Florida Senate - 2009 COMMITTEE AMENDMENT
Bill No. CS for SB 2700
Barcode 538616
LEGISLATIVE ACTION
Senate . House
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The Committee on Finance and Tax (Ring) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5
6 Section 1. Paragraph (f) of subsection (1) of section
7 538.03, Florida Statutes, is amended to read;
8 538.03 Definitions; applicability.—
9 (1) As used in this part, the term:
10 (f) “Secondhand goods” means personal property previously
11 owned or used, which is not regulated metals property regulated
12 under part II and which is purchased, consigned, or traded as
13 used property. Such secondhand goods do not include office
14 furniture, pianos, books, clothing, organs, coins, motor
15 vehicles, costume jewelry, exercise equipment, and secondhand
16 sports equipment that is not permanently labeled with a serial
17 number. For purposes of this paragraph, “secondhand sports
18 equipment” does not include golf clubs.
19 Section 2. Part III of chapter 538, Florida Statutes,
20 consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35,
21 538.36, and 538.37, is created to read:
22 Part III
23 MAIL-IN SECONDHAND PRECIOUS METALS DEALERS
24 538.31 Definitions; applicability.—
25 (1) As used in this part, the term:
26 (a) “Department” means the Department of Revenue.
27 (b) “Jewelry” means a personal ornament that contains
28 precious metals and may contain gemstones.
29 (c) “Mail-in secondhand precious metals dealer” means any
30 person or entity that:
31 1. Conducts business within this state and that contracts
32 with other persons or entities to buy precious metals or jewelry
33 through an Internet website, the United States mail, or
34 telemarketing; or
35 2. Conducts business within this state and regularly
36 engages in the business of purchasing jewelry or precious metals
37 through the mail or Internet-based transactions.
38 (d) “Precious metals” means any item containing any gold,
39 silver, or platinum, or any combination thereof.
40 (e) “Seller” means any person or entity offering precious
41 metals or jewelry for purchase which belong solely to that
42 person or entity and has absolute authority to sell such goods.
43 (f) “Transaction” includes any event relating to the
44 purchase of secondhand precious metals or jewelry by a mail-in
45 secondhand precious metals dealer.
46 (2) This part does not apply to:
47 (a) Any person or entity that is available to the public
48 for walk-in business and regulated under part I.
49 (b) The purchase, consignment, or trade of secondhand
50 precious metals or jewelry with another mail-in secondhand
51 precious metals dealer or secondhand dealer regulated under part
52 I.
53 538.32 Registration, transaction, and recordkeeping
54 requirements; penalties.—
55 (1) A mail-in secondhand precious metals dealer may not
56 conduct business under this part without registering with the
57 department and complying with all registration regulations as
58 set forth in s. 538.09.
59 (2) A mail-in secondhand precious metals dealer may not
60 remit payment to a seller unless the seller has provided the
61 following information:
62 (a) The seller’s name, address, telephone number, and e
63 mail address, if available.
64 (b) The seller’s driver’s license number and issuing state
65 or other government-issued identification number.
66 (c) A sworn statement made by the seller that the seller is
67 of lawful age and that the driver’s license number or other
68 government-issued identification number and other identifying
69 information provided by the seller is true and correct and that
70 the seller is the lawful owner of the goods with absolute
71 authority to sell the goods. The statement must include the
72 following language: “I declare under penalty of perjury that the
73 foregoing is true and correct.”
74 (3) For every transaction, the secondhand dealer must keep
75 a record of the following:
76 (a) A complete and accurate description of the seller’s
77 goods, including:
78 1. Precious metal type, or, if jewelry, the type of
79 jewelry.
80 2. Any other unique identifying marks, numbers, or letters.
81 The description must be in an electronic format agreed upon by
82 the dealer and the appropriate law enforcement agency.
83 (b) The date that the seller’s goods were received by the
84 mail-in secondhand precious metals dealer.
85
86 This information must be provided to the appropriate law
87 enforcement agency within 24 hours after entering into the
88 contract unless other arrangements are made between the business
89 and the law enforcement agency.
90 (4) For every transaction, pictures of the secondhand goods
91 which are the subject of the transaction must be available
92 online for electronic viewing, via a website accessible by
93 username and password only, by a law enforcement agency at no
94 charge. In addition, the electronic files must be searchable by
95 a law enforcement agency for queries concerning property
96 descriptions, secondhand dealer transaction information, and the
97 seller’s personal identification including address, state of
98 residence and zip code.
99 (5) The mail-in secondhand precious metals dealer must
100 maintain, for a period of not less than 2 years, all information
101 under subsections (2) and (3) and all records of any transaction
102 between the dealer and seller in a form that is easily
103 retrievable upon request by a law enforcement agency.
104 (6) The mail-in secondhand precious metals dealer must
105 provide the appropriate law enforcement agency with an
106 electronic copy of the name, address, phone number, driver’s
107 license number, or government-issued identification number, and
108 issuing state of the person from whom the dealer purchased or
109 acquired the precious metals or jewelry.
110 (7)(a) If the seller fails to provide the information
111 required under s. 538.32(2)(a) and (b), the secondhand dealer
112 may verify the identity and information of the seller through a
113 national provider of personal identification verification
114 services. Evidence from the personal identification verification
115 service must be maintained by the secondhand dealer and
116 available for review by a law enforcement agency upon request.
117 (b) Alternatively, a secondhand dealer must give written
118 notice to the seller, by United States mail or e-mail if an e
119 mail address is provided by the seller, that information
120 otherwise required to be given by seller under s. 538.32(2) has
121 not been provided by the seller to the secondhand dealer. Notice
122 of the deficient information must be sent by the secondhand
123 dealer no later than 10 days after the transaction is received
124 by the secondhand dealer. The secondhand dealer must specify in
125 the notice that:
126 1. The seller must provide the missing information or must
127 request the return of the property from the secondhand dealer
128 within 30 days after receiving the notice from the secondhand
129 dealer; and
130 2. The failure of the seller to provide the missing
131 information or request return of the property within the
132 applicable 30-day time period shall result in abandonment of the
133 seller’s property to the Bureau of Unclaimed Property of the
134 Department of Financial Services pursuant to chapter 717.
135 (c) If the seller fails to remedy the deficiency in
136 information or request return of the property within 30 days
137 after receiving the notice, the seller’s property is deemed
138 abandoned and is relinquished to the Bureau of Unclaimed
139 Property pursuant to under chapter 717 if the property’s true
140 market value is greater than $50 as defined in chapter 717.
141 (d) Within 24 hours after the expiration of the 30-day hold
142 period for the property, the secondhand dealer must notify the
143 appropriate law enforcement agency of the abandonment of the
144 property by electronic transmission or by sending a copy of the
145 completed form authorized by chapter 717 to the Department of
146 Financial Services, Bureau of Unclaimed Property.
147 (8)(a) If there is probable cause that goods held by a
148 secondhand dealer are stolen, the law enforcement agency with
149 jurisdiction over the secondhand dealer may place a 90-day
150 written hold order on the goods and may take possession of the
151 goods from the dealer during the 90-day hold period. The 90-day
152 hold period may be extended beyond 90 days by a court of
153 competent jurisdiction upon a finding of probable cause that the
154 property is stolen and further holding is necessary for the
155 purpose of trial or to safeguard the property.
156 (b) If the secondhand dealer maintains possession of the
157 goods during any hold period, the secondhand dealer assumes all
158 responsibility, civil and criminal, for the safekeeping of the
159 property or evidence in question, including responsibility for
160 the actions of any employee of the dealer.
161 (c) While a hold order is in effect, the secondhand dealer
162 must, if in possession of the goods, release the property
163 subject to the hold order to the custody of a law enforcement
164 agency for use in a criminal investigation. Release of the
165 property to the law enforcement agency is not considered a
166 waiver or release of the secondhand dealer’s rights or interest
167 in the property unless the secondhand dealer is not owed
168 restitution for the property.
169 (d) The property must be returned to the secondhand dealer
170 upon completion of the criminal proceeding unless the court
171 orders an alternative disposition or the secondhand dealer is
172 not due restitution for the property. When another disposition
173 is ordered, the court shall additionally order the person from
174 whom the secondhand dealer acquired the property to pay
175 restitution to the secondhand dealer in the amount that the
176 secondhand dealer paid for the property together with reasonable
177 attorney’s fees and costs.
178 (9) If a secondhand dealer contests the identification or
179 ownership of the property, the person alleging ownership of the
180 property may, if a timely report of the theft of the goods was
181 made to the proper authorities, bring an action for replevin in
182 the county or circuit court by petition in substantially the
183 following form:
184 (a) Plaintiff A. B., sues defendant C. D., and alleges:
185 1. This is an action to recover possession of personal
186 property in _______________ County, Florida.
187 2. The description of the property is: (list property). To
188 the best of plaintiff’s knowledge, information, and belief, the
189 value of the property is $_______________.
190 3. Plaintiff is entitled to the possession of the property
191 under a security agreement dated __________, (year), a copy of
192 which is attached.
193 4. To plaintiff’s best knowledge, information, and belief,
194 the property is located at ____________________.
195 5. The property is wrongfully detained by defendant.
196 Defendant came into possession of the property by (describe
197 method of possession). To plaintiff’s best knowledge,
198 information, and belief, defendant detains the property because
199 (give reasons).
200 6. The property has not been taken under an execution or
201 attachment against plaintiff’s property.
202 (b) The filing fees shall be waived by the clerk of the
203 court and the service fees shall be waived by the sheriff. The
204 court shall award the prevailing party attorney’s fees and
205 costs. In addition, if the filing party prevails in the replevin
206 action, the court shall order payment of filing fees to the
207 clerk and service fees to the sheriff.
208 (c) Upon the filing of the petition, the court shall set a
209 hearing to be held at the earliest possible time. Upon receipt
210 of a petition for a writ by a secondhand dealer, the dealer
211 shall hold the property at issue until the court determines the
212 respective interests of the parties.
213 (d) In addition to the civil petition for return remedy,
214 the state may file a motion as part of a pending criminal case
215 related to the property. The criminal court has jurisdiction to
216 determine ownership, to order return or other disposition of the
217 property, and to order any appropriate restitution to any
218 person. The order must be entered upon hearing after proper
219 notice has been given to the secondhand dealer, the victim, and
220 the defendant in the criminal case.
221 538.33 Tendering payment.—
222 (1) Any payment by the mail-in secondhand precious metals
223 dealer resulting from the sale, purchase, consignment, or trade
224 of precious metals must be made to the person or entity by check
225 to a lawful bank account or via a money services business
226 licensed under part II of chapter 560.
227 538.34 Inspection of records and premises.—The dealer must
228 allow a law enforcement agency to inspect its business records,
229 inventory, and premises during normal business hours to ensure
230 compliance with this part.
231 538.35 Holding period.—
232 (1) The dealer may not sell, barter, exchange, alter,
233 adulterate, use, or in any way dispose of any goods purchased
234 from a seller within 10 calendar days after the date payment is
235 issued for acquisition of the goods.
236 (2) Records of the sale, purchase, consignment, or trade of
237 precious metals or jewelry must be maintained by the business
238 for at least 2 years after the date of the transaction.
239 538.36 Acts and practices prohibited; penalties.—
240 (1) Any dealer not registered with the department as a
241 mail-in secondhand precious metals dealer, or who fails to
242 comply with this part, commits a felony of the third degree for
243 each completed transaction, punishable as provided in s.
244 775.082, s. 775.083, or s. 775.084. If an officer or corporation
245 is convicted or found guilty of, or pleads nolo contendere to,
246 any such offense, the officer or corporation may not operate
247 thereafter for 1 year as a mail-in secondhand precious metals
248 dealer within the state.
249 (2) Any person who knowingly gives false personal
250 identifying information to the dealer, who provides a driver’s
251 license number or government-issued identification number that
252 does not belong to him or her, or who makes any false statement
253 with respect to being of lawful age or his or her ownership of
254 goods, and who receives payment from the dealer commits:
255 (a) If the value of the money received is less than $300, a
256 felony of the third degree, punishable as provided in s.
257 775.082, s. 775.083, or s. 775.084.
258 (b) If the value of the money received is $300 or more, a
259 felony of the second degree, punishable as provided in s.
260 775.082, s. 775.083, or s. 775.084.
261 (3) The penalty provisions of s. 538.07 apply to any dealer
262 who knowingly violates any provision of this part.
263 538.37 Powers and duties of department.—The department has
264 the authority provided under s. 538.11 in regard to
265 registrations issued under this part.
266 Section 3. This act shall take effect up on becoming law.
267
268 ================= T I T L E A M E N D M E N T ================
269 And the title is amended as follows:
270 Delete everything before the enacting clause
271 and insert:
272 A bill to be entitled
273 An act relating to secondhand dealers; amending s.
274 538.03, F.S.; excluding exercise equipment from the
275 definition of secondhand goods; creating part III of
276 ch. 538, F.S.; providing definitions; providing
277 exceptions; providing for registration; providing for
278 recordkeeping; providing for the tendering of
279 payments; providing for the inspection of records and
280 business premises by a law enforcement agency;
281 providing for a holding period; providing electronic
282 access to transaction files by law enforcement
283 agencies; providing for written notification to seller
284 of transaction deficiencies; providing a method of
285 relinquishment of abandoned property; providing for
286 restitution; providing for replevin; prohibiting
287 certain acts; providing penalties; providing for
288 powers and duties of the Department of Revenue;
289 providing an effective date.