Senate Bill sb1438c1

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    Florida Senate - 2005                           CS for SB 1438

    By the Committee on Criminal Justice; and Senator Wise





    591-2009-05

  1                      A bill to be entitled

  2         An act relating to consumer services; amending

  3         s. 493.6101, F.S.; expanding the definition of

  4         the term "repossession" for purposes of the

  5         regulation of repossession services; amending

  6         s. 493.6102, F.S.; revising the applicability

  7         of ch. 493, F.S., governing private

  8         investigative, private security, and

  9         repossession services; amending s. 493.6110,

10         F.S.; revising insurance requirements for

11         licensure under ch. 493, F.S.; providing

12         insurance requirements with respect to Class

13         "B" security agencies; amending s. 493.6118,

14         F.S.; revising the grounds for disciplinary

15         action against a person or entity that is

16         licensed as, or an applicant for licensure as,

17         a recovery agency, recovery agent, or recovery

18         agent intern; amending s. 493.6403, F.S.;

19         revising licensure requirements for recovery

20         agent managers and recovery agents, to conform;

21         amending s. 493.6404, F.S.; revising

22         requirements for the inventory of certain

23         personal effects or property contained in or on

24         repossessed property, to conform; amending s.

25         493.6405, F.S.; providing a penalty for the

26         unauthorized sale of repossessed aircraft,

27         personal watercraft, all-terrain vehicles, farm

28         equipment, or industrial equipment by a

29         recovery agent or recovery agent intern and for

30         failure to remit the net proceeds from the sale

31  

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    Florida Senate - 2005                           CS for SB 1438
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 1         of such repossessed property to the owner or

 2         lienholder; providing an effective date.

 3  

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

 5  

 6         Section 1.  Subsection (22) of section 493.6101,

 7  Florida Statutes, is amended to read:

 8         493.6101  Definitions.--

 9         (22)  "Repossession" means the recovery of a motor

10  vehicle as defined under s. 320.01(1), a or mobile home as

11  defined in s. 320.01(2), a or motorboat as defined under s.

12  327.02, an aircraft as defined in s. 330.27(1), a personal

13  watercraft as defined in s. 327.02, an all-terrain vehicle as

14  defined in s. 316.2074, farm equipment as defined under s.

15  686.402, or industrial equipment, by an individual who is

16  authorized by the legal owner, lienholder, or lessor to

17  recover, or to collect money payment in lieu of recovery of,

18  that which has been sold or leased under a security agreement

19  that contains a repossession clause. As used in this

20  subsection, the term "industrial equipment" includes, but is

21  not limited to, tractors, road rollers, cranes, fork lifts,

22  backhoes, and bulldozers. The term "industrial equipment" also

23  includes other vehicles that are propelled by power other than

24  muscular power and that are used in the manufacture of goods

25  or used in the provision of services. A repossession is

26  complete when a licensed recovery agent is in control,

27  custody, and possession of such repossessed property motor

28  vehicle, mobile home, or motorboat.

29         Section 2.  Subsection (3) of section 493.6102, Florida

30  Statutes, is amended to read:

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 1         493.6102  Inapplicability of this chapter.--This

 2  chapter shall not apply to:

 3         (3)  Any individual solely, exclusively, and regularly

 4  employed as an unarmed investigator or recovery agent in

 5  connection with the business of her or his employer, when

 6  there exists an employer-employee relationship.

 7         Section 3.  Section 493.6110, Florida Statutes, is

 8  amended to read:

 9         493.6110  Licensee's insurance.--A Class "B" No agency

10  license may not shall be issued unless the applicant first

11  files with the department a certification of insurance

12  evidencing commercial general liability coverage as delineated

13  below. The coverage shall provide the department as an

14  additional insured for the purpose of receiving all notices of

15  modification or cancellation of such insurance. Coverage shall

16  be written by an insurance company which is lawfully engaged

17  to provide insurance coverage in Florida. Coverage shall

18  provide for a combined single-limit policy in the amount of at

19  least $300,000, which policy shall include comprehensive

20  general liability coverage for death, bodily injury, property

21  damage, and personal injury coverage including false arrest,

22  detention or imprisonment, malicious prosecution, libel,

23  slander, defamation of character, and violation of the right

24  of privacy. Coverage shall insure for the liability of all

25  employees licensed by the department while acting in the

26  course of their employment.

27         (1)  The licensed agency shall notify the department of

28  any claim against such insurance.

29         (2)  The licensed agency shall notify the department

30  immediately upon cancellation of the insurance policy, whether

31  

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 1  such cancellation was initiated by the insurance company or

 2  the insured agency.

 3         (3)  The agency license shall be automatically

 4  suspended upon the date of cancellation unless evidence of

 5  insurance is provided to the department prior to the effective

 6  date of cancellation.

 7         Section 4.  Section 493.6118, Florida Statutes, is

 8  amended to read:

 9         493.6118  Grounds for disciplinary action.--

10         (1)  The following constitute grounds for which

11  disciplinary action specified in subsection (2) may be taken

12  by the department against any licensee, agency, or applicant

13  regulated by this chapter, or any unlicensed person engaged in

14  activities regulated under this chapter.

15         (a)  Fraud or willful misrepresentation in applying for

16  or obtaining a license.

17         (b)  Use of any fictitious or assumed name by an agency

18  unless the agency has department approval and qualifies under

19  s. 865.09.

20         (c)  Being found guilty of or entering a plea of guilty

21  or nolo contendere to, regardless of adjudication, or being

22  convicted of a crime that directly relates to the business for

23  which the license is held or sought.  A plea of nolo

24  contendere shall create a rebuttable presumption of guilt to

25  the underlying criminal charges, and the department shall

26  allow the individual being disciplined or denied an

27  application for a license to present any mitigating

28  circumstances surrounding his or her plea.

29         (d)  A false statement by the licensee that any

30  individual is or has been in his or her employ.

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 1         (e)  A finding that the licensee or any employee is

 2  guilty of willful betrayal of a professional secret or any

 3  unauthorized release of information acquired as a result of

 4  activities regulated under this chapter.

 5         (f)  Proof that the applicant or licensee is guilty of

 6  fraud or deceit, or of negligence, incompetency, or

 7  misconduct, in the practice of the activities regulated under

 8  this chapter.

 9         (g)  Conducting activities regulated under this chapter

10  without a license or with a revoked or suspended license.

11         (h)  Failure of the licensee to maintain in full force

12  and effect the commercial general liability insurance coverage

13  required by s. 493.6110.

14         (i)  Impersonating, or permitting or aiding and

15  abetting an employee to impersonate, a law enforcement officer

16  or an employee of the state, the United States, or any

17  political subdivision thereof by identifying himself or

18  herself as a federal, state, county, or municipal law

19  enforcement officer or official representative, by wearing a

20  uniform or presenting or displaying a badge or credentials

21  that would cause a reasonable person to believe that he or she

22  is a law enforcement officer or that he or she has official

23  authority, by displaying any flashing or warning vehicular

24  lights other than amber colored, or by committing any act that

25  is intended to falsely convey official status.

26         (j)  Commission of an act of violence or the use of

27  force on any person except in the lawful protection of one's

28  self or another from physical harm.

29         (k)  Knowingly violating, advising, encouraging, or

30  assisting the violation of any statute, court order, capias,

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 1  warrant, injunction, or cease and desist order, in the course

 2  of business regulated under this chapter.

 3         (l)  Soliciting business for an attorney in return for

 4  compensation.

 5         (m)  Transferring or attempting to transfer a license

 6  issued pursuant to this chapter.

 7         (n)  Employing or contracting with any unlicensed or

 8  improperly licensed person or agency to conduct activities

 9  regulated under this chapter, or performing any act that

10  assists, aids, or abets a person or business entity in

11  engaging in unlicensed activity, when the licensure status was

12  known or could have been ascertained by reasonable inquiry.

13         (o)  Failure or refusal to cooperate with or refusal of

14  access to an authorized representative of the department

15  engaged in an official investigation pursuant to this chapter.

16         (p)  Failure of any partner, principal corporate

17  officer, or licensee to have his or her identification card in

18  his or her possession while on duty.

19         (q)  Failure of any licensee to have his or her license

20  in his or her possession while on duty, as specified in s.

21  493.6111(1).

22         (r)  Failure or refusal by a sponsor to certify a

23  biannual written report on an intern or to certify completion

24  or termination of an internship to the department within 15

25  working days.

26         (s)  Failure to report to the department any person

27  whom the licensee knows to be in violation of this chapter or

28  the rules of the department.

29         (t)  Violating any provision of this chapter.

30         (u)  In addition to the grounds for disciplinary action

31  prescribed in paragraphs (a)-(t), Class "R" recovery agencies,

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 1  Class "E" recovery agents, and Class "EE" recovery agent

 2  interns are prohibited from committing the following acts:

 3         1.  Recovering a motor vehicle, mobile home, or

 4  motorboat, aircraft, personal watercraft, all-terrain vehicle,

 5  farm equipment, or industrial equipment that has been sold

 6  under a conditional sales agreement or under the terms of a

 7  chattel mortgage before authorization has been received from

 8  the legal owner or mortgagee.

 9         2.  Charging for expenses not actually incurred in

10  connection with the recovery, transportation, storage, or

11  disposal of repossessed property a motor vehicle, mobile home,

12  motorboat, or personal property obtained in a repossession.

13         3.  Using any motor vehicle, mobile home, or motorboat

14  that has been repossessed property, or using personal property

15  obtained in a repossession, for the personal benefit of a

16  licensee or an officer, director, partner, manager, or

17  employee of a licensee.

18         4.  Selling property a motor vehicle, mobile home, or

19  motorboat recovered under the provisions of this chapter,

20  except with written authorization from the legal owner or the

21  mortgagee thereof.

22         5.  Failing to notify the police or sheriff's

23  department of the jurisdiction in which the repossessed

24  property is recovered within 2 hours after recovery.

25         6.  Failing to remit moneys, collected in lieu of

26  recovery of a motor vehicle, mobile home, or motorboat,

27  aircraft, personal watercraft, all-terrain vehicle, farm

28  equipment, or industrial equipment to the client within 10

29  working days.

30  

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 1         7.  Failing to deliver to the client a negotiable

 2  instrument that is payable to the client, within 10 working

 3  days after receipt of such instrument.

 4         8.  Falsifying, altering, or failing to maintain any

 5  required inventory or records regarding disposal of personal

 6  property contained in or on repossessed property a recovered

 7  motor vehicle, mobile home, or motorboat pursuant to s.

 8  493.6404(1).

 9         9.  Carrying any weapon or firearm when he or she is on

10  private property and performing duties under his or her

11  license whether or not he or she is licensed pursuant to s.

12  790.06.

13         10.  Soliciting from the legal owner the recovery of

14  property subject to repossession after such property has been

15  seen or located on public or private property if the amount

16  charged or requested for such recovery is more than the amount

17  normally charged for such a recovery.

18         11.  Wearing, presenting, or displaying a badge in the

19  course of performing a repossession regulated by this chapter

20  repossessing a motor vehicle, mobile home, or motorboat.

21         (2)  When the department finds any violation of

22  subsection (1), it may do one or more of the following:

23         (a)  Deny an application for the issuance or renewal of

24  a license.

25         (b)  Issue a reprimand.

26         (c)  Impose an administrative fine not to exceed $1,000

27  for every count or separate offense.

28         (d)  Place the licensee on probation for a period of

29  time and subject to such conditions as the department may

30  specify.

31         (e)  Suspend or revoke a license.

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 1         (3)  The department may deny an application for

 2  licensure citing lack of good moral character only if the

 3  finding by the department of lack of good moral character is

 4  supported by clear and convincing evidence.  In such cases,

 5  the department shall furnish the applicant a statement

 6  containing the findings of the department, a complete record

 7  of the evidence upon which the determination was based, and a

 8  notice of the rights of the applicant to an administrative

 9  hearing and subsequent appeal.

10         (4)  Notwithstanding the provisions of paragraph (1)(c)

11  and subsection (2):

12         (a)  If the applicant or licensee has been convicted of

13  a felony, the department shall deny the application or revoke

14  the license unless and until civil rights have been restored

15  by the State of Florida or by a state acceptable to Florida

16  and a period of 10 years has expired since final release from

17  supervision.

18         (b)  A Class "G" applicant who has been convicted of a

19  felony shall also have had the specific right to possess,

20  carry, or use a firearm restored by the State of Florida.

21         (c)  If the applicant or licensee has been found guilty

22  of, entered a plea of guilty to, or entered a plea of nolo

23  contendere to a felony and adjudication of guilt is withheld,

24  the department shall deny the application or revoke the

25  license until a period of 3 years has expired since final

26  release from supervision.

27         (d)  A plea of nolo contendere shall create a

28  rebuttable presumption of guilt to the underlying criminal

29  charges, and the department shall allow the person being

30  disciplined or denied an application for a license to present

31  any mitigating circumstances surrounding his or her plea.

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 1         (e)  The grounds for discipline or denial cited in this

 2  subsection shall be applied to any disqualifying criminal

 3  history regardless of the date of commission of the underlying

 4  criminal charge.  Such provisions shall be applied

 5  retroactively and prospectively.

 6         (5)  Upon revocation or suspension of a license, the

 7  licensee shall forthwith return the license which was

 8  suspended or revoked.

 9         (6)  The agency license and the approval or license of

10  each officer, partner, or owner of the agency are

11  automatically suspended upon entry of a final order imposing

12  an administrative fine against the agency, until the fine is

13  paid, if 30 calendar days have elapsed since the entry of the

14  final order. All owners and corporate or agency officers or

15  partners are jointly and severally liable for agency fines.

16  Neither the agency license or the approval or license of any

17  officer, partner, or owner of the agency may be renewed, nor

18  may an application be approved if the owner, licensee, or

19  applicant is liable for an outstanding administrative fine

20  imposed under this chapter. An individual's approval or

21  license becomes automatically suspended if a fine imposed

22  against the individual or his or her agency is not paid within

23  30 days after the date of the final order, and remains

24  suspended until the fine is paid. Notwithstanding the

25  provisions of this subsection, an individual's approval or

26  license may not be suspended nor may an application be denied

27  when the licensee or the applicant has an appeal from a final

28  order pending in any appellate court.

29         (7)  An applicant or licensee shall be ineligible to

30  reapply for the same class of license for a period of 1 year

31  following final agency action resulting in the denial or

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 1  revocation of a license applied for or issued under this

 2  chapter. This time restriction shall not apply to

 3  administrative denials wherein the basis for denial was:

 4         (a)  An inadvertent error or omission on the

 5  application;

 6         (b)  The experience documented by the department was

 7  insufficient at the time of application;

 8         (c)  The department was unable to complete the criminal

 9  background investigation due to insufficient information from

10  the Department of Law Enforcement, the Federal Bureau of

11  Investigation, or any other applicable law enforcement agency;

12  or

13         (d)  Failure to submit required fees.

14         Section 5.  Paragraphs (b) and (c) of subsection (1) of

15  section 493.6403, Florida Statutes, are amended to read:

16         493.6403  License requirements.--

17         (1)  In addition to the license requirements set forth

18  in this chapter, each individual or agency shall comply with

19  the following additional requirements:

20         (b)  An applicant for Class "MR" license shall have at

21  least 1 year of lawfully gained, verifiable, full-time

22  experience as a Class "E" licensee performing repossessions of

23  motor vehicles, mobile homes, or motorboats, aircraft,

24  personal watercraft, all-terrain vehicles, farm equipment, or

25  industrial equipment.

26         (c)  An applicant for a Class "E" license shall have at

27  least 1 year of lawfully gained, verifiable, full-time

28  experience in one, or a combination of more than one, of the

29  following:

30         1.  Repossession of motor vehicles as defined in s.

31  320.01(1), mobile homes as defined in s. 320.01(2), or

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 1  motorboats as defined in s. 327.02, aircraft as defined in s.

 2  330.27(1), personal watercraft as defined in s. 327.02,

 3  all-terrain vehicles as defined in s. 316.2074, farm equipment

 4  as defined under s. 686.402, or industrial equipment as

 5  defined in s. 493.6101(22).

 6         2.  Work as a Class "EE" licensed intern.

 7         Section 6.  Subsection (1) of section 493.6404, Florida

 8  Statutes, is amended to read:

 9         493.6404  Property inventory; vehicle license

10  identification numbers.--

11         (1)  If personal effects or other property not covered

12  by a security agreement are contained in or on a recovered

13  vehicle, mobile home, or motorboat, aircraft, personal

14  watercraft, all-terrain vehicles, farm equipment, or

15  industrial equipment at the time it is recovered, a complete

16  and accurate inventory shall be made of such personal effects

17  or property.  The date and time the inventory is made shall be

18  indicated, and it shall be signed by the Class "E" or Class

19  "EE" licensee who obtained the personal property.  The

20  inventory of the personal property and the records regarding

21  any disposal of personal property shall be maintained for a

22  period of 2 years in the permanent records of the licensed

23  agency and shall be made available, upon demand, to an

24  authorized representative of the department engaged in an

25  official investigation.

26         Section 7.  Section 493.6405, Florida Statutes, is

27  amended to read:

28         493.6405  Sale of motor vehicle, mobile home, or

29  motorboat, aircraft, personal watercraft, all-terrain

30  vehicles, farm equipment, or industrial equipment by a

31  licensee; penalty.--

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 1         (1)  A Class "E" or Class "EE" licensee shall obtain,

 2  prior to sale, written authorization and a negotiable title

 3  from the owner or lienholder to sell any repossessed motor

 4  vehicle, mobile home, or motorboat, aircraft, personal

 5  watercraft, all-terrain vehicles, farm equipment, or

 6  industrial equipment.

 7         (2)  A Class "E" or Class "EE" licensee shall send the

 8  net proceeds from the sale of such repossessed motor vehicle,

 9  mobile home, or motorboat, aircraft, personal watercraft,

10  all-terrain vehicles, farm equipment, or industrial equipment

11  to the owner or lienholder, within 20 working days after the

12  licensee executes the documents which permit the transfer of

13  legal ownership to the purchaser.

14         (3)  A person who violates a provision of this section

15  commits a felony of the third degree, punishable as provided

16  in s. 775.082, s. 775.083, or s. 775.084.

17         Section 8.  This act shall take effect October 1, 2005.

18  

19          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
20                         Senate Bill 1438

21                                 

22  Section 493.6102(3) is amended to remove the group of recovery
    agents from the list of people not covered by this chapter.
23  Accordingly, this removal now has the effect of requiring
    recovery agents to be licensed and regulated.
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