(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 any person who has violated, is violating, or is otherwise likely to violate, this part.

(c) An action on behalf of one or more consumers or governmental entities for the actual damages caused by an act or practice in violation of this part. However, damages are not 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 paragraph (1)(a) or paragraph (1)(c), 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, but not limited to, appointment of a general or special magistrate or receiver or sequestration or freezing of assets, to reimburse consumers or governmental entities found to have been damaged; to carry out a transaction in accordance with the reasonable expectations of consumers or governmental entities; to strike or limit the application of clauses of contracts to avoid an unconscionable result; to bring actions in the name of and on behalf of the defendant enterprise, without regard to any wrongful acts that were committed by the enterprise; to order any defendant to divest herself or himself of any interest in any enterprise, including real estate; to impose reasonable restrictions upon the future activities of any defendant to impede her or him from engaging in or establishing the same type of endeavor; to order the dissolution or reorganization of any enterprise; or to grant legal, equitable, or other appropriate relief. The court may assess the expenses of a general or special magistrate or receiver against a person who has violated, is violating, or is otherwise likely to violate this part. 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 4 years after the occurrence of a violation of this part or more than 2 years after the last payment in a 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 governmental entities, make contributions, pay civil penalties, pay attorney’s fees and costs, or 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. Such assurance is not a limitation upon any action or remedy available to a person aggrieved by a violation of this part.

(7) In any trial or other proceeding brought by the enforcing authority pursuant to this part, statements having circumstantial guarantees of trustworthiness may be used to supplement and explain other evidence and shall not be excluded as hearsay evidence, even though the declarant is available as a witness, if the trier of fact determines that:

(a) The statement is offered as evidence of a material fact;

(b) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(c) The general purpose of the Florida Rules of Evidence and the interests of justice will be best served by the admission of such statement into evidence.

However, a statement may not be admitted hereunder unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or proceeding to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

History.—s. 1, ch. 73-124; s. 3, ch. 79-386; s. 2, ch. 85-3; s. 4, ch. 90-190; s. 4, ch. 92-133; s. 8, ch. 93-38; s. 629, ch. 97-103; s. 3, ch. 2001-39; s. 24, ch. 2001-214; s. 89, ch. 2004-11; s. 3, ch. 2006-196.