Florida Senate - 2016                CS for CS for CS for SB 948
       
       
        
       By the Committees on Rules; Fiscal Policy; and Commerce and
       Tourism; and Senator Richter
       
       595-04112-16                                           2016948c3
    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; requiring a different method of identification
    8         when certain numbers are not available; requiring
    9         secondhand dealers to notify a law enforcement
   10         official under certain circumstances; providing that
   11         certain holding requirements do not begin until
   12         certain reports are submitted to the appropriate law
   13         enforcement official; amending s. 538.06, F.S.;
   14         revising the required holding period for certain goods
   15         acquired by a dealer; defining the term “antique”;
   16         amending s. 538.08, F.S.; authorizing an action in
   17         replevin against a secondhand dealer based on a right
   18         of possession to stolen goods; revising the form for a
   19         complaint for return of stolen goods; providing that a
   20         plaintiff in a replevin action is entitled to a
   21         certain summary procedure; providing that a secondhand
   22         dealer commits a noncriminal violation under certain
   23         circumstances; providing a penalty; amending s.
   24         538.09, F.S.; revising the period of time a secondhand
   25         dealer must hold secondhand goods at a registered
   26         location; authorizing a secondhand dealer to store
   27         secondhand goods outside the appropriate law
   28         enforcement official’s jurisdiction, subject to
   29         certain conditions; providing an effective date.
   30          
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Present paragraphs (c) through (j) of subsection
   34  (1) of section 538.03, Florida Statutes, are redesignated as
   35  paragraphs (d) through (k), respectively, a new paragraph (c) is
   36  added to that subsection, and present paragraphs (g) and (h) of
   37  that subsection are amended, to read:
   38         538.03 Definitions; applicability.—
   39         (1) As used in this part, the term:
   40         (c) “Automated kiosk” means an interactive device that is
   41  permanently installed within a secure retail space and that:
   42         1. Is remotely monitored by a live representative during
   43  all business operating hours;
   44         2. Verifies a seller’s identity by a government-issued
   45  photographic identification card;
   46         3. Performs automated reading and recording of item serial
   47  numbers;
   48         4. Compares item serial numbers against databases of stolen
   49  items;
   50         5. Securely stores goods accepted by the kiosk; and
   51         6. Captures and stores images during the transaction.
   52         (h)(g) “Secondhand dealer” means any person, corporation,
   53  or other business organization or entity which is not a
   54  secondary metals recycler subject to part II and which is
   55  engaged in the business of purchasing, consigning, or trading
   56  secondhand goods. The term includes any secondhand dealer
   57  engaged in the business of purchasing secondhand goods by means
   58  of an automated kiosk.
   59         (i)(h) “Secondhand goods” means personal property
   60  previously owned or used, which is not regulated metals property
   61  regulated under part II and which is purchased, consigned, or
   62  traded as used property. The term includes gift certificates and
   63  credit memos as defined in s. 501.95 which are purchased,
   64  consigned, or traded by a secondhand dealer. The term does Such
   65  secondhand goods do not include office furniture, pianos, books,
   66  clothing, organs, coins, motor vehicles, costume jewelry, cardio
   67  and strength training or conditioning equipment designed
   68  primarily for indoor use, and secondhand sports equipment that
   69  is not permanently labeled with a serial number. As used in For
   70  purposes of this paragraph, the term “secondhand sports
   71  equipment” does not include golf clubs.
   72         Section 2. Paragraphs (c) and (d) of subsection (1) of
   73  section 538.04, Florida Statutes, are redesignated as paragraphs
   74  (d) and (e), respectively, and a new paragraph (c) is added to
   75  that subsection, and subsection (8) is added to that section to
   76  read:
   77         538.04 Recordkeeping requirements; penalties.—
   78         (1) A secondhand dealer shall complete a secondhand dealers
   79  transaction form at the time of the actual transaction. A
   80  secondhand dealer shall maintain a copy of a completed
   81  transaction form on the registered premises for at least 1 year
   82  after the date of the transaction. However, the secondhand
   83  dealer shall maintain a copy of the transaction form for not
   84  less than 3 years. Unless other arrangements are agreed upon by
   85  the secondhand dealer and the appropriate law enforcement
   86  official, the secondhand dealer shall, within 24 hours after
   87  acquiring any secondhand goods, deliver to such official a
   88  record of the transaction on a form approved by the Department
   89  of Law Enforcement. Such record shall contain:
   90         (c) Digital photos of the goods, clearly showing the items
   91  required to be included on the record as provided in paragraph
   92  (b).
   93         (8)When secondhand goods are purchased by means of an
   94  automated kiosk, the serial number reported pursuant to this
   95  section may be the International Mobile Station Equipment
   96  Identity (IMEI), the mobile equipment identifier (MEID), or
   97  another unique identifying number assigned to the device by the
   98  manufacturer. If the IMEI, MEID, or other unique identifying
   99  number is not available at the time of receipt or purchase, the
  100  report filed pursuant to this section must be updated with the
  101  IMEI, MEID, or other unique identifying number as soon as
  102  possible, but no later than 10 business days after the date of
  103  acquisition. If such identifying numbers are not available at
  104  the time of the transaction, the business shall assign another
  105  unique identifier to the item which directly associates the item
  106  with the transaction that it was purchased in. Upon entering or
  107  updating any information on the transaction form, a law
  108  enforcement official, as designated by the sheriff or the chief
  109  of the jurisdiction in which the item was purchased, must be
  110  timely notified in writing or by electronic means, as required
  111  by the sheriff or chief of the jurisdiction. If, upon receiving
  112  the device and correcting the missing information, the company
  113  finds that the item was misappropriated or stolen, the
  114  appropriate law enforcement official must be notified. The
  115  holding requirements of s. 538.06 and s. 538.09(3) do not begin
  116  until all required reports are complete and submitted to the
  117  appropriate law enforcement official.
  118         Section 3. Subsection (1) of section 538.06, Florida
  119  Statutes, is amended to read:
  120         538.06 Holding period.—
  121         (1)(a) A secondhand dealer may shall not sell, barter,
  122  exchange, alter, adulterate, use, or in any way dispose of any
  123  secondhand good:
  124         1.That is a precious metal, a gemstone, jewelry; an
  125  antique furnishing, fixture, or decorative object; or an item of
  126  art as defined in s. 686.501 within 30 calendar days after the
  127  date on which the good was acquired.
  128         2.That is not described in subparagraph 1. goods within 15
  129  calendar days after of the date on which the good was acquired
  130  of acquisition of the goods.
  131         3.Within 30 calendar days after the date on which the good
  132  is acquired if the secondhand dealer uses an automated kiosk.
  133  
  134  Such holding periods are not applicable when the person known by
  135  the secondhand dealer to be the person from whom the goods were
  136  acquired desires to redeem, repurchase, or recover the goods,
  137  provided the dealer can produce the record of the original
  138  transaction with verification that the customer is the person
  139  from whom the goods were originally acquired.
  140         (b)As used in this subsection, the term “antique” means
  141  the item is at least 30 years old and has special value because
  142  of its age.
  143         Section 4. Section 538.08, Florida Statutes, is amended to
  144  read:
  145         538.08 Stolen goods; complaint petition for return.—
  146         (1) If the secondhand dealer contests the identification,
  147  or ownership, or right of possession of the property, the person
  148  alleging ownership or right of possession of the property may,
  149  provided that a timely report of the theft of the goods was made
  150  to the proper authorities, bring an action for replevin in the
  151  county or circuit court. The complaint may be by petition in
  152  substantially the following form:
  153  
  154         Plaintiff A. B. sues defendant C. D., and alleges:
  155         1. This is an action to recover possession of personal
  156  property in ............ County, Florida.
  157         2. The description of the property is: ...(list
  158  property).... To the best of plaintiff’s knowledge, information,
  159  and belief, the value of the property is $.............
  160         3. Plaintiff is the lawful owner of the property or is
  161  entitled to the possession of the property under a security
  162  agreement dated ........, ...(year)..., a copy of which is
  163  attached.
  164         4. To plaintiff’s best knowledge, information, and belief,
  165  the property is located at .................
  166         5. The property is wrongfully detained by defendant.
  167  Defendant came into possession of the property by ...(describe
  168  method of possession).... To plaintiff’s best knowledge,
  169  information, and belief, defendant detains the property because
  170  ...(give reasons)....
  171         6. The property has not been taken under an execution or
  172  attachment against plaintiff’s property.
  173  
  174         (2) The filing fees shall be waived by the clerk of the
  175  court, and the service fees shall be waived by the sheriff. The
  176  court shall award the prevailing party attorney attorney’s fees
  177  and costs. In addition, when the filing party prevails in the
  178  replevin action, the court shall order payment of filing fees to
  179  the clerk and service fees to the sheriff.
  180         (3) Upon the filing of the complaint petition, the court
  181  shall set a hearing to be held at the earliest possible time.
  182  The plaintiff is entitled to the summary procedure provided in
  183  s. 51.011. Upon the receipt of the complaint a petition for a
  184  writ by a secondhand dealer, the secondhand dealer shall hold
  185  the property at issue until the court determines the respective
  186  interests of the parties.
  187         (4) In addition to the civil complaint petition for return
  188  remedy, the state may file a motion as part of a pending
  189  criminal case related to the property. The criminal court has
  190  jurisdiction to determine ownership, to order return or other
  191  disposition of the property, and to order any appropriate
  192  restitution to any person. Such order shall be entered upon
  193  hearing after proper notice has been given to the secondhand
  194  dealer, the victim, and the defendant in the criminal case.
  195         (5) A secondhand dealer commits a noncriminal violation,
  196  punishable as provided in s. 775.083 by a fine of up to $2,500,
  197  if all of the following occur:
  198         (a) An owner or a lienor makes a written demand for return
  199  of the property and provides proof of ownership or proof of the
  200  right of possession to the secondhand dealer at least 5 calendar
  201  days before filing a replevin action.
  202         (b) The secondhand dealer knows or should have known based
  203  on the proof provided under paragraph (a) that the property
  204  belongs to the owner or lienor.
  205         (c) The secondhand dealer fails to return the property and
  206  does not file an action in interpleader to determine conflicting
  207  claims to the property.
  208         (d) The owner or lienor prevails in the replevin action
  209  against the secondhand dealer.
  210         Section 5. Subsection (3) of section 538.09, Florida
  211  Statutes, is amended to read:
  212         538.09 Registration.—
  213         (3) The secondhand dealer’s registration shall be
  214  conspicuously displayed at her or his registered location. A
  215  secondhand dealer must hold secondhand goods at the registered
  216  location for the period required by s. 538.06 until 15 days
  217  after the secondhand transaction or until any extension of the
  218  holding period has expired, whichever is later. Storage at a
  219  registered location outside the appropriate law enforcement
  220  official’s jurisdiction is permissible only upon agreement with
  221  such law enforcement official and if the secondhand dealer
  222  provides proof that he or she is able to and agrees to deliver
  223  the stored secondhand goods to the appropriate law enforcement
  224  official within 2 business days upon request.
  225         Section 6. This act shall take effect July 1, 2016.