Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. CS for SB 228
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
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       The Committee on Judiciary (Bradley) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (4) of section 117.021, Florida
    6  Statutes, is amended to read:
    7         117.021 Electronic notarization.—
    8         (4) A notary public performing a notarial act with respect
    9  to an electronic record shall select the technology to be used
   10  for such notarial act. A person may not require the a notary
   11  public to use a particular perform a notarial act with respect
   12  to an electronic record with a form of technology; however, if
   13  the notary public is required by his or her contract or employer
   14  to perform notarial acts with respect to electronic records, the
   15  contract or employer may require the use of a particular
   16  technology for those notarial acts that the notary public has
   17  not selected to use.
   18         Section 2. Paragraph (a) of subsection (2) of section
   19  117.05, Florida Statutes, is amended to read:
   20         117.05 Use of notary commission; unlawful use; notary fee;
   21  seal; duties; employer liability; name change; advertising;
   22  photocopies; penalties.—
   23         (2)(a) The fee of a notary public may not exceed $10 for
   24  any one notarial act under this part, except as provided in s.
   25  117.045 or s. 117.275.
   26         Section 3. Subsections (6) and (14) of section 117.201,
   27  Florida Statutes, are amended to read:
   28         117.201 Definitions.—As used in this part, the term:
   29         (6) “Government-issued identification credential” means any
   30  approved credential for verifying identity under s.
   31  117.05(5)(b)2. However, for an online notarization of a
   32  principal not located within the United States, a passport
   33  issued by a foreign government not including the stamp of the
   34  United States Bureau of Citizenship and Immigration Services may
   35  be used as a government-issued identification credential to
   36  verify the principal’s identity.
   37         (14) “Remote Online Notarization service provider” or “RON
   38  service provider” means a person that provides audio-video
   39  communication technology and related processes, services,
   40  software, data storage, or other services to online notaries
   41  public for the purpose of directly facilitating their
   42  performance of online notarizations, in compliance with the
   43  requirements of this chapter and any rules adopted by the
   44  Department of State pursuant to s. 117.295.
   45         Section 4. Subsections (1) and (5) of section 117.225,
   46  Florida Statutes, are amended to read:
   47         117.225 Registration; qualifications.—A notary public, a
   48  civil-law notary appointed under chapter 118, or a commissioner
   49  of deeds appointed under part IV of chapter 721 may complete
   50  registration as an online notary public with the Department of
   51  State by:
   52         (1) Holding a current commission as a notary public under
   53  part I of this chapter, an appointment as a civil-law notary
   54  under chapter 118, or an appointment as a commissioner of deeds
   55  under part IV of chapter 721, and submitting his or her a copy
   56  of such commission or proof of such commission or appointment
   57  number with his or her registration.
   58         (5) Identifying the RON service provider or providers whose
   59  audio-video communication technology and processes for
   60  credential analysis and identity-proofing technologies the
   61  registrant intends to use for online notarizations, and
   62  confirming that such technology and processes satisfy the
   63  requirements of this chapter and any rules adopted by the
   64  Department of State pursuant to s. 117.295.
   65         Section 5. Section 117.231, Florida Statutes, is created to
   66  read:
   67         117.231 Remote administration of certain oaths.—
   68         (1) When taking the oath of an individual who is testifying
   69  at any court proceeding, deposition, arbitration, or public
   70  hearing and who is outside of the physical presence of the
   71  notary public, the notary public may fulfill the requirements of
   72  s. 117.05 using audio-video communication technology.
   73         (2) When taking an oath of admission to The Florida Bar
   74  from an individual who is outside of the physical presence of
   75  the notary public, the notary public may fulfill the
   76  requirements of s. 117.05 using audio-video communication
   77  technology.
   78         (3) If an individual is located outside of this state at
   79  the time the notary public is to take the individual’s oath
   80  under this section, consent from the individual must be obtained
   81  to take his or her oath using audio-video communication
   82  technology pursuant to this section.
   83         (4)When taking an oath under this section, the notary
   84  public is not required to be an online notary public or to use a
   85  RON service provider.
   86         Section 6. Subsections (1), (2), (4), and (5) of section
   87  117.245, Florida Statutes, are amended to read:
   88         117.245 Electronic journal of online notarizations.—
   89         (1) An online notary public shall keep one or more secure
   90  electronic journals of online notarizations performed by the
   91  online notary public. For each online notarization, the
   92  electronic journal entry must contain all of the following:
   93         (a) The date and time of the notarization.
   94         (b) The type of notarial act performed, whether an oath or
   95  acknowledgment.
   96         (c) The type, the title, or a description of the electronic
   97  record or proceeding.
   98         (d) The name and address of each principal involved in the
   99  transaction or proceeding.
  100         (e) Evidence of identity of each principal involved in the
  101  transaction or proceeding in either any of the following forms:
  102         1. A statement that the person is personally known to the
  103  online notary public; or.
  104         2.a. A notation of the type of government-issued
  105  identification credential provided to the online notary public;
  106         b. An indication that the government-issued identification
  107  credential satisfied the credential analysis; and.
  108         c.(f) An indication that the principal satisfactorily
  109  passed the identity proofing.
  110         (g) An indication that the government-issued identification
  111  credential satisfied the credential analysis.
  112         (f)(h) The fee, if any, charged for the notarization.
  113         (2) The RON service provider online notary public shall
  114  retain an uninterrupted and unedited copy of the recording of
  115  the audio-video communication in which an online notarization is
  116  performed. The online notary public shall ensure that the
  117  recording includes must include all of the following:
  118         (a) Appearance by the principal and any witness before the
  119  online notary public.
  120         (b) Confirmation of the identity of the principal and any
  121  witness.
  122         (c) A general description or identification of the records
  123  to be signed.
  124         (d) At the commencement of the recording, recitation by the
  125  online notary public of information sufficient to identify the
  126  notarial act.
  127         (e) A declaration by the principal that his or her
  128  signature on the record is knowingly and voluntarily made.
  129         (f) All of the actions and spoken words of the principal,
  130  notary public, and any required witness during the entire online
  131  notarization, including the signing of any records before the
  132  online notary public.
  133         (4) The electronic journal required under subsection (1)
  134  and the recordings of audio-video communications required under
  135  subsection (2) shall be maintained for at least 10 years after
  136  the date of the notarial act. However, a full copy of the
  137  recording of the audio-video communication required under
  138  subsection (2) relating to an online notarization session that
  139  involves the signing of an electronic will must be maintained by
  140  a qualified custodian in accordance with chapters 731 and 732.
  141  The Department of State maintains jurisdiction over the
  142  electronic journal and audio-video communication recordings to
  143  investigate notarial misconduct for a period of 10 years after
  144  the date of the notarial act. The online notary public, a
  145  guardian of an incapacitated online notary public, or the
  146  personal representative of a deceased online notary public may,
  147  by contract with a secure repository in accordance with any
  148  rules established under this chapter, delegate to the repository
  149  the online notary public’s duty to retain the electronic journal
  150  and the required recordings of audio-video communications,
  151  provided that the Department of State is notified of such
  152  delegation of retention duties to the repository within 30 days
  153  thereafter, including the effective date of the delegation and
  154  the address and contact information for the repository. If an
  155  online notary public delegates to a secure repository under this
  156  section, the online notary public shall make an entry in his or
  157  her electronic journal identifying such repository, and provide
  158  notice to the Department of State as required in this
  159  subsection. A RON service provider may, by contract with a
  160  secure repository in accordance with any rules established under
  161  this chapter, delegate to the repository the RON service
  162  provider’s duty to retain the required recordings of audio-video
  163  communications, provided that the Department of State is
  164  notified of such delegation of retention duties to the
  165  repository within 30 days thereafter, including the effective
  166  date of the delegation and the address and contact information
  167  for the repository. During any delegation under this subsection,
  168  the secure repository shall fulfill the responsibilities of the
  169  online notary public or RON service provider to provide copies
  170  or access under s. 117.255(2) and (3).
  171         (5) An omitted or incomplete entry in the electronic
  172  journal does not impair the validity of the notarial act or of
  173  the electronic record which was notarized, but may be introduced
  174  as evidence to establish violations of this chapter; as evidence
  175  of possible fraud, forgery, impersonation, duress, incapacity,
  176  undue influence, minority, illegality, or unconscionability; or
  177  for other evidentiary purposes. However, if the recording of the
  178  audio-video communication required under subsection (2) relating
  179  to the online notarization of the execution of an electronic
  180  will cannot be produced by the RON service provider, the online
  181  notary public, or the qualified custodian, the electronic will
  182  shall be treated as a lost or destroyed will subject to s.
  183  733.207.
  184         Section 7. Section 117.255, Florida Statutes, is amended to
  185  read:
  186         117.255 Use of electronic journal, signature, and seal.—
  187         (1) An online notary public shall:
  188         (a)(1) Take reasonable steps to ensure that any registered
  189  device used to create an electronic seal is current and has not
  190  been revoked or terminated by the issuing or registering
  191  authority of the device.
  192         (b)(2) Keep the electronic journal and electronic seal
  193  secure and under his or her sole control, which includes access
  194  protection using passwords or codes under control of the online
  195  notary public. The online notary public may not allow another
  196  person to use the online notary public’s electronic journal,
  197  electronic signature, or electronic seal, other than a RON
  198  service provider or other authorized person providing services
  199  to an online notary public to facilitate performance of online
  200  notarizations.
  201         (c)(3) Attach or logically associate the electronic
  202  signature and seal to the electronic notarial certificate of an
  203  electronic record in a manner that is capable of independent
  204  verification using tamper-evident technology that renders any
  205  subsequent change or modification to the electronic record
  206  evident.
  207         (d)(4) Notify an appropriate law enforcement agency and the
  208  Department of State of any unauthorized use of or compromise to
  209  the security of the electronic journal, official electronic
  210  signature, or electronic seal within 7 days after discovery of
  211  such unauthorized use or compromise to security.
  212         (2)(5)An online notary public shall provide Make
  213  electronic copies, upon request, of the pertinent entries in the
  214  electronic journal, and a RON service provider shall provide
  215  access to the related audio-video communication recordings, or a
  216  copy thereof, to the following persons upon request:
  217         (a) The parties to an electronic record notarized by the
  218  online notary public;
  219         (b) The qualified custodian of an electronic will notarized
  220  by the online notary public;
  221         (c) The title agent, settlement agent, or title insurer who
  222  insured the electronic record or engaged the online notary
  223  public with regard to a real estate transaction;
  224         (d) The online notary public’s RON service provider whose
  225  services were used by the online notary public to notarize the
  226  electronic record;
  227         (e) Any person who is asked to accept a power of attorney
  228  that was notarized by the online notary public;
  229         (e)(f) The Department of State pursuant to a notary
  230  misconduct investigation; and
  231         (f)(g) Any other persons pursuant to a subpoena, court
  232  order, law enforcement investigation, or other lawful inspection
  233  demand;
  234         (g) With respect to audio-video communication recordings of
  235  an online notarization, the online notary public performing that
  236  notarization; and
  237         (h) With respect to electronic copies of pertinent entries
  238  in the electronic journal, the RON service provider used for the
  239  online notarizations associated with those entries.
  240         (3)(6) The online notary public may charge a fee not to
  241  exceed $20 per transaction record for making and delivering
  242  electronic copies of a given series of related electronic
  243  records, and a RON service provider may charge a fee not to
  244  exceed $20 for providing access to, or a copy of, the related
  245  audio-video communication records, except such copies or access
  246  must be provided without charge if requested by any of the
  247  following within the 10-year period specified in s. 117.245(4):
  248         (a) A party to the electronic record;
  249         (b) In a real estate transaction, the title agent,
  250  settlement agent, or title insurer who insured the electronic
  251  record or engaged the online notary public with regard to such
  252  transaction; or
  253         (c) The Department of State pursuant to an investigation
  254  relating to the official misconduct of an online notary public;
  255         (d) The qualified custodian of an electronic will notarized
  256  by the online notary public;
  257         (e) With respect to audio-video communication recordings of
  258  an online notarization, the online notary public performing that
  259  notarization; or
  260         (f) With respect to electronic copies of a given series of
  261  related electronic records, the RON service provider used for
  262  the online notarization of those records.
  263  
  264  If the online notary public or RON service provider charges does
  265  charge a fee, the online notary public or RON service provider
  266  must shall disclose the amount of such fee to the requester
  267  before making the electronic copies or providing access to, or
  268  making a copy of, the requested audio-video communication
  269  recordings.
  270         Section 8. Subsection (5) of section 117.265, Florida
  271  Statutes, is amended to read:
  272         117.265 Online notarization procedures.—
  273         (5)(a) An online notary public shall select the RON service
  274  provider to be used to perform an online notarization, and a
  275  person may not require the online notary public to use a
  276  particular RON service provider; however, if the online notary
  277  public is required by his or her contract or employer to perform
  278  online notarizations, the contract or employer may require the
  279  use of a particular RON service provider for those online
  280  notarizations.
  281         (b) An online notary public may change his or her RON
  282  service provider or providers from time to time, but shall
  283  notify the Department of State of such change, and its effective
  284  date, within 30 days thereafter.
  285         Section 9. Section 117.275, Florida Statutes, is amended to
  286  read:
  287         117.275 Fees for online notarization.—An online notary
  288  public or the employer of such online notary public may charge a
  289  fee, not to exceed $25, for performing an online notarial act
  290  notarization under this part. Fees for services other than
  291  notarial acts, including the services of a RON service provider,
  292  are not governed by this section. A RON service provider’s
  293  services are also not considered closing services, as defined in
  294  s. 627.7711, and a fee for those services may be separately
  295  charged.
  296         Section 10. Subsections (2) and (4) of section 117.295,
  297  Florida Statutes, are amended, and subsection (8) is added to
  298  that section, to read:
  299         117.295 Standards for electronic and online notarization;
  300  rulemaking authority.—
  301         (2) By January 1, 2020, The Department of State shall:
  302         (a) Adopt forms, processes, and interim or emergency rules
  303  necessary to accept applications from and register online
  304  notaries public pursuant to s. 117.225.
  305         (b) Publish on its website a list containing each online
  306  notary public, the online notary public’s RON service providers
  307  from January 1, 2022, and thereafter, the effective dates during
  308  which the online notary public used each RON service provider,
  309  as identified pursuant to ss. 117.225(5) and 117.265(5)(b), any
  310  secure repositories to which the online notary public may have
  311  delegated his or her duties pursuant to s. 117.225(4) from
  312  January 1, 2022, and thereafter, and the effective dates of that
  313  delegation.
  314         (4)(a)A RON service provider must file a self
  315  certification with the Department of State, on a form adopted by
  316  department rule, confirming that its audio-video communication
  317  technology and related processes, services, software, data
  318  storage, or other services provided to online notaries public
  319  for the purpose of directly facilitating their performance of
  320  online notarizations satisfy the requirements of this chapter
  321  and any rules adopted by the Department of State pursuant to
  322  this section. Each certification shall remain active for a
  323  period of 1 year from the date of filing. The Department of
  324  State must publish on its website a list of each RON service
  325  provider that has filed a self-certification, the date of filing
  326  of the self-certification, any secure repositories to which the
  327  RON service provider may have delegated its duties pursuant to
  328  s. 117.225(4) from January 1, 2022, and thereafter, and the
  329  effective dates of that delegation.
  330         (b) A RON service provider is deemed to have satisfied
  331  tamper-evident technology requirements by use of technology that
  332  renders any subsequent change or modification to the electronic
  333  record evident.
  334         (8)A RON service provider may not use, sell, or offer to
  335  sell or transfer to another person for use or sale any personal
  336  information obtained under this part which identifies a
  337  principal, a witness, or a person named in a record presented
  338  for online notarization, except:
  339         (a)As necessary to facilitate performance of a notarial
  340  act;
  341         (b)To administer or process a record provided by or on
  342  behalf of a principal or the transaction of which the record is
  343  a part;
  344         (c)To detect fraud, identity theft, or other criminal
  345  activities;
  346         (d)In accordance with this part and the rules adopted
  347  pursuant to this part or any other applicable federal, state, or
  348  local law, or to comply with a lawful subpoena or court order or
  349  a lawful request from a law enforcement or regulatory agency;
  350         (e)To monitor and improve the audio-video communication
  351  technology and related processes, services, software, data
  352  storage, or other services offered by the RON service provider
  353  to online notaries public for the purpose of directly
  354  facilitating their performance of online notarizations.
  355         (f)In connection with a proposed or actual sale, merger,
  356  transfer, or exchange of all or a portion of a business or
  357  operating unit of a RON service provider, or the dissolution,
  358  insolvency, or cessation of operations of a business or
  359  operating unit, if limited to such personal information held by
  360  that business or unit and any transferee agrees to comply with
  361  the restrictions set forth in this subsection.
  362         Section 11. This act shall take effect January 1, 2022.
  363  ================= T I T L E  A M E N D M E N T ================
  364  And the title is amended as follows:
  365         Delete everything before the enacting clause
  366  and insert:
  367                        A bill to be entitled                      
  368         An act relating to notaries public; amending s.
  369         117.021, F.S.; clarifying that a notary public is
  370         entitled to select particular technology in performing
  371         a notarial act with respect to an electronic record;
  372         authorizing a notary public’s contract or employer to
  373         require the use of a particular technology in
  374         performing a notarial act with respect to an
  375         electronic record; amending s. 117.05, F.S.; revising
  376         limitations on notary public fees; amending s.
  377         117.201, F.S.; revising definitions; amending s.
  378         117.225, F.S.; revising certain registration
  379         requirements for online notaries public; creating s.
  380         117.231, F.S.; authorizing notaries public to remotely
  381         swear in witnesses using audio-video communication
  382         technology; authorizing notaries public to remotely
  383         swear in new attorneys admitted to The Florida Bar
  384         using audio-video communication technology; amending
  385         s. 117.245, F.S.; modifying requirements for entries
  386         in the electronic journal maintained by an online
  387         notary public; requiring a remote online notarization
  388         service provider, rather than an online notary public,
  389         to retain audio-video communication recordings of
  390         online notarizations; authorizing a RON service
  391         provider to delegate this duty to a secure repository
  392         under certain conditions; conforming provisions to
  393         changes made by the act; amending s. 117.255, F.S.;
  394         revising provisions governing access to audio-video
  395         communication recordings to conform to changes made by
  396         the act; authorizing a remote online notarization
  397         service provider to charge a fee for access to such
  398         recordings, subject to specified limitations; amending
  399         s. 117.265, F.S.; clarifying that an online notary
  400         public is entitled to select his or her remote online
  401         notarization service provider; authorizing a notary
  402         public’s contract or employer to require the use of a
  403         particular remote online notarization service provider
  404         in performing online notarizations; requiring an
  405         online notary public to notify the Department of State
  406         of the effective date of a change in the remote online
  407         notarization service provider used; amending s.
  408         117.275, F.S.; clarifying limitations on fees charged
  409         for online notarizations; amending s. 117.295, F.S.;
  410         requiring the department to publish on its website a
  411         list containing certain information on online notaries
  412         public; requiring a remote online notarization service
  413         provider to file a self-certification with the
  414         department; specifying the duration of a self
  415         certification; requiring the department to publish on
  416         its website a list containing certain information on
  417         self-certified remote online notarization service
  418         providers; prohibiting a remote online notarization
  419         service provider from using, selling, or offering to
  420         sell or transfer personal information obtained in the
  421         course of performing online notarizations; providing
  422         exceptions; providing an effective date.