Submitted by Geoff Peters, General Counsel, American Charities for Reasonable Fundraising Regulation
Good News First – it seems that Florida Department of Agriculture, Division of Consumer Services that manages Florida’s charitable regulation process is interested in following the legal precedent set by American Charities for Reasonable Fundraising Regulation in its 11th Circuit Court of Appeals victory over Pinellas County, Florida. You will recall that in that case the 11th Circuit ruled that the lack of nexus between out of state professional fundraising counsel (“PFC”) and the County of Pinellas was grounds for finding that any regulation by the County of PFCs would violate the Due Process Clause of the 14th Amendment of the United States Constitution.
It seems that the Department does not want to make that mistake again (it cost Pinellas County over $300,000 in legal fees) so they are considering developing a form which PFCs could fill out claiming no nexus (no offices, no frequent travel to Florida for business, etc.) with Florida as a basis for exemption from any filing requirement.
Bad News Next – it seems that Florida now wants a “web disclosure” published on any charitable websites. The proposed regulation language is:
Every charitable organization or sponsor that is required to register under s. 496.405 or is exempt under s. 496.406(1)(d) shall conspicuously display the following statement on every solicitation, confirmation, receipt, or reminder of a contribution:
“A COPY OF THE OFFICIAL REGISTRATION AND FINANCIAL INFORMATION MAY BE OBTAINED FROM THE DIVISION OF CONSUMER SERVICES BY CALLING TOLL-FREE WITHIN THE STATE. REGISTRATION DOES NOT IMPLY ENDORSEMENT, APPROVAL, OR RECOMMENDATION BY THE STATE.”
The statement must include a toll-free number and website for the division which can be used to obtain the registration information. If the solicitation consists of more than one piece, the statement must be displayed prominently in the solicitation materials. If the solicitation occurs on a website, the statement must be conspicuously displayed on any webpage that identifies a mailing address where contributions are to be sent, identifies a telephone number to call to process contributions, or provides for online processing of contributions.
Direct Mailers are quite familiar with such “disclaimer” language in mailed solicitations but the Florida requirement that a disclaimer be present “if the solicitation occurs on a website” suggests that even if a donor uses a search engine to find a charity and then upon reviewing the information in their website, decides to hit the “donate now” button thus triggering “online processing of contributions” that such disclaimer language must be present.
For those involved in digital marketing, you may recall the “Charleston Principles” which was an informal accord reached by state regulators and the charitable sector that suggested what became known as the “one free bite rule.” If a prospective donor went to a charity website on their own accord and made a one-time donation and if the charity did not actively re-solicit that donor, there was no registration requirement (and no disclaimer statement). This new Florida proposed regulation goes beyond the compromise reached in the Charleston Principles and may be just the first step amongst other states to do the same.
One could argue that having a disclaimer page is not too onerous, but the requirement that the disclaimer appear on the same “webpage that identifies a mailing address where contributions are to be sent, identifies a telephone number to call to process contributions, or provides for online processing of contributions” might make things tough for mobile marketers trying to squeeze as much information as possible on a small mobile screen. Let’s hope that wiser heads prevail. Robert Tigner of ADRFCO is attempting to educate the Florida regulators about how things work in the real world.