Per Se Violations of the Florida Deceptive and Unfair Trade Practices Act
This article identifies three categories of “per se” violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), F.S. Ch. 501, Part II, with respect to what the text of FDUTPA indicates may be a basis for a statutory violation. It also sets forth several advantages to finding and alleging per se violations of FDUTPA.
FDUTPA broadly declares in §501.204(1) that “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce” are unlawful. design, FDUTPA does not contain a definition or “laundry list” of just which acts can be “deceptive,” “unfair,” or “unconscionable.” No specific rule or regulation is required to find conduct unfair or deceptive under the statute.1
There is, however, an entire body of state and federal rules, ordinances, and statutes which serves to identify specific acts that constitute automatic violations of FDUTPA’s broad proscription in §501.204(1). These rules, ordinances, and statutes, if violated, constitute “per se” violations of FDUTPA, and could automatically expose parties to actual damages, injunctions, and civil penalties up to $15,000 per violation. An assessment of potential per se FDUTPA violations, therefore, should play a part in any commercial law practice, and is imperative for any lawyer bringing or defending against a claim for deceptive or unfair trade practices.
Approaches to FDUTPA Liability
There are two basic approaches to analyzing FDUTPA liability: one is to determine whether an act or practice in trade or commerce violates broadly worded standards relating to unfairness, deception, unconscionable acts or practices, or unfair methods of competition; a second is to assess whether conduct in trade or commerce constitutes a per se violation.2
• The Standards Approach
As a statute of reference, FDUTPA contains broad proscriptions and then points to interpretations and other bodies of law to give guidance on what may be considered in determining liability under the statute. Along these lines, FDUTPA tracks the broad language of the Federal Trade Commission Act (FTC act)3 and declares “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce” to be unlawful. Subsection 501.204(2) of FDUTPA in turn provides that “due consideration and great weight” be given interpretations by federal courts and the Federal Trade Commission of what constitutes unfairness and deception. In interpreting the terms “unfair” and “deceptive,” the FTC and federal courts have found violations of the FTC act with reference to certain broadly worded standards of unfairness and deception which apply across industries to differing fact patterns. Based on FTC interpretations and federal case law dating from the 1960s, Florida courts have adopted and applied in various contexts a broadly worded standard of unfairness under which a practice is unfair, “if it offends public policy and is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”4
• The Per Se Approach
Conceptually, the per se approach to FDUTPA liability embraces the notion that an act or practice in trade or commerce may be “unfair,” “deceptive,” or “unconscionable,” because it violates a predetermined guideline embodying public policy or morality, or because it violates a predetermined guideline meant to protect consumers from injury. A per se violation occurs where conduct violates a specific guideline in the form of a statute, ordinance, or rule and a violation of that guideline in turn automatically or “per se” constitutes a violation of FDUTPA. The violation is said to be “automatic” or “per se” because the statute, ordinance, or rule constitutes a previously determined identification of specific unfair, deceptive, or unconscionable conduct, and, when violated, automatically states a FDUTPA violation, without the necessity of a full-blown analysis of the conduct in light of broader standards of unfairness or deception.
Legislative Acknowledgment
In 1993, the Florida Legislature formally acknowledged the per se approach in redefining the term, “violation of this part” in §501.203(3) of FDUTPA, which now specifically refers to sources upon which a litigant may base an alleged FDUTPA violation.5 Subsection 501.203(3)(b) acknowledges the federal standards of unfairness and deception as a basis for violations. Subsection 501.203(3) in turn addresses per se violations beginning with the lead-in phrase to §501.203(3) which provides that “‘Violation of this part’ means any violation of. . . the rules adopted under this act. ” Subsections (a) and (c) of §501.203(3) further state:
Violation of this part. . . may be based upon any of the following as of July 1, 2001:6
(a) Any rules promulgated pursuant to the Federal Trade Commission Act , 15 U.S.C. ss. 41 et seq.
[or]
(c) Any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices .7
Categories of Per Se Violations
The rules, regulations, ordinances, and statutes referenced in the above-quoted §501.203(3) refer to sources which may serve as a basis for a per se FDUTPA violation. These sources can be broken down into three categories:
1) Per se violations whereby a statute, ordinance, or rule expressly refers to FDUTPA and provides a violation thereof to be a violation of FDUTPA;
2) Per se violations whereby a statute, ordinance, or rule expressly describes deceptive, unconscionable, or unfair conduct without referring expressly to FDUTPA and when violated constitutes a per se violation of FDUTPA; and
3) Per se violations whereby a court, in the absence of any such reference or description, construes a statute, ordinance, or rule to be a per se violation of FDUTPA.
• Per se by Specific Reference
In §501.203(3)(c), FDUTPA indicates a violation may based on “[a]ny law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.”8 Currently, at least 17 Florida statutes and one ordinance contain provisions which specifically refer to FDUTPA and state that violations of their provisions in turn are violations of FDUTPA.9 The typical language of this first type of per se provision reads like the provision of the Buying Services Act of 1991, which specifically references FDUTPA and states: “A violation of this act shall be deemed an unfair or deceptive trade practice within the meaning of part II of chapter 501 [FDUTPA]. Violators shall be subject to the penalties and remedies provided therein.”10
• Per Se by Description
The reference in §501.203(3)(a) and (c) to FDUTPA violations based on FTC or FDUTPA rules, or “[a]ny law, statute, rule, regulation, or ordinance” can further be interpreted as a formal acknowledgment of violations of a second type of per se violation which occurs when a rule, statute, or ordinance is violated, and the rule, statute, or other ordinance expressly describes unfair, deceptive, or unconscionable conduct, without necessarily referring expressly to FDUTPA.
Pursuant to the definition of “violation of this part,” a violation of FDUTPA can occur when “rules adopted under th[e] act” are violated. The Office of the Attorney General has rulemaking authority under FDUTPA in §501.205 and pursuant thereto has adopted Fla. Admin. Code R. 2-18, relating to “contract[s] for future consumer services.” Like many of the state and federal rules and statutes which fall under the second category of per se violation, Rule 2-18 contains a prefatory phrase which states, “It shall be an unfair or deceptive act or practice to. . . ” and then it describes specific conduct.
Apart from OAG rules, FDUTPA provides in §501.203(3)(c) that a violation may be based upon “any rule [or] regulation ” which proscribes such conduct in trade or commerce. Several other Florida state agencies have adopted rules which describe unfair or deceptive acts, mostly with respect to deceptive, false, or misleading advertising. The coverage of these rules ranges from mortgage brokering11 to rules addressing certain professions like medicine12 and architecture.13 Given that these rules specifically describe unfair, unconscionable, or deceptive acts, they may also serve as per se violations of FDUTPA.
Like certain administrative rules, at least 12 Florida statutes may serve as per se violations because they contain declarations that conduct or violations of their provisions are deceptive, unfair, unconscionable, or unfair methods of competition. Some of these statutes, like the free gift advertising law, simply declare that any violation of the statute is a deceptive trade practice.14 Others contain broad proscriptions of unfair, unconscionable, or deceptive conduct in a certain industry with subsequent definitions of specific violations, or they otherwise describe specific acts which are considered unfair, unconscionable, or deceptive in a specific industry.15
• Rules Adopted by the FTC
Pursuant to the FTC act, the FTC has adopted rules which describe unfair or deceptive acts in several contexts, and which appear in 16 C.F.R. ch. 1, subch. D, entitled “Trade Regulation Rules.” Some of the more well known of these include the FTC rules governing door-to-door sales,16 franchises,17 holders in due course,18 negative option sales plans,19 funeral industry practices,20 and mail or telephone order sales.21 According to the definition of “violation of this part,” in §501.203(3)(a) a violation of FDUTPA can occur when federal administrative rules promulgated by the Federal Trade Commission pursuant to the FTC act are violated. Along these lines, the 11th Circuit has confirmed that §501.203(3)(a) of FDUTPA creates a private cause of action for violation of an FTC rule even though none exists under federal law.22
Besides the FTC act, the FTC promulgates or enforces rules adopted pursuant to several other federal consumer protection statutes. These administrative rules, like the FTC’s “Trade Regulation Rules,” expressly describe unfair or deceptive acts and practices, and they should be equal fodder for per se treatment.
The definition of “violation of this part,” in §501.203(3)(c) of FDUTPA states a violation may be based on “[ a ] ny. . . rule [or] regulation. . . which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.”23 This subsection is separate from §501.203(3)(a) which addresses FTC act “Trade Regulation Rules” as a basis for a violation. The use of the word “any” to modify the terms “rule” or “regulation” in §501.203(3)(c) is not limited in the text of the definition to FTC rules specifically adopted by the FTC pursuant to the FTC act, which is the case for §501.203(3)(a). The Florida Legislature has further expressly intended as a rule of statutory construction that FDUTPA be construed liberally “[t]o protect the consuming public and legitimate business enterprises. . . [and]. . . [t]o make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.”24 When read together, the foregoing provisions support the position that federal rules which describe unfairness and deception and/or state a violation thereof violates the FTC act, embody “established policies of federal law relating to consumer protection” that when violated can serve as per se violations of FDUTPA, even though they may not be “Trade Regulation Rules” adopted by the FTC under specific authority of the FTC act.
Per se FDUTPA violations therefore should be stated for violations of FTC rules adopted pursuant to statutes like the Telemarketing and Consumer Fraud and Abuse Prevention Act25 and the Children’s Online Privacy Protection Act of 1998,26 because the rules adopted under these federal statutes expressly describe unfair or deceptive conduct. To bring cases under FDUTPA based on violations of these and other similar rule provisions is not only consistent with federal law relating to consumer protection, but it also effectuates the Florida Legislature’s intent that FDUTPA be construed liberally to protect the consuming public and legitimate businesses.
• Federal Statutes Describing Unfairness or Deception
Like FTC-enforced rules, several federal statutes expressly describe unfair and deceptive acts and practices or refer to violations of their provisions as violations of the FTC act. According to §501.203(3)(c), FDUTPA violations may be based on “[ a ] ny. . . statute. . . which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.” FDUTPA thus may also be interpreted to refer to violations of federal consumer protection statutes which describe unfair or deceptive acts either by their own terms or by reference to the FTC act.27 For the same reasons federal rules describing unfairness and deception or stating that a violation thereof violates the FTC act serve as per se violations of FDUTPA, so should federal statutes which contain similar provisions. Federal consumer protection statutes which proscribe deception or unfairness on their own terms or with reference to the FTC act and thus should be per se FDUTPA violations include statutes addressing equal credit opportunities,28 federal warranty rights,29 truth-in-lending,30 fair credit reporting,31 credit repair,32 debt collection,33 and mailings of unordered merchandise,34 among others.
• Ordinances as Per Se Violations of FDUTPA
Besides rules and statutes, nearly 20 years ago, the Florida Supreme Court determined that “the Legislature in enacting the Little FTC Act [FDUTPA], foresaw the passage of supplementary local consumer legislation or ordinances.”35 This determination was based in part on the FDUTPA subsection which provides that FDUTPA is supplemental to and does not preempt local ordinances which are consistent with its provisions.36 In this vein, the Florida Legislature in 1993, through redefining “violation of the part” in §501.203(3)(c), provided that violations of the act may be based on “[ a ] ny. . . ordinance. . . which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.”37 Accordingly, FDUTPA should be reasonably construed to refer to violations of city and county ordinances which describe unfair or deceptive acts, provided they are not inconsistent with FDUTPA. Local governments throughout Florida have passed ordinances covering deception and unfairness in specific subject areas like price gouging,38 title loans,39 secondhand merchandise,40 and motor vehicle repairs.41 Others have passed their own consumer protection codes which proscribe specific unfair or deceptive acts across industries and businesses generally42 and which should serve equally well as per se FDUTPA violations.
• Per Se by Judicial Construction
A third type of per se violation of FDUTPA can occur when a court determines that activity made unlawful by another statute, rule, or ordinance is unfair or deceptive within the meaning and scope of FDUTPA, even though no explicit reference is made to FDUTPA in the underlying statute, rule, or ordinance, and even if the statute, rule, or ordinance has no express provision prohibiting unfair or deceptive trade practices. The legislative staff analysis of the 1993 bill which redefined a “violation of this part” in §501.203(3), stated in part, the bill “codifies existing practice and long-standing judicial decisions that make it clear that a violation of the act can involve a[nother] rule or statute.”43
• Cases Construing FDUTPA
To date, no Florida court has construed §501.203(3)(c) as amended in 1993 and mentioned per se violations; ergo, no judicial precedent exists for the opinion that §501.203(3) of FDUTPA incorporates judicial decisions on per se violations as may be indicated in the legislative history. Nonetheless, without benefit of the reworked definition of a “violation of this part,” a few courts have made findings (albeit sometimes in dicta) to the effect that conduct in violation of other statutes, and even the Florida Constitution, could constitute violations of FDUTPA.
In re Samuels v. American Legal Clinic, Inc., 176 B.R. 616 (Bankr. M.D. Fla. 1994), is the only case which has construed FDUTPA and actually used the term “per se violation” in construing another law to be a per se violation of FDUTPA. In re Samuels involved a pro se debtor who brought an adversary proceeding against a layperson and her “American Legal Clinic, Inc.,” which had represented her in a dismissed debt adjustment case. The debtor sought monetary damages and injunctive and declaratory relief under FDUTPA for the layperson’s alleged unauthorized practice of law. The bankruptcy court in In re Samuels determined that the layperson did engage in the unauthorized practice of law within the meaning of Florida law, and that her ads and services were deceptive under FDUTPA and that she had set up people for failure in the bankruptcy system. The court cited the Fla. Const. Art. V, §15, which provides that the Florida Supreme Court has the exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of such persons. The court went on to note that the Florida Supreme Court had created only a limited number of forms which may be used by lay persons in Florida courts, and that nonattorneys could only perform typing and secretarial services. The court concluded, “[The layperson’s] violation of the Florida Constitution by exceeding the parameters created for typing services [was] a per se violation of the Florida UDAP laws [FDUTPA].”44
State Dept. of Agriculture and Consumer Services v. Quick Cash of Clearwater, 605 So. 2d 898 (Fla. 2d DCA 1992), involved a suit by the Division of Consumer Services to enjoin several pawnbrokers’ alleged violations of FDUTPA. The lower court had quashed the division’s complaint because it ruled the division did not have the authority to bring the action. In reversing, the appellate court expressed reservations about the division’s authority, but concluded that if the division could plead and prove the defendants were engaging in a business method which involved criminal usury under F.S. §687.071, this “could constitute either an unfair method of competition or an unfair or deceptive act for purposes” of FDUTPA.45
Anden v. Litinsky, 472 So. 2d 825 (Fla. 4th DCA 1985), was a FDUTPA case brought by property owners against an “investment” company and individually against its president for making false representations and constructing a home deficiently. The lower court entered judgment in favor of the property owners. The defendants appealed. The appellate court noted the corporate president was not a licensed contractor even though he made representations to the plaintiffs to the contrary. The court quoted former FDUTPA Rule 2-15.03(1), Fla. Admin. Code, which prohibited false representations in procurement of a construction contract, the definition of “contractors” in F.S. §§489.105(3) and 489.113(2), which made it a misdemeanor to engage in business or act a contractor without being duly licensed. Based on the administrative rule and statutory violations the court held the trial court was “eminently correct” in finding the corporate president had violated FDUTPA.
• Cases from Other Jurisdictions
Judicial opinions from other jurisdictions have tended to contain more extensive discussions of the per se approach than those in Florida. To the extent another state’s unfair and deceptive trade practice (UDAP) statute and FDUTPA are based on the same model statutory language, decisions from that state should be persuasive. way of example, some out-of-state courts have permitted per se treatment with reference to violations of federal environmental statutes,46 statutes prohibiting video piracy,47 and the federal Food, Drug and Cosmetic Act;48 Others have allowed per se violations based on state credit laws,49 misbranding statutes,50 environmental regulations,51 and a state’s Uniform Commercial Code provisions.52
Per Se Advantages
In whatever category a per se violation may fall, and whether it involves an ordinance, rule, or statute, there are distinct advantages to finding and alleging per se violations of FDUTPA.
Basing a FDUTPA claim on a per se violation provides standing through FDUTPA to bring civil actions to seek relief for violations of statutes and rules where none exists.53 Reliance on another statute as a per se FDUTPA violation does not import the standing requirements of the other statute into FDUTPA.54 A per se argument for unfair or deceptive acts may be made, even where the underlying statute only provides for criminal penalties.55
Another advantage to finding a per se violation is that often the court will not have to determine whether the act or practice falls under the broad—but not precisely defined—standards of deception and unfairness. Courts may have less discretion interpreting rules, regulations, ordinances, or statutes with specific requirements.56
When per se violations are present they may also quell perfunctory constitutional challenges based on the potential vagueness of FDUTPA and its purported failure to give adequate notice of what is prohibited. While constitutional challenges to FDUTPA have failed on appeal,57 They are still routinely raised in circuit court litigation. A clearly stated per se violation should help debunk a quotidian vagueness challenge to FDUTPA.
Cases may settle more quickly if violation of a clear-cut guideline like a per se violation is shown.58
A per se violation may also provide additional remedies and sanctions. If a claimant proves a violation of an underlying statute which constitutes a per se violation of FDUTPA, he or she may be able to recover remedies under both statutes. FDUTPA in §501.213(1) provides “[t]he remedies of this part are in addition to remedies otherwise available for the same conduct under state or local law.” Several statutes which constitute per se violations of FDUTPA contain their own remedies and sanctions which may be available in addition to those under FDUTPA.59
Moreover, even though a statute, rule, or ordinance which has been violated does not specifically cross-reference FDUTPA or specifically describe unfair or deceptive conduct, it may provide evidence of an identifiable public policy, morality, or intent to protect consumers regarding specific acts or practices, and therefore be advantageous to use as a per se violation under FDUTPA. Courts in other jurisdictions regularly construe state statutes to be per se violations of the state’s UDAP statute, because the underlying statute incorporates public morals or policy which, when violated, constitutes a per se unfair act or practice. In such cases, courts often analyze the underlying violation in light of the FTC unfairness standard which holds that an act is unfair if it “offends public policy as it has been established by statutes. . . or. . . it is within at least the penumbra of some. . . statutory or other established concept of unfairness” and/or they find the violation is immoral, unethical, oppressive, or unscrupulous or causes substantial injury to consumers.60 In addition, at least one state court has found a statute to be a per se UDAP violation when the court found the underlying statute was designed to protect the consuming public, and even where the underlying statute did not provide for a private cause of action.61
Finally, per se violations may make it easier to prove civil penalties. Section 501.2075 of FDUTPA provides that a person is liable for a civil penalty up to $10,000 per violation in an action brought by an enforcing authority if such person “ knew or should have known that his or her conduct was unfair or deceptive or prohibited by rule.”62 Per se violations provide more notice and definition of prohibited conduct; consequently, they may make it easier to prove a defendant knew or should have known his or her conduct was unfair or deceptive.
Conclusion
As a statute of reference, FDUTPA refers in the definition of a “violation of this part” to interpretations and other bodies of law to give its necessarily broad proscriptions shape and meaning: One reference is the federal standards of unfairness and deception; another is the body of state and federal rules and statutes and local ordinances which may be available to state per se or “automatic” violations of the statute. These rules, statutes, and ordinances may expressly refer to FDUTPA, describe unfair, unconscionable, or deceptive conduct, or may provide evidence of public policy or morality upon which a court may base a per se violation.
Advantages to finding and alleging per se violations are many. Civil penalties may be easier to prove if per se violations are presented. Per se violations may permit standing where none exists; they may also hasten settlement, provide advance notice, allow additional remedies, and evidence public policy. In the long run they may reduce the incidence of consumer injury. From a practitioner’s perspective, per se violations should be addressed separately in every case and on equal footing with an evaluation of the facts in light of the standards of unfairness and deception. A thorough familiarity with per se violations is clearly indispensable for any lawyer assessing a claim for deceptive or unfair trade practices.
1 See Dept. of Legal Affairs v. Father and Son Moving & Storage , 643 So. 2d 22 (Fla. 4th D.C.A. 1994).
2 This analysis would, of course, include a threshold determination whether FDUTPA applies with respect to the exemptions listed in Fla. Stat. §501.212.
3 15 U.S.C.A. §45(a)(1) provides, “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”
4 Samuels v. King Motor Company of Fort Lauderdale , 26 Fla. L. Weekly D849 (Fla. 4th D.C.A. 2001); Urling v. Helms Exterminators , 468 So. 2d 451 (Fla. 1st D.C.A. 1985) (citing Spiegel, Inc. v. FTC , 540 F.2d 287 (7th Cir. 1976)); Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc. , 693 So. 2d 602 (Fla. 2d D.C.A. 1997). In 1980, the FTC issued a restatement of its unfairness standard which focuses on unjustified consumer injury. A discussion of this standard as it relates to per se violations can be found in M. Fistos, Per Se Violations Under the Florida Deceptive and Unfair Trade Practices Act , The Florida Bar CLE Manual, January 2001.
5 1993 Fla. Laws ch. 38 . Final Bill Analysis & Economic Impact Statement, House of Representatives Comm. On Agriculture and Consumer Services (April 17, 1993). The conclusions of this article are supported by the author’s own experience in drafting the statutory language which ultimately passed as Ch. 93-38.
6 2001 Fla. Laws ch. 39 added the date reference of July 1, 2001, at the end of §501.204(2). The consequences of this amendment for per se violations and the related law concerning the unconstitutional delegation of legislative authority can be found in M. Fistos, Per Se Violations Under the Florida Deceptive and Unfair Trade Practices Act , The Florida Bar CLE Manual, January 2001.
7 Emphasis supplied.
8 Emphasis supplied.
9 Fla. Stat. §§210.185(5) (cigarette distribution), 320.03(1) (DHSMV agents), 320.27(2) (vehicle dealer licensing), 624.125(2) (service agreements), 681.111 (lemon law), 501.97(2) (location advertising), 400.464(4)(b) (home health agencies), 400.93(6)(b) (home medical equipment providers), 483.305(3) (multiphasic health testing centers), 496.416 (charitable contributions), 501.160(3) (price gouging), 501.0579 (weight loss centers), 501.34 (aftermarket crash parts), 50 9.511 (campground memberships), 559.934 (sellers of travel), 624.129(4) (location and recovery services), 817.62(3)(c) (credit card factoring); Code of Ordinances, City of Ft. Walton Beach, Florida §23-145(a) (title loans).
10 Fla. Stat. §559.3906.
11 Fla. Admin. Code R. 3D-40.011.
12 Fla. Admin. Code R. 64B8-11.001(2).
13 Fla. Admin. Code R. 61G1-12.001(2); see, e.g. , Fla. Admin. Code R. 61C-3.002(4) (public lodging establishments), Rule 61G8-29.001(2) (funeral directors and embalmers), Rule 61G15-19.001(2) (professional engineers), Rule 61G17-2.001 (surveyors), Rule 61G18-21.001(3) (veterinarians), Rule 61H1-24.001(1) (accountants), Rule 64B2-15.001(2) (chiropractors), Rule 64B2-16.005 (chiropractors), Rule 64B5-4.002 (dentists), Rule 64B6-7.004 (hearing aid specialists), Rule 64B8-9.012(9) (standards for the prescription of obesity drugs), Rule 64B15-14.004 (osteopaths), Rule 64B8-44.002(3) (dieticians), Rule 64B12-10.005(2) (opticians), Rule 64B13-3.009(2) (optometrists), Rule 64B15-14.001(2) (osteopaths), Rule 64B18-14.004(3) (podiatrists).
14 Fla. Stat. §817.415(6). Others include Fla. Stat. §§501.937(4) (industrial hygienists) and 849.0935(6) (charitable drawings).
15 See, e.g. , Fla. Stat. §§497.445 (funeral industry), 5 01.0115 (credit cards), 563.022 (beer distribution), 672.719 (contractual remedy limitations), 680.583 (limitations on leases), 686.413 (tractor and farm equipment distribution), 686.611 (outdoor power equipment), 718.122(1) (condo leases), and 719.112 (co-op leases).
16 16 C.F.R. Part 429.
17 16 C.F.R. Part 436.
18 16 C.F.R. Part 433.
19 16 C.F.R. Part 425.
20 16 C.F.R. Part 453.
21 16 C.F.R. Part 435.
22 Nieman v. Dryclean U.S.A. Franchise Company, Inc. , 178 F.3d 1126 (11th Cir. 2000).
23 Fla. Stat. §501.203(3)(c) (emphasis supplied).
24 Fla. Stat. §501.202(2) and (3).
25 16 C.F.R. Part 310 (telemarketing sales rule).
26 16 C.F.R. Part 312 (children’s online privacy protection rule).
27 Emphasis supplied.
28 15 U.S.C.A. §1691c(c).
29 15 U.S.C.A. §2310(b).
30 15 U.S.C.A. §1607(c).
31 15 U.S.C.A. §1681s(a)(1).
32 15 U.S.C.A. §1679h(b)(1).
33 15 U.S.C.A. §§1692e, 1692f, 1692l(a).
34 39 U.S.C.A. §3009(a).
35 Pinellas County Department of Consumer Affairs v. Castle , 392 So. 2d 1292, 1294 (Fla. 1981).
36 Fla. Stat. §501.213(2).
37 Emphasis supplied.
38 Code of the County of Broward, Florida §8-54.
39 Code of Metropolitan Dade County, Florida §8A-124.19.
40 Code of the City of Sarasota, Florida §21- 200.
41 Code of Metropolitan Dade County, Florida §8A-161.9.
42 Code of the County of Broward, Florida §20.160; Code of Metropolitan Dade County, Florida §8A-113; Ordinance Code of the City of Jacksonville, Florida §696.101.
43 Emphasis supplied; Final Bill Analysis & Economic Impact Statement, House of Representatives Comm. On Agriculture and Consumer Services (April 17, 1993).
44 In re Samuels, 176 B.R. 616 at 26. But see Sigma Financial Corp. v. Investment Loss Recovery Services, Inc. , 673 So. 2d 572 (Fla. 4th D.C.A. 1996) (dismissing FDUTPA claim because The Florida Bar, as the official arm of the Supreme Court, is exclusively vested with the authority to prosecute claims for th e unlicenced practice of law).
45 Quick Cash , 605 So. 2d at 902.
46 Citizens for Better Environment–California v. Union Oil of California , 996 F. Supp. 934 (N.D. Cal. 1997).
47 Quincy Cablesystems, Inc. v. Sully’s Bar, Inc. , 684 F. Supp. 1138 (D. Mass. 1988).
48 Reese v. Payless Drug Stores Northwest, Inc. , 34 Cal. App. 4th 19 (Cal. Ct. App. 1995).
49 In re Arsenault v. Realty Funding Corp. , 184 B.R. 864 (Bankr. D. N.H. 1995) (violations of state consumer credit laws constitute unfair and deceptive practices).
50 State v. Zim Chemical Co. , 263 S.E. 2d 849 (N.C. Ct. App. 1980).
51 Piccuirro v. Gaitenby , 480 N.E. 2d 30 (Mass. App. Ct. 1985) (state’s environmental regulations).
52 Mikos v. Chrysler Corp. , 404 N.W. 2d 783 (Mich. App. Ct. 1987) (violation of implied warranty of merchantability).
53 See Nieman , 178 F.3d 1126 (FTC rule); General Foods Corp. , 673 P.2d 660 (state statute).
54 Mack v. Bristol-Myers Squibb , 673 So. 2d 100 (Fla. 1st D.C.A. 1996) (conduct in violation of antitrust laws can be independently actionable under FDUTPA).
55 See State v. Leary , 587 A.2d 85 (1991) (ticket scalping).
56 See J. Sheldon and C. Carter, National Consumer Law Center, Unfair and Deceptive Acts and Practices 115 (4th ed. 1997).
57 See Rogers , 329 So. 2d 257.
58 See Sheldon and Carter, supra note 56, at 115.
59 See, e.g ., Fla. Stat. ch. 497 (criminal penalties, administrative sanctions, and public and private actions for actual and punitive damages and equitable relief); Fla. Stat. ch. 521 (public and private actions for civil penalties and actual damages). Note, however, an election of remedies may be required under some circumstances. See Douglas v. G.E.E.N. Corp. , 415 So. 2d 130 (Fla. 5th D.C.A. 1982) (actual damages under FDUTPA and truth-in-lending counts not possible); State v. Barquet , 358 So. 2d 230 (Fla. 3d D.C.A. 1978) (disallowing double actual damages under FDUTPA).
60 See Daddona v. Liberty Mobile Home Sales, Inc. , 550 A.2d 1061 (Conn. 1988); State v. Grogan, 628 P.2d 570 (Alaska 1981).
61 Stanley v. Moore , 454 S.E. 2d 225 (N.C. 1995).
62 Emphasis supplied.
Mark S. Fistos served for 10 years as an assistant attorney general in the economic crimes litigation unit of the Florida attorney general’s office, concentrating his practice on cases involving deceptive and unfair trade practices. He has drafted significant portions of Florida’s Deceptive and Unfair Trade Practices Act. Mr. Fistos is a member of The Florida Bar Consumer Protection Law Committee. He currently represents persons who are victims of consumer fraud with the firm of James, Hoyer, Newcomer & Smiljanich in its Tallahassee office.
This article is submitted on behalf the Consumer Protection Law Committee, Kenneth J. Nolan, chair, and Michael Flynn, editor.
