Florida Senate - 2010                             CS for SB 2086
       
       
       
       By the Committee on Banking and Insurance; and Senator Richter
       
       
       
       
       597-03653-10                                          20102086c1
    1                        A bill to be entitled                      
    2         An act relating to consumer debt collection;
    3         reordering and amending s. 559.55, F.S.; revising
    4         definitions relating to the regulation of debt
    5         collection practices; amending s. 559.551, F.S.;
    6         conforming cross-references; amending s. 559.552,
    7         F.S.; revising provisions relating to the relationship
    8         between state and federal law; creating s. 559.5522,
    9         F.S.; providing the powers of the Office of Financial
   10         Regulation; creating s. 559.5524, F.S.; authorizing
   11         the Financial Services Commission to adopt rules;
   12         amending s. 559.553, F.S.; deleting all exemptions
   13         from registration as a consumer collection agency;
   14         amending s. 559.555, F.S.; revising procedures for
   15         registering as a consumer collection agency;
   16         increasing the registration fee; requiring background
   17         screening of applicants and control persons; providing
   18         grounds for registration issuance or denial; requiring
   19         annual renewal; creating s. 559.5551, F.S.; providing
   20         for registration renewal; creating s. 559.5554, F.S.;
   21         requiring a licensee to obtain a surety bond and
   22         provide proof of such bond to the office; creating s.
   23         559.5556, F.S.; requiring a consumer collection agency
   24         to maintain records; repealing s. 559.563, F.S.,
   25         relating to void registrations; amending s. 559.565,
   26         F.S.; increasing the fine against an unregistered
   27         consumer collection agency and adding a fine against
   28         certain debt collectors; providing that a violation of
   29         provisions relating to consumer protection agencies
   30         and debt collectors is actionable by the Attorney
   31         General under the Florida Deceptive and Unfair Trade
   32         Practices Act; providing for attorney’s fees and
   33         costs; creating s. 559.566, F.S.; specifying how a
   34         debt collector may communicate with a consumer;
   35         amending s. 559.715, F.S.; conforming provisions to
   36         changes made by the act; amending s. 559.72, F.S.;
   37         revising prohibited acts, including violations of
   38         communication procedures; specifying acts of
   39         harassment; prohibiting a debt collector from acting
   40         as a debt collector unless such person is an employee
   41         or control person of a registered agency; adding
   42         violations relating to prior criminal acts and failure
   43         to conform with registration requirements; amending s.
   44         559.725, F.S.; revising provisions relating to
   45         consumer complaints about a consumer collection
   46         agency; creating s. 559.726, F.S.; providing for the
   47         issuance of subpoenas by the office; creating s.
   48         559.727, F.S.; authorizing the office to issue cease
   49         and desist orders; amending s. 559.730, F.S.; revising
   50         provisions relating to administrative remedies;
   51         increasing the maximum penalty; authorizing the office
   52         to adopt rules relating to penalty guidelines;
   53         deleting the 2-year limitation on bringing an
   54         administrative action; amending s. 559.77, F.S.;
   55         revising provisions relating to civil remedies;
   56         revising the beginning date for a statute of
   57         limitation; amending s. 559.78, F.S.; revising
   58         provisions relating to judicial enforcement; amending
   59         s. 559.785, F.S.; providing criminal penalties for
   60         failure to obtain licensure; delaying the expiration
   61         of certain registrations of consumer collection
   62         agencies; providing effective dates.
   63  
   64  Be It Enacted by the Legislature of the State of Florida:
   65  
   66         Section 1. Section 559.55, Florida Statutes, is reordered
   67  and amended to read:
   68         559.55 Definitions.—As used in The following terms shall,
   69  unless the context otherwise indicates, have the following
   70  meanings for the purpose of this part, the term:
   71         (1) “Commission” means the Financial Services Commission.
   72         (7)(1) “Debt” or “consumer debt” means any obligation or
   73  alleged obligation of a consumer to pay money arising out of a
   74  transaction in which the money, property, insurance, or services
   75  that which are the subject of the transaction are primarily for
   76  personal, family, or household purposes, whether or not such
   77  obligation has been reduced to judgment.
   78         (3)(2)“Debtor” or “Consumer” means any natural person
   79  obligated or allegedly obligated to pay any debt.
   80         (6)(3) “Creditor” means any person who offers or extends
   81  credit creating a debt or to whom a debt is owed, but does not
   82  include a any person who receives to the extent that they
   83  receive an assignment or transfer of a debt in default solely
   84  for the purpose of facilitating the collection of such debt for
   85  another.
   86         (11)(4) “Office” means the Office of Financial Regulation
   87  of the Financial Services Commission.
   88         (2)(5) “Communication” means the conveying of information
   89  regarding a debt, directly or indirectly, to any person through
   90  any medium.
   91         (8)(6) “Debt collector” means a any person who uses any
   92  instrumentality of commerce within this state or the mails,
   93  whether initiated from within or outside this state, in a any
   94  business whose the principal purpose of which is the collection
   95  of debts, or who regularly collects or attempts to collect,
   96  directly or indirectly, debts owed or due or asserted to be owed
   97  or due another. Notwithstanding paragraph (f), the term “debt
   98  collector” includes a any creditor who, in the process of
   99  collecting her or his own debts, uses any name other than her or
  100  his own which indicates would indicate that a third person is
  101  collecting or attempting to collect such debts. The term does
  102  not include:
  103         (a) An Any officer or employee of a creditor who while, in
  104  the name of the creditor, collects collecting debts for such
  105  creditor;
  106         (b) A Any person while acting as a debt collector for
  107  another person, both of whom are related by common ownership or
  108  affiliated by corporate control, if the person acting as a debt
  109  collector for persons to whom it is so related or affiliated and
  110  if the principal business of such persons is not the collection
  111  of debts;
  112         (c) An Any officer or employee of any federal, state, or
  113  local governmental body to the extent that collecting or
  114  attempting to collect any debt is in the performance of her or
  115  his official duties;
  116         (d) A Any person while serving or attempting to serve legal
  117  process on another any other person in connection with the
  118  judicial enforcement of a any debt;
  119         (e) A Any not-for-profit organization that which, at the
  120  request of consumers, performs bona fide consumer credit
  121  counseling and assists consumers in the liquidation of their
  122  debts by receiving payments from such consumers and distributing
  123  such payments amounts to creditors; or
  124         (f) A Any person collecting or attempting to collect any
  125  debt if owed or due or asserted to be owed or due another to the
  126  extent that such activity is incidental to a bona fide fiduciary
  127  obligation or a bona fide escrow arrangement; concerns a debt
  128  that which was originated by such person; concerns a debt that
  129  which was not in default at the time it was obtained by such
  130  person; or concerns a debt obtained by such person as a secured
  131  party in a commercial credit transaction involving the creditor;
  132  or.
  133         (g) An attorney licensed to practice law in this state who
  134  is collecting a debt asserted to be owed or due another as an
  135  ancillary matter to her or his representation of the debt
  136  collector as a client.
  137         (4)(7) “Consumer collection agency” means a any debt
  138  collector or business entity, employing one or more debt
  139  collectors, which is engaged in the business of soliciting
  140  consumer debts for collection or of collecting consumer debts,
  141  which debt collector or business is not expressly exempted as
  142  set forth in s. 559.553(4).
  143         (5) “Control person” means an individual, partnership,
  144  corporation, trust, or other organization that possesses the
  145  power, directly or indirectly, to direct the management or
  146  policies of a company, whether through ownership of securities,
  147  by contract, or otherwise. The term includes, but is not limited
  148  to:
  149         (a) A company’s executive officers, including the
  150  president, chief executive officer, chief financial officer,
  151  chief operations officer, chief legal officer, chief compliance
  152  officer, director, or other individual having similar status or
  153  functions.
  154         (b) For a corporation, each shareholder who, directly or
  155  indirectly, owns 10 percent or more, or who has the power to
  156  vote 10 percent or more, of a class of voting securities unless
  157  the applicant is a publicly traded company.
  158         (c) For a partnership, all general partners and limited or
  159  special partners who have contributed 10 percent or more, or who
  160  have the right to receive upon dissolution 10 percent or more,
  161  of the partnership’s capital.
  162         (d) For a trust, each trustee.
  163         (e) For a limited liability company, all managing members
  164  and those members who have contributed 10 percent or more, or
  165  who have the right to receive upon dissolution 10 percent or
  166  more, of the partnership’s capital.
  167         (8)“Out-of-state consumer debt collector” means any person
  168  whose business activities in this state involve both collecting
  169  or attempting to collect consumer debt from debtors located in
  170  this state by means of interstate communication originating from
  171  outside this state and soliciting consumer debt accounts for
  172  collection from creditors who have a business presence in this
  173  state. For purposes of this subsection, a creditor has a
  174  business presence in this state if either the creditor or an
  175  affiliate or subsidiary of the creditor has an office in this
  176  state.
  177         (9) “Federal Fair Debt Collection Practices Act” or
  178  Federal Act” means the federal legislation regulating fair debt
  179  collection practices, as set forth in Pub. L. No. 95-109, as
  180  amended and published in 15 U.S.C. ss. 1692 et seq.
  181         (10) “Location information” means a consumer’s place of
  182  residence and his or her telephone number, or the consumer’s
  183  place of employment.
  184         Section 2. Section 559.551, Florida Statutes, is amended to
  185  read:
  186         559.551 Short title.—This part Sections 559.55-559.785 may
  187  be cited as the “Florida Consumer Collection Practices Act.”
  188         Section 3. Section 559.552, Florida Statutes, is amended to
  189  read:
  190         559.552 Relationship of state and federal law.—Nothing in
  191  This part does not shall be construed to limit or restrict the
  192  continued applicability of the federal Fair Debt Collection
  193  Practices Act to consumer collection practices in this state
  194  and. This part is in addition to the requirements and
  195  regulations of the federal act. If there is In the event of any
  196  inconsistency between any provision of this part and any
  197  provision of the federal act, the provision that which is more
  198  protective of the consumer prevails or debtor shall prevail.
  199         Section 4. Section 559.5522, Florida Statutes, is created
  200  to read:
  201         559.5522Powers and duties of the Office of Financial
  202  Regulation; fees.
  203         (1)The office is responsible for the administration and
  204  enforcement of this part.
  205         (2) The office may conduct an investigation of any person
  206  if the office has reason to believe, upon complaint or
  207  otherwise, that any violation of this part may have been
  208  committed or is about to be committed.
  209         (3)All fees, charges, and fines collected pursuant to this
  210  part shall be deposited in the State Treasury to the credit of
  211  the Regulatory Trust Fund under the office.
  212         Section 5. Section 559.5524, Florida Statutes, is created
  213  to read:
  214         559.5524Rules.—The commission may adopt rules to
  215  administer this part, including rules:
  216         (1) Requiring electronic submission of any forms,
  217  documents, or fees required under this part.
  218         (2)Establishing time periods during which an applicant for
  219  registration is barred from registration or a registered
  220  consumer collection agency is barred from renewal due to prior
  221  criminal convictions of, or guilty or nolo contendere pleas by,
  222  any of the applicant’s or registrant’s control persons,
  223  regardless of adjudication.
  224         (a)The rules must provide:
  225         1.Permanent bars for felonies involving money laundering,
  226  breach of trust, dishonesty, embezzlement, fraud, fraudulent
  227  conversion, misappropriation of property, racketeering, or
  228  theft;
  229         2.A 15-year disqualifying period for felonies involving
  230  moral turpitude;
  231         3.A 7-year disqualifying period for all other felonies;
  232  and
  233         4.A 5-year disqualifying period for misdemeanors involving
  234  fraud, dishonesty, or any other act of moral turpitude.
  235         (b)The rules may provide for an additional waiting period
  236  due to dates of imprisonment or community supervision, the
  237  commitment of multiple crimes, and other factors reasonably
  238  related to the applicant’s criminal history.
  239         (c)The rules may provide for mitigating factors for crimes
  240  identified in subparagraph (a)2. However, the mitigation may not
  241  result in a period of disqualification less than 7 years. The
  242  rule may not mitigate the disqualifying periods in subparagraphs
  243  (a)1., (a)3., and (a)4.
  244         (d)An applicant is not eligible for registration until the
  245  expiration of the disqualifying period set by rule.
  246         (e)Section 112.011 is not applicable to eligibility for
  247  registration under this part.
  248         Section 6. Section 559.553, Florida Statutes, is amended to
  249  read:
  250         559.553 Registration of consumer collection agencies
  251  required; exemptions.—
  252         (1)A After January 1, 1994, No person may not shall engage
  253  in business in this state as a consumer collection agency or act
  254  as, advertise, or hold themselves out as a consumer collection
  255  agency continue to do business in this state as a consumer
  256  collection agency without first registering in accordance with
  257  this part, and thereafter maintaining a valid registration. This
  258  applies to a consumer collection agency operating in this state
  259  or from another state, regardless of whether such agency is
  260  registered, licensed, or the equivalent in accordance with the
  261  laws of another state.
  262         (2)Each consumer collection agency doing business in this
  263  state shall register with the office and renew such registration
  264  annually as set forth in s. 559.555.
  265         (3)A prospective registrant shall be entitled to be
  266  registered when registration information is complete on its face
  267  and the applicable registration fee has been paid; however, the
  268  office may reject a registration submitted by a prospective
  269  registrant if the registrant or any principal of the registrant
  270  previously has held any professional license or state
  271  registration which was the subject of any suspension or
  272  revocation which has not been explained by the prospective
  273  registrant to the satisfaction of the office either in the
  274  registration information submitted initially or upon the
  275  subsequent written request of the office. In the event that an
  276  attempted registration is rejected by the office the prospective
  277  registrant shall be informed of the basis for rejection.
  278         (4)This section shall not apply to:
  279         (a)Any original creditor.
  280         (b)Any member of The Florida Bar.
  281         (c)Any financial institution authorized to do business in
  282  this state and any wholly owned subsidiary and affiliate
  283  thereof.
  284         (d)Any licensed real estate broker.
  285         (e)Any insurance company authorized to do business in this
  286  state.
  287         (f)Any consumer finance company and any wholly owned
  288  subsidiary and affiliate thereof.
  289         (g)Any person licensed pursuant to chapter 520.
  290         (h)Any out-of-state consumer debt collector who does not
  291  solicit consumer debt accounts for collection from credit
  292  grantors who have a business presence in this state.
  293         (i)Any FDIC-insured institution or subsidiary or affiliate
  294  thereof.
  295         (5)Any out-of-state consumer debt collector as defined in
  296  s. 559.55(8) who is not exempt from registration by application
  297  of subsection (4) and who fails to register in accordance with
  298  this part shall be subject to an enforcement action by the state
  299  as specified in s. 559.565.
  300         Section 7. Section 559.555, Florida Statutes, is amended to
  301  read:
  302         (Substantial rewording of section. See
  303         s. 559.555, F.S., for present text.)
  304         559.555Registration of consumer collection agency.—
  305         (1)Effective April 1, 2011, each person who acts as a
  306  consumer collection agency must be registered in accordance with
  307  this section.
  308         (2)In order to apply for registration, an applicant must
  309  submit:
  310         (a)A completed registration application form as prescribed
  311  by commission rule which includes the name and principal
  312  business address and e-mail address of the consumer collection
  313  agency.
  314         (b)A nonrefundable registration fee of $600. The
  315  registration fee is nonrefundable and may not be prorated for a
  316  partial year of registration.
  317         (c)Fingerprints for the applicant and each of the
  318  applicant’s control persons in accordance with rules adopted by
  319  the commission.
  320         1.The fingerprints may be submitted to the office, or a
  321  vendor acting on behalf of the office.
  322         2.The office may contract with a third-party vendor to
  323  provide live-scan fingerprinting in lieu of a paper fingerprint
  324  card.
  325         3.A state criminal history background check must be
  326  conducted through the Department of Law Enforcement, and a
  327  federal criminal history background check must be conducted
  328  through the Federal Bureau of Investigation.
  329         4.All fingerprints submitted to the Department of Law
  330  Enforcement must be submitted electronically and entered into
  331  the statewide automated fingerprint identification system
  332  established in s. 943.05(2)(b) and available for use in
  333  accordance with s. 943.05(2)(g) and (h). The office shall pay an
  334  annual fee to the department to participate in the system and
  335  inform the department of any person whose fingerprints are no
  336  longer required to be retained.
  337         5.The costs of fingerprint processing, including the cost
  338  of retaining the fingerprints, shall be borne by the person
  339  subject to the background check.
  340         6.The office is responsible for reviewing the results of
  341  the state and federal criminal history checks and determining
  342  whether the applicant meets registration requirements.
  343         (d) Documentation demonstrating that the surety bond
  344  requirements specified in s. 559.5554 have been satisfied.
  345         (e)Additional information or documentation requested by
  346  the office and required by rule concerning the applicant or a
  347  control person of the applicant. Additional information may
  348  include documentation of pending and prior disciplinary and
  349  criminal history events, including arrest reports and certified
  350  copies of charging documents, plea agreements, judgments and
  351  sentencing documents, documents relating to pretrial
  352  intervention, orders terminating probation or supervised
  353  release, final administrative agency orders, or other comparable
  354  documents that may provide the office with the appropriate
  355  information to determine eligibility for registration.
  356         (3)An application is considered received for the purposes
  357  of s. 120.60 upon the office’s receipt of the completed
  358  application form, required documentation, criminal history
  359  information, the registration application fee, and all
  360  applicable fingerprinting processing fees.
  361         (4)The office shall issue a consumer collection agency
  362  registration to each applicant who is not otherwise ineligible
  363  and who meets the requirements of this section. However, it is a
  364  ground for denial of registration if the applicant or one of the
  365  applicant’s control persons:
  366         (a) Has been found guilty of, regardless of adjudication,
  367  or has entered a plea of nolo contendere or guilty to, any
  368  felony, any crime involving racketeering, fraud, theft,
  369  embezzlement, fraudulent conversion, misappropriation of
  370  property, breach of trust, dishonesty, or any other act of moral
  371  turpitude;
  372         (b)Has committed any violation specified in s. 559.72;
  373         (c) Is the subject of a pending felony criminal prosecution
  374  or a prosecution or an administrative enforcement action, in any
  375  jurisdiction, which involves racketeering, fraud, embezzlement,
  376  fraudulent conversion, misappropriation of property, theft,
  377  dishonesty, breach of trust, or any other act of moral
  378  turpitude;
  379         (d) Pays the office any fee, fine, or other amount with a
  380  check or electronic transmission of funds which fails to clear
  381  the applicant’s financial institution;
  382         (e) Makes a material misstatement on any form, document, or
  383  record required to be submitted under this part or the rules of
  384  the commission; or
  385         (f) Has been the subject of any decision, finding,
  386  injunction, suspension, prohibition, revocation, denial,
  387  judgment, or other adverse action by any state or federal
  388  agency.
  389         (5) A registration issued under this section expires
  390  annually on March 31 unless canceled, suspended, revoked, or
  391  otherwise terminated, and must be renewed as provided under s.
  392  559.5551.
  393         Section 8. Section 559.5551, Florida Statutes, is created
  394  to read:
  395         559.5551Registration renewal.—
  396         (1) To renew a consumer collection agency registration, the
  397  agency must submit:
  398         (a) A completed registration renewal form as prescribed by
  399  commission rule.
  400         (b) Fingerprints in accordance with s. 559.555 for any new
  401  control persons who have not previously been screened.
  402         (c) Any additional information or documentation requested
  403  by the office and required by rule concerning the registrant or
  404  control person of the registrant. Additional information may
  405  include documentation of any pending and prior disciplinary and
  406  criminal history events, including arrest reports and certified
  407  copies of charging documents, plea agreements, judgments and
  408  sentencing documents, documents relating to pretrial
  409  intervention, orders terminating probation or supervised
  410  release, final administrative agency orders, or other comparable
  411  documents that may provide the office with the appropriate
  412  information to determine edibility for renewal of registration.
  413         (d) A nonrefundable renewal fee of $600 and nonrefundable
  414  fee to cover the cost of further fingerprint processing and
  415  retention as set forth in commission rule.
  416         (2) The office may not renew a consumer collection agency
  417  registration unless the registrant continues to meet the minimum
  418  requirements for initial registration under s. 559.555 and
  419  adopted rule.
  420         Section 9. Section 559.5554, Florida Statutes, is created
  421  to read:
  422         559.5554Surety bond.—
  423         (1) Pursuant to an application for registration and renewal
  424  under this part, an applicant must obtain and maintain a surety
  425  bond from a surety company authorized to do business in this
  426  state. The amount and form of the bond shall be specified by
  427  rule and must be at least $50,000 but may not exceed $1 million.
  428  The rule must provide allowances for business volume. The bond
  429  shall be in favor of the state for the use and benefit of any
  430  consumer who suffers or sustains any loss or damage by reason of
  431  any violation of this part.
  432         (2)Pursuant to initial registration and renewal, each
  433  applicant shall furnish to the office:
  434         (a)The original executed surety bond issued by a surety
  435  company authorized to do business in this state.
  436         (b)A statement from the surety company that the premium
  437  for the bond has been paid in full by the applicant.
  438         (c)A statement from the surety company that the bond
  439  issued by the surety company meets the requirements of this
  440  part.
  441         (3)The liability of the surety company under any bond
  442  issued pursuant to this section may not, in the aggregate,
  443  exceed the amount of the bond regardless of the number or amount
  444  of any claims filed or which might be asserted against the
  445  surety on such bond. If multiple claims are filed which
  446  collectively exceed the amount of the bond, the surety may pay
  447  the full amount of the bond to the office and is not further
  448  liable under the bond. The office shall hold such funds for
  449  distribution to claimants and administratively determine and pay
  450  to each claimant a pro rata share of each valid claim made
  451  within 6 months after the date the first claim is filed against
  452  the surety.
  453         Section 10. Section 559.5556, Florida Statutes, is created
  454  to read:
  455         559.5556Maintenance of records.—
  456         (1) Each registered consumer collection agency shall
  457  maintain, at the principal place of business designated on the
  458  registration, all books, accounts, records, and documents
  459  necessary to determine the registrant’s compliance with this
  460  part.
  461         (2) The office may authorize the maintenance of records at
  462  a location other than a principal place of business. The office
  463  may require books, accounts, and records to be produced and
  464  available at a reasonable and convenient location in this state.
  465         (3) The commission may prescribe by rule the minimum
  466  information to be shown in the books, accounts, records, and
  467  documents of registrants so that such records enable the office
  468  to determine the registrant’s compliance with this part.
  469         (4) All books, accounts, records, documents, and receipts
  470  of any debt collection transaction must be preserved and kept
  471  available for inspection by the office for at least 5 years
  472  after the date the transaction is completed. The commission may
  473  prescribe by rule requirements for the destruction of books,
  474  accounts, records, and documents retained by the registrant
  475  after the completion of the 5 years.
  476         Section 11. Section 559.563, Florida Statutes, is repealed.
  477         Section 12. Section 559.565, Florida Statutes, is amended
  478  to read:
  479         (Substantial rewording of section. See
  480         s. 559.565, F.S., for present text.)
  481         559.565Additional enforcement remedies.—The remedies
  482  provided in this section are cumulative to other enforcement and
  483  sanctions provided under this part for any violation of this
  484  part by a consumer collection agency or a debt collector.
  485         (1) A consumer collection agency that is required to be
  486  registered under this part and that collects or attempts to
  487  collect consumer debts without being registered, or a debt
  488  collector who violates s. 559.72(1)(n), is subject to an
  489  administrative fine of up to $25,000, plus reasonable attorney’s
  490  fees and court costs, in any successful action by the state to
  491  collect such fine.
  492         (2) A violation of this part is actionable by the Attorney
  493  General as a violation of the Florida Deceptive and Unfair Trade
  494  Practices Act and such violations are subject to the enforcement
  495  remedies and penalties under part II of chapter 501. The
  496  Attorney General may recover attorney’s fees and costs resulting
  497  from such actions.
  498         Section 13. Section 559.566, Florida Statutes, is created
  499  to read:
  500         559.566Communication.—
  501         (1) In the course of any communication by a debt collector
  502  with any person other than the consumer for the purpose of
  503  acquiring location information about the consumer, the debt
  504  collector must:
  505         (a) Identify himself or herself, state that he or she is
  506  confirming or correcting location information concerning the
  507  consumer, and, only if expressly requested, identify his or her
  508  employer;
  509         (b) Not state that such consumer owes any debt;
  510         (c) Not communicate with such person more than once unless
  511  requested to do so by such person or unless the debt collector
  512  reasonably believes that the earlier response of such person is
  513  erroneous or incomplete and that such person now has correct or
  514  complete location information;
  515         (d) Not communicate by post card; and
  516         (e) Not use any language or symbol on any envelope or in
  517  the contents of any communication effected by the mails or
  518  telegram which indicates that the debt collector is in the debt
  519  collection business or that the communication relates to the
  520  collection of a debt.
  521         (2) Without the prior consent of the consumer given
  522  directly to the debt collector or pursuant to express court
  523  permission, a debt collector may not communicate with a consumer
  524  in connection with the collection of any debt:
  525         (a) At any unusual time or place or a time or place that is
  526  known or should be known to be inconvenient to the consumer. In
  527  the absence of knowledge to the contrary, a debt collector shall
  528  assume that the convenient time for communicating with a
  529  consumer is after 8 a.m. and before 9 p.m. local time at the
  530  consumer’s location.
  531         1. A debt collector may presume that the time a telephone
  532  call is received conforms to the local time zone assigned to the
  533  area code of the number called, unless the debt collector
  534  reasonably believe that the consumer’s telephone is located in a
  535  different time zone.
  536         2. If, such as with toll-free numbers, an area code is not
  537  assigned to a specific geographic area, a debt collector may
  538  presume that the time a telephone call is received conforms to
  539  the local time zone of the consumer’s last known place of
  540  residence, unless the debt collector reasonably believes that
  541  the consumer’s telephone is located in a different time zone;
  542         (b) If the debt collector knows the consumer is represented
  543  by an attorney with respect to such debt and has knowledge of,
  544  or can readily ascertain, such attorney’s name and address;
  545  however, the debt collector may communicate with the consumer if
  546  the attorney fails to respond within 30 days after receiving a
  547  written communication from the debt collector regarding the debt
  548  or the attorney consents to direct communication with the
  549  consumer; or
  550         (c) At the consumer’s place of employment if the debt
  551  collector knows or has reason to know that the consumer’s
  552  employer prohibits the consumer from receiving such
  553  communication at his or her place of employment.
  554         (3) Except as provided in subsection (1), without the prior
  555  consent of the consumer given directly to the debt collector,
  556  pursuant to express court permission, or as reasonably necessary
  557  to effectuate a postjudgment judicial remedy, a debt collector
  558  may not communicate with any person other than a consumer, his
  559  or her attorney, a consumer reporting agency if otherwise
  560  permitted by law, the creditor, the attorney of the creditor, or
  561  the attorney of the debt collector in connection with the
  562  collection of a debt.
  563         (4) If a consumer notifies a debt collector in writing that
  564  the consumer refuses to pay a debt or that the consumer wishes
  565  the debt collector to cease further communication with the
  566  consumer, the debt collector may not communicate further with
  567  the consumer with respect to such debt, except to:
  568         (a) Advise the consumer that the debt collector’s further
  569  efforts are being terminated;
  570         (b) Notify the consumer that the debt collector or creditor
  571  may invoke specified remedies that are ordinarily invoked by
  572  such debt collector or creditor; or
  573         (c) Notify the consumer that the debt collector or creditor
  574  intends to invoke a specified remedy, where applicable. If such
  575  notice from the consumer is made by mail, notification is
  576  complete upon receipt.
  577         (5) For the purpose of this section, the term “consumer”
  578  includes the consumer’s spouse, guardian, executor, or
  579  administrator, or, if the consumer is a minor, a parent.
  580         Section 14. Section 559.715, Florida Statutes, is amended
  581  to read:
  582         559.715 Assignment of consumer debts.—This part does not
  583  prohibit the assignment, by a creditor, of the right to bill and
  584  collect a consumer debt. However, the assignee must give the
  585  consumer debtor written notice of such assignment within 30 days
  586  after the assignment. The assignee is a real party in interest
  587  and may bring an action in a court of competent jurisdiction to
  588  collect a debt that has been assigned to the such assignee and
  589  is in default.
  590         Section 15. Section 559.72, Florida Statutes, is amended to
  591  read:
  592         559.72 Prohibited practices generally.—
  593         (1) In collecting consumer debts, a debt collector may not
  594  no person shall:
  595         (a) Violate the communication requirements of s. 559.566.
  596         (b)(1) Simulate in any manner a law enforcement officer or
  597  a representative of any governmental agency.;
  598         (2)Use or threaten force or violence;
  599         (c)(3) Tell a consumer debtor who disputes a consumer debt
  600  that she or he or any person employing her or him will disclose
  601  to another, orally or in writing, directly or indirectly,
  602  information affecting the consumer’s debtor’s reputation for
  603  credit worthiness without also informing the consumer debtor
  604  that the existence of the dispute will also be disclosed as
  605  required by paragraph (f). subsection (6);
  606         (d)(4) Communicate or threaten to communicate with a
  607  consumer’s debtor’s employer before prior to obtaining final
  608  judgment against the consumer debtor, unless the consumer debtor
  609  gives her or his permission in writing to contact her or his
  610  employer or acknowledges in writing the existence of the debt
  611  after the debt has been placed for collection. However, but this
  612  does shall not prohibit a person from telling the consumer
  613  debtor that her or his employer will be contacted if a final
  614  judgment is obtained.;
  615         (e)(5) Disclose to a person other than the consumer debtor
  616  or her or his family information affecting the consumer’s
  617  debtor’s reputation, whether or not for credit worthiness, with
  618  knowledge or reason to know that the other person does not have
  619  a legitimate business need for the information or that the
  620  information is false.;
  621         (f)(6) Disclose information concerning the existence of a
  622  debt known to be reasonably disputed by the consumer debtor
  623  without disclosing that fact. If a disclosure is made before
  624  prior to such reasonable dispute has having been asserted and
  625  written notice is received from the consumer debtor that any
  626  part of the debt is disputed, and if such dispute is reasonable,
  627  the person who made the original disclosure must shall reveal
  628  upon the request of the consumer debtor within 30 days the
  629  details of the dispute to each person to whom disclosure of the
  630  debt without notice of the dispute was made within the preceding
  631  90 days.;
  632         (g) Engage in any conduct the natural consequence of which
  633  is to harass, oppress, or abuse any person in connection with
  634  the collection of a debt, which includes, but is not limited to:
  635         1. The use or threat of the use of violence or other
  636  criminal means to harm the physical person, reputation, or
  637  property of any person.
  638         2. The use of obscene or profane language or language the
  639  natural consequence of which is to abuse the hearer or reader.
  640         3.The publication of a list of consumers who allegedly
  641  refuse to pay debts, except to a consumer reporting agency.
  642         4. The advertisement for sale of any debt to coerce payment
  643  of the debt.
  644         5.Causing a telephone to ring or engaging any person in
  645  telephone conversation repeatedly or continuously with intent to
  646  annoy, abuse, or harass any person at the called number.
  647         6.Except as provided in s. 559.566(1), the placement of
  648  telephone calls without meaningful disclosure of the caller’s
  649  identity.
  650         (7)Willfully communicate with the debtor or any member of
  651  her or his family with such frequency as can reasonably be
  652  expected to harass the debtor or her or his family, or willfully
  653  engage in other conduct which can reasonably be expected to
  654  abuse or harass the debtor or any member of her or his family;
  655         (8)Use profane, obscene, vulgar, or willfully abusive
  656  language in communicating with the debtor or any member of her
  657  or his family;
  658         (h)(9) Claim, attempt, or threaten to enforce a debt when
  659  such person knows that the debt is not legitimate, or assert the
  660  existence of some other legal right when such person knows that
  661  the right does not exist.;
  662         (i)(10) Use a communication that which simulates in any
  663  manner legal or judicial process or that which gives the
  664  appearance of being authorized, issued, or approved by a
  665  government, governmental agency, or attorney at law, when it is
  666  not.;
  667         (j)(11) Communicate with a consumer debtor under the guise
  668  of an attorney by using the stationery of an attorney or forms
  669  or instruments that which only attorneys are authorized to
  670  prepare.;
  671         (k)(12) Orally communicate with a consumer debtor in such a
  672  manner as to give the false impression or appearance that such
  673  person is or is associated with an attorney.;
  674         (13)Advertise or threaten to advertise for sale any debt
  675  as a means to enforce payment except under court order or when
  676  acting as an assignee for the benefit of a creditor;
  677         (14)Publish or post, threaten to publish or post, or cause
  678  to be published or posted before the general public individual
  679  names or any list of names of debtors, commonly known as a
  680  deadbeat list, for the purpose of enforcing or attempting to
  681  enforce collection of consumer debts;
  682         (l)(15) Refuse to provide adequate identification of
  683  herself or himself or her or his employer or other entity whom
  684  she or he represents when requested to do so by a consumer
  685  debtor from whom she or he is collecting or attempting to
  686  collect a consumer debt.;
  687         (16)Mail any communication to a debtor in an envelope or
  688  postcard with words typed, written, or printed on the outside of
  689  the envelope or postcard calculated to embarrass the debtor. An
  690  example of this would be an envelope addressed to “Deadbeat,
  691  Jane Doe” or “Deadbeat, John Doe”;
  692         (17)Communicate with the debtor between the hours of 9
  693  p.m. and 8 a.m. in the debtor’s time zone without the prior
  694  consent of the debtor;
  695         (18)Communicate with a debtor if the person knows that the
  696  debtor is represented by an attorney with respect to such debt
  697  and has knowledge of, or can readily ascertain, such attorney’s
  698  name and address, unless the debtor’s attorney fails to respond
  699  within a reasonable period of time to a communication from the
  700  person, unless the debtor’s attorney consents to a direct
  701  communication with the debtor, or unless the debtor initiates
  702  the communication; or
  703         (m)(19) Cause a consumer to be charged charges to be made
  704  to any debtor for communications by concealing concealment of
  705  the true purpose of the communication, including collect
  706  telephone calls and telegram fees.
  707         (n) Act as a debt collector unless he or she is an employee
  708  or a control person of a consumer collection agency registered
  709  under this part.
  710         (2) The office may take any actions permitted under s.
  711  559.730 if the consumer collection agency:
  712         (a) Has been found guilty of, regardless of adjudication,
  713  or has entered a plea of nolo contendere or guilty to, any
  714  felony, any crime involving racketeering, fraud, breach of
  715  trust, theft, embezzlement, fraudulent conversion,
  716  misappropriation of property, dishonesty, or any other acts of
  717  moral turpitude.
  718         (b) Fails to maintain the surety bond required pursuant to
  719  s. 559.5554.
  720         (c) Fails to maintain books, records, or other documents
  721  required by this part and the rules of the commission.
  722         (d) Fails to permit an investigation of books and records
  723  by the office, or fails to comply with an office subpoena or
  724  subpoena duces tecum.
  725         (e) Fails to report on a form prescribed by commission rule
  726  any change to information contained in any initial application
  727  form or any amendment to the application within 30 days after
  728  the change is effective.
  729         (f) Fails to comply with any rule or order adopted pursuant
  730  to this part, or any written agreement entered into with the
  731  office.
  732         (g) Fails to comply with, or violates, any other provision
  733  of this part.
  734         (h) Pays the office any fee, fine, or other amount with a
  735  check or electronic transmission of funds which fails to clear
  736  the applicant’s or registrant’s financial institution.
  737         (i) Makes a material misstatement on any form, document, or
  738  record required to be submitted under this part or the rules of
  739  the commission.
  740         (j) Has been the subject of any decision, finding,
  741  injunction, suspension, prohibition, revocation, denial,
  742  judgment, or other adverse action by any state or federal
  743  agency.
  744         (3) A violation of this section by a control person,
  745  employee, or agent of a consumer collection agency shall be
  746  treated as a violation by the consumer collection agency.
  747         Section 16. Section 559.725, Florida Statutes, is amended
  748  to read:
  749         559.725 Consumer complaints; administrative duties.—
  750         (1) The office division of Consumer Services of the
  751  department of Financial Services shall receive and maintain
  752  serve as the registry for receiving and maintaining records of
  753  inquiries, correspondence, and complaints from consumers
  754  concerning any and all persons who collect debts, including
  755  consumer collection agencies.
  756         (2)The division shall classify complaints by type and
  757  identify the number of written complaints against persons
  758  collecting or attempting to collect debts in this state,
  759  including credit grantors collecting their own debts, debt
  760  collectors generally, and, specifically, consumer collection
  761  agencies as distinguished from other persons who collect debts
  762  such as commercial debt collection agencies regulated under part
  763  V of this chapter. The division shall identify the nature and
  764  number of various kinds of written complaints, including
  765  specifically those alleging violations of s. 559.72.
  766         (2)(3) The office division shall inform and furnish
  767  relevant information to the appropriate regulatory body of the
  768  state or the Federal Government, or The Florida Bar in the case
  769  of attorneys, if a person when any consumer debt collector
  770  exempt from registration under this part has been named in a
  771  five or more written consumer complaint complaints alleging
  772  violations of s. 559.72 within a 12-month period.
  773         (4)The division shall furnish a form to each complainant
  774  whose complaint concerns an alleged violation of s. 559.72 by a
  775  consumer collection agency. Such form may be filed with the
  776  office. The form shall identify the accused consumer collection
  777  agency and provide for the complainant’s summary of the nature
  778  of the alleged violation and facts which allegedly support the
  779  complaint. The form shall include a provision for the
  780  complainant to state under oath before a notary public that the
  781  allegations therein made are true.
  782         (5)Upon receipt of such sworn complaint, the office shall
  783  promptly furnish a copy of the sworn complaint to the accused
  784  consumer collection agency.
  785         (3)(6) The office shall investigate sworn complaints by
  786  direct written communication with the complainant and the
  787  affected consumer collection agency. In addition, the office
  788  shall attempt to resolve each sworn complaint and shall record
  789  the resolution of such complaints.
  790         (7)Periodically, the office shall identify consumer
  791  collection agencies that have unresolved sworn consumer
  792  complaints from five or more different consumers within a 12
  793  month period under the provisions of this part.
  794         (8)The office shall issue a written warning notice to the
  795  accused consumer collection agency if the office is unable to
  796  resolve all such sworn complaints and fewer than five unresolved
  797  complaints remain. Such notice shall include a statement that
  798  the warning may constitute evidence in any future investigation
  799  of similar complaints against that agency and in any future
  800  administrative determination of the imposition of other
  801  administrative remedies available to the office under this part.
  802         (9)The office may issue a written reprimand when five or
  803  more such unresolved sworn complaints against a consumer
  804  collection agency collectively fall short of constituting
  805  apparent repeated violations that warrant more serious
  806  administrative sanctions. Such reprimand shall include a
  807  statement that the reprimand may constitute evidence in any
  808  future investigation of similar complaints against that agency
  809  and in any future administrative determination of the imposition
  810  of other administrative remedies available to the office.
  811         (10)The office shall issue a notice of intent either to
  812  revoke or suspend the registration or to impose an
  813  administrative fine when the office preliminarily determines
  814  that repeated violations of s. 559.72 by an accused registrant
  815  have occurred which would warrant more serious administrative
  816  sanctions being imposed under this part. The office shall advise
  817  each registrant of the right to require an administrative
  818  hearing under chapter 120, prior to the agency’s final action on
  819  the matter as authorized by s. 559.730.
  820         (4)(11) The office shall advise the appropriate state
  821  attorney, or the Attorney General in the case of an out-of-state
  822  consumer debt collector, of any determination by the office of a
  823  violation of the requirements of this part by any consumer
  824  collection agency that which is not registered as required by
  825  this part. The office shall furnish the state attorney or
  826  Attorney General with the office’s information concerning the
  827  alleged violations of such requirements.
  828         (5) A registered consumer collection agency must provide a
  829  written response to the office within 20 days after receipt of a
  830  written request from the office for information concerning a
  831  consumer complaint. The response must address the issues and
  832  allegations raised in the complaint. The office may impose an
  833  administrative fine of up to $2,500 per request per day upon any
  834  registrant that fails to comply with this subsection.
  835         Section 17. Section 559.726, Florida Statutes, is created
  836  to read:
  837         559.726Subpoenas.—
  838         (1)The office may:
  839         (a)Issue and serve subpoenas and subpoenas duces tecum to
  840  compel the attendance of witnesses and the production of all
  841  books, accounts, records, and other documents and materials
  842  relevant to an investigation conducted by the office. The
  843  office, or its authorized representative, may administer oaths
  844  and affirmations to any person.
  845         (b)Seek subpoenas or subpoenas duces tecum from any court
  846  to command the appearance of witnesses and the production of
  847  books, accounts, records, and other documents or materials at a
  848  time and place named in the subpoenas, and an authorized
  849  representative of the office may serve such subpoenas.
  850         (2)If there is substantial noncompliance with a subpoena
  851  or subpoena duces tecum issued by the office, the office may
  852  petition the court in the county where the person subpoenaed
  853  resides or has his or her principal place of business for an
  854  order requiring the person to appear, testify, or produce such
  855  books, accounts, records, and other documents as are specified
  856  in the subpoena or subpoena duces tecum.
  857         (3)The office is entitled to the summary procedure
  858  provided in s. 51.011, and the court shall advance such cause on
  859  its calendar. Attorney’s fees and any other costs incurred by
  860  the office to obtain an order granting, in whole or in part, a
  861  petition for enforcement of a subpoena or subpoena duces tecum
  862  shall be taxed against the subpoenaed person, and failure to
  863  comply with such order is a contempt of court.
  864         (4) To aid in the enforcement of this part, the office may
  865  require or permit a person to file a statement in writing, under
  866  oath, or otherwise as the office determines, as to all the facts
  867  and circumstances concerning the matter to be investigated.
  868         Section 18. Section 559.727, Florida Statutes, is created
  869  to read:
  870         559.727Cease and desist orders.—The office may issue and
  871  serve upon any person an order to cease and desist and to take
  872  corrective action if it has reason to believe the person is
  873  violating, has violated, or is about to violate any provision of
  874  this part, any rule or order issued under this part, or any
  875  written agreement between the person and the office. All
  876  procedural matters relating to issuance and enforcement of such
  877  order are governed by the Administrative Procedure Act.
  878         Section 19. Section 559.730, Florida Statutes, is amended
  879  to read:
  880         559.730 Administrative remedies.—
  881         (1) The office may impose an administrative fine against,
  882  or revoke or suspend the registration of a any registrant under
  883  this part who has committed a violation of engaged in repeated
  884  violations which establish a clear pattern of abuse of
  885  prohibited collection practices under s. 559.72. Final office
  886  action to fine, suspend, or revoke or suspend the registration
  887  of a any registrant is shall be subject to review in accordance
  888  with chapter 120 in the same manner as revocation of a license.
  889  The repeated violations of the law by one employee shall not be
  890  grounds for revocation or suspension of the registration of the
  891  employing consumer collection agency, unless the employee is
  892  also the owner of a majority interest in the collection agency.
  893         (2)The registration of a registrant shall not be revoked
  894  or suspended if the registrant shows by a preponderance of the
  895  evidence that the violations were not intentional and resulted
  896  from bona fide error notwithstanding the maintenance of
  897  procedures reasonably adapted to avoid any such error.
  898         (3)The office shall consider the number of complaints
  899  against the registrant in relation to the accused registrant’s
  900  volume of business when determining whether suspension or
  901  revocation is the more appropriate sanction when circumstances
  902  warrant that one or the other should be imposed upon a
  903  registrant.
  904         (2)(4) The office may shall impose suspension rather than
  905  revocation of a registration if when circumstances warrant that
  906  one or the other should be imposed upon a registrant and the
  907  accused registrant demonstrates that the registrant has taken
  908  affirmative steps that which can be expected to effectively
  909  eliminate the repeated violations and that the registrant’s
  910  registration has never been previously been suspended.
  911         (3)(5)In addition to, or in lieu of suspension or
  912  revocation of a registration, the office may impose an
  913  administrative fine of up to $25,000 per violation $1,000
  914  against a the offending registrant as a sanction for repeated
  915  violations of the provisions of s. 559.72 when violations do not
  916  rise to the level of misconduct governed by subsection (1). The
  917  office shall adopt rules establishing guidelines for imposing
  918  administrative penalties. Final office action to impose an
  919  administrative fine shall be subject to review in accordance
  920  with ss. 120.569 and 120.57.
  921         (6)Any administrative fine imposed under this part shall
  922  be payable to the office. The office shall maintain an
  923  appropriate record and shall deposit such fine into the
  924  Regulatory Trust Fund of the office.
  925         (7)An administrative action by the office to impose
  926  revocation, suspension, or fine shall be brought within 2 years
  927  after the date of the last violation upon which the action is
  928  founded.
  929         (4)(8)Nothing in This part does not shall be construed to
  930  preclude any person from pursuing remedies available under the
  931  Federal Fair Debt Collection Practices Act for any violation of
  932  such act, including specifically against any person who is
  933  exempt from the registration provisions of this part.
  934         Section 20. Section 559.77, Florida Statutes, is amended to
  935  read:
  936         559.77 Civil remedies.—
  937         (1) A consumer debtor may bring a civil action against a
  938  debt collector or consumer collection agency, or both, for a
  939  debt collector’s violation person violating the provisions of s.
  940  559.72(1) 559.72 in a court of competent jurisdiction of the
  941  county in which the alleged violator resides or has his or her
  942  principal place of business or in the county wherein the alleged
  943  violation occurred.
  944         (2) Upon adverse adjudication, the defendant is shall be
  945  liable for actual damages and for additional statutory damages
  946  of up to $1,000, together with court costs and reasonable
  947  attorney’s fees incurred by the plaintiff. In determining the
  948  defendant’s liability for any additional statutory damages, the
  949  court shall consider the nature of the defendant’s noncompliance
  950  with s. 559.72(1) 559.72, the frequency and persistence of such
  951  noncompliance, and the extent to which such noncompliance was
  952  intentional. In a any class action lawsuit brought under this
  953  section, the court may award additional statutory damages of up
  954  to $1,000 for each named plaintiff and an aggregate award of
  955  additional statutory damages up not to exceed the lesser of
  956  $500,000 or 1 percent of the defendant’s net worth for all
  957  remaining class members; however, the, but in no event may this
  958  aggregate award may not provide an individual class member with
  959  additional statutory damages in excess of $1,000. The court may,
  960  in its discretion, award punitive damages and may provide such
  961  equitable relief as it deems necessary or proper, including
  962  enjoining the defendant from further violations of this part. If
  963  the court finds that the suit fails to raise a justiciable issue
  964  of law or fact, the plaintiff is shall be liable for court costs
  965  and reasonable attorney’s fees incurred by the defendant.
  966         (3) A person may shall not be held liable in any action
  967  brought under this section if the person shows by a
  968  preponderance of the evidence that the violation was not
  969  intentional and resulted from a bona fide error, notwithstanding
  970  the maintenance of procedures reasonably adapted to avoid any
  971  such error.
  972         (4) An action brought under this section must be commenced
  973  within 2 years after the date of the last violation upon which
  974  the action is founded on which the alleged violation occurred.
  975         (5) In applying and construing this section, due
  976  consideration and great weight shall be given to the
  977  interpretations of the Federal Trade Commission and the federal
  978  courts relating to the federal Fair Debt Collection Practices
  979  Act.
  980         Section 21. Section 559.78, Florida Statutes, is amended to
  981  read:
  982         559.78 Judicial enforcement.—In addition to other penalties
  983  provided under in this part, state attorneys and their
  984  assistants may are authorized to apply to the court of competent
  985  jurisdiction within their respective jurisdictions, upon the
  986  sworn affidavit of any person alleging a violation of any of the
  987  provisions of this part. Such court shall have jurisdiction,
  988  upon hearing and for cause shown, to grant a temporary or
  989  permanent injunction restraining any person from violating any
  990  provision of this part, whether or not there exists an adequate
  991  remedy at law,; and such injunction, suspension, or revocation
  992  shall issue without bond.
  993         Section 22. Section 559.785, Florida Statutes, is amended
  994  to read:
  995         559.785 Criminal penalty.—It is a felony of the third shall
  996  be a misdemeanor of the first degree, punishable as provided in
  997  s. 775.082, or s. 775.083, or s. 775.084, for any person not
  998  exempt from registering as provided in this part to engage in
  999  collecting consumer debts in this state without first
 1000  registering with the office, or to register or attempt to
 1001  register by means of fraud, misrepresentation, or concealment.
 1002         Section 23. Expiration of registrations.—
 1003         (1) Effective October 1, 2010, notwithstanding s.
 1004  559.555(3), Florida Statutes, or any other provision of this
 1005  act, all current registrations of consumer collection agencies
 1006  issued by the Office of Financial Regulation which are due to
 1007  expire between October 1 and December 31, 2010, shall
 1008  permanently expire March 31, 2011. No renewals of such
 1009  registrations are permitted.
 1010         (2) Effective January 1, 2011, notwithstanding s.
 1011  559.555(5), Florida Statutes, as amended by this act, all
 1012  registrations issued between January 1, 2011, and March 31,
 1013  2011, expire March 31, 2012.
 1014         Section 24. Except as otherwise expressly provided in this
 1015  act and except for this section, which shall take effect October
 1016  1, 2010, this act shall take effect January 1, 2011.