Senate Bill 0194c1

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    Florida Senate - 1998                            CS for SB 194

    By the Committee on Criminal Justice and Senators Childers and
    Lee




    307-901-98

  1                      A bill to be entitled

  2         An act relating to title loan transactions;

  3         creating the "Florida Title Loan Act";

  4         providing definitions; requiring licensure by

  5         the Department of Agriculture and Consumer

  6         Services to be in the business as a title loan

  7         lender; providing for eligibility for

  8         licensure; providing for application; providing

  9         for suspension or revocation of license;

10         providing for a title loan transaction form;

11         providing for recordkeeping and reporting and

12         safekeeping of property; providing for title

13         loan charges; providing a holding period when

14         there is a default under the title loan

15         agreement; providing for the disposal of

16         pledged property; providing for disposition of

17         excess proceeds; prohibiting certain acts;

18         providing for the right to redeem; providing

19         for lost title loan transaction forms;

20         providing for a title loan lender's lien;

21         providing for criminal penalties; providing for

22         certain records from the Department of Law

23         Enforcement; providing for subpoenas,

24         enforcement of actions, and rules; providing a

25         fine; providing for investigations and

26         complaints; providing an appropriation;

27         providing legislative intent; repealing s.

28         538.06(5), F.S., which allows a secondhand

29         dealer to engage in a title loan transaction;

30         repealing s. 538.15(4), (5), F.S., which

31         prohibit certain acts and practices by

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  1         secondhand dealers; amending ss. 538.03,

  2         538.16, F.S.; deleting references to title

  3         loans; providing an effective date.

  4

  5  Be It Enacted by the Legislature of the State of Florida:

  6

  7         Section 1.  Short title.--This act may be cited as the

  8  "Florida Title Loan Act."

  9         Section 2.  Definitions.--As used in this act, the

10  term:

11         (1)  "Department" means the Department of Agriculture

12  and Consumer Services.

13         (2)  "Commercially reasonable" means a sale or disposal

14  which occurs and can be construed as an arms-length

15  transaction. Nonpublic sales or disposal of personal property

16  between licensees and business affiliates or family members

17  are sales and disposal which are presumed not to be

18  commercially reasonable.

19         (3)  "Executive officer" means the president, chief

20  executive officer, chief financial officer, chief operating

21  officer, executive vice president, senior vice president,

22  secretary, and treasurer.

23         (4)  "Identification" means a government issued

24  photographic identification.

25         (5)  "Licensee" means a person who is licensed under

26  this act.

27         (6)  "Loan property" means any personal property

28  certificate of title that is deposited with a title loan

29  lender in the course of the title loan lender's business and

30  is the subject of a title loan agreement.

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  1         (7)  "Title loan agreement" means a written agreement

  2  whereby a title loan lender agrees to make a loan of a

  3  specific sum of money to a pledgor, and the pledgor agrees to

  4  give the title loan lender a security interest in unencumbered

  5  titled personal property, except by a title loan agreement,

  6  owned by the pledgor.

  7         (8)  "Title loan lender" means any person who is

  8  engaged in the business of making title loans or engaging in

  9  title loan agreements with pledgors.

10         (9)  "Title loan office" means the location at which,

11  or premises from which, a title loan lender regularly conducts

12  business.

13         (10)  "Title loan transaction form" means the

14  instrument on which a title loan lender records title loan

15  agreements.

16         (11)  "Titled personal property" means any personal

17  property that has as evidence of ownership a state-issued

18  certificate of title except for a mobile home that is the

19  primary residence of the pledgor.

20         (12)  "Ultimate equitable owner" means a natural person

21  who, directly or indirectly, owns or controls an ownership

22  interest in a corporation, a foreign corporation, an alien

23  business organization, or any other form of business

24  organization, regardless of whether such natural person owns

25  or controls such ownership interest through one or more

26  natural persons or one or more proxies, powers of attorney,

27  nominees, corporations, associations, partnerships, trusts,

28  joint stock companies, or other entities or devices, or any

29  combination thereof.

30         Section 3.  License required; license fees.--

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  1         (1)  A person may not engage in business as a title

  2  loan lender unless the person has a valid license issued by

  3  the department authorizing engagement in the business. A

  4  separate license is required for each physical location of a

  5  title loan office. The department shall issue more than one

  6  license to a person who complies with the requirements of this

  7  act for each license.

  8         (2)  An application for a license under this act must

  9  be submitted to the department on such form as the department

10  prescribes by rule. If the department determines that an

11  application should be granted, it shall issue the license for

12  a period not to exceed 1 year. A nonrefundable license fee of

13  $1,500 and a nonrefundable investigation fee of $250 must

14  accompany an initial application for each title loan location.

15  The revenue from these fees is intended to reasonably reflect

16  the actual cost of regulation.

17         (3)  A license must be renewed annually and must be

18  accompanied by a nonrefundable fee of $1,500.  A license that

19  is not renewed by its expiration date shall automatically

20  expire and revert to inactive status. Such inactive license

21  may be reactivated within 3 months after its expiration date

22  upon submission of a completed reactivation form and payment

23  of a reactivation fee. A license that is not reactivated

24  within 3 months after becoming inactive may not be

25  reactivated.

26         (4)  Each license must specify the location for which

27  it is issued and must be conspicuously displayed at that

28  location. When a licensee wishes to move a title loan office

29  to another location, the licensee shall give 30 days prior

30  written notice to the department by certified or registered

31  mail, return receipt requested, and the department shall then

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  1  amend the license accordingly. A license issued under this act

  2  is not transferable or assignable.

  3         (5)  The department may deny an initial application for

  4  a license if the applicant or any person with power to direct

  5  the management or policies of the applicant is the subject of

  6  a pending criminal prosecution or governmental civil

  7  enforcement action in any jurisdiction until conclusion of

  8  such criminal prosecution or enforcement action.

  9         (6)  Each licensee shall designate and maintain an

10  agent in this state for service of process.

11         (7)  A person must apply to the department for a new

12  license upon the change of any person owning 25 percent or

13  greater interest in any title loan office and pay the

14  nonrefundable license and investigation fees.

15         (8)  All moneys collected by the department under this

16  act shall be deposited into the State Treasury to be placed in

17  the General Inspection Trust Fund for the sole purpose of

18  implementing this act.

19         Section 4.  Eligibility for license.--

20         (1)  To be eligible for a title loan lending license,

21  an applicant must:

22         (a)  Be of good moral character.

23         (b)  File with the department a bond in the amount of

24  $100,000 for each license with a surety company qualified to

25  do business in this state. In lieu of the bond, the applicant

26  may provide proof to the department that it is a company whose

27  stock is regularly traded on a national securities exchange,

28  not over-the-counter, and which has a net worth in excess of

29  $1 million; the applicant may provide to the department a

30  current audited financial statement that documents that the

31  applicant's net worth is in excess of $1 million; or the

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  1  applicant may establish a certificate of deposit or an

  2  irrevocable letter of credit in a Florida financial

  3  institution as defined in chapter 655.005, Florida Statutes,

  4  in the amount of the bond. The original bond, certificate of

  5  deposit, or letter of credit must be filed with the

  6  department, and the department must be the beneficiary to the

  7  document. The bond, certificate of deposit, or letter of

  8  credit must be in favor of the department for the use and

  9  benefit of any consumer who is injured pursuant to a title

10  loan transaction by the fraud, misrepresentation, breach of

11  contract, financial failure, or violation of any provision of

12  this act by the title loan lender. Such liability may be

13  enforced either by proceeding in an administrative action or

14  by filing a judicial suit at law in a court of competent

15  jurisdiction. However, in such court suit, the bond,

16  certificate of deposit, or letter of credit posted with the

17  department shall not be amenable or subject to any judgment or

18  other legal process issuing out of or from such court in

19  connection with such lawsuit; but such bond, certificate of

20  deposit, or letter of credit shall be amenable to and

21  enforceable only by and through administrative proceedings

22  before the department. It is the intent of the Legislature

23  that such bond, certificate of deposit, or letter of credit

24  shall be applicable and liable only for the payment of claims

25  duly adjudicated by order of the department. The bond,

26  certificate of deposit, or letter of credit shall be payable

27  on a pro rata basis as determined by the department, but the

28  aggregate amount may not exceed the amount of the bond,

29  certificate of deposit, or letter of credit.

30         (c)  Not have been convicted of a felony within the

31  last 10 years or be acting on behalf of an ultimate equitable

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  1  owner who has been convicted of a felony within the last 10

  2  years.

  3         (d)  Not have been convicted, and not be acting as an

  4  ultimate equitable owner for someone who has been convicted,

  5  of a crime that the department finds directly relates to the

  6  duties and responsibilities of a title loan lender within the

  7  last 10 years.

  8         (2)  If an applicant for a title loan lending license

  9  is other than a corporation, the eligibility requirements of

10  this section apply to each direct or ultimate equitable owner.

11         (3)  If an applicant for a title loan lending license

12  is a corporation, the eligibility requirements of this section

13  apply to each direct or ultimate equitable owner of a least 25

14  percent of the outstanding equity interest of such corporation

15  and to each director and executive officer.

16         Section 5.  Application for license.--

17         (1)  Application for a license to make title loans

18  under this act must be in writing, under oath, and in the form

19  prescribed by department rule, and must contain the name and

20  residence and business addresses of the applicant, and, if the

21  applicant is a partnership or association, of every member

22  thereof, and, if a corporation, of each executive officer and

23  director and ultimate equitable owner of at least 25 percent

24  thereof; must state whether any of the above has been arrested

25  within the last 10 years for, convicted of, or is under

26  indictment or information for, a felony or crime that directly

27  relates to the duties and responsibilities of a title loan

28  lender, and, if so, the nature thereof; must specify the

29  county and municipality, with the street and number or

30  location, where the business is to be conducted; and must

31  provide such further relevant information as the department

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  1  requires by rule. At the time of making such application, the

  2  applicant shall pay to the department a nonrefundable license

  3  fee of $1,500.  Applications, except for applications to renew

  4  or reactivate a license, must be accompanied by a

  5  nonrefundable investigation fee of $250.

  6         (2)  Notwithstanding the foregoing, the application

  7  need not state the full name and address of each officer,

  8  director, and shareholder if the applicant is owned directly

  9  or beneficially by a person who as an issuer has a class of

10  securities registered pursuant to Section 12 of the Securities

11  Exchange Act of 1934, or pursuant to Section 15 (d) thereof is

12  an issuer of securities which is required to file reports with

13  the Securities and Exchange Commission, if the person files

14  with the department any information, documents, and reports

15  required by that act to be filed with the Securities and

16  Exchange Commission.

17         (3)  Upon the filing of an application for a license

18  and payment of all applicable fees, the department shall,

19  unless the application is to renew or reactivate an existing

20  license, investigate the facts concerning the applicant's

21  proposed activities. The department shall investigate the

22  facts and shall approve an application and issue to the

23  applicant a license that will evidence the authority to do

24  business under this act if the department finds that the

25  eligibility requirements for the license are satisfied. The

26  license must be prominently displayed at the front desk or

27  counter at the title loan office.

28         (4)  A license that is not renewed by its expiration

29  date shall automatically revert to inactive status. An

30  inactive license may be reactivated upon submission of a

31  completed reactivation application, payment of the annual

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  1  license fee, and payment of a reactivation fee of $250. A

  2  license expires on the date at which it has been inactive for

  3  3 months.

  4         (5)  A licensee may not change the place of business

  5  maintained under a license without prior notice to the

  6  department. When a licensee wishes to change a place of

  7  business, the licensee shall give written notice thereof to

  8  the department.

  9         (6)  A licensee may conduct the business of making

10  loans under this act within a place of business in which other

11  business is solicited or engaged in, unless the department

12  finds that the conduct of such other business by the licensee

13  results in either the evasion of this act or combining such

14  other business activities results in practices which are

15  detrimental, misleading, or unfair to consumers. Upon such a

16  finding, the department shall order the licensee to desist

17  from such evasion or other business activities. However, a

18  license may not be granted to or renewed for any person or

19  organization engaged in the pawnbroking business.

20         (7)  Licenses are not transferable or assignable. A

21  licensee may invalidate any license by delivering it to the

22  department with written notice of its surrender by certified

23  or registered mail, return receipt requested, but such

24  delivery does not affect any civil or criminal liability or

25  the authority to enforce this act for acts committed in

26  violation thereof.

27         Section 6.  Suspension, revocation of license.--

28         (1)  The following acts are violations of this act and

29  constitute grounds for the disciplinary actions specified in

30  subsection (2):

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  1         (a)  Failure to comply with any provision of this act,

  2  any rule or order adopted under this act, or any written

  3  agreement entered into with the department;

  4         (b)  Fraud, misrepresentation, deceit, or gross

  5  negligence in any title loan transaction, regardless of

  6  reliance by or damage to the pledgor;

  7         (c)  Fraudulent misrepresentation, circumvention, or

  8  concealment of any matter required to be stated or furnished

  9  to a pledgor under this act, regardless of reliance by or

10  damage to the pledgor;

11         (d)  Willful imposition of illegal or excessive charges

12  in any title loan transaction;

13         (e)  False, deceptive, or misleading advertising by a

14  title loan lender;

15         (f)  Failure to maintain, preserve, and keep available

16  for examination, all books, accounts, or other documents

17  required by this act, by any rule or order adopted under this

18  act, or by any agreement entered into with the department;

19         (g)  The title loan lender has aided, abetted, or

20  conspired with an individual or person to circumvent or

21  violate any of the requirements of this act;

22         (h)  Refusal to permit inspection of books and records

23  in an investigation or examination by the department or

24  refusal to comply with a subpoena issued by the department; or

25         (i)  Criminal conduct in the course of a person's

26  business as a title loan lender.

27         (2)  Upon a finding by the department that any person

28  has committed any of the acts set forth in subsection (1), the

29  department may enter an order taking one or more of the

30  following actions:

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  1         (a)  Issuing a notice of noncompliance pursuant to

  2  section 120.695, Florida Statutes;

  3         (b)  Denying an application for a license under this

  4  act;

  5         (c)  Revoking or suspending a license previously

  6  granted under this act;

  7         (d)  Placing a licensee or an applicant for a license

  8  on probation for a period of time and subject to such

  9  conditions as the department specifies;

10         (e)  Placing permanent restrictions or conditions upon

11  issuance or maintenance of a license under this act;

12         (f)  Issuing a reprimand; or

13         (g)  Imposing an administrative fine not to exceed

14  $5,000 for each such act or violation.

15         (3)  In addition to the acts specified in subsection

16  (1), the following are grounds for denial of a license under

17  this act, or for revocation, suspension, or restriction of a

18  license previously granted:

19         (a)  A material misstatement of fact in an initial or

20  renewal application for a license;

21         (b)  Having a license, registration, or the equivalent,

22  to practice any profession or occupation denied, suspended,

23  revoked, or otherwise acted against by a licensing authority

24  in any jurisdiction for fraud, dishonest dealing, or any act

25  of moral turpitude;

26         (c)  Having been convicted or found guilty of a crime

27  involving fraud, dishonest dealing, or any act of moral

28  turpitude;

29         (d)  Being insolvent or having demonstrated a lack of

30  honesty or financial responsibility; or

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  1         (e)  The existence of a fact or condition that, if it

  2  had existed or had been known to exist at the time of the

  3  original issuance of the license, would have justified the

  4  department in refusing a license.

  5         (4)  It is sufficient cause for the department to take

  6  any of the actions specified in subsection (2) as to any

  7  partnership, corporation, or association if the department

  8  finds grounds for such action as to any member of the

  9  partnership, as to any executive officer or director of the

10  corporation or association, or as to any person who has power

11  to direct the management or policies of the partnership,

12  corporation, or association.

13         (5)  Each licensee under this act is responsible for

14  the acts of its employees and agents if, with actual knowledge

15  of such acts, it retained profits, benefits, or advantages

16  accruing from such acts or ratified the conduct of the

17  employee or agent as a matter of law or fact.

18         (6)  The manner of giving notice and conducting a

19  hearing is governed by chapter 120, Florida Statutes.

20         (7)  Any title loan agreement made without benefit of a

21  license is voidable, in which case the person forfeits the

22  right to collect any moneys, including principal and finance

23  charges, from the pledgor in connection with such agreement

24  and must return to the pledgor the loan property in connection

25  with such agreement or the fair market value of such property.

26         Section 7.  Title loan transaction form.--

27         (1)  At the time the title loan lender enters into each

28  title loan agreement, the title loan lender shall complete a

29  title loan transaction form for such transaction, and the

30  pledgor shall sign such completed form. The department shall

31  approve the design and format of the title loan transaction

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  1  form, which shall elicit the information required under this

  2  section. In completing the title loan transaction form, the

  3  title loan lender shall record the following information,

  4  which must be typed or written indelibly and legibly in

  5  English:

  6         (a)  The make, model, and year of the titled personal

  7  property to which the loan property relates.

  8         (b)  The vehicle identification number or other

  9  comparable identification number, along with the license plate

10  number, if applicable, of the titled personal property to

11  which the loan property relates.

12         (c)  The name, address, date of birth, physical

13  description, and social security number of the pledgor.

14         (d)  The date of the transaction.

15         (e)  The identification number and the type of

16  identification, including the issuing agency, accepted from

17  the pledgor.

18         (f)  The amount of money advanced, which must be

19  designated as the "amount financed."

20         (g)  The maturity date of the title loan agreement,

21  which must occur 30 days after the date of the transaction.

22         (h)  The total title loan charge payable on the

23  maturity date, designated as the "finance charge."

24         (i)  The total amount, amount financed plus finance

25  charge, which must be paid to redeem the loan property on the

26  maturity date, designated as the "total amount of all

27  payments."

28         (j)  The annual percentage rate, computed in accordance

29  with the regulations adopted by the Federal Reserve Board

30  pursuant to the Federal Truth-in-Lending Act.

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  1         (2)  The following information must also be printed on

  2  all title loan transaction forms:

  3         (a)  The name and address of the title loan office.

  4         (b)  The name and address of the department as well as

  5  a telephone number that consumers may use to make complaints.

  6         (c)  The following statement in not less than 12 point

  7  type that:

  8         1.  The pledgor is not obligated to redeem the subject

  9  certificate of title.

10         2.  If the pledgor does not redeem the certificate of

11  title before the maturity date of the title loan agreement,

12  the title loan lender may repossess the titled personal

13  property to which the certificate of title relates.

14         3.  If this title loan transaction form is lost,

15  destroyed, or stolen, the pledgor should immediately so advise

16  the issuing title loan lender in writing.

17         (d)  The statement that "The pledgor represents and

18  warrants that the titled personal property to which the loan

19  property relates is not stolen, that it has no liens or

20  encumbrances against it, that the pledgor has the right to

21  enter into this transaction, and that the pledgor will not

22  apply for a duplicate certificate of title while the title

23  loan agreement is in effect."

24         (e)  Immediately above the signature of the pledgor,

25  the statement that "I, the pledgor, declare under penalty of

26  perjury that I have read the foregoing document and that to

27  the best of my knowledge and belief the facts contained in it

28  are true and correct."

29         (f)  A blank line for the signature of the pledgor.

30

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  1         (3)  At the time of the transaction, the title loan

  2  lender shall deliver to the pledgor an exact copy of the

  3  completed title loan transaction form.

  4         (4)  The pledgor shall agree for the title loan lender

  5  to keep possession of the certificate of title.  The pledgor

  6  shall have the exclusive right to redeem the certificate of

  7  title by repaying the loan of money in full and by complying

  8  with the title loan agreement. When the certificate of title

  9  is redeemed, the title loan lender shall release the security

10  interest in the titled personal property and return the

11  personal property certificate of title to the pledgor. The

12  title loan agreement shall provide that upon failure by the

13  pledgor to redeem the certificate of title at the end of the

14  original 30-day-agreement period, or at the end of any 30-day

15  extension thereof, the title loan lender shall be allowed to

16  take possession of the titled personal property. The title

17  loan lender shall retain physical possession of the

18  certificate of title for the entire length of the title loan

19  agreement, but shall not be required to retain physical

20  possession of the titled personal property at any time. A

21  title loan lender may hold only unencumbered certificates of

22  title for loan.

23         Section 8.  Recordkeeping; reporting; safekeeping of

24  property.--

25         (1)  Every title loan lender shall maintain, at the

26  principal place of business, such books, accounts, and records

27  of the business conducted under the license issued for such

28  place of business as will enable the department to determine

29  the licensee's compliance with this act. The licensee shall

30  make all such books, accounts, and records of business

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  1  conducted under the license available at a convenient location

  2  in this state upon request of the department.

  3         (2)  The department may authorize maintenance of books,

  4  accounts, and records at a location other than a principal

  5  place of business. The department may require books, accounts,

  6  and records to be produced and available at a reasonable and

  7  convenient location in this state within a reasonable period

  8  of time after such a request.

  9         (3)  The title loan lender shall maintain the original

10  copy of each completed title loan transaction form on the

11  title loan office premises, and shall not obliterate, discard,

12  or destroy any such original copy, for a period of at least 2

13  years after making the final entry on any loan recorded

14  therein.

15         (4)  All loan property, or property related to the

16  title loan transaction which is delivered to a title loan

17  lender must be securely stored and maintained at the title

18  loan office unless the title document has been forwarded to

19  the appropriate state agency for the purpose of having a lien

20  recorded or deleted.

21         (5)  The department may prescribe the minimum

22  information to be shown in the books, accounts, and records of

23  licensees so that such records will enable the department to

24  determine compliance with this act.

25         Section 9.  Title loan charges.--

26         (1)  In a title loan agreement, a title lender may

27  contract for and receive a finance charge only. The finance

28  charge may not exceed 22 percent simple interest per 30-day

29  period.

30         (2)  Any extension must be executed in writing and must

31  clearly specify the new maturity date, the title loan finance

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  1  charges paid for the extension, and title loan finance charges

  2  owed on the new maturity date, and a copy must be supplied to

  3  the pledgor. In this event, the daily title loan finance

  4  charge for the extension shall be equal to the title loan

  5  finance charge for the original 30-day period divided by 30

  6  days, one-thirtieth of the original total title loan finance

  7  charge. A title loan lender is not permitted to capitalize any

  8  unpaid finance charge as part of the amount financed in a

  9  subsequent title loan transaction.

10         (3)(a)  If a title loan agreement has not been

11  satisfied within 120 days after its inception, the title loan

12  lender is entitled to receive a finance charge on the

13  outstanding principal balance at a rate not to exceed 8

14  percent per month for the period of time that the loan remains

15  outstanding, not to exceed 240 days, after the initial 120-day

16  period. However, the title loan lender may collect a finance

17  charge as set forth in subsection (1) for the first 120 days

18  that the title loan agreement is in effect.

19         (b)  If a title loan agreement has not been satisfied

20  within 360 days after its inception, the title loan lender is

21  entitled to receive a finance charge on the outstanding

22  principal balance at a rate not to exceed 18 percent per annum

23  for the period of time that the loan remains outstanding

24  beyond 360 days.

25         (4)  Any finance charge contracted for or received,

26  directly or indirectly, in excess of the amounts authorized

27  under this section are prohibited, may not be collected, and

28  render the title loan agreement voidable, in which case the

29  title loan lender shall forfeit the right to collect any

30  interest or finance charges. Upon the pledgor's written

31  request delivered to the title loan lender by certified mail,

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  1  return receipt requested, within 30 days after the maturity

  2  date, the title loan lender shall be obligated to return to

  3  the pledgor the loan property delivered to the title loan

  4  lender in connection with the title loan agreement upon

  5  payment of the balance of the principal remaining due; there

  6  shall be no penalty for a violation resulting from an

  7  accidental and bona fide error that is corrected upon

  8  discovery. Any action to circumvent the limitation on title

  9  loan interest or any other amounts collectible under this act

10  is voidable. Any transaction involving a person's delivery of

11  a personal property certificate of title in exchange for the

12  advancement of funds on the condition that the person shall or

13  may redeem or repurchase the certificate of title upon the

14  payment of a sum of money, whether the transaction be

15  characterized as a "buy-sell agreement," "sale-leaseback

16  agreement," or otherwise, shall be deemed a violation of this

17  act if such sum exceeds the amount that a title loan lender

18  may collect in a title loan agreement under this act or if the

19  terms of the transaction otherwise conflict with the permitted

20  terms and conditions of a title loan agreement under this act.

21         (5)  Any fees or taxes paid to a governmental agency

22  and directly related to a particular title loan transaction

23  may be collected from the pledgor and shall be in addition to

24  the permitted finance charge.

25         Section 10.  Ten-day holding period; failure to redeem;

26  default.--

27         (1)  Upon the pledgor's default under the title loan

28  agreement or failure to redeem the pledged property on or

29  before the maturity date of the title loan agreement, the

30  title loan lender has the right to take possession of the

31  titled personal property. Any repossession of a motor vehicle

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  1  must be through an agent who is licensed by the state to

  2  repossess motor vehicles. After taking possession of the

  3  titled personal property, the title loan lender shall retain

  4  possession of the titled personal property and the certificate

  5  of title for a minimum 10-day holding period commencing on the

  6  date of repossession.

  7         (2)  If, during the 10-day holding period, the pledgor

  8  redeems the titled personal property and certificate of title

  9  by paying all outstanding principal and finance charges and

10  repossession and storage charges permitted in section 11, the

11  pledgor shall be given possession of the titled personal

12  property and the certificate of title without further charge.

13         (3)  If the pledgor fails to redeem the titled personal

14  property and certificate of title during the 10-day holding

15  period, then the pledgor shall thereby forfeit all right,

16  title, and interest in and to the titled personal property and

17  certificate of title to the title loan lender, who shall

18  thereby acquire an absolute right of title and ownership to

19  the titled personal property. The title loan lender shall then

20  have the sole right and authority to sell or dispose of the

21  unredeemed titled personal property.

22         Section 11.  Disposal of pledged property; excess

23  proceeds.--

24         (1)  The title loan lender shall dispose of the pledged

25  personal property within a reasonable length of time after the

26  expiration of the 10-day holding period in a commercially

27  reasonable fashion so as to produce the highest proceeds from

28  such disposal. After the pledged personal property has been

29  disposed of, the title loan lender shall deduct from said

30  proceeds the outstanding principal balance and finance charges

31  that have accrued up until the expiration of the 10-day

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  1  holding period and the incurred repossession and storage

  2  charges which are actual and reasonable. Title loan lenders

  3  may assess and collect, as reimbursement, only a repossession

  4  and storage charge that does not exceed the actual amount

  5  charged by an independent and unaffiliated third-party company

  6  or contractor that was hired to repossess or store the titled

  7  personal property to which the loan property relates. The

  8  total amount of reimbursement that the title loan lender may

  9  receive as reimbursement for any outstanding charges, except

10  the principal and finance charges, may not exceed $350 for a

11  motor vehicle repossessed within this state or $500 for a

12  motor vehicle repossessed outside this state.

13         (2)  After such deductions, any remaining balances or

14  surpluses must be given to the pledgor within 10 days after

15  such disposal. Under no circumstances, including the case in

16  which the sale or disposal proceeds fail to cover the loan

17  amount, shall any deficiency be allowed to be attributed to

18  any pledgor or borrower.

19         Section 12.  Prohibited acts.--A title loan lender, or

20  any agent or employee of such title loan lender, may not:

21         (1)  Falsify or fail to make an entry of any material

22  matter in a title loan lender transaction form.

23         (2)  Refuse to allow the department to inspect

24  completed title loan transaction forms or loan property during

25  the ordinary hours of the title loan lender's business or at

26  other times acceptable to both parties.

27         (3)  Enter into a title loan agreement with a person

28  under the age of 18 years.

29         (4)  Make any agreement requiring or allowing for the

30  personal liability of a pledgor or the waiver of any of the

31  provisions of this act.

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  1         (5)  Knowingly enter into a title loan agreement with

  2  any person who is under the influence of drugs or alcohol when

  3  such condition is visible or apparent, or with any person

  4  using a name other than his or her own name or the registered

  5  name of his or her business.

  6         (6)  Fail to exercise reasonable care in the

  7  safekeeping of loan property or of titled personal property

  8  repossessed under this act.

  9         (7)  Fail to return loan property or repossessed titled

10  personal property to a pledgor, with any and all of the title

11  loan lender's liens on the property properly released, upon

12  payment of the full amount due the title loan lender, unless

13  the property has been seized or impounded by an authorized law

14  enforcement agency, taken into custody by a court, or

15  otherwise disposed of by court order.

16         (8)  Sell or otherwise charge for insurance in

17  connection with a title loan agreement.

18         (9)  Charge or receive any finance charge, interest, or

19  fees which are not authorized by this act.

20         (10)  Engage in business as a title loan lender without

21  first securing the license.

22         (11)  Refuse to accept a partial repayment of the

23  amount financed, provided that all accrued finance charges

24  have been paid.

25         (12)  Charge a prepayment penalty.

26         (13)  Advertise using the words "interest free loans"

27  or "no finance charges."

28         Section 13.  Right to redeem; lost title loan

29  transaction form.--

30         (1)  Any person presenting identification of himself or

31  herself as the pledgor and presenting the pledgor's copy of

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  1  the title loan transaction form to the title loan lender is

  2  presumed to be entitled to redeem the loan property described

  3  in the title loan lender transaction form. However, if the

  4  title loan lender determines that the person is not the

  5  pledgor, the title loan lender is not required to allow the

  6  redemption of the loan property by such person. The person

  7  redeeming the loan property must sign the pledgor's copy of

  8  the title loan transaction form, which the title loan lender

  9  may retain to evidence such person's receipt of the loan

10  property. A person redeeming the loan property who is not the

11  pledgor must show identification to the title loan lender

12  together with written authorization from the pledgor, and the

13  title loan lender shall record that person's name and address

14  on the title loan transaction form retained by the title loan

15  lender. In any such case, the person redeeming the pledgor's

16  copy of the title loan transaction form shall be provided a

17  copy of such signed form as evidence of the concerned

18  transaction.

19         (2)  If the pledgor's copy of the title loan

20  transaction form is lost, destroyed, or stolen, the pledgor

21  must notify the title loan lender in writing by certified or

22  registered mail, return receipt requested, or in person

23  evidenced by a signed receipt, and receipt of this notice

24  shall invalidate such title loan transaction form if the loan

25  property has not previously been redeemed. Before delivering

26  the loan property or issuing a new title loan transaction

27  form, the title loan lender shall require the pledgor to make

28  a written statement of the loss, destruction, or theft of the

29  pledgor's copy of the title loan transaction form. The title

30  loan lender shall record on the written statement the type of

31  identification and the identification number accepted from the

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  1  pledgor, the date the statement is given, and the number or

  2  date of the title loan transaction form lost, destroyed, or

  3  stolen. The statement shall be signed by the title loan lender

  4  or the title loan office employee who accepts the statement

  5  from the pledgor.

  6         Section 14.  Title loan lender's lien.--

  7         (1)  The title loan lender may record its security

  8  interest in the titled personal property to which the loan

  9  property relates by noting the lien on the certificate of

10  title.

11         (2)  The title loan lender is, upon entering into a

12  title loan agreement, considered a bona fide lienholder whose

13  interest has been perfected.

14         Section 15.  Criminal penalties.--

15         (1)  Any person who engages in business as a title loan

16  lender without first securing the license prescribed by this

17  act commits a felony of the third degree, punishable as

18  provided in section 775.082, Florida Statutes, section

19  775.083, Florida Statutes, or section 775.084, Florida

20  Statutes.

21         (2)  In addition to any other penalty which may be

22  applicable, any person who willfully violates this act or who

23  willfully makes a false entry in any record specifically

24  required by this act commits a misdemeanor of the first degree

25  punishable as provided in section 775.082, Florida Statutes,

26  or section 775.083, Florida Statutes.

27         Section 16.  Records from the Department of Law

28  Enforcement.--The Department of Law Enforcement, on request,

29  shall supply to the department any arrest and conviction

30  records in its possession of an individual applying for or

31  holding a license under this act.

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  1         Section 17.  Subpoenas; enforcement actions; rules.--

  2         (1)  The department may issue and serve subpoenas to

  3  compel the attendance of witnesses and the production of

  4  documents, papers, books, records, and other evidence before

  5  it in any matter pertaining to this act. The department may

  6  administer oaths and affirmations to any person whose

  7  testimony is required. If any person refuses to testify,

  8  produce books, records, and documents, or otherwise refuses to

  9  obey a subpoena issued under this section, the department may

10  enforce the subpoena in the same manner as subpoenas issued

11  under the Administrative Procedure Act are enforced. Witnesses

12  are entitled to the same fees and mileage as they are entitled

13  to by law for attending as witnesses in the circuit court,

14  unless such examination or investigation is held at the place

15  of business or residence of the witness.

16         (2)  In addition to any other powers conferred upon it

17  to enforce or administer this act, the department may:

18         (a)  Bring an action in any court of competent

19  jurisdiction to enforce or administer this act, any rule or

20  order adopted under this act, or any written agreement entered

21  into with the department. In such action, the department may

22  seek any relief at law or equity including a temporary or

23  permanent injunction, appointment of a receiver or

24  administrator, or an order of restitution.

25         (b)  Issue and serve upon a person an order requiring

26  such person to cease and desist and take corrective action

27  whenever the department finds that such person is violating,

28  has violated, or is about to violate any provision of this

29  act, any rule or order adopted under this act, or any written

30  agreement entered into with the department.

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  1         (c)  Whenever the department finds that conduct

  2  described in paragraph (b) presents an immediate danger to the

  3  public health, safety, or welfare requiring an immediate final

  4  order, issue an emergency cease and desist order reciting with

  5  particularity the facts underlying such findings. The

  6  emergency cease and desist order is effective immediately upon

  7  service of a copy of the order on the respondent named therein

  8  and remains effective for 90 days. If the department begins

  9  nonemergency proceedings under paragraph (b), the emergency

10  cease and desist order remains effective until the conclusion

11  of the proceedings under sections 120.569 and 120.57, Florida

12  Statutes.

13         (d)  Impose and collect an administrative fine against

14  any person found to have violated any provision of this act,

15  any rule or order adopted under this act, or any written

16  agreement entered into with the department, in an amount not

17  to exceed $5,000 for each violation.

18         (3)  The department has the authority to adopt rules

19  pursuant to the Administrative Procedure Act.

20         Section 18.  Investigations and complaints.--

21         (1)  The department may, at intermittent periods, make

22  such investigations and examinations of any licensee or other

23  person as it deems necessary to determine compliance with this

24  act. For such purposes, it may examine the books, accounts,

25  records, and other documents or matters of any licensee or

26  other person. It shall have the power to compel the production

27  of all relevant books, records, and other documents and

28  materials relative to an examination or investigation. Such

29  investigations and examinations shall not be made more often

30  than once during any 12-month period unless the department has

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  1  good cause to believe the licensee is not complying with the

  2  provisions of this act.

  3         (2)  Any person having reason to believe that the

  4  provisions of this act have been violated may file with the

  5  department a written complaint setting forth the details of

  6  such alleged violations and the department, upon receipt of

  7  such complaint, may inspect the pertinent books, records,

  8  letters, and contracts of the licensee and of the seller

  9  involved, relating to such specific written complaint.

10         Section 19.  The sum of $700,000 is appropriated from

11  the General Inspection Trust Fund to the Department of

12  Agriculture and Consumer Services to administer this act and

13  to pay the salaries and other administrative expenses for nine

14  positions to carry out the provisions of this act during the

15  1998-1999 fiscal year.

16         Section 20.  Legislative intent.--It is the intent of

17  the Legislature that title loans shall be regulated by the

18  provisions of this act. The provisions of this act supersede

19  any provisions of law affecting title loans to the extent of

20  any conflict.

21         Section 21.  Subsection (1) of section 538.03, Florida

22  Statutes, is amended to read:

23         538.03  Definitions; applicability.--

24         (1)  As used in this part, the term:

25         (a)  "Secondhand dealer" means any person, corporation,

26  or other business organization or entity which is not a

27  secondary metals recycler subject to part II and which is

28  engaged in the business of purchasing, consigning, or pawning

29  secondhand goods or entering into title loan transactions.

30  However, secondhand dealers are not limited to dealing only in

31  items defined as secondhand goods in paragraph (g).  Except as

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  1  provided in subsection (2), the term means pawnbrokers,

  2  jewelers, precious metals dealers, garage sale operators,

  3  secondhand stores, and consignment shops.

  4         (b)  "Precious metals dealer" means a secondhand dealer

  5  who normally or regularly engages in the business of buying

  6  used precious metals for resale.  The term does not include

  7  those persons involved in the bulk sale of precious metals

  8  from one secondhand or precious metals dealer to another.

  9         (c)  "Pawnbroker" means any person, corporation, or

10  other business organization or entity which is regularly

11  engaged in the business of making pawns but does not include a

12  financial institution as defined in s. 655.005 or any person

13  who regularly loans money or any other thing of value on

14  stocks, bonds, or other securities.

15         (d)  "Pawn" means either of the following transactions:

16         1.  Loan of money.--A written or oral bailment of

17  personal property as security for an engagement or debt,

18  redeemable on certain terms and with the implied power of sale

19  on default.

20         2.  Buy-sell agreement.--An agreement whereby a

21  purchaser agrees to hold property for a specified period of

22  time to allow the seller the exclusive right to repurchase the

23  property. A buy-sell agreement is not a loan of money.

24         (e)  "Secondhand store" means the place or premises at

25  which a secondhand dealer is registered to conduct business as

26  a secondhand dealer, or conducts business, including pawn

27  shops.

28         (f)  "Consignment shop" means a shop engaging in the

29  business of accepting for sale, on consignment, secondhand

30  goods which, having once been used or transferred from the

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  1  manufacturer to the dealer, are then received into the

  2  possession of a third party.

  3         (g)  "Secondhand goods" means personal property

  4  previously owned or used, which is not regulated metals

  5  property regulated under part II and which is purchased,

  6  consigned, or pawned as used property.  Such secondhand goods

  7  shall be limited to watches; diamonds, gems, and other

  8  precious stones; fishing rods, reels, and tackle; audio and

  9  video electronic equipment, including television sets, compact

10  disc players, radios, amplifiers, receivers, turntables, tape

11  recorders; video tape recorders; speakers and citizens' band

12  radios; computer equipment; radar detectors; depth finders;

13  trolling motors; outboard motors; sterling silver flatware and

14  serving pieces; photographic equipment, including cameras,

15  video and film cameras, lenses, electronic flashes, tripods,

16  and developing equipment; microwave ovens; animal fur coats;

17  marine equipment; video games and cartridges; power lawn and

18  landscape equipment; office equipment such as copiers, fax

19  machines, and postage machines but excluding furniture; sports

20  equipment; weapons, including knives, swords, and air guns;

21  telephones, including cellular and portable; firearms; tools;

22  calculators; musical instruments, excluding pianos and organs;

23  lawnmowers; bicycles; typewriters; motor vehicles; gold,

24  silver, platinum, and other precious metals excluding coins;

25  and jewelry, excluding costume jewelry.

26         (h)  "Transaction" means any title loan, purchase,

27  consignment, or pawn of secondhand goods by a secondhand

28  dealer.

29         (i)  "Title loan" means a loan of money secured by

30  bailment of a certificate of title to a motor vehicle.  A

31  title loan is not a pawn if the secondhand dealer does not

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  1  maintain physical possession of the vehicle throughout the

  2  term of the transaction.

  3         (i)(j)  "Precious metals" means any item containing any

  4  gold, silver, or platinum, or any combination thereof,

  5  excluding:

  6         1.  Any chemical or any automotive, photographic,

  7  electrical, medical, or dental materials or electronic parts.

  8         2.  Any coin with an intrinsic value less than its

  9  numismatic value.

10         3.  Any gold bullion coin.

11         4.  Any gold, silver, or platinum bullion that has been

12  assayed and is properly marked as to its weight and fineness.

13         5.  Any coin which is mounted in a jewelry setting.

14         (j)(k)  "Department" means the Department of Revenue.

15         (k)(l)  "Pledge" means pawn or buy-sell agreement.

16         Section 22.  Subsection (1) of section 538.16, Florida

17  Statutes, is amended to read:

18         538.16  Pawnbrokers Secondhand dealers; disposal of

19  property.--

20         (1)  Any personal property pawned with a pawnbroker,

21  whether the pawn is a loan of money or a buy-sell agreement or

22  a motor vehicle which is security for a title loan, is subject

23  to sale or disposal if the pawn is a loan of money and the

24  property has not been redeemed or there has been no payment on

25  account made for a period of 90 days, or if the pawn is a

26  buy-sell agreement or if it is a title loan and the property

27  has not been repurchased from the pawnbroker or the title

28  redeemed from the title lender or there has been no payment

29  made on account within 60 days.

30

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  1         Section 23.  Subsection (5) of section 538.06, Florida

  2  Statutes, and subsections (4) and (5) of section 538.15,

  3  Florida Statutes, are repealed.

  4         Section 24.  This act shall take effect October 1,

  5  1998, except that this section and section 19 shall take

  6  effect July 1, 1998.

  7

  8          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  9                         Senate Bill 194

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