Florida Senate - 2012 (Corrected Copy) CS for CS for CS for
SB 540
By the Committees on Criminal Justice; Community Affairs; and
Commerce and Tourism; and Senators Smith, Montford, Evers, and
Lynn
591-02723A-12 2012540c3
1 A bill to be entitled
2 An act relating to secondhand dealers and secondary
3 metals recyclers; amending s. 538.03, F.S.; requiring
4 that a secondary metals recycler conform to the
5 requirements for a secondhand dealer; defining the
6 term “appropriate law enforcement official”; deleting
7 exemptions from regulation as a secondhand dealer
8 which relate to flea market transactions; conforming
9 terminology; amending s. 538.04, F.S., relating to
10 recordkeeping requirements; conforming terminology and
11 clarifying provisions; amending s. 538.18, F.S.;
12 revising and providing definitions; amending s.
13 319.30, F.S.; conforming a cross-reference; amending
14 s. 538.19, F.S.; revising requirements for the types
15 of information that secondary metals recyclers must
16 obtain and maintain regarding purchase transactions,
17 including requirements for the maintenance and
18 transmission of electronic records of such
19 transactions; revising the period required for
20 secondary metals recyclers to maintain certain
21 information regarding purchase transactions involving
22 regulated metals property; limiting the liability of
23 secondary metals recyclers for the conversion of motor
24 vehicles to scrap metal under certain circumstances;
25 amending s. 538.235, F.S.; revising requirements for
26 payments made by secondary metals recyclers to sellers
27 of regulated metals property to prohibit certain cash
28 transactions; providing penalties; providing methods
29 of payment for restricted regulated metals property;
30 requiring that purchases of certain property be made
31 by check or by electronic payment; providing
32 procedures; amending s. 538.25, F.S.; requiring the
33 Department of Revenue to accept applications from a
34 fixed business address; prohibiting the department
35 from accepting an application that provides an address
36 from a hotel or motel room, a vehicle, or a post
37 office box; amending s. 538.26, F.S.; prohibiting
38 secondary metals recyclers from purchasing regulated
39 metals property, restricted regulated metals property,
40 or ferrous metals during specified times or from
41 certain locations; prohibiting the purchase of
42 regulated metal property from a seller who uses a name
43 other than his or her own name or the registered name
44 of the business, is younger than 18 years of age, or
45 is under the influence of drugs or alcohol, if such a
46 condition is visible or apparent; prohibiting the
47 purchase of specified restricted regulated metals
48 property without obtaining certain proof of the
49 seller’s ownership and authorization to sell the
50 property; providing penalties; creating s. 538.28,
51 F.S.; preempting to the state the regulation of
52 secondary metals recyclers and purchase transactions
53 involving regulated metals property; exempting county
54 and municipal ordinances and regulations enacted
55 before March 1, 2012, from preemption; prohibiting
56 requirements for verification of compliance with
57 certain federal regulations; reenacting and amending
58 s. 538.23(1)(a), F.S., relating to violations and
59 penalties, to incorporate the amendments made by this
60 act to ss. 538.19 and 538.235, F.S., in references
61 thereto; correcting a cross-reference; amending s.
62 812.145, F.S.; redefining the term “utility”;
63 providing that a person who assists in the taking of
64 certain metals commits a felony of the first degree;
65 providing that a person who illegally takes copper or
66 other nonferrous metals from a utility or
67 communications services provider is liable to the
68 utility or communications provider for damages equal
69 to three times the amount of any claim against the
70 utility or communication services provider resulting
71 from the illegal taking of copper or other nonferrous
72 metals; limiting the liability of a public or private
73 owner of metal property for injuries occurring during
74 the theft or attempted theft of metal property and for
75 injuries occurring as the result of the theft or
76 attempted theft; providing that no additional duty of
77 care is imposed on the owner of metal property;
78 providing an effective date.
79
80 Be It Enacted by the Legislature of the State of Florida:
81
82 Section 1. Subsection (1) of section 538.03, Florida
83 Statutes, is reordered and amended, present paragraphs (l)
84 through (q) of subsection (2) of that section are redesignated
85 as paragraphs (k) through (p), respectively, and present
86 paragraphs (k) and (n) of that subsection are amended, to read:
87 538.03 Definitions; applicability.—
88 (1) As used in this part, the term:
89 (g)(a) “Secondhand dealer” means any person, corporation,
90 or other business organization or entity that which is not a
91 secondary metals recycler subject to part II and that which is
92 engaged in the business of purchasing, consigning, or trading
93 secondhand goods. A secondary metals recycler may not act as a
94 secondhand dealer without also conforming to the requirements
95 for a secondhand dealer pursuant to this part.
96 (f)(b) “Precious metals dealer” means a secondhand dealer
97 who normally or regularly engages in the business of buying used
98 precious metals for resale. The term does not include those
99 persons involved in the bulk sale of precious metals from one
100 secondhand or precious metals dealer to another.
101 (i)(c) “Secondhand store” means the place or premises at
102 which a secondhand dealer is registered to conduct business as a
103 secondhand dealer or conducts business.
104 (c)(d) “Consignment shop” means a shop engaging in the
105 business of accepting for sale, on consignment, secondhand goods
106 that which, having once been used or transferred from the
107 manufacturer to the dealer, are then received into the
108 possession of a third party.
109 (a)(e) “Acquire” means to obtain by purchase, consignment,
110 or trade.
111 (h)(f) “Secondhand goods” means personal property
112 previously owned or used, which is not regulated metals property
113 regulated under part II and which is purchased, consigned, or
114 traded as used property. Such secondhand goods do not include
115 office furniture, pianos, books, clothing, organs, coins, motor
116 vehicles, costume jewelry, cardio and strength training or
117 conditioning equipment designed primarily for indoor use, and
118 secondhand sports equipment that is not permanently labeled with
119 a serial number. For purposes of this paragraph, “secondhand
120 sports equipment” does not include golf clubs.
121 (j)(g) “Transaction” means any purchase, consignment, or
122 trade of secondhand goods by a secondhand dealer.
123 (e)(h) “Precious metals” means any item containing any
124 gold, silver, or platinum, or any combination thereof, excluding
125 any chemical or any automotive, photographic, electrical,
126 medical, or dental materials or electronic parts.
127 (d)(i) “Department” means the Department of Revenue.
128 (b) “Appropriate law enforcement official” means the
129 sheriff of the county in which a secondhand dealer is located
130 or, if the secondhand dealer is located within a municipality,
131 both the police chief of the municipality and the sheriff;
132 however, the sheriff or police chief may designate as the
133 appropriate law enforcement official for that county or
134 municipality, as applicable, any law enforcement officer working
135 within that respective county or municipality. This paragraph
136 does not limit the authority or duties of the sheriff.
137 (2) This chapter does not apply to:
138 (k) Any person purchasing, consigning, or trading
139 secondhand goods at a flea market regardless of whether at a
140 temporary or permanent business location at the flea market.
141 (m)(n) A business that contracts with other persons or
142 entities to offer its secondhand goods for sale, purchase,
143 consignment, or trade via an Internet website, and that
144 maintains a shop, store, or other business premises for this
145 purpose, if all of the following apply:
146 1. The secondhand goods must be available on the website
147 for viewing by the public at no charge;
148 2. The records of the sale, purchase, consignment, or trade
149 must be maintained for at least 2 years;
150 3. The records of the sale, purchase, consignment, or
151 trade, and the description of the secondhand goods as listed on
152 the website, must contain the serial number of each item, if
153 any;
154 4. The secondhand goods listed on the website must be
155 searchable based upon the state or zip code;
156 5. The business must provide the appropriate law
157 enforcement official agency with the name or names under which
158 it conducts business on the website;
159 6. The business must allow the appropriate law enforcement
160 official agency to inspect its business premises at any time
161 during normal business hours;
162 7. Any payment by the business resulting from such a sale,
163 purchase, consignment, or trade must be made to the person or
164 entity with whom the business contracted to offer the goods and
165 must be made by check or via a money services business licensed
166 under part II of chapter 560; and
167 8.a. At least 48 hours after the estimated time of
168 contracting to offer the secondhand goods, the business must
169 verify that any item having a serial number is not stolen
170 property by entering the serial number of the item into the
171 Department of Law Enforcement’s stolen article database located
172 at the Florida Crime Information Center’s public access system
173 website. The business shall record the date and time of such
174 verification on the contract covering the goods. If such
175 verification reveals that an item is stolen property, the
176 business shall immediately remove the item from any website on
177 which it is being offered and notify the appropriate law
178 enforcement official agency; or
179 b. The business must provide the appropriate law
180 enforcement official agency with an electronic copy of the name,
181 address, phone number, driver driver’s license number, and
182 issuing state of the person with whom the business contracted to
183 offer the goods, as well as an accurate description of the
184 goods, including make, model, serial number, and any other
185 unique identifying marks, numbers, names, or letters that may be
186 on an item, in a format agreed upon by the business and the
187 appropriate law enforcement official agency. This information
188 must be provided to the appropriate law enforcement official
189 agency within 24 hours after entering into the contract unless
190 other arrangements are made between the business and the law
191 enforcement official agency.
192 Section 2. Subsections (1), (6), and (7) of section 538.04,
193 Florida Statutes, are amended to read:
194 538.04 Recordkeeping requirements; penalties.—
195 (1) A secondhand dealer dealers shall complete a secondhand
196 dealers transaction form at the time of the actual transaction.
197 A secondhand dealer shall maintain a copy of a completed
198 transaction form on the registered premises for at least 1 year
199 after the date of the transaction. However, the secondhand
200 dealer shall maintain a copy of the transaction form for not
201 less than 3 years. Unless other arrangements are have been
202 agreed upon by the secondhand dealer and the appropriate law
203 enforcement official agency, the secondhand dealer shall, within
204 24 hours after acquiring the acquisition of any secondhand
205 goods, deliver to such official the police department of the
206 municipality where the goods were acquired or, if the goods were
207 acquired outside of a municipality, to the sheriff’s department
208 of the county where the goods were acquired, a record of the
209 transaction on a form approved by the Department of Law
210 Enforcement. Such record shall contain:
211 (a) The time, date, and place of the transaction.
212 (b) A complete and accurate description of the goods
213 acquired, including the following information, if applicable:
214 1. Brand name.
215 2. Model number.
216 3. Manufacturer’s serial number.
217 4. Size.
218 5. Color, as apparent to the untrained eye.
219 6. Precious metal type, weight, and content if known.
220 7. Gemstone description, including the number of stones, if
221 applicable.
222 8. In the case of firearms, the type of action, caliber or
223 gauge, number of barrels, barrel length, and finish.
224 9. Any other unique identifying marks, numbers, or letters.
225 (c) A description of the person from whom the goods were
226 acquired, including:
227 1. Full name, current residential address, workplace, and
228 home and work phone numbers.
229 2. Height, weight, date of birth, race, gender, hair color,
230 eye color, and any other identifying marks.
231 3. The right thumbprint, free of smudges and smears, of the
232 person from whom the goods were acquired.
233 (d) Any other information required by the form approved by
234 the Department of Law Enforcement.
235 (6) If the appropriate law enforcement official agency
236 supplies a secondhand dealer with appropriate software and the
237 secondhand dealer has computer capability, the secondhand dealer
238 must transactions shall be electronically transmit secondhand
239 dealer transactions required by this section to such official
240 transferred. If a secondhand dealer does not have computer
241 capability, the appropriate law enforcement official agency may
242 provide the secondhand dealer with a computer and all equipment
243 necessary to equipment for the purpose of electronically
244 transmit transferring secondhand dealer transactions. The
245 appropriate law enforcement official agency shall retain
246 ownership of the computer, unless otherwise agreed upon, and.
247 the secondhand dealer shall maintain the computer in good
248 working order, except for ordinary wear and tear excepted. A If
249 the secondhand dealer who transmits transfers secondhand dealer
250 transactions electronically, the secondhand dealer is not
251 required to also deliver to the appropriate law enforcement
252 agency the original or paper copies of the secondhand
253 transaction forms to the appropriate law enforcement official.
254 However, such official may, for purposes the purpose of a
255 criminal investigation, the appropriate law enforcement agency
256 may request that the secondhand dealer to deliver the produce an
257 original of a transaction form that was has been electronically
258 transmitted transferred. The secondhand dealer shall deliver the
259 this form to the appropriate law enforcement official agency
260 within 24 hours after receipt of the request.
261 (7) If the original transaction form is lost or destroyed
262 by the appropriate law enforcement official agency, a copy may
263 be used by the secondhand dealer as evidence in court. When an
264 electronic image of a customer’s identification is accepted for
265 a transaction, the secondhand dealer must maintain the
266 electronic image in order to meet the recordkeeping requirements
267 applicable to the original transaction form. If a criminal
268 investigation occurs, the secondhand dealer shall, upon request,
269 provide a clear and legible copy of the image to the appropriate
270 law enforcement official agency.
271 Section 3. Section 538.18, Florida Statutes, is reordered
272 and amended to read:
273 538.18 Definitions.—As used in this part, the term:
274 (1) “Appropriate law enforcement official” means the
275 sheriff of the county in which a secondary metals recycler is
276 located or, if the secondary metals recycler is located within a
277 municipality, the police chief of the municipality in which the
278 secondary metals recycler is located; however, the sheriff or
279 police chief may designate as the appropriate law enforcement
280 official for the county or municipality, as applicable, any law
281 enforcement officer working within that respective county or
282 municipality. This subsection does not limit the authority or
283 duties of the sheriff.
284 (3)(1) “Ferrous metals” means any metals containing
285 significant quantities of iron or steel.
286 (4)(2) “Fixed location” means any site occupied by a
287 secondary metals recycler as owner of the site or as lessee of
288 the site under a lease or other rental agreement providing for
289 occupation of the site by the secondary metals recycler for a
290 total duration of not less than 364 days.
291 (5)(3) “Money” means a medium of exchange authorized or
292 adopted by a domestic or foreign government as part of its
293 currency.
294 (6)(4) “Nonferrous metals” means metals not containing
295 significant quantities of iron or steel, including, without
296 limitation, copper, brass, aluminum, bronze, lead, zinc, nickel,
297 and alloys thereof, excluding precious metals subject to
298 regulation under part I.
299 (7)(5) “Personal identification card” means a valid Florida
300 driver license, a Florida identification card issued by the
301 Department of Highway Safety and Motor Vehicles, an equivalent
302 form of identification issued by another state, a passport, or
303 an employment authorization issued by the United States Bureau
304 of Citizenship and Immigration Services that contains an
305 individual’s photograph and current address any government
306 issued photographic identification card.
307 (8)(6) “Purchase transaction” means a transaction in which
308 a secondary metals recycler gives consideration for regulated
309 metals property.
310 (9)(7) “Regulated metals property” means any item composed
311 primarily of any nonferrous metals. The term does, but shall not
312 include aluminum beverage containers, used beverage containers,
313 or similar beverage containers; however,. the term includes
314 shall include stainless steel beer kegs and items made of
315 ferrous metal obtained from any restricted regulated metals
316 property.
317 (11)(8) “Secondary metals recycler” means any person who:
318 (a) Is engaged, from a fixed location or otherwise, in the
319 business of purchase transactions, gathering or obtaining
320 ferrous or nonferrous metals that have served their original
321 economic purpose, or is in the business of performing the
322 manufacturing process by which ferrous metals or nonferrous
323 metals are converted into raw material products consisting of
324 prepared grades and having an existing or potential economic
325 value; or
326 (b) Has facilities for performing the manufacturing process
327 by which ferrous metals or nonferrous metals are converted into
328 raw material products consisting of prepared grades and having
329 an existing or potential economic value, other than by the
330 exclusive use of hand tools, by methods including, without
331 limitation, processing, sorting, cutting, classifying, cleaning,
332 baling, wrapping, shredding, shearing, or changing the physical
333 form or chemical content thereof.
334
335 A secondary metals recycler may not act as a secondhand dealer
336 without also conforming to the requirements of a secondhand
337 dealer pursuant to this part.
338 (2)(9) “Department” means the Department of Revenue.
339 (10) “Restricted regulated metals property” means any
340 regulated metals property listed in s. 538.26(5)(b) the sale of
341 which is restricted as provided in s. 538.26(5)(a).
342 (12) “Utility” means a public utility or electric utility
343 as defined in s. 366.02 or a person, firm, cooperative,
344 association, or political subdivision, whether private,
345 municipal, county, or cooperative, which is engaged in the sale,
346 generation, provision, or delivery of heat, water, oil, sewer
347 service, or telephone, telegraph, radio, telecommunications, or
348 communications service.
349 Section 4. Paragraph (u) of subsection (1) of section
350 319.30, Florida Statutes, is amended to read:
351 319.30 Definitions; dismantling, destruction, change of
352 identity of motor vehicle or mobile home; salvage.—
353 (1) As used in this section, the term:
354 (u) “Secondary metals recycler” means secondary metals
355 recycler as defined in s. 538.18 538.18(8).
356 Section 5. Section 538.19, Florida Statutes, is amended to
357 read:
358 538.19 Records required; limitation of liability.—
359 (1) A secondary metals recycler shall maintain a legible
360 paper record of all purchase transactions to which such
361 secondary metals recycler is a party. A secondary metals
362 recycler shall also maintain a legible electronic record, in the
363 English language, of all such purchase transactions. The
364 appropriate law enforcement official may provide data
365 specifications regarding the electronic record format, but such
366 format must be approved by the Department of Law Enforcement. An
367 electronic record of a purchase transaction shall be
368 electronically transmitted to the appropriate law enforcement
369 official no later than 10 a.m. of the business day following the
370 date of the purchase transaction. A secondary metals recycler
371 who transmits such records electronically is not required to
372 also deliver the original or paper copies of the transaction
373 forms to the appropriate law enforcement official. However, such
374 official may, for purposes of a criminal investigation, request
375 the secondary metals recycler to deliver the original
376 transaction form that was electronically transmitted. The
377 secondary metals recycler shall make available the form to the
378 appropriate law enforcement official within 24 hours after
379 receipt of the request.
380 (2) The following information must be maintained on the a
381 form approved by the Department of Law Enforcement for each
382 purchase transaction:
383 (a) The name and address of the secondary metals recycler.
384 (b) The name, initials, or other identification of the
385 individual entering the information on the ticket.
386 (c) The date and time of the transaction.
387 (d) The weight, quantity, or volume, and a description of
388 the type of regulated metals property purchased in a purchase
389 transaction.
390 (e) The amount of consideration given in a purchase
391 transaction for the regulated metals property.
392 (f) A signed statement from the person delivering the
393 regulated metals property stating that she or he is the rightful
394 owner of, or is entitled to sell, the regulated metals property
395 being sold. If the purchase involves a stainless steel beer keg,
396 the seller must provide written documentation from the
397 manufacturer that the seller is the owner of the stainless steel
398 beer keg or is an employee or agent of the manufacturer.
399 (g) The distinctive number from the personal identification
400 card of the person delivering the regulated metals property to
401 the secondary metals recycler.
402 (h) A description of the person from whom the regulated
403 metals property was goods were acquired, including:
404 1. Full name, current residential address, workplace, and
405 home and work phone numbers.
406 2. Height, weight, date of birth, race, gender, hair color,
407 eye color, and any other identifying marks.
408 3. The right thumbprint, free of smudges and smears.
409 4. Vehicle description to include the make, model, and tag
410 number of the vehicle and trailer of the person selling the
411 regulated metals property.
412 5. Any other information required by the form approved by
413 the Department of Law Enforcement.
414 (i) A photograph, videotape, or digital image of the
415 regulated metals being sold.
416 (j) A photograph, videotape, or similar likeness of the
417 person receiving consideration in which such person’s facial
418 features are clearly visible.
419 (3) Any secondary metals recycler that maintains an
420 electronic database containing the information required in
421 paragraph (2)(h), along with an oath of ownership with a
422 signature of the seller of the secondary metals being purchased
423 by the secondary metals recycler and a right thumbprint that has
424 no smudges and smears on the oath of ownership for each purchase
425 transaction, shall be exempt from the records requirement of
426 paragraph (2)(h). A secondary metals recycler complies with the
427 requirements of this section if it maintains an electronic
428 database containing the information required by subsection (2)
429 paragraph (2)(h) as long as the electronic information required
430 by subsection (2) paragraph (2)(h), along with an electronic
431 oath of ownership with an electronic signature of the seller of
432 the secondary metals being purchased by the secondary metals
433 recyclers and an electronic image of the seller’s right
434 thumbprint that has no smudges and smears, can be downloaded
435 onto a paper form in the image of the form approved by the
436 Department of Law Enforcement as provided in subsection (2).
437 (4) A secondary metals recycler shall maintain or cause to
438 be maintained the information required by this section for not
439 less than 3 5 years from the date of the purchase transaction.
440 (5) If a purchase transaction involves the transfer of
441 regulated metals property from A secondary metals recycler
442 registered with the department who purchases a motor vehicle
443 from a licensed salvage motor vehicle dealer as defined in s.
444 320.27 or to another secondary metals recycler registered with
445 the department and uses a mechanical crusher to convert the
446 vehicle to scrap metal must obtain a signed statement from the
447 seller stating that the seller has surrendered the vehicle’s
448 certificate of title to the Department of Highway Safety and
449 Motor Vehicles as provided in s. 319.30 or has otherwise
450 complied with the titling requirements provided by law for
451 conversion of the vehicle to scrap metal. A, the secondary
452 metals recycler is not liable for the seller’s failure to comply
453 with the titling requirements provided by law for conversion of
454 a motor vehicle to scrap metal if the secondary metals recycler
455 obtains and maintains the seller’s signed statement receiving
456 the regulated metals property shall record the name and address
457 of the secondary metals recycler from which it received the
458 regulated metals property in lieu of the requirements of
459 paragraph (2)(h).
460 Section 6. Section 538.235, Florida Statutes, is amended to
461 read:
462 538.235 Method of payment.—
463 (1) A secondary metals recycler may shall not enter into
464 any cash transaction:
465 (a) In excess of $1,000 in payment for the purchase of
466 regulated metals property; or
467 (b) In any amount for the purchase of restricted regulated
468 metals property.
469 (2) Payment in excess of $1,000 for the purchase of
470 regulated metals property shall be made by check issued to the
471 seller of the metal and payable to the seller.
472 (3) Payment for the purchase of restricted regulated metals
473 property shall be made by check issued to the seller of the
474 metal and payable to the seller or by electronic payment to the
475 seller’s bank account or the seller’s employer’s bank account.
476 (a) Each check shall be mailed by the secondary metals
477 recycler directly to the street address of the seller which is
478 on file with the secondary metals recycler, unless otherwise
479 provided in this part. A check may not be mailed to a post
480 office box. Electronic payments shall be transmitted to an
481 account for which the seller is listed as an account holder or
482 an employee or agent of the seller.
483 (b) Each check or electronic payment shall be mailed or
484 transmitted by the secondary metals recycler to the seller
485 within 3 days after the purchase transaction, unless otherwise
486 provided in this section.
487 (c) The secondary metals recycler may provide a check at
488 the time of the purchase transaction rather than mailing the
489 check as required in paragraph (a), if the seller is:
490 1. An organization, corporation, or association registered
491 with the state as a charitable, philanthropic, religious,
492 fraternal, civic, patriotic, social, or school-sponsored
493 organization or association, or is a nonprofit corporation or
494 association;
495 2. A law enforcement officer acting in an official
496 capacity;
497 3. A trustee in bankruptcy or an executor, administrator,
498 or receiver who has presented proof of such status to the
499 secondary metals recycler;
500 4. A public official acting under judicial process or
501 authority who has presented proof of such status to the
502 secondary metals recycler;
503 5. A sheriff acting under the authority of a court’s writ
504 of execution, or by virtue of any process issued by a court, if
505 proof thereof has been presented to the secondary metals
506 recycler; or
507 6. A manufacturing, industrial, or other commercial vendor
508 that generates regulated materials in the ordinary course of
509 business.
510 Section 7. Subsection (1) of section 538.25, Florida
511 Statutes, is amended to read:
512 538.25 Registration.—
513 (1) A No person may not shall engage in business as a
514 secondary metals recycler at any location without registering
515 with the department. The department shall accept applications
516 only from a fixed business address. The department may not
517 accept an application that provides an address of a hotel or
518 motel room, a vehicle, or a post office box.
519 (a) A fee equal to the federal and state costs for
520 processing required fingerprints must be submitted to the
521 department with each application for registration. One
522 application is required for each secondary metals recycler. If a
523 secondary metals recycler is the owner of more than one
524 secondary metals recycling location, the application must list
525 each location, and the department shall issue a duplicate
526 registration for each location. For purposes of subsections (3),
527 (4), and (5), these duplicate registrations shall be deemed
528 individual registrations. A secondary metals recycler shall pay
529 a fee of $6 per location at the time of registration and an
530 annual renewal fee of $6 per location on October 1 of each year.
531 All fees collected, less costs of administration, shall be
532 transferred into the Operating Trust Fund.
533 (b) The department shall forward the full set of
534 fingerprints to the Department of Law Enforcement for state and
535 federal processing, provided the federal service is available,
536 to be processed for any criminal justice information as defined
537 in s. 943.045. The cost of processing such fingerprints shall be
538 payable to the Department of Law Enforcement by the department.
539 The department may issue a temporary registration to each
540 location pending completion of the background check by state and
541 federal law enforcement agencies, but shall revoke such
542 temporary registration if the completed background check reveals
543 a prohibited criminal background. The Department of Law
544 Enforcement shall report its findings to the Department of
545 Revenue within 30 days after the date fingerprint cards are
546 submitted for criminal justice information.
547 (c) An applicant for a secondary metals recycler
548 registration must be a natural person who has reached the age of
549 18 years or a corporation organized or qualified to do business
550 in the state.
551 1. If the applicant is a natural person, the registration
552 must include a complete set of her or his fingerprints,
553 certified by an authorized law enforcement officer, and a recent
554 fullface photographic identification card of herself or himself.
555 2. If the applicant is a partnership, all the partners must
556 make application for registration.
557 3. If the applicant is a corporation, the registration must
558 include the name and address of such corporation’s registered
559 agent for service of process in the state and a certified copy
560 of statement from the Secretary of State that the corporation is
561 duly organized in the state or, if the corporation is organized
562 in a state other than Florida, a certified copy of the statement
563 that the corporation is duly qualified to do business in this
564 state.
565 Section 8. Section 538.26, Florida Statutes, is amended to
566 read:
567 538.26 Certain acts and practices prohibited.—It is
568 unlawful for a secondary metals recycler to do or allow any of
569 the following acts:
570 (1) Purchase regulated metals property, restricted
571 regulated metals property, or ferrous metals on weekdays before
572 7 a.m. or after 6 p.m., on Saturdays before 7 a.m. or after 1
573 p.m., or on Sundays. between the hours of 9 p.m. and 6 a.m.
574 (2) Fail to pay any sales tax owed to the department or
575 fail to have a sales tax registration number.
576 (3) Purchase regulated metals property at a location other
577 than the place of business set forth on the registration.
578 (2)(4) Purchase regulated metals property, restricted
579 regulated metals property, or ferrous metals from any seller who
580 presents such property for sale at the registered location of
581 the secondary metals recycler when such property was not
582 transported in a motor vehicle.
583 (3)(5) Purchase regulated metals property, restricted
584 regulated metals property, or ferrous metals in return for money
585 from a trailer, a vehicle, or any location other than a fixed
586 location or from any person who is required to prove ownership
587 pursuant to subsection (4). However, regulated metals may be
588 purchased from a nonfixed location, or from such person, with
589 any negotiable or nonnegotiable instrument, including a check or
590 draft or any other type of instrument purchased with money and
591 sold for the purpose of making payments or transfers to others.
592 (4) Purchase regulated metals property from a seller who:
593 (a) Uses a name other than his or her own name or the
594 registered name of the seller’s business;
595 (b) Is younger than 18 years of age; or
596 (c) Is under the influence of drugs or alcohol, if such
597 condition is visible or apparent.
598 (5)(a) Purchase any restricted regulated metals property
599 listed in paragraph (b), unless the secondary metals recycler
600 obtains reasonable proof that the seller:
601 1. Owns such property. Reasonable proof of ownership may
602 include, but is not limited to, a receipt or bill of sale; or
603 2. Is an employee, agent, or contractor of the property’s
604 owner who is authorized to sell the property on behalf of the
605 owner. Reasonable proof of authorization to sell the property
606 includes, but is not limited to, a signed letter on the owner’s
607 letterhead, dated no later than 90 days before the sale,
608 authorizing the seller to sell the property.
609 (b) The purchase of any of the following regulated metals
610 property is subject to the restrictions provided in paragraph
611 (a):
612 1. A manhole cover.
613 2. An electric light pole or other utility structure and
614 its fixtures, wires, and hardware that are readily identifiable
615 as connected to the utility structure.
616 3. A guard rail.
617 4. A street sign, traffic sign, or traffic signal and its
618 fixtures and hardware.
619 5. Communication, transmission, distribution, and service
620 wire from a utility, including copper or aluminum bus bars,
621 connectors, grounding plates, or grounding wire.
622 6. A funeral marker or funeral vase.
623 7. A historical marker.
624 8. Railroad equipment, including, but not limited to, a tie
625 plate, signal house, control box, switch plate, E clip, or rail
626 tie junction.
627 9. Any metal item that is observably marked upon reasonable
628 inspection with any form of the name, initials, or logo of a
629 governmental entity, utility company, cemetery, or railroad.
630 10. A copper, aluminum, or aluminum-copper condensing or
631 evaporator coil, including its tubing or rods, from an air
632 conditioning or heating unit, excluding coils from window air
633 conditioning or heating units and motor vehicle air-conditioning
634 or heating units.
635 11. An aluminum or stainless steel container or bottle
636 designed to hold propane for fueling forklifts.
637 12. A stainless steel beer keg.
638 13. A catalytic converter or any nonferrous part of a
639 catalytic converter unless purchased as part of a motor vehicle.
640 14. Metallic wire that has been burned in whole or in part
641 to remove insulation.
642 15. A brass or bronze commercial valve or fitting, referred
643 to as a “fire department connection and control valve” or an
644 “FDC valve,” that is commonly used on structures for access to
645 water for the purpose of extinguishing fires.
646 16. A brass or bronze commercial potable water backflow
647 preventer valve that is commonly used to prevent backflow of
648 potable water from commercial structures into municipal domestic
649 water service systems.
650 17. A shopping cart.
651 18. A brass water meter.
652 19. A storm grate.
653 20. A brass sprinkler head used in commercial agriculture.
654 Section 9. Section 538.28, Florida Statutes, is created to
655 read:
656 538.28 Local government regulation; preemption.—
657 (1) The regulation of purchase transactions involving
658 regulated metals property is preempted to the state. Except as
659 provided in subsection (2), an ordinance or regulation adopted
660 by a county or municipality relating to the purchase or sale of
661 regulated metals property or the registration or licensure of
662 secondary metals recyclers is void.
663 (2) This part does not preempt an ordinance or regulation
664 originally enacted by a county or municipality before March 1,
665 2012. Such an ordinance or regulation may subsequently be
666 amended to meet or exceed the requirements of this part.
667 (3) A county or municipal ordinance may not require
668 verification of compliance with 40 C.F.R. part 82.
669 Section 10. For the purpose of incorporating the amendments
670 made by this act to sections 538.19 and 538.235, Florida
671 Statutes, in references thereto, paragraph (a) of subsection (1)
672 of section 538.23, Florida Statutes, is reenacted and amended to
673 read:
674 538.23 Violations and penalties.—
675 (1)(a) Except as provided in paragraph (b), a secondary
676 metals recycler who knowingly and intentionally:
677 1. Violates s. 538.20 or s. 538.21;
678 2. Engages in a pattern of failing to keep records required
679 by s. 538.19;
680 3. Violates s. 538.26(2) 538.26(4); or
681 4. Violates s. 538.235,
682
683 commits a misdemeanor of the first degree, punishable as
684 provided in s. 775.082.
685 Section 11. Paragraph (d) of subsection (1) and subsection
686 (2) of section 812.145, Florida Statutes, are amended, and
687 subsection (3) is added to that section, to read:
688 812.145 Theft of copper or other nonferrous metals.—
689 (1) As used in this section, the terms:
690 (d) “Utility” means a public utility or electric utility as
691 defined in s. 366.02, or a includes any person, firm,
692 cooperative, corporation, association, or political subdivision,
693 whether private, municipal, county, or cooperative, which is
694 engaged in the sale, generation, provision, or delivery of heat,
695 water, oil, sewer service, telephone or telegraph service,
696 radio, telecommunications, communications, gas, or electricity
697 services.
698 (2) A person who knowingly and intentionally takes or
699 assists with the taking of copper or other nonferrous metals
700 from a utility or communications services provider, thereby
701 causing damage to the facilities of a utility or communications
702 services provider, interrupting or interfering with utility
703 service or communications services, or interfering with the
704 ability of a utility or communications services provider to
705 provide service, commits a felony of the first degree,
706 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
707 (3) A person who is found in a civil action to have
708 illegally taken copper or other nonferrous metals from a utility
709 or communications services provider based upon a conviction for
710 a violation of subsection (2) is liable to the utility or
711 communications services provider for damages in an amount equal
712 to three times the actual damages sustained by the utility or
713 communications services provider due to any personal injury,
714 wrongful death, or property damage caused by the illegal taking
715 of the nonferrous metals or an amount equal to three times any
716 claim made against the utility or communications services
717 provider for any personal injury, wrongful death, or property
718 damage caused by the malfunction of the facilities of the
719 utility or communications services provider resulting from the
720 violation of subsection (2), whichever is greater.
721 Section 12. (1) A public or private owner of metal property
722 is not civilly liable to a person who is injured during the
723 theft or attempted theft of metal property.
724 (2) A public or private owner of metal property is not
725 civilly liable to a person for injuries caused by a dangerous
726 condition created as a result of the theft or attempted theft of
727 the owner’s metal property when the owner did not know, and
728 could not have reasonably known, of the dangerous condition.
729 (3) This section does not create or impose a duty of care
730 upon an owner of metal property which would not otherwise exist
731 under common law.
732 Section 13. This act shall take effect July 1, 2012.