preserve his rights therein . The court also may grant an injunction restraining any person from do­ing any of the acts and things herein declared to be un­lawful. In any action taken by the owner, and prosecuted to a successful conclusion , for the recovery of such property or to protect his rights therein , he shall be al­lowed all costs of such proceeding , including a reason­able attorney 's fee.

History.-s. 4, ch. 17104, 1935; CGL 1936 Supp. 3219(61). cf.-ch. 60 Injunctions.

506.17 Certain acts not to constitute sale of milk container.-The sale or delivery of milk, cream, or milk products, contained in such bottle, can or crate, or the taking or accepting of any deposit upon delivery of such container does not constitute a sale of such container.

History.-s. 5, ch . 17104, 1935; CGL 1936 Supp. 3219(62).

506.18 Penalty for violations.-Any person violating the provisions of ss. 506.14-506.17 shall be guilty of a misdemeanor of the second degree, punishable as pro­vided in s. 775 082 or s. 775.083.

History.-s. 2, ch. 17104, 1935; CGL 1936 Supp. 7677(6); s. 467, ch . 71-136.

506.19 Protection of owners of marked or branded field boxes or other specified containers; recordation. -Any person being the owner of field boxes, pallets, crates, containers , or receptacles used in the general production, harvesting , packing, transportation , or mar­keting of fruits or vegetables or their byproducts in the state may adopt for his exclusive use and ownership a particular mark or brand to designate and distinguish his ownership thereof and may identify his field boxes, pal­lets, crates, containers, or receptacles so used with such mark or brand in the form of such combinations, ini­tials, symbols, designs, or names as he may desire, by plainly and distinctly stamping, stenciling , painting, cut­ting , etching , or burning the same into or upon both ends or sides of such field boxes, pallets, crates, recep­tacles, or containers , and the presence of such identify­ing mark or brand on any field box, pallet, crate, contain­er, or receptacle whenever a copy or description thereof shall have been filed and recorded in the office of the Department of Agriculture and Consumer Services as herein provided for, shall , in any court and in any pro­ceedings in this state, be prima facie evidence of the ownership of such boxes, pallets , crates, containers, or receptacles by the person in whose name such mark or brand may have been recorded , provided such mark or brand shall have been recorded with the Department of Agriculture and Consumer Services as herein provided and shall bear the registered number herein provided

1845

Ch.506 STAMPED OR MARKED CONTAINERS AND BASKETS F.S. 1987

for. History.-s. 1, ch. 16018, 1933; s. 1, ch. 16859, 1935; CGL 1936 Supp. 7087(1),

(13); s. 1, ch. 67-18; ss. 14, 35, ch. 69-1 06; s. 1, ch . 72-47.

506.20 Filing and recording of marks and brands on field boxes.-Any person desiring to avail himself of the benefits of ss. 506.19-506.28, may make application to the Department of Agriculture and Consumer Services and shall file with such department a true copy and de­scription of such identifying mark or brand, which, if enti­tled thereto under the provisions of ss. 506.19-506.28, shall be filed and recorded by such department in a book to be provided and kept by it for that purpose, and the name of the owner of such brand or mark shall be likewise entered into such record , and such department shall then assign or designate a permanent registered number to the owner of such brand or mark, said num­ber to be assigned progressively as marks and brands are received and recorded , and the registered number so assigned shall then become a part of the registered brand or mark and shall plainly and distinctly be made to appear on such field boxes, pallets, crates, recepta­cles and containers , together with the identifying mark or brand referred to in s. 506.19 hereof. The department shall determine if such brand or mark so applied for is not a duplication of any brand or mark previously rec­orded by or with it , or does not so closely resemble the same as to be misleading or deceiving . If the brand or mark applied for does so resemble or is such a duplica­tion of previously recorded brands or marks as to be mis­leading or deceiving, the application shall be denied and the applicant may file some other brand or mark in the manner described above. The books and records previ­ously kept by the Secretary of State shall be transferred to the Commissioner of Agriculture upon the effective date of this act.

History.-s. 2, ch. 16018, 1933; s. 2, ch. 16859, 1935; CGL 1936 Supp. 7087(2), (14); s. 1, ch. 67-18; ss. 14, 35, ch. 69-106; s. 1, ch. 72- 47.

506.21 Filing fee; issuance of certificate of recor­dation.-The application for filing and recording shall be accompanied by a fee of $2 and thereupon, if consistent with the provisions of s. 506.20 the Department of Agri­culture and Consumer Services shall issue to the person applying for registration and recordation of such mark or brand a certificate of such recordation and of the reg­ister number assigned thereto and thereafter it shall is­sue such certificates, in any number, to any person ap­plying therefor, upon the payment of a fee of $1 for each certificate so issued , and such certificate shall , in all pro­ceedings in all of the courts of this state be taken as proof of the adoption and recordation of such identifying mark or brand.

History.-s. 3, ch. 16018, 1933; s. 3, ch. 16859, 1935; CGL 1936 Supp. 7087(3), (15); s. 1, ch. 67-18; ss. 14, 35, ch. 69-106.

506.22 Transfer, release, or sale of registered mark or brand.-The owner of any such registered mark or brand may transfer, release, or sell the same by an in­strument in writing evidencing such transfer, release, or sale, and upon application to the Department of Agricul­ture and Consumer Services where such mark or brand is registered for the recordation of such instrument in writing , and upon the fil ing of the same with such depart­ment and the payment of a fee of $2 the department

shall cause such instrument or transfer, release, or sale to be placed on record in a book provided and kept by it for that purpose, and certificates of such transfer, upon application therefor, shall be issued by it in like manner, upon the payment of like fees , as provided for the issuance of certificates under the provisions of s. 506.21 .

History.-s. 4, ch. 16018, 1933; s. 4, ch. 16859, 1935; CGL 1936 Supp. 7087(4), (16); s. 1, ch. 67-1 8; ss. 14, 35, ch. 69- 106.

506.23 Application of law.-The provisions of ss. 506.19-506.28 shall not be construed to a,pply when fruits, vegetables, or their byproducts, are wrapped or packed in such accepted or prescribed standard con­tainers as are prescribed and designated by the Bureau of Standards , United States Department of Agriculture, and are used only as receptacles or containers for fruits , vegetables, or their byproducts when offered for trans­portation or sale only.

History.-s. 10, ch. 16018, 1933; s. 10, ch. 16859, 1935; CGL 1936 Supp. 7087(5), (17).

506.24 Unauthorized possession of field boxes or other specified containers; penalty.-

(1) Any person who shall have in his unauthorized possession any field box, pallet, crate, receptacle , or container marked or branded with any mark or brand registered under the provisions of ss. 506.19-506.28, shall be guilty of a misdemeanor of the first degree, pun­ishable as provided in s. 775.082 or s. 775.083.

(2) The possession by any person of any field box, pallet , crate , container , or receptacle so marked or branded , in the absence of written authority therefor, shall be prima facie evidence of the violation of the provi­sions of this section . However, the owner of such rec­orded or registered mark or brand may, in writing , autho­rize and designate any person to use or have in his pos­session any such field boxes, pallets , crates, containers , or receptacles .

History.-s. 5, ch. 16018, 1933; s. 5, ch . 16019, 1933; s. 5, ch. 16859, 1935; CGL 1936 Supp. 7433(3), (8), (16); s. 468, ch. 71-136; s. 1, ch. 72-47.

506.25 Alteration or obliteration of marks or brands on field boxes or other specified containers.-lf any person shall alter, change, remove or obliterate the reg­istered mark or brand on any field box, pallet , crate, con­tainer, or receptacle other than his own or shall cause or procure the same to be done, with intent to claim the same, or to prevent identification thereof by the true owner, or use or have in his possession, any such field box, pallet, crate, container, or receptacle on which the registered mark or brand has been altered, changed , re­moved or obliterated , such person shall be guilty of a misdemeanor of the second degree, punishable as pro­vided in s. 775.082 or s. 775.083.

History.-s. 6, ch. 16018, 1933; s. 6, ch. 16019, 1933; s. 6, ch. 16859, 1935; CGL 1936 Supp. 7433(4), (9), (17); s. 469, ch. 71- 136; s. 1, ch. 72-47.

506.26 Purchase of marked field boxes or other specified containers from one other than owner.-lt is unlawful for any person to receive or to purchase any field box, pallet , crate, container, or receptacle marked or branded with registered mark or brand as herein pro­vided , from any person other than the registered owner thereof or his duly authorized agent, and proof of such receipt or purchase shall be prima facie evidence in any

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F.S. 1987 STAMPED OR MARKED CONTAINERS AND BASKETS Ch. 506

court of this state that such receiver or purchaser re­ceived or purchased the same with knowledge that it was stolen or embezzled property, and upon conviction thereof, such receiver or purchaser shall be punished as for receiving stolen or embezzled property.

History.-s. 7, ch . 16018, 1933; s. 7, ch. 16019, 1933; s. 7, ch. 16859, 1935; CGL 1936 Supp. 7433(5), (10), (18); s. 1, ch . 72-47.

506.27 Refusal to deliver marked field boxes or other specified containers to owner upon demand.­The refusal of any person in possession thereof to deliv­er any field box, pallet , crate, container , or receptacle so marked or branded and registered as herein provided, to the registered owner of the same or his duly author­ized agent, upon the demand of such registered owner or authorized agent, when said demand is accompanied with a display of the certificate of recordation and num­ber of the same, as furnished to the registered owner by the Department of Agriculture and Consumer Services, shall be prima facie evidence in any court of this state of a fraudulent intent to convert said field box, pallet, crate, container, or receptacle to the use of the person or persons , so in possession of the same, and to deprive the registered owner thereof, and any person convicted of a violation shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775 .082 or s. 775.083.

History.-s. 8, ch . 16018, 1933; s. 8, ch. 16019, 1933; s. 8, ch. 16859, 1935; CGL 1936 Supp. 7433(6), (11), (19); s. 1, ch. 67-18; ss. 14, 35, ch. 69-106; s. 470, ch . 71-136; s. 1, ch. 72-47.

506.28 Sending marked field boxes or other speci­fied containers out of state; penalty.-Any person who shall take or send out of the state, or cause to be taken or sent out of the state, any field box, pallet, crate, con­tainer, or receptacle so registered or branded as herein provided without the permission of the owner thereof shall be guilty of a misdemeanor of the first degree, pun­ishable as provided in s. 775.082 or s. 775 .083.

History.-s 9, ch. 16018, 1933; s. 9, ch. 16019, 1933; s. 9, ch . 16859, 1935; CGL 1936 Supp. 7433(7), (12), (20); s. 471 , ch . 71-136; s. 1, ch. 72-47.

506.29 Short title.-Sections 506.30-506.45 shall be known and designated as the "Florida Milk and Ice­cream Container Law" and may be so cited and referred to in all processes and proceedings taken under it and in all courts and places.

History.-s. 1, ch. 21969, 1943.

506.30 Application of law.-Any person or corpora­tion engaged in manufacturing milk, cream , ice cream, coated ice cream, imitation ice cream, ice-cream mix­tures or compounds or any other similar product frozen substantially to the consistency of ice cream; or any per­son or corporation engaged in bottling or selling milk, cream, ice cream, coated ice cream, imitation ice cream, ice-cream mixtures or compounds or any other similar product frozen substantially to the consistency of ice cream, in ice-cream containers, packages, wrappers, cabinets, refrigerators , bottle, barrel, box, tin, ice-cream container, package , wrapper, cabinet , refrigerator , equipment or other receptacles or containers upon which his or its name, or other marks or devices used by him or it, are branded , stamped, engraved, etched, blown, embossed, impressed or otherwise produced, may register his or its name, mark or device as hereinaf-

ter provided, and upon completing the registration and publication of any such name, mark or device, shall thereupon be deemed the proprietor of such name, mark or device and of every bottle, box, tin, ice-cream container, package , wrapper , cabinet, refrigerator, equipment or other receptacle or container upon which such name, mark or device may be branded, stamped, engraved, etched , blown, embossed, impressed or oth­erwise produced .

History.-s. 2, ch. 21969, 1943.

506.31 Registration of names, marks, and devices. -Any such names, marks or devices may be registered by filing in the office of the clerk of the circuit court of the county in which the principal office of the person or corporation seeking registration is situate and with the Department of State a description of such names, marks or devices; provided, that if any such person or corpora­tion has no principal office in this state, then such per­son or corporation may register such name, mark or de­vice by filing descriptions thereof in the office of the clerk of the circuit court of any county in which such per­son or corporation does business and with the Depart­ment of State.

History.-s. 3, ch. 21969, 1943; ss. 10, 35, ch. 69-106. cf.-s. 15.09 Fees collected by Department of State .

506.32 Notice of intention to register.-Any person or corporation seeking to register such names, marks or devices shall first cause such description to be printed once in each week, for 2 weeks successively, in a news­paper published in the county in which said description may be filed as aforesaid .

History.-s 4, ch. 21969, 1943.

506.33 Certified copies of registration; use as evi­dence.-A copy of such description , duly certified by the clerk of the circuit court of the county where such description has been filed, and a copy of such descrip­tion, duly certified by the Department of State, shall be received as evidence of such filing and also of the mat­ters therein stated in all courts and places.

History.-s. 5, ch. 21969, 1943; ss. 10, 35, ch. 69-106. cf.- s. 15.09 Certification fee.

506.34 Proof of publication; notice of intention.­The affidavit of the printer or publisher of a newspaper published within this state, or of his foreman or clerk , showing the publication of the description required by s. 506.32, annexed to a printed copy of the notice as published , shall be received as evidence of the publica­tion , and also of the matters therein stated, in all courts and places.

History.-s. 6, ch. 21969, 1943.

506.35 Containers; illegal use.-No person or cor­poration other than the owner or proprietor of such name, mark or device shall fill or cause to be filled with milk, cream, ice cream , coated ice cream, imitation ice cream, ice-cream mixtures or compounds or any other similar product frozen substantially to the consistency of ice cream , or shall sell, buy, give, take, possess, use, dispose of or traffic in any box, siphon, tin, ice-cream container , package, wrapper, cabinet, refrigerator , equipment or other receptacle or container which is so

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Ch.506 STAMPED OR MARKED CONTAINERS AND BASKETS F.S. 1987

marked or distinguished with or by any name, mark or device, a description of which shall have been filed as provided ins. 506.31; or shall deface, obliterate, destroy, cover up or otherwise remove or conceal any such name, mark or device thereon , without the written con­sent of, or unless the same shall have been purchased from, the owner or proprietor thereof; provided , howev­er, that no person or corporation to whom such milk, cream , ice cream, coated ice cream, imitation ice cream, ice-cream mixtures or compounds or any other similar product frozen substantially to the consistency of ice cream, shall have been delivered in bottles, boxes, tins , ice-cream containers, packages, wrappers, cabinets, refrigerators , equipment or other receptacles or contain­ers by the owners or proprietors thereof, shall be deemed to have violated the provisions of this law by having in his possession any such marked receptacles , unless such person or corporation , willfully and with the intention of unlawfully converting, retains such recepta­cles for a period longer than is reasonably necessary af­ter the contents placed therein by the owner or propri­etor thereof have been removed therefrom.

History.-s. 7, ch. 21969, 1943.

506.36 Penalties for illegal use.-Any person , act­ing for himself or as the agent of any person, firm or cor­poration, who shall violate the provisions of this law, shall be guilty of a misdemeanor of the first degree, pun­ishable as provided in s. 775.082 or s. 775.083.

History.-s. B. ch. 21969. 1943; s. 472, ch. 71-136.

506.37 Containers; obtaining possession.-The owner or proprietor or his or its agents may take posses­sion of any such bottles, boxes, tins , ice-cream contain­er, packages, wrapper, cabinets , refrigerators , equip­ment or other receptacles or containers used in violation of this law, whether such receptacles or containers be full or partly full of any liquid , beverage or other sub­stance, or empty, and shall not be liable in damages therefor, or for any trespass arising out of such taking possession. And if the party or parties having posses­sion of such receptacles or containers refuses to empty the same of the contents contained therein immediately upon notice and demand by the owner or proprietor thereof or his or its agent, then such owner, proprietor or agent may empty such receptacle or container and shall not be liable therefor.

History.-s. 9, ch . 21969, 1943.

506.38 Complaints before county court judge.­When any person shall complain on oath or affirmation to any county court judge that any person or corporation has violated any of the provisions of this law, the court to whom such complaint is presented shall issue proc­ess at the suit of the state, which process may be either a summons or a warrant against the person or corpora­tion so charged, which process, when in the nature of a warrant, shall be returnable forthwith, and when in the nature of a summons shall be returnable in not less than 2 nor more than 10 days, and shall be served at least 1 day before its return . Such complaint and such process shall state in general terms a violation of this law. On the return of such process, or at any time to which the trial of the case shall be adjourned , the county court judge

issuing the same shall proceed in a summary manner to hear testimony and determine and give judgment in the case without the filing of any pleadings, and if the de­fendant or defendants be convicted, shall impose the penalty or penalties by this law provided . It shall not be necessary to take or keep any record of the evidence or testimony taken on such trial. Service of summons upon a person other than a corporation may be made either personally or by leaving a copy at his dwelling house or usual place of abode; service upon a corporation may be made by delivering a copy of the summons to any officer or employee of such corporation who may be found in this state.

History.-s. 10, ch. 21969, 1943; s. 26, ch. 73-334.

506.39 Search warrants; procedure to obtain.­Whenever any person shall make oath before any coun­ty court judge that he has reason to believe and does believe that any bottles, boxes, tins , ice-cream contain­ers, packages, wrappers, cabinets, refrigerators, equip­ment, or other receptacles or containers , the property of any person or corporation who has complied with the provisions of ss. 506.31 and 506.32, are being filled , sold , bought, given , taken, possessed, used, disposed of , or trafficked in by any person or corporation in viola­tion of this law, such county court judge shall issue a search warrant to discover and obtain such receptacles or containers and to bring before such judge the person or persons in whose possession such bottles, boxes, tins , ice cream containers, packages, wrappers, cabi­nets, refrigerators, equipment, or other receptacles or containers may be found , and if any such receptacles or containers are found in the possession of any such person or persons in violation of the provisions of this law, the county court judge who issued the process shall proceed to trial and judgment in the manner provided for in s. 506.38, and upon judgment, shall also award pos­session of the receptacles or containers so taken under such warrant to the owners or proprietors thereof.

History.-s. 11 , ch. 21969, 1943; s. 26, ch. 73- 334.

506.40 Presumptive evidence of violations.--The presence upon any bottle, box, tin, ice-cream container, package, wrapper , cabinet , refrigerator, equipment or other receptacle or container, or any name, mark or de­vice which has been registered and published as provid­ed for in ss. 506.31 and 506.32, shall be presumptive evi­dence in any proceeding or trial, that the owner or pro­prietor of such mark or device is the owner or proprietor of such bottle, box, tin , ice-cream container, package, wrapper , cabinet, refrigerator, equipment or other re­ceptacle or container.

Hlstory.-s. 12, ch. 21969, 1943.

506.41 Deposit for container not a sale.-The re­quiring, taking or accepting of any deposit upon delivery of any bottle, box, tin, ice-cream container, package, wrapper, cabinet, refrigerator, equipment or other re­ceptacle or container, bearing a name, mark or device which has been registered and published as provided for by ss. 506.31 and 506.32 shall not be deemed a sale thereof, either optional or otherwise.

Hlstory.-s. 13, ch. 21969, 1943.

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F.S. 1987 STAMPED OR MARKED CONTAINERS AND BASKETS Ch. 506

506.42 Penalties, generally; judgments and plead­ings.-Any person or corporation which violates the pro­visions of this law, or of any of the amendments hereof or supplements hereto, shall be liable to a penalty of $5 for the first offense, for each bottle, box, tin, ice-cream container, package, cabinet , refrigerator, equipment or other receptacle or container so filled , sold, bought, giv­en, taken, used, disposed of, trafficked in or possessed in violation of the provisions of this law; and a penalty of double that amount for the second and each subse­quent offense; which penalty may be recovered by an action for the recovery of a debt, by the owner or propri­etor of any such bottle, box, tin , ice-cream container, package, wrapper, cabinet , refrigerator, equipment or other receptacle or container, or his agent in any court of this state having cognizance thereof. The pleadings shall conform in all respects to the practice prevailing in the court in which any such action shall be instituted, but no pleading or process shall be set aside or invali­dated by reason of any formal or technical defects there­in if the same contains a statement of the nature of the alleged violation and of the section of this law alleged to have been violated, and upon the attention of the court being called to any such formal or technical defect the same shall be immediately corrected and the said pleading or process amended as a matter of course, and as to all other defects in pleadings or process the same may be amended in the discretion of the court, as in any other action or proceeding in said court.

History.-s. 14, ch. 21969, 1943.

506.43 Executions on judgments.-When judg­ment shall be rendered against any defendant other than a corporation , execution shall be issued against his goods or chattels without any order of the court for that purpose first had and obtained. In case judgment shall be rendered against a body corporate, execution shall be issued against the goods and chattels of said corpo­ration as in other actions of debt.

History.-s. 15, ch. 21969, 1943.

506.44 Prior registrations recognized.-Any per­son or corporation having heretofore filed in any of the offices mentioned in s. 506.31, a description of the names, marks or devices, upon his or its property there­in mentioned, and having caused the same to be pub­lished, according to the law existing at the time of such filing and publication, shall not be required to again file and publish such description in order to be entitled to the benefits of this law, but may avail himself or itself of any or all of the provisions, modes of procedure and methods of protection provided for herein, marks or de­vices under and according to the provisions of this law.

Hlstory.-s. 16, ch. 21969, 1943.

506.45 Statutes and laws unaffected.-Any pro­ceeding now pending under any other law which this law may repeal shall not abate, but may be proceeded into final judgment as if this law had not been passed; and provided, further, that nothing in this law contained shall be construed to repeal or modify or affect any existing laws for the protection of producers or shippers of milk or concerning milk cans.

Hlstory.-s. 18, ch. 21969, 1943.

506.501 Carts, Cases, Baskets, Boxes, and Con­tainers Act; short title.-Sections 506 .501-506.519 shall be known and may be cited as the "Carts, Cases, Baskets, Boxes , and Containers Act. "

History.- s. 1, ch. 83-262; s. 1, ch. 87-80.

506.502 Definitions.-For the purposes of ss . 506.501-506.519, the term :

(1) "Bakery container" means any permanent type of container which is used by a bakery, distributor, retailer, or food service establishment or the agent of any of them as a means to transport , store, or carry bakery products.

(2) "Dairy case" means a wire or plastic container which holds 16 quarts or more of beverage and is used by a distributor, retailer, or its agent as a means to trans­port, store, or carry dairy products.

(3) "Department" means the Department of State. (4) "Egg basket" means any permanent type of con­

tainer which contains four dozen or more shell eggs and is used by a distributor, retailer, or its agent as a means to transport , store, or carry eggs.

(5) "Laundry cart" means a basket which is mounted on wheels and used in a coin-operated laundry or dry­cleaning establishment by a customer or an attendant for the purpose of transporting laundry and laundry sup­plies.

(6) "Name or mark" means any permanently affixed or permanently stamped name or mark which has been registered with the Department of State pursuant to s. 506.503 and is used for the purpose of identifying the registered owner of dairy cases, egg baskets, poultry boxes, or bakery containers.

(7) "Parking area" means a lot or other property pro­vided by a retail establishment for the use of customers to park automobiles or other vehicles while doing busi­ness in that establishment.

(8) "Poultry box" means any permanent type of con­tainer which is used by a processor, distributor, retailer, food service establishment, or its agent as a means to transport, store, or carry poultry.

(9) "Registered owner" means any person, firm, cor­poration , or association registered with the department as the owner of an identifying name or mark described in subsection (6).

(10) "Shopping cart" means a basket mounted on wheels or a similar device which is generally used in a retail establishment by a customer for the purpose of transporting goods of any kind.

History.-s. 1, ch. 83-262; s. 2, ch. 87-80.

506.503 Shopping carts, laundry carts, dairy cases, egg baskets, poultry boxes, and bakery containers; registration.-Any person, firm, corporation , or associa­tion owning shopping carts, laundry carts, dairy cases, egg baskets, poultry boxes, or bakery containers may register with the Department of State a description of the name or mark affixed or stamped on such carts, cases, baskets, boxes, or containers for identification purposes. If the department determines that the name or mark is not a duplication of any name or mark previ­ously recorded in its files and does not so closely resem­ble any other recorded name or mark as to be mislead­ing or deceiving, it shall register and record such name

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Ch.506 STAMPED OR MARKED CONTAINERS AND BASKETS F.S. 1987

or mark in a file to be provided and kept by the depart­ment for that purpose, along with the name and address of the registered owner of the name or mark. If the de­partment determines that the name or mark so applied for is a duplication of any name or mark previously rec­orded by the department, or so closely resembles the previously recorded name or mark as to be misleading or deceiving , the application shall be denied; and the ap­plicant may register some other name or mark in the manner described in this section.

History.-s. 1, ch. 83-262; s. 89, ch. 85-81 ; s. 3, ch. 87-80.

506.505 Egg baskets; designation of owner.-Any person , firm, corporation , or association engaged in re­ceiving, packing, handling , or selling eggs in permanent baskets which contain four dozen or more shell eggs may, in order to designate the ownership of such bas­kets or distinguish such baskets from other similar bas­kets , adopt, own, and use any name or mark and perma­nently affix or stamp such name or mark on any egg bas­ket , except cardboard , fiberboard , or corrugated con­tainers, which egg basket is owned by such person, firm, corporation , or association .

History.-s. 1, ch. 83-262.

506.506 Poultry boxes; designation of owners.­Any person, firm , corporation, or association engaged in receiving, packing, handling, or selling poultry in perma· nent boxes may, in order to designate the ownership of such boxes or distinguish such boxes from other similar boxes, adopt, own , and use any name or mark and per­manently affix or stamp such name or mark on any poul­try box, except cardboard, fiberboard , or wood contain­ers, which poultry box is owned by such person , firm, corporation, or association.

History.-s. 1, ch. 83-262.

506.507 Bakery containers; designation of owners. -Any person , firm, corporation , or association engaged in receiving , packing , handling, or selling bakery prod· ucts in permanent containers may, in order to designate the ownership of such containers or distinguish such containers from other similar containers , adopt, own, and use any name or mark and permanently affix such name or mark on any bakery container it owns, except a cardboard, fiberboard, or corrugated container.

History.-s. 4, ch. 87-80.

506.508 Illegal use of dairy cases, egg baskets, poultry boxes, or bakery containers.-No person , firm , corporation, or association shall use for any purpose any container which is identified with or by any name or mark registered with the department as provided in s. 506.503 unless such person is the registered owner of the name or mark. No person, firm, corporation, or association shall deface, obliterate, destroy, cover up, or otherwise remove or conceal any such name or mark without the written consent of the registered owner.

History.-s. 1, ch . 83-262; s. 5, ch. 87-80.

506.509 Possession of shopping carts, laundry carts, dairy cases, egg baskets, poultry boxes, or bak­ery containers.-Any person who is in possession of any shopping cart, laundry cart, dairy case, egg basket, poultry box, or bakery container with a registered name

or mark shall be presumed to be in possession of stolen property and is guilty of a misdemeanor of the first de­gree, punishable as provided in s. 775.082.

History.-s. 1, ch . 83-262; s. 6, ch. 87-80.

506.511 Transportation of dairy cases, egg bas­kets, poultry boxes, or bakery containers; bill of lading. -It is unlawful for any common carrier or private carrier for hire, except those carriers engaged in the transport­ing of dairy products, eggs, poultry, or bakery products to and from farms or bakeries where produced, to re­ceive or transport any container marked with a regis­tered name or mark unless such carrier has in his pos­session a bill of lading or invoice therefor.

History.-s. 1, ch. 83-262; s. 90, ch. 85-81 ; s. 7, ch . 87-80.

506.513 Illegal use of shopping carts and laundry carts.-lt is a violation of ss. 506.501-506.519:

(1) To remove any shopping cart or laundry cart from the premises or parking area of a retail establishment with intent to deprive temporarily or permanently the owner of such cart , or the retailer, of possession of the cart.

(2) To remove a shopping cart or laundry cart , with­out written authorization, from its owner or from the premises or parking area of any retail establishment.

(3) To remove, obliterate, or alter any serial number or sign affixed to a shopping cart or laundry cart.

History.-s. 1, ch. 83-262.

506.514 Unlawful removal of dairy cases.-lt is a vi­olation of ss. 506.501-506.519 for any person not in law­ful possession of a dairy case to remove a dairy case from the premises, the parking area, or any other area of any retail establishment, or from any dairy delivery ve­hicle, if:

(1) The dairy case is marked on at least two sides with a registered name or mark; and

(2) A notice to the public , warning that use by any person other than the registered owner is punishable by law, is visibly displayed on the dairy case.

History.-s. 1, ch. 83-262.

506.515 Unlawful removal of egg baskets, poultry boxes, or bakery containers.-lt is a violation of ss. 506.501-506.519 for any person not in lawful possession of an egg basket, poultry box, or bakery container to re­move such egg basket, poultry box, or bakery container from the premises, the parking area, or any other area of any processor, bakery, distributor, retailer, or food service establishment.

History.-s. 1, ch. 83-262; s. 8. ch. 87-80.

506.517 Deposits.-The requiring, taking, or ac­cepting of any deposit upon delivery of any shopping cart, laundry cart, dairy case, egg basket, poultry box, or bakery container shall not be deemed a sale thereof, optional or otherwise.

History.-s. 1, ch. 83-262; s. 9, ch. 87-80.

506.518 Penalty.-Any person who violates any of the provisions of ss. 506.501-506.519 is guilty of a mis­demeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.- s. 1, ch. 83-262; s. 10, ch . 87-80.

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