Florida Senate - 2016                       CS for CS for SB 948
       
       
        
       By the Committees on Fiscal Policy; and Commerce and Tourism;
       and Senator Richter
       
       594-03756A-16                                          2016948c2
    1                        A bill to be entitled                      
    2         An act relating to secondhand dealers; amending s.
    3         538.03, F.S.; revising definitions; amending s.
    4         538.04, F.S.; requiring that the record of a
    5         secondhand dealer transaction include digital photos
    6         of the items; specifying what may be used as a serial
    7         number; providing that certain holding requirements do
    8         not begin until certain reports are submitted to the
    9         appropriate law enforcement official; amending s.
   10         538.06, F.S.; revising the required holding period for
   11         certain goods acquired by a dealer; defining the term
   12         “antique”; amending s. 538.08, F.S.; authorizing an
   13         action in replevin against a secondhand dealer based
   14         on a right of possession to stolen goods; revising the
   15         form for a complaint for return of stolen goods;
   16         providing that a plaintiff in a replevin action is
   17         entitled to a certain summary procedure; providing
   18         that a secondhand dealer commits a noncriminal
   19         violation under certain circumstances; providing a
   20         penalty; amending s. 538.09, F.S.; revising the period
   21         of time a secondhand dealer must hold secondhand goods
   22         at a registered location; authorizing a secondhand
   23         dealer to store secondhand goods outside the
   24         appropriate law enforcement official’s jurisdiction,
   25         subject to certain conditions; providing an effective
   26         date.
   27          
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Present paragraphs (c) through (j) of subsection
   31  (1) of section 538.03, Florida Statutes, are redesignated as
   32  paragraphs (d) through (k), respectively, a new paragraph (c) is
   33  added to that subsection, and present paragraphs (g) and (h) of
   34  that subsection are amended, to read:
   35         538.03 Definitions; applicability.—
   36         (1) As used in this part, the term:
   37         (c) “Automated kiosk” means an interactive device that is
   38  permanently installed within a secure retail space and that has
   39  the following technological functions:
   40         1. Remotely monitored and attended by a live representative
   41  during all business operating hours;
   42         2. Verification of a seller’s identity by official
   43  identification issued in the United States;
   44         3. Automated reading and recording of item serial numbers;
   45         4. Ability to compare item serial numbers against databases
   46  of stolen items;
   47         5. Secure storage of goods accepted by the kiosk; and
   48         6. Capture and storage of images during the transaction.
   49         (h)(g) “Secondhand dealer” means any person, corporation,
   50  or other business organization or entity which is not a
   51  secondary metals recycler subject to part II and which is
   52  engaged in the business of purchasing, consigning, or trading
   53  secondhand goods. The term includes any secondhand dealer
   54  engaged in the business of purchasing secondhand goods by means
   55  of an automated kiosk.
   56         (i)(h) “Secondhand goods” means personal property
   57  previously owned or used, which is not regulated metals property
   58  regulated under part II and which is purchased, consigned, or
   59  traded as used property. The term includes gift certificates and
   60  credit memos as defined in s. 501.95 which are purchased,
   61  consigned, or traded by a secondhand dealer. The term does Such
   62  secondhand goods do not include office furniture, pianos, books,
   63  clothing, organs, coins, motor vehicles, costume jewelry, cardio
   64  and strength training or conditioning equipment designed
   65  primarily for indoor use, and secondhand sports equipment that
   66  is not permanently labeled with a serial number. As used in For
   67  purposes of this paragraph, the term “secondhand sports
   68  equipment” does not include golf clubs.
   69         Section 2. Paragraphs (c) and (d) of subsection (1) of
   70  section 538.04, Florida Statutes, are redesignated as paragraphs
   71  (d) and (e), respectively, and a new paragraph (c) is added to
   72  that subsection, and subsection (8) is added to that section to
   73  read:
   74         538.04 Recordkeeping requirements; penalties.—
   75         (1) A secondhand dealer shall complete a secondhand dealers
   76  transaction form at the time of the actual transaction. A
   77  secondhand dealer shall maintain a copy of a completed
   78  transaction form on the registered premises for at least 1 year
   79  after the date of the transaction. However, the secondhand
   80  dealer shall maintain a copy of the transaction form for not
   81  less than 3 years. Unless other arrangements are agreed upon by
   82  the secondhand dealer and the appropriate law enforcement
   83  official, the secondhand dealer shall, within 24 hours after
   84  acquiring any secondhand goods, deliver to such official a
   85  record of the transaction on a form approved by the Department
   86  of Law Enforcement. Such record shall contain:
   87         (c) Digital photos of the goods, clearly showing the items
   88  required to be included on the record as provided in paragraph
   89  (b).
   90         (8)When secondhand goods are purchased by means of an
   91  automated kiosk, the serial number reported pursuant to this
   92  section may be the International Mobile Station Equipment
   93  Identity (IMEI), the mobile equipment identifier (MEID), or
   94  other unique identifying number assigned to the device by the
   95  manufacturer. If the IMEI, MEID, or other unique identifying
   96  number is not available at the time of receipt or purchase, the
   97  report filed pursuant to this section must be updated with the
   98  IMEI, MEID, or other unique identifying number as soon as
   99  possible, but no later than 10 business days after the date of
  100  acquisition. The holding requirements of s. 538.06 and s.
  101  538.09(3) do not begin until all required reports are complete
  102  and submitted to the appropriate law enforcement official.
  103         Section 3. Subsection (1) of section 538.06, Florida
  104  Statutes, is amended to read:
  105         538.06 Holding period.—
  106         (1)(a) A secondhand dealer may shall not sell, barter,
  107  exchange, alter, adulterate, use, or in any way dispose of any
  108  secondhand good:
  109         1.That is a precious metal, a gemstone, jewelry; an
  110  antique furnishing, fixture, or decorative object; or an item of
  111  art as defined in s. 686.501 within 30 calendar days after the
  112  date on which the good was acquired.
  113         2.That is not described in subparagraph 1. goods within 15
  114  calendar days after of the date on which the good was acquired
  115  of acquisition of the goods.
  116         3.Within 30 calendar days after the date on which the good
  117  is acquired if the secondhand dealer uses an automated kiosk.
  118  
  119  Such holding periods are not applicable when the person known by
  120  the secondhand dealer to be the person from whom the goods were
  121  acquired desires to redeem, repurchase, or recover the goods,
  122  provided the dealer can produce the record of the original
  123  transaction with verification that the customer is the person
  124  from whom the goods were originally acquired.
  125         (b)As used in this subsection, the term “antique” means
  126  the item is at least 30 years old and has special value because
  127  of its age.
  128         Section 4. Section 538.08, Florida Statutes, is amended to
  129  read:
  130         538.08 Stolen goods; complaint petition for return.—
  131         (1) If the secondhand dealer contests the identification,
  132  or ownership, or right of possession of the property, the person
  133  alleging ownership or right of possession of the property may,
  134  provided that a timely report of the theft of the goods was made
  135  to the proper authorities, bring an action for replevin in the
  136  county or circuit court. The complaint may be by petition in
  137  substantially the following form:
  138  
  139         Plaintiff A. B. sues defendant C. D., and alleges:
  140         1. This is an action to recover possession of personal
  141  property in ............ County, Florida.
  142         2. The description of the property is: ...(list
  143  property).... To the best of plaintiff’s knowledge, information,
  144  and belief, the value of the property is $.............
  145         3. Plaintiff is the lawful owner of the property or is
  146  entitled to the possession of the property under a security
  147  agreement dated ........, ...(year)..., a copy of which is
  148  attached.
  149         4. To plaintiff’s best knowledge, information, and belief,
  150  the property is located at .................
  151         5. The property is wrongfully detained by defendant.
  152  Defendant came into possession of the property by ...(describe
  153  method of possession).... To plaintiff’s best knowledge,
  154  information, and belief, defendant detains the property because
  155  ...(give reasons)....
  156         6. The property has not been taken under an execution or
  157  attachment against plaintiff’s property.
  158  
  159         (2) The filing fees shall be waived by the clerk of the
  160  court, and the service fees shall be waived by the sheriff. The
  161  court shall award the prevailing party attorney attorney’s fees
  162  and costs. In addition, when the filing party prevails in the
  163  replevin action, the court shall order payment of filing fees to
  164  the clerk and service fees to the sheriff.
  165         (3) Upon the filing of the complaint petition, the court
  166  shall set a hearing to be held at the earliest possible time.
  167  The plaintiff is entitled to the summary procedure provided in
  168  s. 51.011. Upon the receipt of the complaint a petition for a
  169  writ by a secondhand dealer, the secondhand dealer shall hold
  170  the property at issue until the court determines the respective
  171  interests of the parties.
  172         (4) In addition to the civil complaint petition for return
  173  remedy, the state may file a motion as part of a pending
  174  criminal case related to the property. The criminal court has
  175  jurisdiction to determine ownership, to order return or other
  176  disposition of the property, and to order any appropriate
  177  restitution to any person. Such order shall be entered upon
  178  hearing after proper notice has been given to the secondhand
  179  dealer, the victim, and the defendant in the criminal case.
  180         (5) A secondhand dealer commits a noncriminal violation,
  181  punishable as provided in s. 775.083 by a fine of up to $2,500,
  182  if all of the following occur:
  183         (a) An owner or a lienor makes a written demand for return
  184  of the property and provides proof of ownership or proof of the
  185  right of possession to the secondhand dealer at least 5 calendar
  186  days before filing a replevin action.
  187         (b) The secondhand dealer knows or should have known based
  188  on the proof provided under paragraph (a) that the property
  189  belongs to the owner or lienor.
  190         (c) The secondhand dealer fails to return the property and
  191  does not file an action in interpleader to determine conflicting
  192  claims to the property.
  193         (d) The owner or lienor prevails in the replevin action
  194  against the secondhand dealer.
  195         Section 5. Subsection (3) of section 538.09, Florida
  196  Statutes, is amended to read:
  197         538.09 Registration.—
  198         (3) The secondhand dealer’s registration shall be
  199  conspicuously displayed at her or his registered location. A
  200  secondhand dealer must hold secondhand goods at the registered
  201  location for the period required by s. 538.06 until 15 days
  202  after the secondhand transaction or until any extension of the
  203  holding period has expired, whichever is later. Storage at a
  204  registered location outside the appropriate law enforcement
  205  official’s jurisdiction is permissible only upon agreement with
  206  such law enforcement official and if the secondhand dealer
  207  provides proof that he or she is able to and agrees to deliver
  208  the stored secondhand goods to the appropriate law enforcement
  209  official within 2 business days upon request.
  210         Section 6. This act shall take effect July 1, 2016.
  211