Florida Senate - 2009                                    SB 2178
       
       
       
       By Senator Crist
       
       
       
       
       12-00432H-09                                          20092178__
    1                        A bill to be entitled                      
    2         An act relating to mail-in secondhand dealers of
    3         jewelry and precious metals; creating part III of ch.
    4         538, F.S.; defining terms; excluding certain persons
    5         and businesses from applicability of the act;
    6         providing registration and recordkeeping requirements;
    7         providing for verification of a seller's
    8         identification; requiring the seller to present a
    9         notarized statement to the secondhand dealer that the
   10         photographic identification is true and accurate under
   11         certain circumstances; requiring the seller to provide
   12         a sworn statement that the seller is the lawful owner
   13         of the jewelry or precious metals that are offered for
   14         sale and has the authority to sell the jewelry or
   15         precious metals; prescribing procedures for
   16         deficiencies in information required to be provided by
   17         a seller; providing holding periods for jewelry and
   18         precious metals; providing procedures for returning a
   19         seller's jewelry and precious metals; providing
   20         procedures for notifying a law enforcement agency of
   21         transactions; prescribing procedures for tendering
   22         payments; requiring the dealer to remit payment to the
   23         seller within 2 business days and for the seller to
   24         acknowledge receipt of payment within 30-calendar
   25         days; providing for the inspection of records and
   26         premises by law enforcement agencies; providing
   27         holding periods for jewelry and precious metals
   28         purchased by a secondhand dealer; providing
   29         requirements for the storage of jewelry and precious
   30         metals; describing prohibited acts and practices;
   31         providing criminal penalties; providing for a cause of
   32         action for stolen jewelry and precious metals;
   33         providing for a petition for the return of jewelry and
   34         precious metals; providing an effective date.
   35  
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Part III of chapter 538, Florida Statutes,
   39  consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35,
   40  538.36, 538.37, and 538.38, is created to read:
   41                              Part III                             
   42        MAIL-IN SECONDHAND JEWELRY AND PRECIOUS METAL DEALERS      
   43         538.31Definitions.—As used in this part, the term:
   44         (1)“Department” means the Department of Revenue.
   45         (2)“Jewelry” means a personal ornament that contains
   46  precious metals and may contain gemstones.
   47         (3)“Precious metals” means any item containing any gold,
   48  silver, or platinum, or any combination thereof.
   49         (4)“Secondhand dealer” means any person or business within
   50  this state that regularly engages in the business of purchasing
   51  jewelry or precious metals only through the mail or package
   52  delivery service.
   53         (5)“Seller” means any person or business that offers
   54  jewelry or precious metals that belong solely to that person or
   55  business for sale to another and that person or business has the
   56  authority to sell the jewelry or precious metals to another.
   57         (6)“Transaction” means the purchase of jewelry or precious
   58  metals by a secondhand dealer.
   59         538.32Applicability.—This part does not apply to:
   60         (1)Any person or business that is open to the public for
   61  walk-in business at a secondhand store and is regulated under
   62  part I.
   63         (2)The purchase, consignment, or trade of jewelry or
   64  precious metals with another mail-in secondhand precious metal
   65  dealer or secondhand dealer regulated under part I.
   66         538.33Registration and recordkeeping requirements.—
   67         (1)A secondhand dealer may not conduct business under this
   68  part without registering with the department and complying with
   69  all registration requirements as set forth in s. 538.09.
   70         (2)A secondhand dealer may not pay a seller for jewelry or
   71  precious metals until the seller has provided, on a transaction
   72  form provided by the secondhand dealer and approved by the
   73  Department of Law Enforcement, the following information:
   74         (a)The seller’s name, address of primary residence,
   75  telephone number, and e-mail address, if available.
   76         (b)The seller’s thumbprint, free of smudges and smears,
   77  affixed to a form provided by the secondhand dealer.
   78         (c)The seller’s driver’s license number and issuing state.
   79         (d)Any other information required by the form approved by
   80  the Department of Law Enforcement.
   81         (3)The seller of jewelry or precious metals shall give the
   82  secondhand dealer a notarized statement confirming that the
   83  identification information supplied on the transaction form is
   84  the same that appears on the seller's driver's license or other
   85  government-issued identification for which the seller has been
   86  photographed, and that the photo identification presented to the
   87  notary belongs to the person from whom the secondhand dealer has
   88  received precious metals or jewelry in exchange for payment if
   89  any of the following conditions apply:
   90         (a)The dealer has not received a notarized statement from
   91  the seller in any previous transaction;
   92         (b)For any transaction that the seller has evaluated will
   93  be worth at least $300; or
   94         (c)The identification or contact information provided to
   95  the dealer by the seller has been altered or changed since the
   96  seller's most recent transaction with the dealer.
   97         (4)The seller must provide a sworn statement made by the
   98  seller that the seller is the lawful owner of the jewelry or
   99  precious metals that are offered for sale and has the authority
  100  to sell the jewelry or precious metals.
  101         (5)Before tendering any payment, a secondhand dealer shall
  102  verify the seller’s address of primary residence or telephone
  103  number by matching the information with the United States Postal
  104  Service database or a commercial telephone directory. If the
  105  secondhand dealer is unable to match the seller’s name and
  106  address of primary residence or name and telephone number, the
  107  secondhand dealer may not complete the purchase of the seller’s
  108  jewelry or precious metals and must perform only those
  109  transactions that are required to return the jewelry or precious
  110  metals to the seller.
  111         (6)(a)If the seller fails to provide the information
  112  required on the transaction form under subsection (2), the
  113  secondhand dealer must give written notice to the seller of the
  114  deficient information within 15 days after the secondhand dealer
  115  receives the seller’s transaction form. The secondhand dealer
  116  must request in the notice that the seller provide the missing
  117  information within 30 days after receiving the secondhand
  118  dealer's notice. The notice must state that if the seller does
  119  not provide the missing information within the allotted 30 days,
  120  the seller’s jewelry or precious metals will be held for an
  121  additional 30 days before they are deemed abandoned and
  122  relinquished to the state under chapter 717. The same
  123  notification requirements must apply to any transaction in which
  124  the seller has failed to acknowledge receipt of funds within 30
  125  calendar days after the dealer's recorded date of remittance, as
  126  required by s. 538.34(2).
  127         (b)If the seller fails to remedy the deficiency in the
  128  transaction form within 30 days after receiving the notice, the
  129  secondhand dealer must hold the seller’s property for an
  130  additional 30 days.
  131         (c)If the secondhand dealer continues to hold the seller’s
  132  jewelry or precious metals at the end of the 30-day holding
  133  period required under paragraph (b), the seller’s property is
  134  deemed to be abandoned and must be relinquished to the state
  135  under chapter 717.
  136         (d)After the expiration of the 30-day holding period under
  137  paragraph (a) or upon abandonment of the seller’s property, the
  138  secondhand dealer must notify the local law enforcement agency
  139  within 24 hours and the law enforcement agency of competent
  140  jurisdiction nearest to the seller’s address of the expiration
  141  of the 30-day holding period or the abandonment of the property,
  142  as applicable. The dealer must provide copies of all written
  143  transactions between seller and secondhand dealer to each law
  144  enforcement agency in electronic form.
  145         (e)During the period in which the secondhand dealer is in
  146  possession of the seller’s jewelry or precious metals, the
  147  seller may request in writing, or by a consensually recorded
  148  telephone call, the return of his or her jewelry or precious
  149  metals. The secondhand dealer must comply with seller’s request
  150  and return the seller's jewelry or precious metals, unless the
  151  sale of the items is being investigated by a law enforcement
  152  agency.
  153         (7)For every transaction, the secondhand dealer must keep
  154  a record of:
  155         (a)A complete and accurate description of the seller’s
  156  jewelry or precious metals, including:
  157         1.The type, weight, and content of the precious metal, if
  158  known.
  159         2.A description of the gemstones, including the number and
  160  size of each stone, if applicable.
  161         3.Any unique identifying marks, numbers, or letters.
  162         (b)The date that the seller’s jewelry or precious metals
  163  were received by the secondhand dealer.
  164         (c)The date and time of all communication from the seller.
  165         (d)The telephone number of the seller, as captured by
  166  caller ID, when communication is made by telephone.
  167         (e)A recording of all telephone communication, if
  168  consented to by the seller.
  169         (f)The Internet Protocol (IP) address, date, and time when
  170  communication is made by e-mail.
  171         (g)The date and method of disposition of the jewelry or
  172  precious metals, as well as a photograph of the jewelry or
  173  precious metal.
  174         (h)A digital photograph of the item sold and of any unique
  175  identifying mark.
  176         (8)The secondhand dealer must maintain, for at least 3
  177  years, all information collected pursuant to subsections (2) and
  178  (7) and all records of any transaction between the dealer and
  179  seller in a form that is easily retrievable upon request by a
  180  law enforcement agency. Any information maintained pursuant to
  181  this section shall be grouped by each seller’s county of primary
  182  residence, and shall be organized in ascending order according
  183  to the dates upon which each transaction occurred.
  184         (9)Unless other arrangements have been agreed upon by the
  185  secondhand dealer and the appropriate law enforcement agency,
  186  the secondhand dealer shall, within 24 hours after acquiring any
  187  secondhand goods, deliver to the police department of the
  188  municipality in which the secondhand dealer is registered or, if
  189  the secondhand dealer is located outside of a municipality, to
  190  the sheriff's department of the county in which the secondhand
  191  dealer is registered, a record of the transaction on a form
  192  approved by the Department of Law Enforcement.
  193         538.34Tendering payment.—
  194         (1)Except as provided in subsection (3), the secondhand
  195  dealer shall make payment to the seller by check, payable to the
  196  seller using only the seller’s name and mailed to the seller's
  197  address of primary residence, as submitted by the seller and
  198  verified by the dealer under s. 538.33.
  199         (2)Upon receipt of all documentation required by the
  200  seller in s. 538.33(2), the dealer shall remit payment to the
  201  seller within 2 business days and shall provide written
  202  notification to the seller that he or she must acknowledge
  203  receipt of funds within 30-calendar days by depositing or
  204  cashing the check issued by the dealer, after which the property
  205  remitted to the dealer shall be treated as provided in s.
  206  538.33(6).
  207         (3)Upon request by the seller, a secondhand dealer may
  208  make payment by wire transfer into a bank account rather than
  209  payment by check. Before completing a wire transfer, the
  210  secondhand dealer must obtain a copy of a voided bank check from
  211  the seller which contains the seller’s name, address of primary
  212  residence, or mailing address, if different from the seller's
  213  address of primary residence, and bank account number and the
  214  name of his or her banking institution. The secondhand dealer
  215  must verify the address on the check through the United States
  216  Postal Service database, using the same method as set forth in
  217  s. 538.33, and may make a wire transfer only to the bank account
  218  that has been verified as the seller’s account.
  219         (4)The secondhand dealer must make wire transfers only
  220  through a money transmitter licensed under part II of chapter
  221  560.
  222         538.35Inspection of records and premises.—The secondhand
  223  dealer must allow a law enforcement agency to inspect its
  224  business records, inventory, and premises during normal business
  225  hours to ensure compliance with this part. The secondhand
  226  dealer, upon request, must provide to the law enforcement agency
  227  any transaction form and all items listed on a transaction form,
  228  unless the jewelry or precious metals are no longer in the
  229  possession of the secondhand dealer.
  230         538.36Holding period.—
  231         (1)The dealer may not sell, barter, exchange, alter,
  232  adulterate, use, or in any way dispose of any jewelry or
  233  precious metals purchased from a seller until the seller has
  234  acknowledged receipt of funds issued to him or her by the dealer
  235  in exchange for jewelry or precious metals remitted to the
  236  dealer, or if payment has been wired electronically, within 15
  237  calendar days after the dealer has remitted payment to the
  238  seller in exchange for jewelry or precious metals, except that
  239  this holding period may be extended for purposes of complying
  240  with s. 538.33(4) and (6)(e). This holding period terminates if
  241  the seller demands in writing, or during a consensually recorded
  242  telephone conversation, the return of the seller’s jewelry or
  243  precious metals and has reimbursed the dealer for any payment
  244  paid to the seller for his or her jewelry or precious metals.
  245         (2)The secondhand dealer must store all precious metals
  246  and jewelry in a secure location during holding periods and make
  247  the items available for inspection at the request of a law
  248  enforcement agency.
  249         (3)The secondhand dealer assumes all responsibility of any
  250  property or evidence in question, including responsibility for
  251  the actions of his or her employees.
  252         538.37Acts and practices prohibited; penalties.—
  253         (1)A secondhand dealer who is not registered with the
  254  department as a mail-in secondhand dealer of jewelry and
  255  precious metals commits a felony of the third degree, punishable
  256  as provided in s. 775.082, s. 775.083, or s. 775.084, for each
  257  completed transaction. The officers and corporation, if
  258  convicted or found guilty of or pled nolo contendere to a
  259  violation of this section, may not operate thereafter for 1 year
  260  as a secondhand dealer of jewelry or precious metals within this
  261  state.
  262         (2)A seller who knowingly gives false personal identifying
  263  information to a secondhand dealer, provides a driver’s license
  264  number that does not belong to him or her, provides a thumbprint
  265  that is not his or her own, or makes a false statement with
  266  respect to his or her age or ownership of the jewelry or
  267  precious metals, and who receives payment from the secondhand
  268  dealer commits:
  269         (a)If the value of the money received is less than $300, a
  270  felony of the third degree, punishable as provided in s.
  271  775.082, s. 775.083, or s. 775.084.
  272         (b)If the value of the money received is $300 or greater,
  273  a felony of the second degree, punishable as provided in s.
  274  775.082, s. 775.083, or s. 775.084.
  275         (3)Except as otherwise specifically provided in this
  276  section, the penalty provisions of s. 538.07 apply to any
  277  secondhand dealer who knowingly violates this part.
  278         538.38Stolen goods; petition for return.—
  279         (1)If a person other than the seller alleges ownership of
  280  jewelry or precious metals sold to a secondhand dealer, he or
  281  she may bring an action for replevin in the county or circuit
  282  court if a timely report of the theft of the secondhand jewelry
  283  or precious metals was made to the proper authorities. An action
  284  may be initiated by filing a petition in substantially the
  285  following form:
  286  
  287         Plaintiff A. B., sues defendant C. D., and alleges:
  288         1.This is an action to recover possession of personal
  289  property in ............ County, Florida.
  290         2.The description of the property is: ...(list and
  291  describe property)....
  292         3.Plaintiff is entitled to the possession of the property
  293  as evidenced by ...(indicate evidence such as a receipt or
  294  contract and attach evidence to petition as Exhibit A)....
  295         4.To plaintiff's best knowledge, information, and belief
  296  the property is located at .................
  297         5.The property is wrongfully detained by defendant.
  298  Defendant came into possession of the property by ...(describe
  299  method of possession).... To plaintiff's best knowledge,
  300  information, and belief, defendant detains the property because
  301  ...(give reasons)....
  302         6.The property has not been taken under an execution or
  303  attachment against plaintiff’s property.
  304         (2)The filing fees shall be waived by the clerk of the
  305  court, and the service fees shall be waived by the sheriff. The
  306  court shall award to the prevailing party attorney's fees and
  307  costs. In addition, if the filing party prevails in the replevin
  308  action, the court shall order payment of filing fees to the
  309  clerk and service fees to the sheriff.
  310         (3)Upon the filing of the petition, the court shall set a
  311  hearing to be held at the earliest possible time. Upon the
  312  receipt of a petition for a writ by a secondhand dealer of
  313  jewelry and precious metals, the secondhand dealer must hold the
  314  jewelry or precious metals at issue until the court determines
  315  the respective interests of the parties.
  316         (4)In addition to the civil petition for return remedy,
  317  the state may file a motion as part of a pending criminal case
  318  related to the jewelry or precious metals. The criminal court
  319  has jurisdiction to determine ownership, to order return or
  320  other disposition of the jewelry or precious metals, and to
  321  order any appropriate restitution to any person. The order must
  322  be entered upon hearing after proper notice has been given to
  323  the secondhand dealer, the victim, and the defendant in the
  324  criminal case.
  325         Section 2. This act shall take effect July 1, 2009.