Florida Senate - 2024                              CS for SB 356
       
       
        
       By the Committee on Commerce and Tourism; and Senator Avila
       
       
       
       
       
       577-02401-24                                           2024356c1
    1                        A bill to be entitled                      
    2         An act relating to notaries public; amending s.
    3         117.05, F.S.; requiring that certain notarial
    4         certificates contain the printed names of specified
    5         individuals; amending s. 117.105, F.S.; prohibiting a
    6         notary public from falsely notarizing the signature of
    7         a person who is not in that notary public’s presence,
    8         either in person or online; defining terms; providing
    9         criminal penalties; making technical changes; amending
   10         s. 117.107, F.S.; deleting a provision that prohibits
   11         a notary public from notarizing a signature on a
   12         document of a person who is not, at the time of the
   13         notarial act, physically present or present by means
   14         of audio-video communication technology and that
   15         provides civil penalties; providing criminal
   16         penalties; creating s. 117.109, F.S.; requiring a
   17         notary public to keep at least one tangible journal;
   18         requiring a journal entry for each notarization;
   19         providing requirements for such entries; requiring the
   20         notary public to take reasonable steps to maintain a
   21         backup record and to protect the journal, the backup
   22         record, and other records from unauthorized access;
   23         requiring the Department of State to retain
   24         jurisdiction over the journal records for a specified
   25         timeframe for a certain purpose; requiring the notary
   26         public to maintain the journal for a specified
   27         timeframe; authorizing the notary public or specified
   28         individuals on his or her behalf to contract with a
   29         secure repository to maintain the journal; providing
   30         that such repository must fulfill specified duties of
   31         the notary public with respect to the journal;
   32         requiring the notary public to send, within a
   33         specified timeframe, a certain notification to the
   34         department of such delegation of retention duties;
   35         requiring the notary public to make an entry
   36         identifying the repository and providing notice to the
   37         department; requiring the secure repository to fulfill
   38         certain responsibilities of the notary public during
   39         any delegation; providing that an omitted or
   40         incomplete entry in the journal does not invalidate
   41         the notarial act, but may be used for specified
   42         evidentiary purposes; creating s. 117.111, F.S.;
   43         requiring a notary public to keep the journal secure
   44         and notify, within a specified timeframe, the
   45         appropriate law enforcement agency and the department
   46         of any unauthorized use of or compromise to the
   47         security of the journal; prohibiting the notary public
   48         from allowing another person to use the notary
   49         public’s journal or from allowing another person who
   50         is providing services to a notary public to facilitate
   51         the performance of notarizations; requiring the notary
   52         public to provide copies of pertinent entries upon the
   53         request of specified entities; providing construction;
   54         amending s. 28.47, F.S.; authorizing a property
   55         appraiser to refuse to update an owner of record on
   56         the county’s tax rolls under specified circumstances;
   57         requiring the property appraiser to make a certain
   58         notation in the records in the event such refusal is
   59         made; providing an effective date.
   60          
   61  Be It Enacted by the Legislature of the State of Florida:
   62  
   63         Section 1. Paragraph (e) of subsection (4) and subsection
   64  (13) of section 117.05, Florida Statutes, are amended to read:
   65         117.05 Use of notary commission; unlawful use; notary fee;
   66  seal; duties; employer liability; name change; advertising;
   67  photocopies; penalties.—
   68         (4) When notarizing a signature, a notary public shall
   69  complete a jurat or notarial certificate in substantially the
   70  same form as those found in subsection (13). The jurat or
   71  certificate of acknowledgment shall contain the following
   72  elements:
   73         (e) The printed name of the person whose signature is being
   74  notarized. It is presumed, absent such specific notation by the
   75  notary public, that notarization is to all signatures.
   76         (13) The following notarial certificates are sufficient for
   77  the purposes indicated, if completed with the information
   78  required by this chapter. The specification of forms under this
   79  subsection does not preclude the use of other forms. However,
   80  the notarial certificate must contain the printed names of all
   81  signatories, including principals and witnesses.
   82         (a) For an oath or affirmation:
   83  
   84  STATE OF FLORIDA
   85  COUNTY OF ........
   86  
   87  Sworn to (or affirmed) and subscribed before me by means of ☐
   88  physical presence or ☐ online notarization, this .... day of
   89  ........, ...(year)..., by ...(name of person making
   90  statement)....
   91  
   92  ...(Signature of Notary Public - State of Florida)...
   93  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
   94         Personally Known........ OR Produced Identification........
   95         Type of Identification Produced..........................
   96  
   97         (b) For an acknowledgment in an individual capacity:
   98  
   99  STATE OF FLORIDA
  100  COUNTY OF ........
  101  
  102  The foregoing instrument was acknowledged before me by means of
  103  ☐ physical presence or ☐ online notarization, this .... day of
  104  ........, ...(year)..., by ...(name of person acknowledging)....
  105  
  106  ...(Signature of Notary Public - State of Florida)...
  107  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  108         Personally Known........ OR Produced Identification........
  109         Type of Identification Produced..........................
  110  
  111         (c) For an acknowledgment in a representative capacity:
  112  
  113  STATE OF FLORIDA
  114  COUNTY OF ........
  115  
  116  The foregoing instrument was acknowledged before me by means of
  117  ☐ physical presence or ☐ online notarization, this .... day of
  118  ........, ...(year)..., by ...(name of person)... as ...(type of
  119  authority, . . . e.g. officer, trustee, attorney in fact)... for
  120  ...(name of party on behalf of whom instrument was executed)....
  121  
  122  ...(Signature of Notary Public - State of Florida)...
  123  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  124         Personally Known........ OR Produced Identification........
  125         Type of Identification Produced..........................
  126  
  127         Section 2. Section 117.105, Florida Statutes, is amended to
  128  read:
  129         117.105 False or fraudulent acknowledgments; penalties for
  130  prohibited acts penalty.—
  131         (1) A notary public may not do any of the following: who
  132         (a)Falsely notarize a signature on a written or electronic
  133  document of a person who is not in the presence of the notary
  134  public, either in person or online, at the time the signature is
  135  notarized. For the purposes of this paragraph, the terms “in the
  136  presence of” and “electronic” have the same meaning as provided
  137  in s. 117.201.
  138         (b) Falsely or fraudulently take takes an acknowledgment of
  139  an instrument as a notary public. or
  140         (c)Who Falsely or fraudulently make makes a certificate as
  141  a notary public. or
  142         (d)Who Falsely or fraudulently take or receive takes or
  143  receives an acknowledgment of the signature on a written or
  144  electronic document instrument is guilty of a felony of the
  145  third degree, punishable as provided in s. 775.082, s. 775.083,
  146  or s. 775.084.
  147         (2)A notary public who violates subsection (1) commits a
  148  felony of the third degree, punishable as provided in s.
  149  775.082, s. 775.083, or s. 775.084. If the document notarized
  150  under these circumstances pertains to a real estate transaction
  151  or any other transfer of real property, the notary public
  152  commits a felony of the second degree, punishable as provided in
  153  s. 775.082, s. 775.083, or s. 775.084.
  154         Section 3. Section 117.107, Florida Statutes, is amended to
  155  read:
  156         117.107 Prohibited acts; penalty.—
  157         (1) A notary public may not use a name or initial in
  158  signing certificates other than that by which the notary public
  159  is commissioned.
  160         (2) A notary public may not sign notarial certificates
  161  using a facsimile signature stamp unless the notary public has a
  162  physical disability that limits or prohibits his or her ability
  163  to make a written signature and unless the notary public has
  164  first submitted written notice to the Department of State with
  165  an exemplar of the facsimile signature stamp. This subsection
  166  does not apply to or prohibit the use of an electronic signature
  167  and seal by a notary public who is registered as an online
  168  notary public to perform an electronic or online notarization in
  169  accordance with this chapter.
  170         (3) A notary public may not affix his or her signature to a
  171  blank form of affidavit or certificate of acknowledgment and
  172  deliver that form to another person with the intent that it be
  173  used as an affidavit or acknowledgment.
  174         (4) A notary public may not take the acknowledgment of or
  175  administer an oath to a person whom the notary public actually
  176  knows to have been adjudicated mentally incapacitated by a court
  177  of competent jurisdiction, where the acknowledgment or oath
  178  necessitates the exercise of a right that has been removed
  179  pursuant to s. 744.3215(2) or (3), and where the person has not
  180  been restored to capacity as a matter of record.
  181         (5) A notary public may not notarize a signature on a
  182  document if it appears that the person is mentally incapable of
  183  understanding the nature and effect of the document at the time
  184  of notarization.
  185         (6) A notary public may not take the acknowledgment of a
  186  person who does not speak or understand the English language,
  187  unless the nature and effect of the instrument to be notarized
  188  is translated into a language which the person does understand.
  189         (7) A notary public may not change anything in a written
  190  instrument after it has been signed by anyone.
  191         (8) A notary public may not amend a notarial certificate
  192  after the notarization is complete.
  193         (9) A notary public may not notarize a signature on a
  194  document if the person whose signature is being notarized does
  195  not appear before the notary public either by means of physical
  196  presence or by means of audio-video communication technology as
  197  authorized under part II of this chapter at the time the
  198  signature is notarized. Any notary public who violates this
  199  subsection is guilty of a civil infraction, punishable by
  200  penalty not exceeding $5,000, and such violation constitutes
  201  malfeasance and misfeasance in the conduct of official duties.
  202  It is no defense to the civil infraction specified in this
  203  subsection that the notary public acted without intent to
  204  defraud. A notary public who violates this subsection with the
  205  intent to defraud is guilty of violating s. 117.105.
  206         (10) A notary public may not notarize a signature on a
  207  document if the document is incomplete or blank. However, an
  208  endorsement or assignment in blank of a negotiable or
  209  nonnegotiable note and the assignment in blank of any instrument
  210  given as security for such note is not deemed incomplete.
  211         (10)(11) A notary public may not notarize a signature on a
  212  document if the person whose signature is to be notarized is the
  213  spouse, son, daughter, mother, or father of the notary public.
  214         (11)(12) A notary public may not notarize a signature on a
  215  document if the notary public has a financial interest in or is
  216  a party to the underlying transaction; however, a notary public
  217  who is an employee may notarize a signature for his or her
  218  employer, and this employment does not constitute a financial
  219  interest in the transaction nor make the notary a party to the
  220  transaction under this subsection as long as he or she does not
  221  receive a benefit other than his or her salary and the fee for
  222  services as a notary public authorized by law. For purposes of
  223  this subsection, a notary public who is an attorney does not
  224  have a financial interest in and is not a party to the
  225  underlying transaction evidenced by a notarized document if he
  226  or she notarizes a signature on that document for a client for
  227  whom he or she serves as an attorney of record and he or she has
  228  no interest in the document other than the fee paid to him or
  229  her for legal services and the fee authorized by law for
  230  services as a notary public.
  231         (12)A notary public who commits a violation of this
  232  section commits a misdemeanor of the first degree, punishable as
  233  provided in s. 775.082 or s. 775.083. A notary public who
  234  commits a violation of this section with the intent to defraud
  235  commits a felony of the third degree, punishable as provided in
  236  s. 775.082, s. 775.083, or s. 775.084. If the violation of this
  237  section pertains to a real estate transaction or any other
  238  transfer of real property, the notary public commits a felony of
  239  the second degree, punishable as provided in s. 775.082, s.
  240  775.083, or s. 775.084.
  241         Section 4. Section 117.109, Florida Statutes, is created to
  242  read:
  243         117.109 Journal of notarizations.—
  244         (1)A notary public shall keep one or more tangible
  245  journals of all notarizations performed by the notary public.
  246  For each notarization, the journal entry must contain all of the
  247  following:
  248         (a)The date and time of the notarization.
  249         (b)The type of notarial act performed, whether an oath or
  250  acknowledgment.
  251         (c)The type, the title, or a description of the electronic
  252  recording or proceeding.
  253         (d)The name and address of each principal or witness
  254  involved in the transaction or proceeding.
  255         (e)Evidence of identity of each principal involved in the
  256  transaction or proceeding in either of the following forms:
  257         1.A statement that the person is personally known to the
  258  notary public; or
  259         2.a.A notation of the type of government-issued
  260  identification credential the person provided to the notary
  261  public;
  262         b.An indication that the government-issued identification
  263  credential satisfied the credential analysis; and
  264         c.An indication that the principal satisfactorily passed
  265  the identity proofing.
  266         (f)The fee, if any, charged for the notarization.
  267         (2)The notary public shall take reasonable steps to:
  268         (a)Maintain a backup record of the journal required by
  269  subsection (1).
  270         (b)Protect from unauthorized access the journal, the
  271  backup record, and any other records the notary public receives.
  272         (3)The Department of State shall retain jurisdiction over
  273  the journal records for a period of 10 years after the date of
  274  the notarial acts for the purpose of investigating possible
  275  notarial misconduct.
  276         (a)A notary public shall maintain the journal required
  277  under subsection (1) for at least 10 years after the date of the
  278  notarial act.
  279         (b)A notary public, a guardian of an incapacitated notary
  280  public, or the personal representative of a notary public may
  281  contract with a secure repository, in accordance with any rules
  282  established under this chapter, and delegate to the repository
  283  the notary public’s duty to maintain the journal, provided that
  284  the department is notified of such delegation of retention
  285  duties within 30 days thereafter, including the effective date
  286  of the delegation and the address and contact information for
  287  the repository.
  288         (c)If a notary public delegates to a secure repository his
  289  or her duty to maintain the journal required under this section,
  290  the notary public must make an entry in his or her journal
  291  identifying such repository and notify the department as
  292  required in this subsection. During any delegation under this
  293  subsection, the secure repository shall fulfill the
  294  responsibilities of the notary public to provide copies or
  295  access under s. 117.111.
  296         (4)An omitted or incomplete entry in the journal does not
  297  invalidate the notarial act performed, but may be introduced as
  298  evidence to establish violations of this chapter; as evidence of
  299  possible fraud, forgery, impersonation, duress, incapacity,
  300  undue influence, minority, illegality, or unconscionability; or
  301  for other evidentiary purposes.
  302         Section 5. Section 117.111, Florida Statutes, is created to
  303  read:
  304         117.111Use of journal.—
  305         (1)A notary public shall do all of the following:
  306         (a)Keep the journal maintained pursuant to s. 117.109
  307  secure and under his or her sole control. The notary public may
  308  not allow another person to use the notary public’s journal or
  309  allow another person who is providing services to a notary
  310  public to facilitate the performance of notarizations.
  311         (b)Notify an appropriate law enforcement agency and the
  312  Department of State of any unauthorized use of or compromise to
  313  the security of the journal within 7 days after the discovery of
  314  the unauthorized use or compromise to security.
  315         (2)A notary public shall provide copies of pertinent
  316  entries in the journal upon the request of any of the following:
  317         (a)The department, pursuant to a notary misconduct
  318  investigation.
  319         (b)Any other persons or entities, pursuant to a subpoena,
  320  a court order, a law enforcement investigation, or any other
  321  lawful inspection demand.
  322         (3)This section may not be construed to prevent a notary
  323  public from designating a secure repository under s. 117.109.
  324         Section 6.  Subsection (6) of section 28.47, Florida
  325  Statutes, is amended to read:
  326         28.47 Recording notification service.—
  327         (6) This section also applies to county property appraisers
  328  who have adopted an electronic land record notification service
  329  before July 1, 2023.
  330         (a)1. The property appraiser may use a verification process
  331  for persons wishing to register for the electronic land record
  332  notification service to ensure the integrity of the process.
  333         2.If the property appraiser receives notice from the
  334  property owner or clerk of the circuit court and reasonably
  335  determines that the recorded deed is fraudulent, the property
  336  appraiser may refuse to update the owner of record on the
  337  county’s tax rolls. However, the property appraiser shall make a
  338  notation in his or her records that a possible conveyance has
  339  been recorded.
  340         (b) For purposes of this subsection only, and
  341  notwithstanding paragraph (1)(a) and subsection (3):
  342         1. “Land record” means a deed or other document purporting
  343  to convey real property.
  344         2. When a land record is recorded for a monitored identity,
  345  the property appraiser must send a recording notification to
  346  each registrant who is subscribed to receive recording
  347  notifications for that monitored identity within 24 hours after
  348  the instrument being reflected on the county tax roll.
  349         Section 7. This act shall take effect July 1, 2024.