Florida Senate - 2018 COMMITTEE AMENDMENT Bill No. SB 662 Ì5924260Î592426 LEGISLATIVE ACTION Senate . House . . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Commerce and Tourism (Stargel) recommended the following: 1 Senate Amendment (with title amendment) 2 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;
or31 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, 35 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. 203 204 ================= 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.