Florida Senate - 2012                                     SB 540
       
       
       
       By Senator Smith
       
       
       
       
       29-00421A-12                                           2012540__
    1                        A bill to be entitled                      
    2         An act relating to secondary metals recyclers;
    3         amending s. 538.18, F.S.; revising and providing
    4         definitions; amending s. 538.19, F.S.; revising the
    5         period required for secondary metals recyclers to
    6         maintain certain information regarding purchase
    7         transactions involving regulated metals property;
    8         revising requirements for the types of information
    9         that secondary metals recyclers must obtain and
   10         maintain regarding purchase transactions; limiting the
   11         liability of secondary metals recyclers for the
   12         conversion of motor vehicles to scrap metal under
   13         certain circumstances; amending s. 538.235, F.S.;
   14         revising requirements for payments made by secondary
   15         metals recyclers to sellers of regulated metals
   16         property, to which penalties apply; providing methods
   17         of payment for restricted regulated metals property;
   18         requiring that purchases of certain property be made
   19         by check or by electronic payment; amending s. 538.26,
   20         F.S.; prohibiting secondary metals recyclers from
   21         purchasing regulated metals property without
   22         maintaining certain records; deleting provisions
   23         prohibiting the purchase of regulated metals property
   24         from certain persons or at certain locations;
   25         prohibiting the purchase of specified restricted
   26         regulated metals property without obtaining certain
   27         proof of the seller’s ownership and authorization to
   28         sell the property; creating s. 538.27, F.S.; limiting
   29         civil liability of secondary metals recyclers under
   30         certain circumstances; establishing an inference that
   31         secondary metals recyclers do not commit theft or deal
   32         in stolen property under certain circumstances;
   33         creating s. 538.28, F.S.; preempting to the state the
   34         regulation of secondary metals recyclers and purchase
   35         transactions involving regulated metals property;
   36         exempting certain ordinances and regulations from
   37         preemption; amending s. 812.022, F.S.; establishing an
   38         inference that secondary metals recyclers do not
   39         commit theft or deal in stolen property under certain
   40         circumstances; amending s. 319.30, F.S.; conforming a
   41         cross-reference; providing an effective date.
   42  
   43  Be It Enacted by the Legislature of the State of Florida:
   44  
   45         Section 1. Section 538.18, Florida Statutes, is reordered
   46  and amended to read:
   47         538.18 Definitions.—As used in this part, the term:
   48         (2)(1) “Ferrous metals” means any metals containing
   49  significant quantities of iron or steel.
   50         (3)(2) “Fixed location” means any site occupied by a
   51  secondary metals recycler as owner of the site or as lessee of
   52  the site under a lease or other rental agreement providing for
   53  occupation of the site by the secondary metals recycler for a
   54  total duration of not less than 364 days.
   55         (4)(3) “Money” means a medium of exchange authorized or
   56  adopted by a domestic or foreign government as part of its
   57  currency.
   58         (5)(4) “Nonferrous metals” means metals not containing
   59  significant quantities of iron or steel, including, without
   60  limitation, copper, brass, aluminum, bronze, lead, zinc, nickel,
   61  and alloys thereof, excluding precious metals subject to
   62  regulation under part I.
   63         (6)(5) “Personal identification card” means any government
   64  issued photographic identification card.
   65         (7)(6) “Purchase transaction” means a transaction in which
   66  a secondary metals recycler gives consideration for regulated
   67  metals property.
   68         (8)(7) “Regulated metals property” means any item composed
   69  primarily of any nonferrous metals. The term does, but shall not
   70  include aluminum beverage containers, used beverage containers,
   71  or similar beverage containers; however,. the term includes
   72  shall include stainless steel beer kegs.
   73         (9) “Restricted regulated metals property” means any
   74  regulated metals property listed in s. 538.26(6)(b) the sale of
   75  which is restricted as provided in s. 538.26(6)(a).
   76         (10)(8) “Secondary metals recycler” means any person who:
   77         (a) Is engaged, from a fixed location or otherwise, in the
   78  business of gathering or obtaining ferrous or nonferrous metals
   79  that have served their original economic purpose or is in the
   80  business of performing the manufacturing process by which
   81  ferrous metals or nonferrous metals are converted into raw
   82  material products consisting of prepared grades and having an
   83  existing or potential economic value; or
   84         (b) Has facilities for performing the manufacturing process
   85  by which ferrous metals or nonferrous metals are converted into
   86  raw material products consisting of prepared grades and having
   87  an existing or potential economic value, other than by the
   88  exclusive use of hand tools, by methods including, without
   89  limitation, processing, sorting, cutting, classifying, cleaning,
   90  baling, wrapping, shredding, shearing, or changing the physical
   91  form or chemical content thereof.
   92         (1)(9) “Department” means the Department of Revenue.
   93         (11) “Utility” means a person, firm, corporation,
   94  association, or political subdivision, whether private,
   95  municipal, county, or cooperative, which is engaged in the sale,
   96  generation, provision, or delivery of gas, electricity, heat,
   97  water, oil, sewer service, or telephone, telegraph, radio, or
   98  telecommunications service.
   99         Section 2. Section 538.19, Florida Statutes, is amended to
  100  read:
  101         538.19 Records required; limitation of liability.—
  102         (1) A secondary metals recycler shall maintain a legible
  103  record of all purchase transactions to which such secondary
  104  metals recycler is a party.
  105         (2) The following information must be maintained on a form
  106  approved by the Department of Law Enforcement for each purchase
  107  transaction:
  108         (a) The name and address of the secondary metals recycler.
  109         (b) The name, initials, or other identification of the
  110  individual entering the information on the ticket.
  111         (c) The date and time of the transaction.
  112         (d) The weight, quantity, or volume, and a description of
  113  the type of regulated metals property purchased in a purchase
  114  transaction.
  115         (e) The amount of consideration given in a purchase
  116  transaction for the regulated metals property.
  117         (f) A signed statement from the person delivering the
  118  regulated metals property stating that she or he is the rightful
  119  owner of, or is entitled to sell, the regulated metals property
  120  being sold. If the purchase involves a stainless steel beer keg,
  121  the seller must provide written documentation from the
  122  manufacturer that the seller is the owner of the stainless steel
  123  beer keg or is an employee or agent of the manufacturer.
  124         (g) The distinctive number from the personal identification
  125  card of the person delivering the regulated metals property to
  126  the secondary metals recycler.
  127         (h) A description of the person from whom the goods were
  128  acquired, including:
  129         1. Full name, current residential address, workplace, and
  130  home and work phone numbers.
  131         2. Height, weight, date of birth, race, gender, hair color,
  132  eye color, and any other identifying marks.
  133         3. The right thumbprint, free of smudges and smears.
  134         4. Vehicle description to include the make, model, and tag
  135  number of the vehicle and trailer of the person selling the
  136  regulated metals property.
  137         5. Any other information required by the form approved by
  138  the Department of Law Enforcement.
  139         (i) A photograph, videotape, or digital image of the
  140  regulated metals being sold.
  141         (j) A photograph, videotape, or similar likeness of the
  142  person receiving consideration in which such person’s facial
  143  features are clearly visible.
  144         (3) Any secondary metals recycler that maintains an
  145  electronic database containing the information required in
  146  paragraph (2)(h), along with an oath of ownership with a
  147  signature of the seller of the secondary metals being purchased
  148  by the secondary metals recycler and a right thumbprint that has
  149  no smudges and smears on the oath of ownership for each purchase
  150  transaction, is shall be exempt from the records requirement of
  151  paragraph (2)(h). A secondary metals recycler complies with the
  152  requirements of this section if it maintains an electronic
  153  database containing the information required by paragraph (2)(h)
  154  as long as the electronic information required by paragraph
  155  (2)(h), along with an electronic oath of ownership with an
  156  electronic signature of the seller of the secondary metals being
  157  purchased by the secondary metals recyclers and an electronic
  158  image of the seller’s right thumbprint that has no smudges and
  159  smears, can be downloaded onto a paper form in the image of the
  160  form approved by the Department of Law Enforcement as provided
  161  in subsection (2).
  162         (4) A secondary metals recycler shall maintain or cause to
  163  be maintained the information required by this section for not
  164  less than 2 5 years from the date of the purchase transaction.
  165         (5) If a purchase transaction involves the transfer of
  166  regulated metals property from A secondary metals recycler
  167  registered with the department which purchases a motor vehicle
  168  from a licensed salvage motor vehicle dealer as defined in s.
  169  320.27 or to another secondary metals recycler registered with
  170  the department and uses a mechanical crusher to convert the
  171  vehicle to scrap metal must obtain a signed statement from the
  172  seller stating that the seller has surrendered the vehicle’s
  173  certificate of title to the Department of Highway Safety and
  174  Motor Vehicles as provided in s. 319.30 or otherwise complied
  175  with the titling requirements provided by law for conversion of
  176  the vehicle to scrap metal. A, the secondary metals recycler is
  177  not liable for the seller’s failure to comply with the titling
  178  requirements provided by law for conversion of a motor vehicle
  179  to scrap metal if the secondary metals recycler obtains and
  180  maintains the seller’s signed statement receiving the regulated
  181  metals property shall record the name and address of the
  182  secondary metals recycler from which it received the regulated
  183  metals property in lieu of the requirements of paragraph (2)(h).
  184         Section 3. Section 538.235, Florida Statutes, is amended to
  185  read:
  186         538.235 Method of payment.—
  187         (1) A secondary metals recycler may shall not enter into
  188  any cash transaction:
  189         (a) In excess of $1,000 in payment for the purchase of
  190  regulated metals property; or
  191         (b) In any amount for the purchase of restricted regulated
  192  metals property.
  193         (2) Payment in excess of $1,000 for the purchase of
  194  regulated metals property or payment in any amount for the
  195  purchase of restricted regulated metals property must shall be
  196  made by check issued and payable to the seller or by electronic
  197  payment to the seller’s bank account or the bank account of the
  198  seller’s employer metal and payable to the seller.
  199         Section 4. Subsection (5) of section 538.26, Florida
  200  Statutes, is amended, and subsection (6) is added to that
  201  section, to read:
  202         538.26 Certain acts and practices prohibited.—It is
  203  unlawful for a secondary metals recycler to do or allow any of
  204  the following acts:
  205         (5) Purchase regulated metals property in return for money
  206  from a trailer, a vehicle, or any location other than a fixed
  207  location or from any person who is required to prove ownership
  208  under s. 538.19 pursuant to subsection (4). However, regulated
  209  metals may be purchased from a nonfixed location, or from such
  210  person, with any negotiable or nonnegotiable instrument,
  211  including a check or draft or any other type of instrument
  212  purchased with money and sold for the purpose of making payments
  213  or transfers to others.
  214         (6)(a) Purchase any restricted regulated metals property
  215  listed in paragraph (b) unless the secondary metals recycler
  216  obtains reasonable proof that the seller:
  217         1. Owns such property. Reasonable proof of ownership may
  218  include, but is not limited to, a receipt or bill of sale; or
  219         2. Is an employee, agent, or contractor of the property’s
  220  owner who is authorized to sell the property on behalf of the
  221  owner. Reasonable proof of authorization to sell the property
  222  includes, but is not limited to, a signed letter on the owner’s
  223  letterhead, dated no later than 90 days before the sale,
  224  authorizing the seller to sell the property.
  225         (b) The purchase of any of the following regulated metals
  226  property is subject to the restrictions provided in paragraph
  227  (a):
  228         1. A manhole cover.
  229         2. An electric light pole or other utility structure and
  230  its fixtures, wires, and hardware that are readily identifiable
  231  as connected to the utility structure.
  232         3. A guard rail.
  233         4. A street sign, traffic sign, or traffic signal and its
  234  fixtures and hardware.
  235         5. Communication, transmission, distribution, and service
  236  wire from a utility, including copper or aluminum bus bars,
  237  connectors, grounding plates, or grounding wire.
  238         6. A funeral marker or funeral vase.
  239         7. A historical marker.
  240         8. Railroad equipment, including, but not limited to, a tie
  241  plate, signal house, control box, switch plate, E-clip, or rail
  242  tie junction.
  243         9. Any metal item that is observably marked upon reasonable
  244  inspection with any form of the name, initials, or logo of a
  245  governmental entity, utility company, cemetery, or railroad.
  246         10. A copper, aluminum, or aluminum-copper condensing or
  247  evaporator coil, including its tubing or rods, from an air
  248  conditioning or heating unit, excluding coils from window air
  249  conditioning or heating units and motor vehicle air conditioning
  250  or heating units.
  251         11. An aluminum or stainless steel container or bottle
  252  designed to hold propane for fueling forklifts.
  253         12. A stainless steel beer keg.
  254         13. A catalytic converter or any nonferrous part of a
  255  catalytic converter unless purchased as part of a motor vehicle.
  256         14. Metallic wire that has been burned in whole or in part
  257  to remove insulation.
  258         15. A brass or bronze commercial valve or fitting, referred
  259  to as a “fire department connection and control valve” or an
  260  “FDC valve,” which is commonly used on structures for access to
  261  water for the purpose of extinguishing fires.
  262         16. A brass or bronze commercial potable water backflow
  263  preventer valve that is commonly used to prevent backflow of
  264  potable water from commercial structures into municipal domestic
  265  water service systems.
  266         17. A shopping cart.
  267         Section 5. Section 538.27, Florida Statutes, is created to
  268  read:
  269         538.27 Secondary metals recyclers; limitation of liability;
  270  inference.—
  271         (1) A secondary metals recycler is not liable for any civil
  272  claim of replevin or damages resulting from a purchase
  273  transaction of regulated metals property which complies with
  274  this chapter.
  275         (2) As provided in s. 812.022(7), proof that a purchase
  276  transaction for regulated metals property by a secondary metals
  277  recycler complied with this part gives rise to an inference that
  278  the secondary metals recycler did not know or have reason to
  279  believe that the property was stolen and did not have intent to
  280  commit theft or deal in stolen property.
  281         Section 6. Section 538.28, Florida Statutes, is created to
  282  read:
  283         538.28 Local government regulation; preemption.—
  284         (1) The regulation of purchase transactions involving
  285  regulated metals property is preempted to the state. Except as
  286  provided in subsection (2), an ordinance or regulation adopted
  287  by a county or municipality relating to the purchase or sale of
  288  regulated metals property or the registration or licensure of
  289  secondary metals recyclers is void.
  290         (2) This part does not preempt an ordinance or regulation
  291  originally enacted by a county or municipality before March 1,
  292  2011, or any subsequent amendment to such ordinance or
  293  regulation.
  294         Section 7. Subsection (7) is added to section 812.022,
  295  Florida Statutes, to read:
  296         812.022 Evidence of theft or dealing in stolen property.—
  297         (7) Proof that a purchase transaction for regulated metals
  298  property by a secondary metals recycler complied with part II of
  299  chapter 538 gives rise to an inference that the secondary metals
  300  recycler did not know or have reason to believe that the
  301  property was stolen and did not have intent to commit theft or
  302  deal in stolen property.
  303         Section 8. Paragraph (u) of subsection (1) of section
  304  319.30, Florida Statutes, is amended to read:
  305         319.30 Definitions; dismantling, destruction, change of
  306  identity of motor vehicle or mobile home; salvage.—
  307         (1) As used in this section, the term:
  308         (u) “Secondary metals recycler” means secondary metals
  309  recycler as defined in s. 538.18(10) 538.18(8).
  310         Section 9. This act shall take effect July 1, 2012.