Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. SB 662
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Commerce and Tourism (Stargel) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (a) of subsection (1) of section
    6  415.1034, Florida Statutes, is amended to read:
    7         415.1034 Mandatory reporting of abuse, neglect, or
    8  exploitation of vulnerable adults; mandatory reports of death.—
    9         (1) MANDATORY REPORTING.—
   10         (a) Any person, including, but not limited to, any:
   11         1. Physician, osteopathic physician, medical examiner,
   12  chiropractic physician, nurse, paramedic, emergency medical
   13  technician, or hospital personnel engaged in the admission,
   14  examination, care, or treatment of vulnerable adults;
   15         2. Health professional or mental health professional other
   16  than one listed in subparagraph 1.;
   17         3. Practitioner who relies solely on spiritual means for
   18  healing;
   19         4. Nursing home staff; assisted living facility staff;
   20  adult day care center staff; adult family-care home staff;
   21  social worker; or other professional adult care, residential, or
   22  institutional staff;
   23         5. State, county, or municipal criminal justice employee or
   24  law enforcement officer;
   25         6. Employee of the Department of Business and Professional
   26  Regulation conducting inspections of public lodging
   27  establishments under s. 509.032;
   28         7. Florida advocacy council or Disability Rights Florida
   29  member or a representative of the State Long-Term Care Ombudsman
   30  Program; or
   31         8. Bank, savings and loan, or credit union officer,
   32  trustee, or employee; or
   33         9. Dealer, investment adviser, or associated person under
   34  chapter 517,
   36  who knows, or has reasonable cause to suspect, that a vulnerable
   37  adult has been or is being abused, neglected, or exploited shall
   38  immediately report such knowledge or suspicion to the central
   39  abuse hotline.
   40         Section 2. Section 517.34, Florida Statutes, is created to
   41  read:
   42         517.34 Protection of specified adults.—
   43         (1)As used in this section, the term:
   44         (a)1.“Exploitation” means:
   45         a. With respect to a person who stands in a position of
   46  trust and confidence with a specified adult, who knowingly, by
   47  deception or intimidation, obtains or uses, or endeavors to
   48  obtain or use, the specified adult’s funds, assets, or property
   49  with the intent to temporarily or permanently deprive the
   50  specified adult of the use, benefit, or possession of the funds,
   51  assets, or property for the benefit of someone other than the
   52  specified adult; or
   53         b. With respect to a person who knows or should know that a
   54  specified adult lacks the capacity to consent, who obtains or
   55  uses, or endeavors to obtain or use, the specified adult’s
   56  funds, assets, or property with the intent to temporarily or
   57  permanently deprive the specified adult of the use, benefit, or
   58  possession of the funds, assets, or property for the benefit of
   59  someone other than the specified adult.
   60         2.“Exploitation” may include, but is not limited to:
   61         a. A breach of a fiduciary relationship, such as the misuse
   62  of a power of attorney or the abuse of guardianship duties
   63  resulting in the unauthorized appropriation, sale, or transfer
   64  of property;
   65         b. An unauthorized taking of personal assets;
   66         c.Misappropriation, misuse, or transfer of moneys
   67  belonging to a specified adult from a personal or joint account;
   68  or
   69         d.Intentional or negligent failure to effectively use a
   70  specified adult’s income and assets for the necessities required
   71  for that person’s support and maintenance.
   72         (b)“Law enforcement agency” means an agency or political
   73  subdivision of this state or of the United States whose primary
   74  responsibility is the prevention and detection of crime or the
   75  enforcement of the penal laws of this state or the United States
   76  and whose agents and officers are empowered by law to conduct
   77  criminal investigations or to make arrests.
   78         (c)“Specified adult” means a natural person 65 years of
   79  age or older or a vulnerable adult as defined in s. 415.102.
   80         (d)“Trusted contact” means a natural person 18 years of
   81  age or older whom the account owner has expressly identified in
   82  writing as a person who may be contacted about the account.
   83         (2)A dealer, investment adviser, or associated person may
   84  delay a transaction on, or a disbursement of funds or securities
   85  from, an account of a specified adult or an account for which a
   86  specified adult is a beneficiary or beneficial owner if the
   87  dealer, investment adviser, or associated person reasonably
   88  believes that exploitation of the specified adult has occurred,
   89  is occurring, has been attempted, or will be attempted in
   90  connection with the transaction or disbursement.
   91         (a) The dealer’s, investment adviser’s, or associated
   92  person’s reasonable belief may be based on the facts and
   93  circumstances observed in such dealer’s, investment adviser’s,
   94  or associated person’s business relationship with the specified
   95  adult.
   96         (b)1.A dealer or investment adviser must notify the
   97  office, on a quarterly basis and on a form adopted by commission
   98  rule, of every delay he or she places and the outcome of such
   99  delay. The notice may not directly or indirectly identify the
  100  specified adult or the parties to the transaction or
  101  disbursement. The notice must include:
  102         a.The name of the firm and dealer, investment adviser, or
  103  associated person placing the delay on the transaction or
  104  disbursement.
  105         b.A general description of the reason why the dealer,
  106  investment adviser, or associated person placed the delay on the
  107  transaction or disbursement.
  108         c. The length of the delay on the transaction or
  109  disbursement and whether or not the transaction or disbursement
  110  ultimately took place.
  111         2. On or before October 1 of each year, the office must
  112  submit a report to the Governor, the President of the Senate,
  113  and the Speaker of the House of Representatives summarizing the
  114  information provided to the office by dealers, investment
  115  advisers, and associated persons under subparagraph 1. during
  116  the prior fiscal year. This subparagraph expires October 1,
  117  2023.
  118         (c)1.Within 3 business days after the date on which the
  119  delay was first placed, the dealer, investment adviser, or
  120  associated person must notify in writing, which may be provided
  121  electronically, all parties authorized to transact business on
  122  the account and any trusted contact on the account, using the
  123  contact information provided for the account, unless the dealer,
  124  investment adviser, or associated person reasonably believes
  125  that any such party engaged or is engaging in the suspected
  126  exploitation of the specified adult.
  127         2.The notice provided pursuant to this paragraph must
  128  include, at a minimum, a description of the transaction or
  129  disbursement, a statement that a delay was placed on such
  130  transaction or disbursement pursuant to this section, the basis
  131  for the reasonable belief regarding exploitation of the
  132  specified adult, and an explanation of the delay process.
  133         (3) A delay on a transaction or disbursement under
  134  subsection (2) expires 15 business days after the date on which
  135  the delay was first placed. However, a dealer, investment
  136  adviser, or associated person may extend the delay for up to 10
  137  additional business days if its review of the available facts
  138  and circumstances continues to support its reasonable belief
  139  that exploitation of the specified adult has occurred, is
  140  occurring, has been attempted, or will be attempted. The length
  141  of the delay may be shortened or extended at any time by an
  142  agency or court of competent jurisdiction. This subsection does
  143  not prevent a dealer, investment adviser, or associated person
  144  from terminating a delay after communication with the specified
  145  adult or trusted contact.
  146         (4) A dealer, investment adviser, or associated person may
  147  provide access to or copies of any records that are relevant to
  148  the suspected exploitation of a specified adult to the
  149  Department of Children and Families or a law enforcement agency
  150  at their request. The records may include records of prior
  151  transactions or disbursements, in addition to the transactions
  152  or disbursements comprising the suspected exploitation. A
  153  dealer, investment adviser, or associated person subject to the
  154  jurisdiction of the office must make available to the office,
  155  upon request, all records relating to a delay or report made by
  156  the dealer, investment adviser, or associated person pursuant to
  157  this section.
  158         (5) Notwithstanding any law to the contrary, the Department
  159  of Children and Families may inform the reporting party on the
  160  status of an investigation initiated under this section and any
  161  final disposition.
  162         (6) A dealer, investment adviser, or associated person who
  163  delays a transaction or disbursement pursuant to this section,
  164  who provides records to an agency of competent jurisdiction
  165  pursuant to this section, or who participates in a judicial or
  166  arbitration proceeding resulting therefrom is presumed to be
  167  acting based upon a reasonable belief and is immune from any
  168  civil or administrative liability that otherwise might be
  169  incurred or imposed, unless lack of such reasonable belief is
  170  shown by clear and convincing evidence. This subsection does not
  171  supersede or diminish any immunity in chapter 415.
  172         (7) A dealer or investment adviser relying on this section
  173  must develop training policies or programs designed to educate
  174  associated persons on issues pertaining to exploitation and must
  175  conduct training of all associated persons accordingly. The
  176  dealer or investment adviser must initially train all of its
  177  associated persons by July 1, 2019, must train any newly hired
  178  associated persons within 3 months after beginning employment,
  179  and must subsequently train all associated persons every 2 years
  180  thereafter. The training policies and programs must provide for
  181  the associated person to receive a minimum of 1 hour of such
  182  training, which must include recognition of indicators of
  183  exploitation, the manner in which suspected exploitation must be
  184  reported to supervisory personnel and to the appropriate
  185  regulatory and law enforcement agencies, and steps that may be
  186  taken to prevent exploitation. The dealer or investment adviser
  187  must maintain a written record of compliance with this
  188  subsection.
  189         (8)This section does not create new rights or obligations
  190  of a dealer, investment adviser, or associated person under
  191  other applicable laws or rules. In addition, this section does
  192  not limit the right of a dealer, investment adviser, or
  193  associated person to otherwise refuse or place a delay on a
  194  transaction or disbursement under other applicable laws or rules
  195  or under an applicable customer agreement.
  196         (9) This section does not alter a dealer’s, investment
  197  adviser’s, or associated person’s obligation to comply with
  198  instructions from a client to close an account or transfer an
  199  account to another dealer, investment adviser, or associated
  200  person absent a reasonable belief of exploitation as provided in
  201  this section.
  202         Section 3. This act shall take effect July 1, 2018.
  204  ================= T I T L E  A M E N D M E N T ================
  205  And the title is amended as follows:
  206         Delete everything before the enacting clause
  207  and insert:
  208                        A bill to be entitled                      
  209         An act relating to protection for vulnerable
  210         investors; amending s. 415.1034, F.S.; requiring
  211         securities dealers, investment advisers, and
  212         associated persons to immediately report knowledge or
  213         suspicion of abuse, neglect, or exploitation of
  214         vulnerable adults to the Department of Children and
  215         Families’ central abuse hotline; creating s. 517.34,
  216         F.S.; defining terms; authorizing dealers, investment
  217         advisers, and associated persons to delay certain
  218         transactions or disbursements if such persons
  219         reasonably believe certain exploitation of a specified
  220         adult has occurred, is occurring, has been attempted,
  221         or will be attempted; providing the basis for such
  222         reasonable belief; requiring a dealer or investment
  223         adviser to provide the Office of Financial Regulation
  224         a specified notice at certain timeframes; requiring
  225         the Financial Services Commission to adopt a form by
  226         rule; requiring the office to submit an annual report
  227         to the Governor and Legislature; providing for
  228         expiration; specifying notification requirements for
  229         dealers, investment advisers, and associated persons
  230         placing delays on transactions or disbursements;
  231         specifying the expiration of such delays; providing
  232         that such delays may be extended for a certain
  233         timeframe under certain circumstances; providing that
  234         such delays may be shortened or extended by an agency
  235         or court of competent jurisdiction; providing that
  236         delays may be terminated by dealers, investment
  237         advisers, or associated persons under certain
  238         circumstances; specifying when certain records may or
  239         must be shared with certain agencies; authorizing the
  240         Department of Children and Families to inform
  241         reporting parties on the status of an investigation;
  242         providing immunity from civil and administrative
  243         liability to dealers, investment advisers, and
  244         associated persons for certain actions based on a
  245         reasonable belief; specifying requirements for dealers
  246         and investment advisers in training their associated
  247         persons; providing construction; providing an
  248         effective date.