Florida’s Deceptive and Unfair Trade Practices Act
Initially enacted in 1972, Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) was created to give consumers stronger legal protection. Patterned after the Federal Trade Commission Act, Florida’s “little FTC act” also prohibits deceptive, unfair and/or unconscionable trade practices and unfair methods of competition. However, it differs from its federal counterpart in that Florida’s statute provides a private right of action for individuals like you, whereas under the federal act, only the Federal Trade Commission (FTC) can sue to enforce the law.
The stated purpose of FDUTPA is to:
- simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices;
- protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce; and
- make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.
Under Florida’s statute, anyone who suffers as a result of another’s deceptive, unconscionable and/or unfair business practices may bring an action to obtain:
- a declaration from the court that the act or practice you are being harmed by is a violation of the statute,
- an order to force that person to stop their unlawful act(s), and
- an order for your actual damages, plus attorney’s fees and court costs.
While Florida’s statue does not specify actions or conduct which violate the law, it does by reference include any acts declared unlawful by the FTC, which includes false advertising, false labels on products, car buying practices, ID theft, internet and telemarketing scams and a variety of other specific activities some of which can be found on the FTC consumer website. It also leaves open the ever expanding possibilities to include new deceptive, unconscionable and unfair acts, as those who commit these unethical and immoral acts seem to come up with a new ways to take advantage of people regularly. Under the applicable statute of limitations, you must bring a lawsuit for a violation under this law within four years from date of the occurrence of the unlawful act or two years from date of the last payment in an unlawful act, whichever is later.
Also, in actions brought by the state attorney’s office for violations affecting a single judicial circuit or by the Department of Legal Affairs(DLA), for violations affecting more than one judicial circuit, violations which the state attorney defers to the DLA in writing, or if the state attorney fails to act within 90 days of a written complaint, each violation also carries with it a $10,000 penalty, recoverable by the governmental agency who brought the action, plus attorney’s fees and costs for the prevailing party. The fine goes up to $15,000 per violation for any attempt to willfully use an unfair or deceptive trade practice or competitive method which victimizes people over 60 or with a mental or educational impairment. However, those $15,000 penalties go to the Legal Affairs Revolving Trust Fund of the Department of Legal Affairs for the purpose of preparing and distributing consumer education materials, programs, and seminars to benefit senior citizens and persons with mental or educational impairments, or to further enforcement efforts. While a person cannot collect on these penalties and instead only on their actual damages, this information can be very helpful in pursuing a FDUTPA claim.
The statute carves out a few exceptions as to what FDUTPA does not apply to:
- An act or practice required or specifically permitted by federal or state law.
- A publisher, broadcaster, printer, or other person engaged in distributing information or reproducing printed materials, including pictures, so long as it is being distributed for others without knowledge of any violation.
- 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.
- Any person or activity regulated under laws administered by:
a) the Office of Insurance Regulation of the Financial Services Commission;
b) banks and savings and loan associations regulated by the Office of Financial Regulation of the Financial Services Commission;
c) banks or savings and loan associations regulated by federal agencies; or
d) any person or activity regulated under the laws administered by the former Department of Insurance which are now administered by the Department of Financial Services.
- Any activity regulated under laws administered by the Florida Public Service Commission.
- An act or practice already prohibited under the laws regulating those involved in the sale, lease, rental, or appraisal of real estate.
- Causes of action relating to a commercial real property located in Florida if the parties executed a written lease or contract that expressly provides for the process of resolution of any dispute and the award of damages, attorney’s fees, and costs, if any; or causes of action concerning failure to maintain real property if the Florida Statutes:
a) require the owner to comply with applicable building, housing, and health codes;
b) require the owner to maintain buildings and improvements in common areas in a good state of repair and maintenance and maintain the common areas in a good state of appearance, safety, and cleanliness; and
c) provide a cause of action for failure to maintain the real property and provide legal or equitable remedies, including the award of attorney’s fees.
It is important to note that FDUTPA does not affect any action or remedy concerning residential tenancies covered under part II of chapter 83, nor does it prohibit the appropriate governmental authority from maintaining exclusive jurisdiction to bring any cause of action authorized under the statute.
If you or anyone you know has been a victim of an unfair, unconscionable or deceptive business practices, please call or contact us today. Let the lawyers and staff at the Law Offices of Evan M. Rosen, serve you!