GUIDELINES FOR ADVERTISING
Wording of advertisements
Telephone solicitation laws
Florida telemarketing laws
Prohibitions False or misleading advertising. Florida law prohibits licensees from placing or causing to be placed any advertisement for property or services that is fraudulent, false, deceptive, misleading, or exaggerated. This includes written ads as well as ads on television or radio that are used to induce the sale, purchase, or rental of real property.
Penalties. False, deceptive, fraudulent, or misleading advertising can result in administrative fines and license suspension.
Blind advertising. Florida law requires that all advertisements include the brokerage’s licensed name so any reasonable person would know the ad is from a real estate licensee. The broker’s nickname may be included in the advertising as long as his or her legal registered name is also included. The broker’s personal name may also be included in the ad as long as the broker’s last name as it is registered with the DBPR is included. Ads that do not include the brokerage’s name are considered blind advertising and are prohibited.
Sales associates advertising or conducting business in own name. Brokerage services include advertising. Consequently, anyone placing advertisements must be a broker. Sales associates may create or place advertisements only under the supervision and in the name of their employing broker. Sales associates may not advertise in their own names. Any form of advertising created by a sales associate must include the brokerage’s licensed name.
Sales associates and broker’s associates may sell their own property under their own name with the permission of their broker. If selling under their own name and phone number, they do not need to display the brokerage name in the advertisement. However, the associates must disclose to anyone whom they are going to show the property that they are licensed real estate agents. 86 Principles of Real Estate Practice in Florida
Team advertising. Teams within a brokerage firm may advertise only under the supervision of the broker and in the name of the brokerage firm. Certain words, namely “brokerage,” “realty,” and the like, are not allowed as potentially creating confusion for the public. The name of the team must be in a font that is no larger than that used for the name or logo of the registered broker. The team name must also be adjacent to the name of the brokerage. For example, the name of the team cannot be at the top of the page and the brokerage name at the bottom of the page. They must both be either at the top of the page or at the bottom of the page.
advertisements In addition to including the brokerage’s name, real estate advertisements must be worded so that any reasonable person knows that the advertiser is a real estate licensee. They may not be worded in a way that makes the public believe the ad is from someone other than a real estate licensee.
. Advertisements must be worded to make it clear to responding buyers or renters who it is they are calling when they answer the ad. Consider the following sets of ad copy:
“Three bedroom, 2 bath ranch style home in good neighborhood. $350,000. Contact John Kennedy Sunshine State Realty (816) 259-7802.”
Here, it is not clear who the buyer would be contacting — John Kennedy or Sunshine State Realty. Consider a clearer version:
“3 bedroom, 2 bath. Ranch style home in good neighborhood. $350,000. Sunshine State Realty. Contact John Kennedy, cell (816) 259-7802.”
In this ad, it is clear that John Kennedy is associated with Sunshine State real estate company and that when the number is called, John Kennedy will be answering the phone.
Internet advertising Just as with any other form of advertising, the brokerage’s name must appear within an internet advertisement. Florida administrative rule requires the name to be placed adjacent to, immediately above, or immediately below the point of contact information. Again, this prevents blind advertising and any related penalties.
Point of contact information. Information on how to contact the brokerage firm or the individual licensee is referred to as “point of contact information.” Such contact information includes mailing address, physical street address, e-mail address, telephone number, and facsimile (fax) telephone number.
solicitation laws Telephone Consumer Protection Act. The TCPA (Telephone Consumer Protection Act) addresses the regulation of unsolicited telemarketing phone calls. Rules include the following: Section 5: Real Estate Brokerage Activities and Procedures 87
Telephone solicitors are banned from using an artificial or a pre-recorded voice to a residential line without prior express consent.
Robocalls (prerecorded calls) from telemarketers or debt collectors without prior express consumer consent are banned.
Solicitors are banned from using a fax or computer to fax unsolicited advertisements.
Solicitors are banned from using an auto dialer to send text messages to cell phones without prior express consumer consent.
Calls after 9 p.m. and before 8 a.m. in the consumer’s time zone are banned.
telephone solicitors must identify themselves, on whose behalf they are calling, and how they can be contacted
telemarketers must comply with any do-not-call request made during the solicitation call
consumers can place their home and wireless phone numbers on a national Do-Not-Call list which is maintained by the Federal Trade Commission and which prohibits future solicitations from telemarketers.
Information on the national registry can be found online at https://www.consumer.ftc.gov/articles/0108-national-do-not-call-registry or https://www.donotcall.gov/.
Robocalls must provide an automated opt-out function during the call.
Consumers may sue companies that violate the law on a per-call basis.
Exemptions from the Act.
Debt collection calls with express consent (not written) and without any advertisements.
Calls from nonprofit organizations, political organizations, and healthcare organizations.
Certain exigent circumstances calls, such as fraud or cyber breach warnings.
Federal debt collectors up to three times per month.
A real estate licensee who has an actual buyer for an advertised “for sale by owner” property only to negotiate a sale or to arrange a showing for a current customer.
A real estate licensee with an established business relationship with a customer even if the customer’s number is on the national do not call list. Here, one may call for up to 18 months after the relationship began.
88 Principles of Real Estate Practice in Florida
A real estate licensee who has accepted a business inquiry or application from a customer within the last 3 months.
CAN-SPAM Act. The CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003) supplements the Telephone Consumer Protection Act (TCPA) by covering solicitations through email. It
bans sending unwanted email ‘commercial messages’ to wireless devices
requires express prior authorization
requires giving an ‘opt out’ choice to terminate the sender’s messages
Junk Fax Prevention Act. Both the Junk Fax Prevention Act and the Federal Communications Commission (FCC) cover the use of faxing as a means for solicitations. Faxing unsolicited advertisements to residential or business fax machines is prohibited unless the consumer’s prior express consent. Both solicited and unsolicited faxes must include the following:
the date and time the fax was sent
the sending company’s registered name
the sending company’s telephone number or the sending fax machine’s telephone number
an opt-out option on unsolicited faxes
telemarketing laws Florida state telemarketing laws apply to businesses located within Florida and those outside the state who call Florida residents. The laws include the Florida Telemarketing Act and the Florida Telephonic Sales law. They are administered by the Florida Department of Agriculture and Consumer Affairs (FDACS) and the Attorney General who investigate and assess penalties against violators. Penalties for violations are based on each call. The maximum fine is $10,000 per call. The laws include the following:
Telephone solicitors must obtain a license from the Florida Division of Consumer Services before operating in Florida.
Solicitors must restrict their calls to 8 a.m. to 9 p.m.
Solicitors may not block caller ID.
Solicitors may not accept only credit card payments.
The solicitor has 30 seconds to state his or her true name, the name of the company the telemarketer represents, and the goods or services being sold.
Solicitors must tell consumers about their right to cancel any agreement to purchase the goods or services being offered.
Florida has its own do not call list that prohibits telemarketers from calling residential phones, cell phones, or paging devices. The FDACS is required to merge all Florida listings within the national do-not-call list with the Florida do-Section 5: Real Estate Brokerage Activities and Procedures 89
not-call list. Additional information and the registry can be found online at https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call.
Exemptions from the Florida laws. The following are exempted from Florida’s telemarketing laws in some cases:
licensed insurance professionals
nonprofit and religious organizations
Real estate licensees are also exempt when they are calling a property seller in response to a yard sign or other advertisement placed by the seller. However, a licensee is not exempt if the seller is a “for sale by owner” advertiser who has placed his or her telephone number on the national do-not-call list.
Brokers are required to develop written procedures for solicitation calling policies. They must obtain the do-not-call lists and train their employees and independent contractors on using and maintaining the lists. The lists should be reviewed periodically for new additions so the licensees can remove those additions from their own solicitation call lists. Reviewing the national list is critical since federal law does not exempt real estate licensees. If a number is on the national list, whether or not it is on the state list, real estate licensees must not call that number.