| 1 | The Committee on Appropriations recommends the following: |
| 2 |
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| 3 | Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to delivery of writs, notice, and service |
| 7 | of process; amending s. 48.031, F.S.; deleting the |
| 8 | requirement to use certified mail in service of a subpoena |
| 9 | on a witness in specified cases; prohibiting a finding of |
| 10 | contempt for failure to appear in response to a subpoena |
| 11 | that is not delivered by certified mail; allowing the |
| 12 | posting of a criminal witness subpoena under specified |
| 13 | conditions; requiring the placement of certain information |
| 14 | on the copy of the process served; providing for |
| 15 | alternative methods of service under certain |
| 16 | circumstances; amending s. 48.081, F.S.; providing |
| 17 | alternative methods of service on a corporation; amending |
| 18 | s. 48.21, F.S.; requiring servers of process to provide |
| 19 | certain information on the return of service; amending s. |
| 20 | 48.29, F.S.; revising the requirement that certified |
| 21 | process servers provide certain information on the face of |
| 22 | the process served; amending s. 83.13, F.S.; authorizing |
| 23 | the party who had a distress writ issued to deliver the |
| 24 | writ to a sheriff in another county; amending s. 624.307, |
| 25 | F.S.; allowing the Chief Financial Officer, when serving |
| 26 | as the attorney to receive service of all legal process |
| 27 | for certain regulated persons, to send the process by any |
| 28 | verifiable means to the person last designated by the |
| 29 | regulated person to receive the process, instead of |
| 30 | requiring the process to be sent by registered or |
| 31 | certified mail; amending s. 832.07, F.S.; providing for |
| 32 | alternative method of notice sent by the holder to the |
| 33 | maker or drawer of a check, draft, or order, payment of |
| 34 | which is refused because of lack of funds or credit; |
| 35 | amending s. 409.257, F.S.; revising a provision for |
| 36 | service of witness subpoenas, to conform; providing an |
| 37 | effective date. |
| 38 |
|
| 39 | Be It Enacted by the Legislature of the State of Florida: |
| 40 |
|
| 41 | Section 1. Subsection (3) of section 48.031, Florida |
| 42 | Statutes, is amended, and subsections (5) and (6) are added to |
| 43 | said section, to read: |
| 44 | 48.031 Service of process generally; service of witness |
| 45 | subpoenas.-- |
| 46 | (3)(a) The service of process of witness subpoenas, |
| 47 | whether in criminal cases or civil actions, shall is to be made |
| 48 | as provided in subsection (1). However, service of a subpoena on |
| 49 | a witness in a criminal traffic case, a misdemeanor case, or a |
| 50 | second degree or third degree felony may be made by certified |
| 51 | United States mail directed to the witness at the last known |
| 52 | address, and the such service must be mailed at least 7 days |
| 53 | prior to the date of the witness's required appearance. Failure |
| 54 | of a witness to appear in response to a subpoena served by |
| 55 | United States mail that is not certified may not be grounds for |
| 56 | finding the witness in contempt of court. |
| 57 | (b) A criminal witness subpoena may be posted by a person |
| 58 | authorized to serve process at the witness's residence if three |
| 59 | attempts to serve the subpoena, made at different times of the |
| 60 | day or night on different dates, have failed. The subpoena must |
| 61 | be posted at least 5 days prior to the date of the witness's |
| 62 | required appearance. |
| 63 | (5) A person serving process shall place on the copy |
| 64 | served the date and time of service and his or her |
| 65 | identification number and initials for all services of process. |
| 66 | (6) If the only address for a person to be served, which |
| 67 | is discoverable through public records, is a private mailbox, |
| 68 | substitute service may be made by leaving a copy of the process |
| 69 | with the person in charge of the private mailbox, but only if |
| 70 | the process server determines that the person to be served |
| 71 | maintains a mailbox at that location. |
| 72 | Section 2. Subsection (3) of section 48.081, Florida |
| 73 | Statutes, is amended to read: |
| 74 | 48.081 Service on corporation.-- |
| 75 | (3)(a) As an alternative to all of the foregoing, process |
| 76 | may be served on the agent designated by the corporation under |
| 77 | s. 48.091. However, if service cannot be made on a registered |
| 78 | agent because of failure to comply with s. 48.091, service of |
| 79 | process shall be permitted on any employee at the corporation's |
| 80 | principal place of business or on any employee of the registered |
| 81 | agent. |
| 82 | (b) If the address provided for the registered agent, |
| 83 | officer, director, or principal place of business is a residence |
| 84 | or private mailbox, service on the corporation may be made by |
| 85 | serving the registered agent, officer, or director in accordance |
| 86 | with s. 48.031. |
| 87 | Section 3. Section 48.21, Florida Statutes, is amended to |
| 88 | read: |
| 89 | 48.21 Return of execution of process.--Each person who |
| 90 | effects service of process All officers to whom process is |
| 91 | directed shall note on it, or on a return-of-service form |
| 92 | attached thereto, the date and time when it comes to hand, the |
| 93 | date and time when it is served executed, the manner of service |
| 94 | execution, the name of the person on whom it was served, |
| 95 | executed and, if the such person is served in a representative |
| 96 | capacity, the position occupied by the person. A failure to |
| 97 | state the foregoing facts invalidates the service, but the |
| 98 | return is amendable to state the truth at any time on |
| 99 | application to the court from which the process issued. On |
| 100 | amendment, service is as effective as if the return had |
| 101 | originally stated the omitted facts. A failure to state all the |
| 102 | facts in the return shall subject the person effecting service |
| 103 | officer so failing to a fine not exceeding $10, in the court's |
| 104 | discretion. |
| 105 | Section 4. Subsection (6) of section 48.29, Florida |
| 106 | Statutes, is amended to read: |
| 107 | 48.29 Certification of process servers.-- |
| 108 | (6)(a) A certified process server shall place the |
| 109 | information provided in s. 48.031(5) on the copy served on the |
| 110 | face of any process served by him or her, his or her printed |
| 111 | name, signature, and identification number, and words stating |
| 112 | that he or she is a certified process server in the circuit |
| 113 | wherein he or she is serving the process. In addition, the |
| 114 | certified process server shall endorse on the original process, |
| 115 | and on all copies served, the date and hour of service. |
| 116 | (b) Return of service shall be made by a certified process |
| 117 | server on a form which has been reviewed and approved by the |
| 118 | court. |
| 119 | Section 5. Section 83.13, Florida Statutes, is amended to |
| 120 | read: |
| 121 | 83.13 Levy of writ.--The sheriff shall execute the writ by |
| 122 | service on defendant and, upon the order of the court, by levy |
| 123 | on property distrainable for rent or advances, if found in the |
| 124 | sheriff's jurisdiction. If the property is not so found but is |
| 125 | in another jurisdiction, the party who had the writ issued |
| 126 | sheriff shall deliver the writ to the proper sheriff in the |
| 127 | other jurisdiction; and that the other sheriff shall execute the |
| 128 | writ, upon order of the court, by levying on the property and |
| 129 | delivering it to the sheriff of the county in which the action |
| 130 | is pending, to be disposed of according to law, unless he or she |
| 131 | is ordered by the court from which the writ emanated to hold the |
| 132 | property and dispose of it in his or her jurisdiction according |
| 133 | to law. If the plaintiff shows by a sworn statement that the |
| 134 | defendant cannot be found within the state, the levy on the |
| 135 | property suffices as service on the defendant. |
| 136 | Section 6. Subsection (8) is added to section 624.307, |
| 137 | Florida Statutes, to read: |
| 138 | 624.307 General powers; duties.-- |
| 139 | (8) Upon receiving service of legal process issued in any |
| 140 | civil action or proceeding in this state against any regulated |
| 141 | person required to appoint the Chief Financial Officer as its |
| 142 | attorney to receive service of all legal process, the Chief |
| 143 | Financial Officer, as attorney, may, in lieu of sending the |
| 144 | process by registered or certified mail, send the process by any |
| 145 | other verifiable means to the person last designated by the |
| 146 | regulated person to receive the process. |
| 147 | Section 7. Subsection (1) of section 832.07, Florida |
| 148 | Statutes, is amended to read: |
| 149 | 832.07 Prima facie evidence of intent; identity.-- |
| 150 | (1) INTENT.-- |
| 151 | (a) In any prosecution or action under this chapter, the |
| 152 | making, drawing, uttering, or delivery of a check, draft, or |
| 153 | order, payment of which is refused by the drawee because of lack |
| 154 | of funds or credit, shall be prima facie evidence of intent to |
| 155 | defraud or knowledge of insufficient funds in, or credit with, |
| 156 | such bank, banking institution, trust company, or other |
| 157 | depository, unless such maker or drawer, or someone for him or |
| 158 | her, shall have paid the holder thereof the amount due thereon, |
| 159 | together with a service charge not to exceed the service fees |
| 160 | authorized under s. 832.08(5) or an amount of up to 5 percent of |
| 161 | the face amount of the check, whichever is greater, within 15 7 |
| 162 | days after receiving written notice has been sent to the address |
| 163 | printed on the check or given at the time of issuance that such |
| 164 | check, draft, or order has not been paid to the holder thereof, |
| 165 | and bank fees incurred by the holder. In the event of legal |
| 166 | action for recovery, the maker or drawer may be additionally |
| 167 | liable for court costs and reasonable attorney's fees. Notice |
| 168 | mailed by certified or registered mail, evidenced by return |
| 169 | receipt, or by first-class mail, evidenced by an affidavit of |
| 170 | service of mail, to the address printed on the check or given at |
| 171 | the time of issuance shall be deemed sufficient and equivalent |
| 172 | to notice having been received by the maker or drawer, whether |
| 173 | such notice shall be returned undelivered or not. The form of |
| 174 | such notice shall be substantially as follows: |
| 175 |
|
| 176 | "You are hereby notified that a check, numbered _____, in |
| 177 | the face amount of $_____, issued by you on ... (date) ..., |
| 178 | drawn upon ... (name of bank) ..., and payable to _____, has |
| 179 | been dishonored. Pursuant to Florida law, you have 15 7 days |
| 180 | from the date receipt of this notice to tender payment of the |
| 181 | full amount of such check plus a service charge of $25, if the |
| 182 | face value does not exceed $50, $30, if the face value exceeds |
| 183 | $50 but does not exceed $300, $40, if the face value exceeds |
| 184 | $300, or an amount of up to 5 percent of the face amount of the |
| 185 | check, whichever is greater, the total amount due being $_____ |
| 186 | and _____ cents. Unless this amount is paid in full within the |
| 187 | time specified above, the holder of such check may turn over the |
| 188 | dishonored check and all other available information relating to |
| 189 | this incident to the state attorney for criminal prosecution. |
| 190 | You may be additionally liable in a civil action for triple the |
| 191 | amount of the check, but in no case less than $50, together with |
| 192 | the amount of the check, a service charge, court costs, |
| 193 | reasonable attorney fees, and incurred bank fees, as provided in |
| 194 | s. 68.065." |
| 195 |
|
| 196 | Subsequent persons receiving a check, draft, or order from the |
| 197 | original payee or a successor endorsee have the same rights that |
| 198 | the original payee has against the maker of the instrument, |
| 199 | provided such subsequent persons give notice in a substantially |
| 200 | similar form to that provided above. Subsequent persons |
| 201 | providing such notice shall be immune from civil liability for |
| 202 | the giving of such notice and for proceeding under the forms of |
| 203 | such notice, so long as the maker of the instrument has the same |
| 204 | defenses against these subsequent persons as against the |
| 205 | original payee. However, the remedies available under this |
| 206 | section may be exercised only by one party in interest. |
| 207 | (b) When a check is drawn on a bank in which the maker or |
| 208 | drawer has no account or a closed account, it shall be presumed |
| 209 | that such check was issued with intent to defraud, and the |
| 210 | notice requirement set forth in this section shall be waived. |
| 211 | Section 8. Section 409.257, Florida Statutes, is amended |
| 212 | to read: |
| 213 | 409.257 Service of process.--The service of initial |
| 214 | process and orders in lawsuits filed by the department, under |
| 215 | this act, shall be served by the sheriff in the county where the |
| 216 | person to be served may be found. The sheriff shall be |
| 217 | reimbursed at the prevailing rate of federal financial |
| 218 | participation for service of process and orders as allowed by |
| 219 | law. The sheriff shall bill the department monthly as provided |
| 220 | for in s. 30.51(2). In addition, process and orders may be |
| 221 | served or executed by authorized agents of the department at the |
| 222 | department's discretion; provided that the agent of the |
| 223 | department does not take any action against personal property, |
| 224 | real property, or persons. Notices and other intermediate |
| 225 | process, except witness subpoenas, shall be served by the |
| 226 | department as provided for in the Florida Rules of Civil |
| 227 | Procedure. Witness subpoenas shall be served by the department |
| 228 | by United States certified mail as provided for in s. 48.031(3). |
| 229 | Section 9. This act shall take effect July 1, 2004. |