| 1 | A bill to be entitled | 
| 2 | An act relating to mail-in secondhand dealers of jewelry | 
| 3 | and precious metals; creating part III of ch. 538, F.S.; | 
| 4 | defining terms; excluding certain persons and businesses | 
| 5 | from applicability of the act; providing registration and | 
| 6 | recordkeeping requirements; providing for verification of | 
| 7 | a seller's identification; requiring the seller to present | 
| 8 | a notarized statement to the secondhand dealer that the | 
| 9 | photographic identification is true and accurate under | 
| 10 | certain circumstances; requiring the seller to provide a | 
| 11 | sworn statement that the seller is the lawful owner of the | 
| 12 | jewelry or precious metals that are offered for sale and | 
| 13 | has the authority to sell the jewelry or precious metals; | 
| 14 | prescribing procedures for deficiencies in information | 
| 15 | required to be provided by a seller; providing holding | 
| 16 | periods for jewelry and precious metals; providing | 
| 17 | procedures for returning a seller's jewelry and precious | 
| 18 | metals; providing procedures for notifying a law | 
| 19 | enforcement agency of transactions; prescribing procedures | 
| 20 | for tendering payments; requiring the dealer to remit | 
| 21 | payment to the seller within 2 business days and for the | 
| 22 | seller to acknowledge receipt of payment within 30- | 
| 23 | calendar days; providing for the inspection of records and | 
| 24 | premises by law enforcement agencies; providing holding | 
| 25 | periods for jewelry and precious metals purchased by a | 
| 26 | secondhand dealer; providing requirements for the storage | 
| 27 | of jewelry and precious metals; describing prohibited acts | 
| 28 | and practices; providing criminal penalties; providing for | 
| 29 | a cause of action for stolen jewelry and precious metals; | 
| 30 | providing for a petition for the return of jewelry and | 
| 31 | precious metals; providing for filing fees and award of | 
| 32 | attorney's fees and costs; providing an effective date. | 
| 33 | 
 | 
| 34 | Be It Enacted by the Legislature of the State of Florida: | 
| 35 | 
 | 
| 36 | Section 1.  Part III of chapter 538, Florida Statutes, | 
| 37 | consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35, | 
| 38 | 538.36, 538.37, and 538.38, is created to read: | 
| 39 | Part III | 
| 40 | MAIL-IN SECONDHAND JEWELRY AND PRECIOUS METAL DEALERS | 
| 41 | 538.31  Definitions.--As used in this part, the term: | 
| 42 | (1)  "Department" means the Department of Revenue. | 
| 43 | (2)  "Jewelry" means a personal ornament that contains | 
| 44 | precious metals and may contain gemstones. | 
| 45 | (3)  "Precious metals" means any item containing any gold, | 
| 46 | silver, or platinum, or any combination thereof. | 
| 47 | (4)  "Secondhand dealer" means any person or business | 
| 48 | within this state that regularly engages in the business of | 
| 49 | purchasing jewelry or precious metals only through the mail or | 
| 50 | package delivery service. | 
| 51 | (5)  "Seller" means any person or business that offers | 
| 52 | jewelry or precious metals that belong solely to that person or | 
| 53 | business for sale to another and that person or business has the | 
| 54 | authority to sell the jewelry or precious metals to another. | 
| 55 | (6)  "Transaction" means the purchase of jewelry or | 
| 56 | precious metals by a secondhand dealer. | 
| 57 | 538.32  Applicability.--This part does not apply to: | 
| 58 | (1)  Any person or business that is open to the public for | 
| 59 | walk-in business at a secondhand store and is regulated under | 
| 60 | part I. | 
| 61 | (2)  The purchase, consignment, or trade of jewelry or | 
| 62 | precious metals with another mail-in secondhand jewelry and | 
| 63 | precious metals dealer or secondhand dealer regulated under part | 
| 64 | I. | 
| 65 | 538.33  Registration and recordkeeping requirements.-- | 
| 66 | (1)  A secondhand dealer may not conduct business under | 
| 67 | this part without registering with the department and complying | 
| 68 | with all registration requirements as set forth in s. 538.09. | 
| 69 | (2)  A secondhand dealer may not pay a seller for jewelry | 
| 70 | or precious metals until the seller has provided, on a | 
| 71 | transaction form provided by the secondhand dealer and approved | 
| 72 | by the Department of Law Enforcement, the following information: | 
| 73 | (a)  The seller's name, address of primary residence, | 
| 74 | telephone number, and e-mail address, if available. | 
| 75 | (b)  The seller's thumbprint, free of smudges and smears, | 
| 76 | affixed to a form provided by the secondhand dealer. | 
| 77 | (c)  The seller's driver's license number and issuing | 
| 78 | state. | 
| 79 | (d)  Any other information required by the form approved by | 
| 80 | the Department of Law Enforcement. | 
| 81 | (3)  The seller of jewelry or precious metals shall give | 
| 82 | the secondhand dealer a notarized statement confirming that the | 
| 83 | identification information supplied on the transaction form is | 
| 84 | the same that appears on the seller's driver's license or other | 
| 85 | government-issued identification for which the seller has been | 
| 86 | photographed and that the photo identification presented to the | 
| 87 | notary belongs to the person from whom the secondhand dealer has | 
| 88 | received precious metals or jewelry in exchange for payment if | 
| 89 | any of the following conditions apply: | 
| 90 | (a)  The secondhand dealer has not received a notarized | 
| 91 | statement from the seller in any previous transaction; | 
| 92 | (b)  For any transaction that the seller has evaluated will | 
| 93 | be worth at least $300; or | 
| 94 | (c)  The identification or contact information provided to | 
| 95 | the secondhand dealer by the seller has been altered or changed | 
| 96 | since the seller's most recent transaction with the dealer. | 
| 97 | (4)  The seller must provide a sworn statement made by the | 
| 98 | seller that the seller is the lawful owner of the jewelry or | 
| 99 | precious metals that are offered for sale and has the authority | 
| 100 | to sell the jewelry or precious metals. | 
| 101 | (5)  Before tendering any payment, a secondhand dealer | 
| 102 | shall verify the seller's address of primary residence or | 
| 103 | telephone number by matching the information with the United | 
| 104 | States Postal Service database or a commercial telephone | 
| 105 | directory. If the secondhand dealer is unable to match the | 
| 106 | seller's name and address of primary residence or name and | 
| 107 | telephone number, the secondhand dealer may not complete the | 
| 108 | purchase of the seller's jewelry or precious metals and may | 
| 109 | perform only those transactions that are required to return the | 
| 110 | jewelry or precious metals to the seller. | 
| 111 | (6)(a)  If the seller fails to provide the information | 
| 112 | required on the transaction form under subsection (2), the | 
| 113 | secondhand dealer must give written notice to the seller of the | 
| 114 | deficient information within 15 days after the secondhand dealer | 
| 115 | receives the seller's transaction form. The secondhand dealer | 
| 116 | must request in the notice that the seller provide the missing | 
| 117 | information within 30 days after receiving the secondhand | 
| 118 | dealer's notice. The notice must state that if the seller does | 
| 119 | not provide the missing information within the allotted 30 days, | 
| 120 | the seller's jewelry or precious metals will be held for an | 
| 121 | additional 30 days before they are deemed abandoned and | 
| 122 | relinquished to the state under chapter 717. The same | 
| 123 | notification requirements must apply to any transaction in which | 
| 124 | the seller has failed to acknowledge receipt of funds within 30- | 
| 125 | calendar days after the secondhand dealer's recorded date of | 
| 126 | remittance, as required by s. 538.34(2). | 
| 127 | (b)  If the seller fails to remedy the deficiency in the | 
| 128 | transaction form within 30 days after receiving the notice, the | 
| 129 | secondhand dealer must hold the seller's property for an | 
| 130 | additional 30 days. | 
| 131 | (c)  If the secondhand dealer continues to hold the | 
| 132 | seller's jewelry or precious metals at the end of the 30-day | 
| 133 | holding period required under paragraph (b), the seller's | 
| 134 | property is deemed to be abandoned and must be relinquished to | 
| 135 | the state under chapter 717. | 
| 136 | (d)  After the expiration of the 30-day holding period | 
| 137 | under paragraph (a) or upon abandonment of the seller's | 
| 138 | property, the secondhand dealer must notify the local law | 
| 139 | enforcement agency within 24 hours and the law enforcement | 
| 140 | agency of competent jurisdiction nearest to the seller's address | 
| 141 | of the expiration of the 30-day holding period or the | 
| 142 | abandonment of the property, as applicable. The secondhand | 
| 143 | dealer must provide copies of all written transactions between | 
| 144 | the seller and the secondhand dealer to each law enforcement | 
| 145 | agency in electronic form. | 
| 146 | (e)  During the period in which the secondhand dealer is in | 
| 147 | possession of the seller's jewelry or precious metals, the | 
| 148 | seller may request in writing, or by a consensually recorded | 
| 149 | telephone call, the return of his or her jewelry or precious | 
| 150 | metals. The secondhand dealer must comply with seller's request | 
| 151 | and return the seller's jewelry or precious metals, unless the | 
| 152 | sale of the items is being investigated by a law enforcement | 
| 153 | agency. | 
| 154 | (7)  For every transaction, the secondhand dealer must keep | 
| 155 | a record of: | 
| 156 | (a)  A complete and accurate description of the seller's | 
| 157 | jewelry or precious metals, including: | 
| 158 | 1.  The type, weight, and content of the precious metal, if | 
| 159 | known. | 
| 160 | 2.  A description of the gemstones, including the number | 
| 161 | and size of each stone, if applicable. | 
| 162 | 3.  Any unique identifying marks, numbers, or letters. | 
| 163 | (b)  The date that the seller's jewelry or precious metals | 
| 164 | was received by the secondhand dealer. | 
| 165 | (c)  The date and time of each communication from the | 
| 166 | seller. | 
| 167 | (d)  The telephone number of the seller, as captured by | 
| 168 | caller ID, when communication is made by telephone. | 
| 169 | (e)  A recording of all telephone communication, if | 
| 170 | consented to by the seller. | 
| 171 | (f)  The Internet Protocol (IP) address, date, and time | 
| 172 | when communication is made by e-mail. | 
| 173 | (g)  The date and method of disposition of the jewelry or | 
| 174 | precious metals, as well as a photograph of the jewelry or | 
| 175 | precious metals. | 
| 176 | (h)  A digital photograph of the item sold and of any | 
| 177 | unique identifying mark. | 
| 178 | (8)  The secondhand dealer must maintain, for at least 3 | 
| 179 | years, all information collected pursuant to subsections (2) and | 
| 180 | (7) and all records of any transaction between the dealer and | 
| 181 | the seller in a form that is easily retrievable upon request by | 
| 182 | a law enforcement agency. Any information maintained pursuant to | 
| 183 | this section shall be grouped by each seller's county of primary | 
| 184 | residence and shall be organized in ascending order according to | 
| 185 | the dates on which each transaction occurred. | 
| 186 | (9)  Unless other arrangements have been agreed upon by the | 
| 187 | secondhand dealer and the appropriate law enforcement agency, | 
| 188 | the secondhand dealer shall, within 24 hours after acquiring any | 
| 189 | secondhand goods, deliver to the police department of the | 
| 190 | municipality in which the secondhand dealer is registered or, if | 
| 191 | the secondhand dealer is located outside of a municipality, to | 
| 192 | the sheriff's department of the county in which the secondhand | 
| 193 | dealer is registered, a record of the transaction on a form | 
| 194 | approved by the Department of Law Enforcement. | 
| 195 | 538.34  Tendering payment.-- | 
| 196 | (1)  Except as provided in subsection (3), the secondhand | 
| 197 | dealer shall make payment to the seller by check, payable to the | 
| 198 | seller using only the seller's name and mailed to the seller's | 
| 199 | address of primary residence, as submitted by the seller and | 
| 200 | verified by the dealer under s. 538.33. | 
| 201 | (2)  Upon receipt of all documentation required by the | 
| 202 | seller in s. 538.33(2), the secondhand dealer shall remit | 
| 203 | payment to the seller within 2 business days and shall provide | 
| 204 | written notification to the seller that he or she must | 
| 205 | acknowledge receipt of funds within 30-calendar days by | 
| 206 | depositing or cashing the check issued by the dealer, after | 
| 207 | which the property remitted to the dealer shall be treated as | 
| 208 | provided in s. 538.33(6). | 
| 209 | (3)  Upon request by the seller, a secondhand dealer may | 
| 210 | make payment by wire transfer into a bank account rather than | 
| 211 | payment by check. Before completing a wire transfer, the | 
| 212 | secondhand dealer must obtain a copy of a voided bank check from | 
| 213 | the seller which contains the seller's name, address of primary | 
| 214 | residence, or mailing address, if different from the seller's | 
| 215 | address of primary residence, and bank account number and the | 
| 216 | name of his or her banking institution. The secondhand dealer | 
| 217 | must verify the address on the check through the United States | 
| 218 | Postal Service database, using the same method as set forth in | 
| 219 | s. 538.33, and may make a wire transfer only to the bank account | 
| 220 | that has been verified as the seller's account. | 
| 221 | (4)  The secondhand dealer must make wire transfers only | 
| 222 | through a money transmitter licensed under part II of chapter | 
| 223 | 560. | 
| 224 | 538.35  Inspection of records and premises.--The secondhand | 
| 225 | dealer must allow a law enforcement agency to inspect its | 
| 226 | business records, inventory, and premises during normal business | 
| 227 | hours to ensure compliance with this part. The secondhand | 
| 228 | dealer, upon request, must provide to the law enforcement agency | 
| 229 | any transaction form and all items listed on a transaction form, | 
| 230 | unless the jewelry or precious metals are no longer in the | 
| 231 | possession of the secondhand dealer. | 
| 232 | 538.36  Holding period.-- | 
| 233 | (1)  The secondhand dealer may not sell, barter, exchange, | 
| 234 | alter, adulterate, use, or in any way dispose of any jewelry or | 
| 235 | precious metals purchased from a seller until the seller has | 
| 236 | acknowledged receipt of funds issued to him or her by the dealer | 
| 237 | in exchange for jewelry or precious metals remitted to the | 
| 238 | dealer, or if payment has been wired electronically, within 15- | 
| 239 | calendar days after the dealer has remitted payment to the | 
| 240 | seller in exchange for jewelry or precious metals, except that | 
| 241 | this holding period may be extended for purposes of complying | 
| 242 | with s. 538.33(4) and (6)(e). This holding period terminates if | 
| 243 | the seller demands in writing, or during a consensually recorded | 
| 244 | telephone conversation, the return of the seller's jewelry or | 
| 245 | precious metals and has reimbursed the secondhand dealer for any | 
| 246 | payment paid to the seller for his or her jewelry or precious | 
| 247 | metals. | 
| 248 | (2)  The secondhand dealer must store all precious metals | 
| 249 | and jewelry in a secure location during holding periods and make | 
| 250 | the items available for inspection at the request of a law | 
| 251 | enforcement agency. | 
| 252 | (3)  The secondhand dealer assumes all responsibility of | 
| 253 | any property or evidence in question, including responsibility | 
| 254 | for the actions of his or her employees. | 
| 255 | 538.37  Acts and practices prohibited; penalties.-- | 
| 256 | (1)  A secondhand dealer who is not registered with the | 
| 257 | department as a mail-in secondhand dealer of jewelry and | 
| 258 | precious metals commits a felony of the third degree, punishable | 
| 259 | as provided in s. 775.082, s. 775.083, or s. 775.084, for each | 
| 260 | completed transaction. The officers and corporation, if | 
| 261 | convicted or found guilty of or pled nolo contendere to a | 
| 262 | violation of this section, may not operate thereafter for 1 year | 
| 263 | as a secondhand dealer of jewelry or precious metals within this | 
| 264 | state. | 
| 265 | (2)  A seller who knowingly gives false personal | 
| 266 | identifying information to a secondhand dealer, provides a | 
| 267 | driver's license number that does not belong to him or her, | 
| 268 | provides a thumbprint that is not his or her own, or makes a | 
| 269 | false statement with respect to his or her age or ownership of | 
| 270 | the jewelry or precious metals, and who receives payment from | 
| 271 | the secondhand dealer commits: | 
| 272 | (a)  If the value of the money received is less than $300, | 
| 273 | a felony of the third degree, punishable as provided in s. | 
| 274 | 775.082, s. 775.083, or s. 775.084. | 
| 275 | (b)  If the value of the money received is $300 or greater, | 
| 276 | a felony of the second degree, punishable as provided in s. | 
| 277 | 775.082, s. 775.083, or s. 775.084. | 
| 278 | (3)  Except as otherwise provided in this section, the | 
| 279 | penalty provisions of s. 538.07 apply to any secondhand dealer | 
| 280 | who knowingly violates this part. | 
| 281 | 538.38  Stolen goods; petition for return.-- | 
| 282 | (1)  If a person other than the seller alleges ownership of | 
| 283 | jewelry or precious metals sold to a secondhand dealer, he or | 
| 284 | she may bring an action for replevin in the county or circuit | 
| 285 | court if a timely report of the theft of the secondhand jewelry | 
| 286 | or precious metals was made to the proper authorities. An action | 
| 287 | may be initiated by filing a petition in substantially the | 
| 288 | following form: | 
| 289 | 
 | 
| 290 | Plaintiff A. B., sues defendant C. D., and alleges: | 
| 291 | 1.  This is an action to recover possession of personal | 
| 292 | property in ............ County, Florida. | 
| 293 | 2.  The description of the property is: ...(list and | 
| 294 | describe property).... | 
| 295 | 3.  Plaintiff is entitled to the possession of the property | 
| 296 | as evidenced by ...(indicate evidence such as a receipt or | 
| 297 | contract and attach evidence to petition as Exhibit A).... | 
| 298 | 4.  To plaintiff's best knowledge, information, and belief, | 
| 299 | the property is located at ................. | 
| 300 | 5.  The property is wrongfully detained by defendant. | 
| 301 | Defendant came into possession of the property by ...(describe | 
| 302 | method of possession).... To plaintiff's best knowledge, | 
| 303 | information, and belief, defendant detains the property because | 
| 304 | ...(give reasons).... | 
| 305 | 6.  The property has not been taken under an execution or | 
| 306 | attachment against plaintiff's property. | 
| 307 | (2)  The filing fees shall be waived by the clerk of the | 
| 308 | court, and the service fees shall be waived by the sheriff. The | 
| 309 | court shall award to the prevailing party attorney's fees and | 
| 310 | costs. In addition, if the filing party prevails in the replevin | 
| 311 | action, the court shall order payment of filing fees to the | 
| 312 | clerk and service fees to the sheriff. | 
| 313 | (3)  Upon the filing of the petition, the court shall set a | 
| 314 | hearing to be held at the earliest possible time. Upon the | 
| 315 | receipt of a petition for a writ by a secondhand dealer of | 
| 316 | jewelry and precious metals, the secondhand dealer must hold the | 
| 317 | jewelry or precious metals at issue until the court determines | 
| 318 | the respective interests of the parties. | 
| 319 | (4)  In addition to the civil petition for return remedy, | 
| 320 | the state may file a motion as part of a pending criminal case | 
| 321 | related to the jewelry or precious metals. The criminal court | 
| 322 | has jurisdiction to determine ownership, to order return or | 
| 323 | other disposition of the jewelry or precious metals, and to | 
| 324 | order any appropriate restitution to any person. The order must | 
| 325 | be entered upon hearing after proper notice has been given to | 
| 326 | the secondhand dealer, the victim, and the defendant in the | 
| 327 | criminal case. | 
| 328 | Section 2.  This act shall take effect July 1, 2009. |