January 2015 – LakelandLaw.com

By Joseph A. Geary, Attorney
Clark, Campbell, Lancaster & Munson, P.A.

Q: “I returned merchandise and received a certificate from the store against future purchases. May the store impose time limits or other conditions on my use of the certificate?”

A: Generally, no. Under section 501.95, Florida Statutes, a “credit memo” (defined as “a certificate, card, stored value card, or similar instrument”) issued in Florida in exchange for returned merchandise, when the instrument is redeemable for merchandise, food, or services, may not have an expiration date, expiration period, or any type of postsale charge or fee imposed on it, including, but not limited to, service charges, “dormancy” (non-use) fees, account maintenance fees, or cash-out fees. Credit memos sold or issued by financial institutions or money services businesses, however, are not subject to these rules if the credit memo is redeemable by multiple unaffiliated merchants.

Q: “Are Florida retail establishments required by law to offer a refund, credit or exchange on goods sold?”

A: No. However, section 501.142, Florida Statutes, requires a retail establishment that sells goods to the general public and offers no cash refund, credit refund, or exchange of merchandise to post a “no refund” sign at the point of sale. The absence of such a sign means the store has a refund or exchange policy. A copy of the policy must be given, in writing, to a consumer upon request. A store that fails to comply with these rules must give the consumer, upon request and proof of purchase, a refund (not an exchange or credit) within 7 days from the date of purchase. The merchandise must be unused and in the original carton (if there was one) when the merchandise was purchased. Food, perishables, custom-made goods, custom-altered goods, or goods that are prohibited by law from resale are exempt from these rules.

Q: “Who enforces these laws? Are there penalties for non-compliance?”

A: The Florida Department of Agriculture and Consumer Services is principally charged with enforcing these laws. If the Department finds that a person has violated or is operating in violation of any of these laws, it may enter an order imposing a civil fine not exceeding $100 per violation and/or order the violator to cease and desist. Local governments may also issue a warning for a first violation and fines of up to $50.00 per violation for second and subsequent violations. An aggrieved consumer has no private right to sue at this time.

By Joseph A. “Jay” Geary
Clark, Campbell, Lancaster & Munson P.A.

Q: Do the gift cards I received during the holidays expire? Are there any charges or fees for use or non-use?

A: Generally, Florida law provides that consumer “gift cards” (i.e., instruments issued on a prepaid basis primarily for personal, family, or household purposes) are not subject to expiration dates or fees. However, as with any general rule, there are exceptions.

Florida law (§ 501.95(1) (b), Fla.Stat.), defines a “gift certificate” as:

* * * a certificate, gift card, stored value card, or similar instrument purchased for monetary consideration when the certificate, card, or similar instrument is redeemable for merchandise, food, or services regardless of whether any cash may be paid to the owner of the certificate, card, or instrument as part of the redemption transaction, but this term shall not include [theme park and entertainment] tickets * * * or manufacturer or retailer discounts and coupons.

Under Florida law, the general rule is that a gift certificate purchased in Florida may not have an expiration date or period, or any type of post-sale charges or fees imposed on the gift certificate, such as service, “dormancy” (i.e., “inactivity”), account maintenance or cash-out fees.

Nevertheless, a “gift certificate” may have an expiration date of not less than three (3) years if given as a charitable contribution, or not less than one (1) year if given as part of an employee incentive plan, AND, in either case, the expiration date is prominently disclosed in writing at the time it is provided. Gift certificates given by a financial institution or a money services business (for example, pre-paid Visa debit cards) may have expiration dates if redeemable by multiple unaffiliated merchants.

This article describes Florida law applicable to “gift certificates”. Certain federal laws also apply to gift certificates, gift cards, general-use pre-paid cards and to “loyalty, award, or promotional” gift cards. The last category of cards may allow the imposition of service fees, dormancy charges, and expiration dates, provided they are prominently disclosed when the card is issued. Federal laws exempt certain cards from the restrictions on expiration, fees and certain charges, including cards: for pre-paid telephone services; not marketed to the general public; and issued in paper form only.

The January 15 edition of “The Law” will cover liability for damage from your neighbor’s overhanging tree limbs.

[Joseph A. “Jay” Geary is a shareholder with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com.]

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