HB 0807CS

CHAMBER ACTION



1The Agriculture Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
6
A bill to be entitled
7An act relating to consumer services; amending s.
8493.6101, F.S.; expanding the definition of the term
9"repossession" for purposes of the regulation of
10repossession services; amending s. 493.6102, F.S.;
11revising the applicability of ch. 493, F.S., governing
12private investigative, private security, and repossession
13services; amending s. 493.6110, F.S.; revising insurance
14requirements for licensure under ch. 493, F.S.; providing
15insurance requirements with respect to Class "B" security
16agencies; amending s. 493.6118, F.S.; revising the grounds
17for disciplinary action against a person or entity that is
18licensed as, or an applicant for licensure as, a recovery
19agency, recovery agent, or recovery agent intern; amending
20s. 493.6403, F.S.; revising licensure requirements for
21recovery agent managers and recovery agents, to conform;
22amending s. 493.6404, F.S.; revising provisions relating
23to inventory of certain personal effects or property
24contained in or on repossessed property, to conform;
25amending s. 493.6405, F.S.; providing a penalty for the
26unauthorized sale of repossessed aircraft, personal
27watercraft, all-terrain vehicles, farm equipment, or
28industrial equipment by a recovery agent or recovery agent
29intern and for failure to remit the net proceeds from the
30sale of such repossessed property to the owner or
31lienholder; providing an effective date.
32
33Be It Enacted by the Legislature of the State of Florida:
34
35     Section 1.  Subsection (22) of section 493.6101, Florida
36Statutes, is amended to read:
37     493.6101  Definitions.--
38     (22)  "Repossession" means the recovery of a motor vehicle
39as defined under s. 320.01(1), a or mobile home as defined in s.
40320.01(2), a or motorboat as defined under s. 327.02, an
41aircraft as defined in s. 330.27(1), a personal watercraft as
42defined in s. 327.02, an all-terrain vehicle as defined in s.
43316.2074, farm equipment as defined under s. 686.402, or
44industrial equipment, by an individual who is authorized by the
45legal owner, lienholder, or lessor to recover, or to collect
46money payment in lieu of recovery of, that which has been sold
47or leased under a security agreement that contains a
48repossession clause. As used in this subsection, the term
49"industrial equipment" includes, but is not limited to,
50tractors, road rollers, cranes, fork lifts, backhoes, and
51bulldozers. The term "industrial equipment" also includes other
52vehicles that are propelled by power other than muscular power
53and that are used in the manufacture of goods or used in the
54provision of services. A repossession is complete when a
55licensed recovery agent is in control, custody, and possession
56of such repossessed property motor vehicle, mobile home, or
57motorboat.
58     Section 2.  Subsection (3) of section 493.6102, Florida
59Statutes, is amended to read:
60     493.6102  Inapplicability of this chapter.--This chapter
61shall not apply to:
62     (3)  Any individual solely, exclusively, and regularly
63employed as an unarmed investigator or recovery agent in
64connection with the business of her or his employer, when there
65exists an employer-employee relationship.
66     Section 3.  Section 493.6110, Florida Statutes, is amended
67to read:
68     493.6110  Licensee's insurance.--A Class "B" No agency
69license may not shall be issued unless the applicant first files
70with the department a certification of insurance evidencing
71commercial general liability coverage as delineated below. The
72coverage shall provide the department as an additional insured
73for the purpose of receiving all notices of modification or
74cancellation of such insurance. Coverage shall be written by an
75insurance company which is lawfully engaged to provide insurance
76coverage in Florida. Coverage shall provide for a combined
77single-limit policy in the amount of at least $300,000, which
78policy shall include comprehensive general liability coverage
79for death, bodily injury, property damage, and personal injury
80coverage including false arrest, detention or imprisonment,
81malicious prosecution, libel, slander, defamation of character,
82and violation of the right of privacy. Coverage shall insure for
83the liability of all employees licensed by the department while
84acting in the course of their employment.
85     (1)  The licensed agency shall notify the department of any
86claim against such insurance.
87     (2)  The licensed agency shall notify the department
88immediately upon cancellation of the insurance policy, whether
89such cancellation was initiated by the insurance company or the
90insured agency.
91     (3)  The agency license shall be automatically suspended
92upon the date of cancellation unless evidence of insurance is
93provided to the department prior to the effective date of
94cancellation.
95     Section 4.  Section 493.6118, Florida Statutes, is amended
96to read:
97     493.6118  Grounds for disciplinary action.--
98     (1)  The following constitute grounds for which
99disciplinary action specified in subsection (2) may be taken by
100the department against any licensee, agency, or applicant
101regulated by this chapter, or any unlicensed person engaged in
102activities regulated under this chapter.
103     (a)  Fraud or willful misrepresentation in applying for or
104obtaining a license.
105     (b)  Use of any fictitious or assumed name by an agency
106unless the agency has department approval and qualifies under s.
107865.09.
108     (c)  Being found guilty of or entering a plea of guilty or
109nolo contendere to, regardless of adjudication, or being
110convicted of a crime that directly relates to the business for
111which the license is held or sought.  A plea of nolo contendere
112shall create a rebuttable presumption of guilt to the underlying
113criminal charges, and the department shall allow the individual
114being disciplined or denied an application for a license to
115present any mitigating circumstances surrounding his or her
116plea.
117     (d)  A false statement by the licensee that any individual
118is or has been in his or her employ.
119     (e)  A finding that the licensee or any employee is guilty
120of willful betrayal of a professional secret or any unauthorized
121release of information acquired as a result of activities
122regulated under this chapter.
123     (f)  Proof that the applicant or licensee is guilty of
124fraud or deceit, or of negligence, incompetency, or misconduct,
125in the practice of the activities regulated under this chapter.
126     (g)  Conducting activities regulated under this chapter
127without a license or with a revoked or suspended license.
128     (h)  Failure of the licensee to maintain in full force and
129effect the commercial general liability insurance coverage
130required by s. 493.6110.
131     (i)  Impersonating, or permitting or aiding and abetting an
132employee to impersonate, a law enforcement officer or an
133employee of the state, the United States, or any political
134subdivision thereof by identifying himself or herself as a
135federal, state, county, or municipal law enforcement officer or
136official representative, by wearing a uniform or presenting or
137displaying a badge or credentials that would cause a reasonable
138person to believe that he or she is a law enforcement officer or
139that he or she has official authority, by displaying any
140flashing or warning vehicular lights other than amber colored,
141or by committing any act that is intended to falsely convey
142official status.
143     (j)  Commission of an act of violence or the use of force
144on any person except in the lawful protection of one's self or
145another from physical harm.
146     (k)  Knowingly violating, advising, encouraging, or
147assisting the violation of any statute, court order, capias,
148warrant, injunction, or cease and desist order, in the course of
149business regulated under this chapter.
150     (l)  Soliciting business for an attorney in return for
151compensation.
152     (m)  Transferring or attempting to transfer a license
153issued pursuant to this chapter.
154     (n)  Employing or contracting with any unlicensed or
155improperly licensed person or agency to conduct activities
156regulated under this chapter, or performing any act that
157assists, aids, or abets a person or business entity in engaging
158in unlicensed activity, when the licensure status was known or
159could have been ascertained by reasonable inquiry.
160     (o)  Failure or refusal to cooperate with or refusal of
161access to an authorized representative of the department engaged
162in an official investigation pursuant to this chapter.
163     (p)  Failure of any partner, principal corporate officer,
164or licensee to have his or her identification card in his or her
165possession while on duty.
166     (q)  Failure of any licensee to have his or her license in
167his or her possession while on duty, as specified in s.
168493.6111(1).
169     (r)  Failure or refusal by a sponsor to certify a biannual
170written report on an intern or to certify completion or
171termination of an internship to the department within 15 working
172days.
173     (s)  Failure to report to the department any person whom
174the licensee knows to be in violation of this chapter or the
175rules of the department.
176     (t)  Violating any provision of this chapter.
177     (u)  In addition to the grounds for disciplinary action
178prescribed in paragraphs (a)-(t), Class "R" recovery agencies,
179Class "E" recovery agents, and Class "EE" recovery agent interns
180are prohibited from committing the following acts:
181     1.  Recovering a motor vehicle, mobile home, or motorboat,
182aircraft, personal watercraft, all-terrain vehicle, farm
183equipment, or industrial equipment that has been sold under a
184conditional sales agreement or under the terms of a chattel
185mortgage before authorization has been received from the legal
186owner or mortgagee.
187     2.  Charging for expenses not actually incurred in
188connection with the recovery, transportation, storage, or
189disposal of repossessed property a motor vehicle, mobile home,
190motorboat, or personal property obtained in a repossession.
191     3.  Using any motor vehicle, mobile home, or motorboat that
192has been repossessed property, or using personal property
193obtained in a repossession, for the personal benefit of a
194licensee or an officer, director, partner, manager, or employee
195of a licensee.
196     4.  Selling property a motor vehicle, mobile home, or
197motorboat recovered under the provisions of this chapter, except
198with written authorization from the legal owner or the mortgagee
199thereof.
200     5.  Failing to notify the police or sheriff's department of
201the jurisdiction in which the repossessed property is recovered
202within 2 hours after recovery.
203     6.  Failing to remit moneys, collected in lieu of recovery
204of a motor vehicle, mobile home, or motorboat, aircraft,
205personal watercraft, all-terrain vehicle, farm equipment, or
206industrial equipment to the client within 10 working days.
207     7.  Failing to deliver to the client a negotiable
208instrument that is payable to the client, within 10 working days
209after receipt of such instrument.
210     8.  Falsifying, altering, or failing to maintain any
211required inventory or records regarding disposal of personal
212property contained in or on repossessed property a recovered
213motor vehicle, mobile home, or motorboat pursuant to s.
214493.6404(1).
215     9.  Carrying any weapon or firearm when he or she is on
216private property and performing duties under his or her license
217whether or not he or she is licensed pursuant to s. 790.06.
218     10.  Soliciting from the legal owner the recovery of
219property subject to repossession after such property has been
220seen or located on public or private property if the amount
221charged or requested for such recovery is more than the amount
222normally charged for such a recovery.
223     11.  Wearing, presenting, or displaying a badge in the
224course of performing a repossession regulated by this chapter
225repossessing a motor vehicle, mobile home, or motorboat.
226     (2)  When the department finds any violation of subsection
227(1), it may do one or more of the following:
228     (a)  Deny an application for the issuance or renewal of a
229license.
230     (b)  Issue a reprimand.
231     (c)  Impose an administrative fine not to exceed $1,000 for
232every count or separate offense.
233     (d)  Place the licensee on probation for a period of time
234and subject to such conditions as the department may specify.
235     (e)  Suspend or revoke a license.
236     (3)  The department may deny an application for licensure
237citing lack of good moral character only if the finding by the
238department of lack of good moral character is supported by clear
239and convincing evidence.  In such cases, the department shall
240furnish the applicant a statement containing the findings of the
241department, a complete record of the evidence upon which the
242determination was based, and a notice of the rights of the
243applicant to an administrative hearing and subsequent appeal.
244     (4)  Notwithstanding the provisions of paragraph (1)(c) and
245subsection (2):
246     (a)  If the applicant or licensee has been convicted of a
247felony, the department shall deny the application or revoke the
248license unless and until civil rights have been restored by the
249State of Florida or by a state acceptable to Florida and a
250period of 10 years has expired since final release from
251supervision.
252     (b)  A Class "G" applicant who has been convicted of a
253felony shall also have had the specific right to possess, carry,
254or use a firearm restored by the State of Florida.
255     (c)  If the applicant or licensee has been found guilty of,
256entered a plea of guilty to, or entered a plea of nolo
257contendere to a felony and adjudication of guilt is withheld,
258the department shall deny the application or revoke the license
259until a period of 3 years has expired since final release from
260supervision.
261     (d)  A plea of nolo contendere shall create a rebuttable
262presumption of guilt to the underlying criminal charges, and the
263department shall allow the person being disciplined or denied an
264application for a license to present any mitigating
265circumstances surrounding his or her plea.
266     (e)  The grounds for discipline or denial cited in this
267subsection shall be applied to any disqualifying criminal
268history regardless of the date of commission of the underlying
269criminal charge.  Such provisions shall be applied retroactively
270and prospectively.
271     (5)  Upon revocation or suspension of a license, the
272licensee shall forthwith return the license which was suspended
273or revoked.
274     (6)  The agency license and the approval or license of each
275officer, partner, or owner of the agency are automatically
276suspended upon entry of a final order imposing an administrative
277fine against the agency, until the fine is paid, if 30 calendar
278days have elapsed since the entry of the final order. All owners
279and corporate or agency officers or partners are jointly and
280severally liable for agency fines. Neither the agency license or
281the approval or license of any officer, partner, or owner of the
282agency may be renewed, nor may an application be approved if the
283owner, licensee, or applicant is liable for an outstanding
284administrative fine imposed under this chapter. An individual's
285approval or license becomes automatically suspended if a fine
286imposed against the individual or his or her agency is not paid
287within 30 days after the date of the final order, and remains
288suspended until the fine is paid. Notwithstanding the provisions
289of this subsection, an individual's approval or license may not
290be suspended nor may an application be denied when the licensee
291or the applicant has an appeal from a final order pending in any
292appellate court.
293     (7)  An applicant or licensee shall be ineligible to
294reapply for the same class of license for a period of 1 year
295following final agency action resulting in the denial or
296revocation of a license applied for or issued under this
297chapter. This time restriction shall not apply to administrative
298denials wherein the basis for denial was:
299     (a)  An inadvertent error or omission on the application;
300     (b)  The experience documented by the department was
301insufficient at the time of application;
302     (c)  The department was unable to complete the criminal
303background investigation due to insufficient information from
304the Department of Law Enforcement, the Federal Bureau of
305Investigation, or any other applicable law enforcement agency;
306or
307     (d)  Failure to submit required fees.
308     Section 5.  Paragraphs (b) and (c) of subsection (1) of
309section 493.6403, Florida Statutes, are amended to read:
310     493.6403  License requirements.--
311     (1)  In addition to the license requirements set forth in
312this chapter, each individual or agency shall comply with the
313following additional requirements:
314     (b)  An applicant for Class "MR" license shall have at
315least 1 year of lawfully gained, verifiable, full-time
316experience as a Class "E" licensee performing repossessions of
317motor vehicles, mobile homes, or motorboats, aircraft, personal
318watercraft, all-terrain vehicles, farm equipment, or industrial
319equipment.
320     (c)  An applicant for a Class "E" license shall have at
321least 1 year of lawfully gained, verifiable, full-time
322experience in one, or a combination of more than one, of the
323following:
324     1.  Repossession of motor vehicles as defined in s.
325320.01(1), mobile homes as defined in s. 320.01(2), or
326motorboats as defined in s. 327.02, aircraft as defined in s.
327330.27(1), personal watercraft as defined in s. 327.02, all-
328terrain vehicles as defined in s. 316.2074, farm equipment as
329defined under s. 686.402, or industrial equipment as defined in
330493.6101(22).
331     2.  Work as a Class "EE" licensed intern.
332     Section 6.  Subsection (1) of section 493.6404, Florida
333Statutes, is amended to read:
334     493.6404  Property inventory; vehicle license
335identification numbers.--
336     (1)  If personal effects or other property not covered by a
337security agreement are contained in or on a recovered vehicle,
338mobile home, or motorboat, aircraft, personal watercraft, all-
339terrain vehicle, farm equipment, or industrial equipment at the
340time it is recovered, a complete and accurate inventory shall be
341made of such personal effects or property. The date and time the
342inventory is made shall be indicated, and it shall be signed by
343the Class "E" or Class "EE" licensee who obtained the personal
344property. The inventory of the personal property and the records
345regarding any disposal of personal property shall be maintained
346for a period of 2 years in the permanent records of the licensed
347agency and shall be made available, upon demand, to an
348authorized representative of the department engaged in an
349official investigation.
350     Section 7.  Section 493.6405, Florida Statutes, is amended
351to read:
352     493.6405  Sale of motor vehicle, mobile home, or motorboat,
353aircraft, personal watercraft, all-terrain vehicle, farm
354equipment, or industrial equipment by a licensee; penalty.--
355     (1)  A Class "E" or Class "EE" licensee shall obtain, prior
356to sale, written authorization and a negotiable title from the
357owner or lienholder to sell any repossessed motor vehicle,
358mobile home, or motorboat, aircraft, personal watercraft, all-
359terrain vehicle, farm equipment, or industrial equipment.
360     (2)  A Class "E" or Class "EE" licensee shall send the net
361proceeds from the sale of such repossessed motor vehicle, mobile
362home, or motorboat, aircraft, personal watercraft, all-terrain
363vehicle, farm equipment, or industrial equipment to the owner or
364lienholder, within 20 working days after the licensee executes
365the documents which permit the transfer of legal ownership to
366the purchaser.
367     (3)  A person who violates a provision of this section
368commits a felony of the third degree, punishable as provided in
369s. 775.082, s. 775.083, or s. 775.084.
370     Section 8.  This act shall take effect October 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.