Florida Senate - 2012                       CS for CS for SB 860
       
       
       
       By the Committees on Governmental Oversight and Accountability;
       and Judiciary; and Senator Wise
       
       
       
       585-03771-12                                           2012860c2
    1                        A bill to be entitled                      
    2         An act relating to clerks of court; amending s. 28.13,
    3         F.S.; providing requirements for storage of electronic
    4         filings; requiring papers and electronic filings to be
    5         electronically time stamped; amending s. 28.222, F.S.;
    6         authorizing the clerk to remove sealed or expunged
    7         court records from the Official Records; amending s.
    8         28.24, F.S.; revising provisions concerning an
    9         exemption from charges for services provided to
   10         specified officials and their staffs; amending s.
   11         28.244, F.S.; increasing the threshold amount for
   12         automatic repayment of overpayments; amending s.
   13         28.345, F.S.; providing for access to clerks’ files by
   14         state agencies and an exemption from copying fees and
   15         charges; limiting to official use only the application
   16         of an exemption from payment of fees and charges
   17         assessed by clerks of circuit courts; amending s.
   18         28.37, F.S.; providing an exception for certain
   19         specified penalties or fines that would otherwise be
   20         deposited into the clerk’s Public Records
   21         Modernization Trust Fund; amending s. 50.041, F.S.;
   22         authorizing the use of electronic proof of publication
   23         affidavits; amending s. 119.0714, F.S.; requiring
   24         certain persons to provide specific information to the
   25         clerk to maintain the public records exemption status
   26         of certain information under specified provisions;
   27         amending s. 197.542, F.S.; authorizing the clerk to
   28         issue a refund to the depositor for redeemed property
   29         subject to a tax sale; providing an effective date.
   30  
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Section 28.13, Florida Statutes, is amended to
   34  read:
   35         28.13 To keep Papers and electronic filings.—The clerk of
   36  the circuit court shall keep all papers and electronic filings
   37  filed in the clerk’s office with the utmost care and security,
   38  storing them in association with related case arranged in
   39  appropriate files and affixing a stamp to the submission
   40  indicating (endorsing upon each the date and time when the
   41  submission same was filed. The clerk), and shall not permit any
   42  attorney or other person to remove documents, take papers once
   43  filed, from the control or custody out of the office of the
   44  clerk without leave of the court, except as otherwise is
   45  hereinafter provided by law.
   46         Section 2. Subsections (4) through (6) of section 28.222,
   47  Florida Statutes, are renumbered as subsections (5) through (7),
   48  respectively, and a new subsection (4) is added to that section
   49  to read:
   50         28.222 Clerk to be county recorder.—
   51         (4) The county recorder shall remove recorded court
   52  documents from the Official Records pursuant to a sealing or
   53  expunction order.
   54         Section 3. Section 28.24, Florida Statutes, is amended to
   55  read:
   56         28.24 Service charges by clerk of the circuit court.—The
   57  clerk of the circuit court shall charge for services rendered by
   58  the clerk’s office in recording documents and instruments and in
   59  performing the duties enumerated in amounts not to exceed those
   60  specified in this section, except as provided in s. 28.345.
   61  Notwithstanding any other provision of this section, the clerk
   62  of the circuit court shall provide without charge to the state
   63  attorney, public defender, guardian ad litem, public guardian,
   64  attorney ad litem, criminal conflict and civil regional counsel,
   65  and private court-appointed counsel paid by the state, and to
   66  the authorized staff acting on behalf of each, access to and a
   67  copy of any public record, if the requesting party is entitled
   68  by law to view the exempt or confidential record, as maintained
   69  by and in the custody of the clerk of the circuit court as
   70  provided in general law and the Florida Rules of Judicial
   71  Administration. The clerk of the circuit court may provide the
   72  requested public record in an electronic format in lieu of a
   73  paper format when capable of being accessed by the requesting
   74  entity.
   75  
   76  Charges
   77  
   78         (1) For examining, comparing, correcting, verifying, and
   79  certifying transcripts of record in appellate proceedings,
   80  prepared by attorney for appellant or someone else other than
   81  clerk, per page.............................................5.00
   82         (2) For preparing, numbering, and indexing an original
   83  record of appellate proceedings, per instrument.............3.50
   84         (3) For certifying copies of any instrument in the public
   85  records.....................................................2.00
   86         (4) For verifying any instrument presented for
   87  certification prepared by someone other than clerk, per page3.50
   88         (5)(a) For making copies by photographic process of any
   89  instrument in the public records consisting of pages of not more
   90  than 14 inches by 8 1/2 inches, per page....................1.00
   91         (b) For making copies by photographic process of any
   92  instrument in the public records of more than 14 inches by 8 1/2
   93  inches, per page............................................5.00
   94         (6) For making microfilm copies of any public records:
   95         (a) 16 mm 100′ microfilm roll.......................42.00
   96         (b) 35 mm 100′ microfilm roll.......................60.00
   97         (c) Microfiche, per fiche............................3.50
   98         (7) For copying any instrument in the public records by
   99  other than photographic process, per page...................6.00
  100         (8) For writing any paper other than herein specifically
  101  mentioned, same as for copying, including signing and sealing7.00
  102         (9) For indexing each entry not recorded.............1.00
  103         (10) For receiving money into the registry of court:
  104         (a)1. First $500, percent...............................3
  105         2. Each subsequent $100, percent......................1.5
  106         (b) Eminent domain actions, per deposit............170.00
  107         (11) For examining, certifying, and recording plats and for
  108  recording condominium exhibits larger than 14 inches by 8 1/2
  109  inches:
  110         (a) First page......................................30.00
  111         (b) Each additional page............................15.00
  112         (12) For recording, indexing, and filing any instrument not
  113  more than 14 inches by 8 1/2 inches, including required notice
  114  to property appraiser where applicable:
  115         (a) First page or fraction thereof...................5.00
  116         (b) Each additional page or fraction thereof.........4.00
  117         (c) For indexing instruments recorded in the official
  118  records which contain more than four names, per additional
  119  name........................................................1.00
  120         (d) An additional service charge shall be paid to the clerk
  121  of the circuit court to be deposited in the Public Records
  122  Modernization Trust Fund for each instrument listed in s.
  123  28.222, except judgments received from the courts and notices of
  124  lis pendens, recorded in the official records:
  125         1. First page........................................1.00
  126         2. Each additional page..............................0.50
  127  
  128  Said fund shall be held in trust by the clerk and used
  129  exclusively for equipment and maintenance of equipment,
  130  personnel training, and technical assistance in modernizing the
  131  public records system of the office. In a county where the duty
  132  of maintaining official records exists in an office other than
  133  the office of the clerk of the circuit court, the clerk of the
  134  circuit court is entitled to 25 percent of the moneys deposited
  135  into the trust fund for equipment, maintenance of equipment,
  136  training, and technical assistance in modernizing the system for
  137  storing records in the office of the clerk of the circuit court.
  138  The fund may not be used for the payment of travel expenses,
  139  membership dues, bank charges, staff-recruitment costs, salaries
  140  or benefits of employees, construction costs, general operating
  141  expenses, or other costs not directly related to obtaining and
  142  maintaining equipment for public records systems or for the
  143  purchase of furniture or office supplies and equipment not
  144  related to the storage of records. On or before December 1,
  145  1995, and on or before December 1 of each year immediately
  146  preceding each year during which the trust fund is scheduled for
  147  legislative review under s. 19(f)(2), Art. III of the State
  148  Constitution, each clerk of the circuit court shall file a
  149  report on the Public Records Modernization Trust Fund with the
  150  President of the Senate and the Speaker of the House of
  151  Representatives. The report must itemize each expenditure made
  152  from the trust fund since the last report was filed; each
  153  obligation payable from the trust fund on that date; and the
  154  percentage of funds expended for each of the following:
  155  equipment, maintenance of equipment, personnel training, and
  156  technical assistance. The report must indicate the nature of the
  157  system each clerk uses to store, maintain, and retrieve public
  158  records and the degree to which the system has been upgraded
  159  since the creation of the trust fund.
  160         (e) An additional service charge of $4 per page shall be
  161  paid to the clerk of the circuit court for each instrument
  162  listed in s. 28.222, except judgments received from the courts
  163  and notices of lis pendens, recorded in the official records.
  164  From the additional $4 service charge collected:
  165         1. If the counties maintain legal responsibility for the
  166  costs of the court-related technology needs as defined in s.
  167  29.008(1)(f)2. and (h), 10 cents shall be distributed to the
  168  Florida Association of Court Clerks and Comptroller, Inc., for
  169  the cost of development, implementation, operation, and
  170  maintenance of the clerks’ Comprehensive Case Information
  171  System, in which system all clerks shall participate on or
  172  before January 1, 2006; $1.90 shall be retained by the clerk to
  173  be deposited in the Public Records Modernization Trust Fund and
  174  used exclusively for funding court-related technology needs of
  175  the clerk as defined in s. 29.008(1)(f)2. and (h); and $2 shall
  176  be distributed to the board of county commissioners to be used
  177  exclusively to fund court-related technology, and court
  178  technology needs as defined in s. 29.008(1)(f)2. and (h) for the
  179  state trial courts, state attorney, public defender, and
  180  criminal conflict and civil regional counsel in that county. If
  181  the counties maintain legal responsibility for the costs of the
  182  court-related technology needs as defined in s. 29.008(1)(f)2.
  183  and (h), notwithstanding any other provision of law, the county
  184  is not required to provide additional funding beyond that
  185  provided herein for the court-related technology needs of the
  186  clerk as defined in s. 29.008(1)(f)2. and (h). All court records
  187  and official records are the property of the State of Florida,
  188  including any records generated as part of the Comprehensive
  189  Case Information System funded pursuant to this paragraph and
  190  the clerk of court is designated as the custodian of such
  191  records, except in a county where the duty of maintaining
  192  official records exists in a county office other than the clerk
  193  of court or comptroller, such county office is designated the
  194  custodian of all official records, and the clerk of court is
  195  designated the custodian of all court records. The clerk of
  196  court or any entity acting on behalf of the clerk of court,
  197  including an association, shall not charge a fee to any agency
  198  as defined in s. 119.011, the Legislature, or the State Court
  199  System for copies of records generated by the Comprehensive Case
  200  Information System or held by the clerk of court or any entity
  201  acting on behalf of the clerk of court, including an
  202  association.
  203         2. If the state becomes legally responsible for the costs
  204  of court-related technology needs as defined in s.
  205  29.008(1)(f)2. and (h), whether by operation of general law or
  206  by court order, $4 shall be remitted to the Department of
  207  Revenue for deposit into the General Revenue Fund.
  208         (13) Oath, administering, attesting, and sealing, not
  209  otherwise provided for herein...............................3.50
  210         (14) For validating certificates, any authorized bonds,
  211  each........................................................3.50
  212         (15) For preparing affidavit of domicile.............5.00
  213         (16) For exemplified certificates, including signing and
  214  sealing.....................................................7.00
  215         (17) For authenticated certificates, including signing and
  216  sealing.....................................................7.00
  217         (18)(a) For issuing and filing a subpoena for a witness,
  218  not otherwise provided for herein (includes writing, preparing,
  219  signing, and sealing).......................................7.00
  220         (b) For signing and sealing only.....................2.00
  221         (19) For approving bond..............................8.50
  222         (20) For searching of records, for each year’s search2.00
  223         (21) For processing an application for a tax deed sale
  224  (includes application, sale, issuance, and preparation of tax
  225  deed, and disbursement of proceeds of sale), other than excess
  226  proceeds...................................................60.00
  227         (22) For disbursement of excess proceeds of tax deed sale,
  228  first $100 or fraction thereof.............................10.00
  229         (23) Upon receipt of an application for a marriage license,
  230  for preparing and administering of oath; issuing, sealing, and
  231  recording of the marriage license; and providing a certified
  232  copy.......................................................30.00
  233         (24) For solemnizing matrimony......................30.00
  234         (25) For sealing any court file or expungement of any
  235  record.....................................................42.00
  236         (26)(a) For receiving and disbursing all restitution
  237  payments, per payment.......................................3.50
  238         (b) For receiving and disbursing all partial payments,
  239  other than restitution payments, for which an administrative
  240  processing service charge is not imposed pursuant to s. 28.246,
  241  per month...................................................5.00
  242         (c) For setting up a payment plan, a one-time
  243  administrative processing charge in lieu of a per month charge
  244  under paragraph (b)........................................25.00
  245         (27) Postal charges incurred by the clerk of the circuit
  246  court in any mailing by certified or registered mail shall be
  247  paid by the party at whose instance the mailing is made.
  248         (28) For furnishing an electronic copy of information
  249  contained in a computer database: a fee as provided for in
  250  chapter 119.
  251         Section 4. Section 28.244, Florida Statutes, is amended to
  252  read:
  253         28.244 Refunds.—A clerk of the circuit court or a filing
  254  officer of another office where records are filed who receives
  255  payment for services provided and thereafter determines that an
  256  overpayment has occurred shall refund to the person who made the
  257  payment the amount of any overpayment that exceeds $10 $5. If
  258  the amount of the overpayment is $10 $5 or less, the clerk of
  259  the circuit court or a filing officer of another office where
  260  records are filed is not required to refund the amount of the
  261  overpayment unless the person who made the overpayment makes a
  262  written request.
  263         Section 5. Section 28.345, Florida Statutes, is amended to
  264  read:
  265         28.345 State access to records; exemption from court
  266  related fees and charges.—
  267         (1) Notwithstanding any other provision of law to the
  268  contrary, the clerk of the circuit court shall provide without
  269  charge to the state attorney, public defender, guardian ad
  270  litem, public guardian, attorney ad litem, criminal conflict and
  271  civil regional counsel, and private court-appointed counsel paid
  272  by the state, and to the authorized staff acting on behalf of
  273  each, access to and a copy of any public record. If the public
  274  record is exempt or confidential, the requesting party is only
  275  entitled by law to view or copy the exempt or confidential
  276  record if authority is provided in general law or the Florida
  277  Rules of Judicial Administration. The clerk of the circuit court
  278  may provide the requested public record in an electronic format
  279  in lieu of a paper format when the requesting entity is capable
  280  of accessing it in an electronic format. For purposes of this
  281  subsection, the term “copy of a public record” means any
  282  facsimile, replica, photograph, or other reproduction of a
  283  record.
  284         (2) Notwithstanding any other provision of this chapter or
  285  law to the contrary, judges and those court staff acting on
  286  behalf of judges, state attorneys, guardians ad litem, public
  287  guardians, attorneys ad litem, court-appointed private counsel,
  288  criminal conflict and civil regional counsel, and public
  289  defenders, and state agencies, while acting in their official
  290  capacity, and state agencies, are exempt from all court-related
  291  fees and charges assessed by the clerks of the circuit courts.
  292         (3) The exemptions provided in subsections (1) and (2)
  293  apply only to state agencies and state entities and the party
  294  that an agency or entity is representing. The clerk of court
  295  shall collect the filing fees and services charges as required
  296  in this chapter from all other parties.
  297         Section 6. Section 28.37, Florida Statutes, is amended to
  298  read:
  299         28.37 Fines, fees, service charges, and costs remitted to
  300  the state.—
  301         (1) Pursuant to s. 14(b), Art. V of the State Constitution,
  302  selected salaries, costs, and expenses of the state courts
  303  system and court-related functions shall be funded from a
  304  portion of the revenues derived from statutory fines, fees,
  305  service charges, and costs collected by the clerks of the court.
  306         (2) Except as otherwise provided in ss. 28.241 and 34.041,
  307  all court-related fines, fees, service charges, and costs are
  308  considered state funds and shall be remitted by the clerk to the
  309  Department of Revenue for deposit into the Clerks of the Court
  310  Trust Fund within the Justice Administrative Commission.
  311  However, 10 percent of all court-related fines collected by the
  312  clerk, except for penalties or fines distributed under s.
  313  316.0083(1)(b)3. or s. 318.18(15)(a) to counties or
  314  municipalities, shall be deposited into the clerk’s Public
  315  Records Modernization Trust Fund to be used exclusively for
  316  additional clerk court-related operational needs and program
  317  enhancements.
  318         Section 7. Subsection (2) of section 50.041, Florida
  319  Statutes, is amended to read:
  320         50.041 Proof of publication; uniform affidavits required.—
  321         (2) Each such affidavit shall be printed upon white bond
  322  paper containing at least 25 percent rag material and shall be 8
  323  1/2 inches in width and of convenient length, not less than 5
  324  1/2 inches. A white margin of not less than 2 1/2 inches shall
  325  be left at the right side of each affidavit form and upon or in
  326  this space shall be substantially pasted a clipping which shall
  327  be a true copy of the public notice or legal advertisement for
  328  which proof is executed. Alternatively, each such affidavit may
  329  be provided in electronic rather than paper form, provided the
  330  notarization of the affidavit complies with the requirements of
  331  s. 117.021.
  332         Section 8. Subsections (2) and (3) of section 119.0714,
  333  Florida Statutes, are amended to read:
  334         119.0714 Court files; court records; official records.—
  335         (2) COURT RECORDS.—
  336         (a)1. Until January 1, 2012, if a social security number or
  337  a bank account, debit, charge, or credit card number is included
  338  in a court file, such number may be included as part of the
  339  court record available for public inspection and copying unless
  340  redaction is requested by the holder of such number or by the
  341  holder’s attorney or legal guardian.
  342         2.(b) A request for redaction must be a signed, legibly
  343  written request specifying the case name, case number, document
  344  heading, and page number. The request must be delivered by mail,
  345  facsimile, electronic transmission, or in person to the clerk of
  346  the court. The clerk of the court does not have a duty to
  347  inquire beyond the written request to verify the identity of a
  348  person requesting redaction.
  349         3.(c) A fee may not be charged for the redaction of a
  350  social security number or a bank account, debit, charge, or
  351  credit card number pursuant to such request.
  352         4.(d) The clerk of the court has no liability for the
  353  inadvertent release of social security numbers, or bank account,
  354  debit, charge, or credit card numbers, unknown to the clerk of
  355  the court in court records filed on or before January 1, 2012.
  356         5.a.(e)1. On January 1, 2012, and thereafter, the clerk of
  357  the court must keep social security numbers confidential and
  358  exempt as provided for in s. 119.071(5)(a), and bank account,
  359  debit, charge, and credit card numbers exempt as provided for in
  360  s. 119.071(5)(b), without any person having to request
  361  redaction.
  362         b.2. Section 119.071(5)(a)7. and 8. does not apply to the
  363  clerks of the court with respect to court records.
  364         (b) A request for maintenance of a public record exemption
  365  in s. 119.071(4)(d)1. made pursuant to s. 119.071(4)(d)2. must
  366  specify the document type, name, identification number, and page
  367  number of the court record that contains the exempt information.
  368         (3) OFFICIAL RECORDS.—
  369         (a)1. Any person who prepares or files a record for
  370  recording in the official records as provided in chapter 28 may
  371  not include in that record a social security number or a bank
  372  account, debit, charge, or credit card number unless otherwise
  373  expressly required by law.
  374         2.a.(b)1. If a social security number or a bank account,
  375  debit, charge, or credit card number is included in an official
  376  record, such number may be made available as part of the
  377  official records available for public inspection and copying
  378  unless redaction is requested by the holder of such number or by
  379  the holder’s attorney or legal guardian.
  380         b.2. If such record is in electronic format, on January 1,
  381  2011, and thereafter, the county recorder must use his or her
  382  best effort, as provided in subparagraph 8. paragraph (h), to
  383  keep social security numbers confidential and exempt as provided
  384  for in s. 119.071(5)(a), and to keep complete bank account,
  385  debit, charge, and credit card numbers exempt as provided for in
  386  s. 119.071(5)(b), without any person having to request
  387  redaction.
  388         c.3. Section 119.071(5)(a)7. and 8. does not apply to the
  389  county recorder with respect to official records.
  390         3.(c) The holder of a social security number or a bank
  391  account, debit, charge, or credit card number, or the holder’s
  392  attorney or legal guardian, may request that a county recorder
  393  redact from an image or copy of an official record placed on a
  394  county recorder’s publicly available Internet website or on a
  395  publicly available Internet website used by a county recorder to
  396  display public records, or otherwise made electronically
  397  available to the public, his or her social security number or
  398  bank account, debit, charge, or credit card number contained in
  399  that official record.
  400         4.(d) A request for redaction must be a signed, legibly
  401  written request and must be delivered by mail, facsimile,
  402  electronic transmission, or in person to the county recorder.
  403  The request must specify the identification page number of the
  404  record that contains the number to be redacted.
  405         5.(e) The county recorder does not have a duty to inquire
  406  beyond the written request to verify the identity of a person
  407  requesting redaction.
  408         6.(f) A fee may not be charged for redacting a social
  409  security number or a bank account, debit, charge, or credit card
  410  number.
  411         7.(g) A county recorder shall immediately and conspicuously
  412  post signs throughout his or her offices for public viewing, and
  413  shall immediately and conspicuously post on any Internet website
  414  or remote electronic site made available by the county recorder
  415  and used for the ordering or display of official records or
  416  images or copies of official records, a notice stating, in
  417  substantially similar form, the following:
  418         a.1. On or after October 1, 2002, any person preparing or
  419  filing a record for recordation in the official records may not
  420  include a social security number or a bank account, debit,
  421  charge, or credit card number in such document unless required
  422  by law.
  423         b.2. Any person has a right to request a county recorder to
  424  remove from an image or copy of an official record placed on a
  425  county recorder’s publicly available Internet website or on a
  426  publicly available Internet website used by a county recorder to
  427  display public records, or otherwise made electronically
  428  available to the general public, any social security number
  429  contained in an official record. Such request must be made in
  430  writing and delivered by mail, facsimile, or electronic
  431  transmission, or delivered in person, to the county recorder.
  432  The request must specify the identification page number that
  433  contains the social security number to be redacted. A fee may
  434  not be charged for the redaction of a social security number
  435  pursuant to such a request.
  436         8.(h) If the county recorder accepts or stores official
  437  records in an electronic format, the county recorder must use
  438  his or her best efforts to redact all social security numbers
  439  and bank account, debit, charge, or credit card numbers from
  440  electronic copies of the official record. The use of an
  441  automated program for redaction shall be deemed to be the best
  442  effort in performing the redaction and shall be deemed in
  443  compliance with the requirements of this subsection.
  444         9.(i) The county recorder is not liable for the inadvertent
  445  release of social security numbers, or bank account, debit,
  446  charge, or credit card numbers, filed with the county recorder.
  447         (b) A request for maintenance of a public record exemption
  448  in s. 119.071(4)(d)1. made pursuant to s. 119.071(4)(d)2. must
  449  specify the document type, name, identification number, and page
  450  number of the official record that contains the exempt
  451  information.
  452         Section 9. Subsection (2) of section 197.542, Florida
  453  Statutes, is amended to read:
  454         197.542 Sale at public auction.—
  455         (2) The certificateholder has the right to bid as others
  456  present may bid, and the property shall be struck off and sold
  457  to the highest bidder. The high bidder shall post with the clerk
  458  a nonrefundable deposit of 5 percent of the bid or $200,
  459  whichever is greater, at the time of the sale, to be applied to
  460  the sale price at the time of full payment. Notice of the
  461  deposit requirement must be posted at the auction site, and the
  462  clerk may require bidders to show their willingness and ability
  463  to post the deposit. If full payment of the final bid and of
  464  documentary stamp tax and recording fees is not made within 24
  465  hours, excluding weekends and legal holidays, the clerk shall
  466  cancel all bids, readvertise the sale as provided in this
  467  section, and pay all costs of the sale from the deposit. Any
  468  remaining funds must be applied toward the opening bid. If the
  469  property is redeemed prior to the clerk receiving full payment
  470  for the issuance of a tax deed, in order to receive a refund of
  471  the deposit described in this subsection, the high bidder must
  472  submit a request for such refund in writing to the clerk. Upon
  473  receipt of the refund request, the clerk shall refund the cash
  474  deposit. The clerk may refuse to recognize the bid of any person
  475  who has previously bid and refused, for any reason, to honor
  476  such bid.
  477         Section 10. This act shall take effect upon becoming a law.