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2011 Florida Statutes
Chapter 655
FINANCIAL INSTITUTIONS GENERALLY
FINANCIAL INSTITUTIONS GENERALLY
TITLE XXXVIII
BANKS AND BANKINGCHAPTER 655
FINANCIAL INSTITUTIONS GENERALLY
655.001 Purpose; application.
655.005 Definitions.
655.012 General supervisory powers; rulemaking; seal.
655.013 Effect on existing financial institutions.
655.015 Construction; standards to be observed by commission and office.
655.016 Liability when acting upon rule, order, or declaratory statement.
655.0201 Service of process, notice, or demand on financial institutions.
655.031 Administrative enforcement guidelines.
655.032 Investigations, subpoenas, hearings, and witnesses.
655.0321 Restricted access to certain hearings, proceedings, and related documents.
655.0322 Prohibited acts and practices; criminal penalties.
655.033 Cease and desist orders.
655.034 Injunctions.
655.037 Removal of a financial institution-affiliated party by the office.
655.0385 Disapproval of directors and executive officers.
655.03855 Provisional directors and executive officers.
655.0386 Transactions with financial institution-affiliated parties.
655.0391 Retention of supervision by office.
655.0392 Place of transacting business.
655.041 Administrative fines; enforcement.
655.043 Articles of incorporation; amendments; approval.
655.044 Accounting practices; bad debts ineligible to be carried as assets.
655.045 Examinations, reports, and internal audits; penalty.
655.047 Assessments; financial institutions.
655.049 Deposit of fees and assessments.
655.057 Records; limited restrictions upon public access.
655.059 Access to books and records; confidentiality; penalty for disclosure.
655.061 Competitive equality with federally organized or chartered financial institutions.
655.071 International banking facilities; definitions; notice before establishment.
655.41 Definitions.
655.411 Conversion of charter.
655.412 Merger and consolidation.
655.414 Acquisition of assets; assumption of liabilities.
655.416 Book value of assets.
655.417 Effect of merger, consolidation, conversion, or acquisition.
655.418 Nonconforming activities; cessation.
655.4185 Emergency action.
655.419 Effect.
655.50 Florida Control of Money Laundering in Financial Institutions Act; reports of transactions involving currency or monetary instruments; when required; purpose; definitions; penalties.
655.51 Employment information.
655.55 Law applicable to deposits in and contracts relating to extensions of credit by a deposit or lending institution located in this state.
655.56 Collection of fines, interest, or premiums on loans made by financial institutions.
655.60 Appraisals.
655.762 Sale of assets.
655.769 Definitions of terms used in ss. 655.77-655.91.
655.77 Deposits by minors.
655.78 Deposit accounts in two or more names.
655.79 Deposits and accounts in two or more names; presumption as to vesting on death.
655.80 Convenience accounts.
655.82 Pay-on-death accounts.
655.825 Deposits in trust; applicability of s. 655.82 in place of former s. 655.81.
655.83 Adverse claim to a deposit or fiduciary account.
655.84 Limitations; statements as correct.
655.85 Settlement of checks.
655.851 Unclaimed credit balances.
655.86 Issuance of postdated checks.
655.89 Legal holidays; business days; business and transactions.
655.90 Closing during emergencies and other special days.
655.91 Records of institutions and copies thereof; retention and destruction.
655.921 Transaction of business by out-of-state financial institutions; exempt transactions in the financial institutions codes.
655.922 Banking business by unauthorized persons; use of name.
655.93 Definitions for ss. 655.93-655.94.
655.931 Authority to engage in safe-deposit business.
655.932 Lease to minor.
655.933 Access by fiduciaries.
655.934 Effect of lessee’s death or incapacity.
655.935 Search procedure on death of lessee.
655.936 Delivery of safe-deposit box contents or property held in safekeeping to personal representative.
655.937 Access to safe-deposit boxes leased in two or more names.
655.938 Adverse claims to contents of safe-deposit box.
655.939 Limiting right of access for failure to comply with security procedures.
655.94 Special remedies for nonpayment of rent.
655.942 Standards of conduct; institutions.
655.943 Applications; verification.
655.946 Single interest insurance placed by financial institutions.
655.947 Debt cancellation products.
655.948 Significant events; notice required.
655.949 Personnel; qualifications.
655.954 Financial institution loans; credit cards.
655.960 Definitions; ss. 655.960-655.965.
655.961 Violation of specified provisions not negligence per se.
655.962 Lighting; mirrors; landscaping.
655.963 Access devices.
655.964 Application.
655.965 Preemption; prohibition.
655.966 Automated teller machine; surcharge disclosure.
655.967 State-funded endowments.
655.001 Purpose; application.—The purposes of the financial institutions codes are to:
(1) Provide general regulatory powers to be exercised by the Financial Services Commission and the Office of Financial Regulation in relation to the regulation of financial institutions. The financial institutions codes apply to all state-authorized or state-chartered financial institutions and to the enforcement of all laws relating to state-authorized or state-chartered financial institutions.
(2) Provide for and promote:
(a) The safe and sound conduct of the business of the financial institutions subject to the financial institutions codes.
(b) The prudent conservation of the assets of the financial institutions subject to the financial institutions codes.
(c) The maintenance of public confidence in the financial institutions subject to the financial institutions codes.
(d) The protection of the interests of the public in the safety and soundness, and the preservation, of the financial institution system in this state and the protection of the interests of the depositors and creditors of financial institutions.
(e) The protection of the interests of the public in the proper conduct of fiduciary functions; the safety, soundness, and preservation of the system of the conduct in this state of trust business by trust companies and banks and associations that have trust departments; the protection of the interests of beneficiaries and other members of the public using the services of, doing business with, or otherwise affected by trust companies, trust departments of banks and associations, and other business organizations in the conduct of trust business or other exercise of fiduciary functions or powers; and the protection of the interests of the creditors of trust companies.
(f) The opportunity for state financial institutions to be and remain competitive with each other, with financial institutions or organizations existing under statutes of this state other than the financial institutions codes, and with other financial institutions and organizations organized or existing under, or deriving their authority or powers from, the laws of other states, the United States, or foreign countries.
(g) The opportunity for financial institutions to serve effectively the convenience and needs of their customers or members and the public and to participate in and promote the economic progress and welfare of this state and the United States.
(h) The opportunity for the management of financial institutions in conducting the business and affairs of their institutions, to exercise their business judgment, subject to the provisions of the financial institutions codes and to the extent compatible with, and subject to, the purposes and policies stated in this section.
(i) The modernization of state law governing financial institutions and governing the exercise of fiduciary and other representative powers by trust companies and trust departments of banks and associations.
(j) The delegation to the commission of adequate rulemaking power and to the office adequate administrative discretion, subject to the provisions of the financial institutions codes and to the purposes and policies stated in this section, in order that the supervision and regulation of financial institutions may be flexible and readily responsive to changes in economic conditions, in technology, and in financial institution practices.
History.—s. 1, ch. 80-273; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 6, ch. 92-303; s. 1699, ch. 2003-261.
655.005 Definitions.—
(1) As used in the financial institutions codes, unless the context otherwise requires, the term:
(a) “Affiliate” means a holding company of a financial institution established pursuant to state or federal law, a subsidiary or service corporation of such holding company, or a subsidiary or service corporation of a financial institution.
(b) “Appropriate federal regulatory agency” means the federal regulatory agency that has statutory authority over a financial institution.
(c) “Bank holding company” means a business organization that is a bank holding company under the Bank Holding Company Act of 1956, as amended, 12 U.S.C. ss. 1841 et seq., or is otherwise determined or authorized by the office to be a holding company of a financial institution pursuant to ss. 658.27-658.285.
(d) “Capital accounts” means the aggregate value of unimpaired capital stock based on the par value of the shares, plus any unimpaired surplus and undivided profits or retained earnings of a financial institution. For the purposes of determining insolvency or imminent insolvency, the term does not include allowances for loan or lease loss reserves, intangible assets, subordinated debt, deferred tax assets, or similar assets.
(e) “Capital stock” means the shares of stock issued to create nonwithdrawable capital.
(f) “Commission” means the Financial Services Commission.
(g) “Executive officer” means an individual, whether or not the individual has an official title or receives a salary or other compensation, who participates or has authority to participate, other than in the capacity of a director, in the major policymaking functions of a financial institution. The term does not include an individual who may have an official title and may exercise discretion in the performance of duties and functions, including discretion in the making of loans, but who does not participate in the determination of major policies of the financial institution and whose decisions are limited by policy standards established by other officers, whether or not the policy standards have been adopted by the board of directors. The chair of the board of directors, the president, the chief executive officer, the chief financial officer, the senior loan officer, and every executive vice president of a financial institution, and the senior trust officer of a trust company, are presumed to be executive officers unless such officer is excluded, by resolution of the board of directors or by the bylaws of the financial institution, from participating, other than in the capacity of a director, in major policymaking functions of the financial institution and the individual holding such office so excluded does not actually participate therein.
(h) “Federal financial institution” means a federally or nationally chartered or organized financial institution.
(i) “Financial institution” means a state or federal savings or thrift association, bank, savings bank, trust company, international bank agency, international banking corporation, international branch, international representative office, international administrative office, international trust company representative office, credit union, or an agreement corporation operating pursuant to s. 25 of the Federal Reserve Act, 12 U.S.C. ss. 601 et seq. or Edge Act corporation organized pursuant to s. 25(a) of the Federal Reserve Act, 12 U.S.C. ss. 611 et seq.
(j) “Financial institution-affiliated party” means:
1. A director, officer, employee, or controlling stockholder, other than a financial institution holding company, of, or agent for, a financial institution, subsidiary, or service corporation;
2. Any other person who has filed or is required to file a change-of-control notice with the appropriate state or federal regulatory agency;
3. A stockholder, other than a financial institution holding company, a joint venture partner, or any other person as determined by the office who participates in the affairs of a financial institution, subsidiary, or service corporation; or
4. An independent contractor, including an attorney, appraiser, consultant, or accountant, who knowingly or recklessly participates in:
a. A violation of any law or regulation;
b. A breach of fiduciary duty; or
c. An unsafe and unsound practice,
which caused or is likely to cause more than a minimal financial loss to, or a significant adverse effect on, the financial institution, subsidiary, or service corporation.
(k) “Financial institutions codes” means:
1. Chapter 655, relating to financial institutions generally;
2. Chapter 657, relating to credit unions;
3. Chapter 658, relating to banks and trust companies;
4. Chapter 660, relating to trust business;
5. Chapter 663, relating to international banking;
6. Chapter 665, relating to associations; and
7. Chapter 667, relating to savings banks.
(l) “Home state” means:
1. The state where a financial institution is chartered.
2. The state where the main office of a federal financial institution is located.
3. The state determined to be the home state of an international banking corporation pursuant to 12 U.S.C. s. 3103(c).
(m) “Home state regulator” means, with respect to an out-of-state state financial institution, the financial institution regulatory agency of the state in which the institution is chartered.
(n) “Host state” means a state, other than the home state, in which the financial institution seeks to establish or maintains a branch or nonbranch office.
(o) “Imminently insolvent” means a condition in which a financial institution has total capital accounts, or equity in the case of a credit union, of less than 2 percent of its total assets, after adjustment for apparent losses.
(p) “Insolvent” means a condition in which:
1. The capital accounts, or equity in the case of a credit union, and all assets of a financial institution are insufficient to meet liabilities;
2. The financial institution is unable to meet current obligations as they mature, even though assets may exceed liabilities; or
3. The capital accounts of a financial institution, or equity in the case of a credit union, are exhausted by losses and no immediate prospect of replacement exists.
(q) “Main office” or “principal office” of a financial institution means the main business office designated in its articles of incorporation or bylaws at an identified location approved by the office in the case of a state financial institution, or by the appropriate federal regulatory agency in the case of a federal financial institution. With respect to the trust department of a bank or association that has trust powers, the terms mean the office or place of business of the trust department at an identified location, which need not be the same location as the main office of the bank or association, approved by the office in the case of a state bank or association, or by the appropriate federal regulatory agency in the case of a national bank or federal association. The “main office” or “principal office” of a trust company means the office designated or provided for in its articles of incorporation, at an identified location as approved by the relevant chartering authority.
(r) “Officer” of a financial institution means an individual elected or appointed to, or otherwise performing the duties and functions appropriate to, any position or office having the designation or title of chair of the board of directors, vice chair of the board of directors, chair of the executive committee, president, vice president, assistant vice president, cashier or assistant cashier, comptroller, assistant comptroller, trust officer, assistant trust officer, secretary or assistant secretary of a trust company, or any other office or officer designated in, or as provided by, the articles of incorporation or bylaws.
(s) “Out-of-state financial institution” means a financial institution whose home state is a state other than this state.
(t) “Related interest” means, with respect to any person, the person’s spouse, partner, sibling, parent, child, or other individual residing in the same household as the person. With respect to any person, the term means a company, partnership, corporation, or other business organization controlled by the person. A person has control if the person:
1. Owns, controls, or has the power to vote 25 percent or more of any class of voting securities of the organization;
2. Controls in any manner the election of a majority of the directors of the organization; or
3. Has the power to exercise a controlling influence over the management or policies of the organization.
(u) “Service corporation” means a corporation that is organized to perform, for two or more financial institutions, services related or incidental to the business of a financial institution and that is wholly or partially owned or controlled by one or more financial institutions.
(v) “State,” when used in the context of a state other than this state, means any other state of the United States, the District of Columbia, and any territories of the United States.
(w) “State financial institution” means a state-chartered or state-organized financial institution.
(x) “Subsidiary” means an organization that is controlled by a financial institution or a holding company of a financial institution.
(y) “Unsafe or unsound practice” means any practice or conduct found by the office to be contrary to generally accepted standards applicable to a financial institution, or a violation of any prior agreement in writing or order of a state or federal regulatory agency, which practice, conduct, or violation creates the likelihood of loss, insolvency, or dissipation of assets or otherwise prejudices the interest of the financial institution or its depositors or members. In making this determination, the office must consider the size and condition of the financial institution, the gravity of the violation, and the prior conduct of the person or institution involved.
(z) “Office” means the Office of Financial Regulation.
(aa) “Debt cancellation products” means loan, lease, or retail installment contract terms, or modifications or addenda to such contracts, under which a creditor agrees to cancel or suspend all or part of a customer’s obligation to make payments upon the occurrence of specified events and includes, but is not limited to, debt cancellation contracts, debt suspension agreements, and guaranteed asset protection contracts offered by financial institutions, insured depository institutions as defined in 12 U.S.C. s. 1813(c), and subsidiaries of such institutions. The term does not include title insurance as defined in s. 624.608.
(2) Terms used but not defined in the financial institutions codes, but which are defined in Title XXXIX, entitled Commercial Relations, as enacted in chapters 668 through 1680, have the meanings ascribed to them in Title XXXIX.
History.—s. 1, ch. 80-273; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 7, ch. 92-303; s. 1, ch. 93-111; s. 2, ch. 97-30; s. 519, ch. 97-102; s. 1700, ch. 2003-261; s. 5, ch. 2004-340; s. 88, ch. 2004-390; s. 1, ch. 2005-181; s. 7, ch. 2008-75; s. 1, ch. 2010-9; s. 1, ch. 2011-194.
1Note.—Title XXXIX comprises chapters 668-688.
655.012 General supervisory powers; rulemaking; seal.—
(1) In addition to other powers conferred by the financial institutions codes, the office shall have:
(a) General supervision over all state financial institutions, their subsidiaries, and service corporations.
(b) Access to all books and records of all persons over whom the office exercises general supervision as is necessary for the performance of the duties and functions of the office prescribed by the financial institutions codes.
(c) Power to issue orders and declaratory statements, disseminate information, and otherwise exercise its discretion to effectuate the purposes, policies, and provisions of the financial institutions codes.
(2) In addition to other powers conferred by the financial institutions codes, the commission shall have the power to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of such codes.
(3) The office shall have an official seal by which its proceedings are authenticated.
History.—s. 1, ch. 80-273; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 8, ch. 92-303; s. 2, ch. 93-111; s. 218, ch. 98-200; s. 1701, ch. 2003-261.
655.013 Effect on existing financial institutions.—The charters of state financial institutions existing on July 1, 1992, shall continue in full force and effect. However, after that date, all state financial institutions and, to the extent applicable, all financial institutions shall operate in accordance with the financial institutions codes.
History.—s. 9, ch. 92-303; s. 2, ch. 2011-194.
655.015 Construction; standards to be observed by commission and office.—
(1) The financial institutions codes shall be liberally construed and applied to promote their purposes and policies.
(2) The purposes and policies as stated in s. 655.001 constitute standards to be observed by the commission and office in the exercise of their discretionary powers under the financial institutions codes, in the adoption of rules, in the issuance of orders and declaratory statements, in the examination and supervision of financial institutions, and in all matters of construction and application of the financial institutions codes required for any determination or action.
(3) The headings, captions, and catchlines at the beginning of sections, subsections, and paragraphs are for convenience only, do not constitute any part of the statutes comprising the financial institutions codes, do not constitute a complete index of the financial institutions codes, are not indicative of the intent of the financial institutions codes, and may not be used in construing or interpreting the financial institutions codes.
History.—s. 10, ch. 92-303; s. 1702, ch. 2003-261.
655.016 Liability when acting upon rule, order, or declaratory statement.—No person acting, or who has acted, in good faith reliance upon a rule, order, or declaratory statement issued by the commission or office shall be subject to any criminal, civil, or administrative liability for such action, notwithstanding a subsequent decision by a court of competent jurisdiction invalidating the rule, order, or declaratory statement. In the case of an order or a declaratory statement which is not of general application, no person other than the person to whom the order or declaratory statement was issued is entitled to rely upon it, except upon material facts or circumstances which are substantially the same as those upon which the order or declaratory statement was based.
History.—s. 1, ch. 80-273; s. 438, ch. 81-259; s. 1, ch. 85-65; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1703, ch. 2003-261.
655.0201 Service of process, notice, or demand on financial institutions.—
(1) Process against any financial institution authorized by federal or state law to transact business in this state may be served in accordance with chapter 48, chapter 49, chapter 607, or chapter 608, as appropriate.
(2) Any financial institution authorized by federal or state law to transact business in this state may designate a registered agent as the financial institution’s agent for service of process, notice, or demand required or permitted by law to be served on the financial institution. If the financial institution has no registered agent, or its registered agent cannot with reasonable diligence be served, service may be made to any executive officer of the financial institution at its principal place of business in this state.
(3) If service cannot be made in accordance with subsection (2), service may be made to any officer, director, or business agent of the financial institution at its principal place of business or at any other branch, office, or place of business in the state.
(4) This section does not prescribe the only means, or necessarily the required means, of serving notice or demand on a financial institution.
History.—s. 2, ch. 2005-181.
655.031 Administrative enforcement guidelines.—
(1) In imposing any administrative remedy or penalty provided for in the financial institutions codes, the office shall take into account the appropriateness of the penalty with respect to the size of the financial resources and good faith of the person charged, the gravity of the violation, the history of previous violations, and such other matters as justice may require.
(2) All administrative proceedings under ss. 655.033 and 655.037 shall be conducted in accordance with chapter 120. Any service required or authorized to be made by the office under the financial institutions codes may be made by certified mail, return receipt requested, delivered to addressee only; by personal delivery; or in accordance with chapter 48. The service provided for hereunder is effective from the date of delivery.
History.—s. 1, ch. 80-273; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 11, ch. 92-303; s. 1704, ch. 2003-261.
Note.—Former s. 655.021.
655.032 Investigations, subpoenas, hearings, and witnesses.—
(1) The office may make investigations, within or outside this state, which it deems necessary to determine whether a person has violated or is about to violate any provision of the financial institutions codes or of the rules adopted by the commission pursuant to such codes.
(2)(a) In the course of or in connection with an investigation by the office pursuant to the provisions of subsection (1) or an investigation or examination in connection with any application to the office for the organization or establishment of a state financial institution or a branch thereof, and in connection with an examination of a state financial institution, subsidiary, or service corporation by the office, the office, or any of its officers holding no lesser title and position than examiner in charge or attorney at law, shall have the power:
1. To administer oaths and affirmations;
2. To take or cause to be taken testimony and depositions; and
3. To issue, revoke, quash, or modify subpoenas and subpoenas duces tecum under the seal of the office or to cause any such subpoena or subpoena duces tecum to be issued by any county court judge or clerk of the circuit court or county court to require persons to be or appear before the office at a time and place to be therein named and to bring such books, records, and documents for inspection as may be therein designated. Such subpoenas may be served by a representative of the office or may be served as otherwise provided for by law for the service of subpoenas.
(b) In connection with any such investigation or examination, the office may permit a person to file a statement in writing, under oath or otherwise as the office determines, as to facts and circumstances specified by the office.
(3)(a) In the event of noncompliance with a subpoena issued or caused to be issued by the office pursuant to this section, the office may petition the circuit court of the county in which the person subpoenaed resides or has its principal place of business for an order requiring the subpoenaed person to appear and testify and to produce such books, records, and documents as are specified in such subpoena duces tecum. The office is entitled to the summary procedure provided in s. 51.011, and the court shall advance the cause on its calendar.
(b) A copy of the petition shall be served upon the person subpoenaed by any person authorized by this section to serve subpoenas, who shall make and file with the court an affidavit showing the time, place, and date of service.
(c) At any hearing on any such petition, the person subpoenaed, or any person whose interests will be substantially affected by the investigation, examination, or subpoena, may appear and object to the subpoena and to the granting of the petition. The court may make any order which justice requires to protect a party or other person and his or her personal and property rights, including, but not limited to, protection from annoyance, embarrassment, oppression, or undue burden or expense.
(d) Failure to comply with an order granting, in whole or in part, a petition for enforcement of a subpoena is a contempt of court.
(4) Witnesses shall be entitled to the same fees and mileage to which they might be entitled by law for attending as witnesses in the circuit court, except that no fees or mileage shall be allowed in the case of testimony of a financial institution-affiliated party if such testimony is taken at the principal office of the state financial institution, subsidiary, or service corporation or at the residence of the financial institution-affiliated party.
(5) Reasonable and necessary expenses incurred by the office and payable to persons in investigations may be assessed against such an applicant, state financial institution, subsidiary, service corporation, or financial institution-affiliated party on the basis of actual costs incurred. Assessable expenses include, but are not limited to: expenses for interpreters; expenses for communications; expenses for legal representation; expenses for economic, legal, or other research, analyses, and testimony; and fees and expenses for witnesses. The failure to reimburse the office is a ground for denial of the application or for revocation of any approval thereof.
History.—s. 1, ch. 80-273; s. 4, ch. 84-216; s. 1, ch. 85-65; s. 1, ch. 89-229; s. 1, ch. 91-307; ss. 1, 12, ch. 92-303; s. 520, ch. 97-102; s. 1705, ch. 2003-261.
Note.—Former s. 655.025.
655.0321 Restricted access to certain hearings, proceedings, and related documents.—The office shall consider the public purposes specified in 1s. 119.14(4)(b) in determining whether the hearings and proceedings conducted pursuant to s. 655.033 for the issuance of cease and desist orders and s. 655.037 for the issuance of suspension or removal orders shall be closed and exempt from the provisions of s. 286.011, and whether related documents shall be confidential and exempt from the provisions of s. 119.07(1).
History.—s. 1, ch. 80-273; s. 1, ch. 85-65; s. 2, ch. 89-229; s. 1, ch. 91-307; ss. 1, 3, 13, ch. 92-303; s. 410, ch. 96-406; s. 1706, ch. 2003-261.
1Note.—Repealed by s. 1, ch. 95-217.
Note.—Former s. 655.029.
655.0322 Prohibited acts and practices; criminal penalties.—
(1) As used in this section, the term “financial institution” means a financial institution as defined in s. 655.50 which includes a state trust company, state or national bank, state or federal association, state or federal savings bank, state or federal credit union, Edge Act or agreement corporation, international bank agency, international branch, representative office or administrative office or other business entity as defined by the commission by rule, whether organized under the laws of this state, the laws of another state, or the laws of the United States, which institution is located in this state.
(2) It is unlawful for any financial institution-affiliated party to ask for, willfully and knowingly receive or consent to receive any commission, emolument, gratuity, money, property, or thing of value for:
(a) Procuring, or endeavoring to procure, for any person a loan or extension of credit from such financial institution, subsidiary, or service corporation; or
(b) Procuring, or endeavoring to procure, the purchase or discount of any note, draft, check, bill of exchange, or other obligation by such financial institution, subsidiary, or service corporation.
Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) It is unlawful for any financial institution-affiliated party to:
(a) Knowingly receive or possess himself or herself of any of its property otherwise than in payment of a just demand, and, with intent to deceive or defraud, to omit to make or cause to be made a full and true entry thereof in its books and accounts, or concur in omitting to make any material entry thereof;
(b) Embezzle, abstract, or misapply any money, property, or thing of value of the financial institution, subsidiary, or service corporation with intent to deceive or defraud such financial institution, subsidiary, or service corporation;
(c) Knowingly make, draw, issue, put forth, or assign any certificate of deposit, draft, order, bill of exchange, acceptance, note, debenture, bond or other obligation, mortgage, judgment, or decree without authority from the board of directors of such financial institution;
(d) Make any false entry in any book, report, or statement of such financial institution, subsidiary, or service corporation with intent to deceive or defraud such financial institution or another person, firm, or corporation, or with intent to deceive the office, any other appropriate federal regulatory agency, or any authorized representative appointed to examine the affairs of such financial institution, subsidiary, or service corporation; or
(e) Deliver or disclose to the office or any of its employees any examination report, report of condition, report of income and dividends, internal audit, account, statement, or document known by him or her to be fraudulent or false as to any material matter.
Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) It is unlawful for any financial institution-affiliated party to knowingly place among the assets of such financial institution, subsidiary, or service corporation any note, obligation, or security which the financial institution, subsidiary, or service corporation does not own or which to the individual’s knowledge is fraudulent or otherwise worthless or for any such individual to represent to the office that any note, obligation, or security carried as an asset of such financial institution, subsidiary, or service corporation is the property of the financial institution, subsidiary, or service corporation and is genuine if it is known to such individual that such representation is false or that such note, obligation, or security is fraudulent or otherwise worthless. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) Any person who willfully makes any false statement or report, or willfully overvalues any land, property, or security, for the purposes of influencing in any way the action of any financial institution, subsidiary, or service corporation or any other entity authorized by law to extend credit, upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by renewal, deferment of action or otherwise, or the acceptance, release, or substitution of security therefor, is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(6) Any person who knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution, subsidiary, or service corporation or any other entity authorized by law to extend credit, or to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, subsidiary, service corporation, or any other entity authorized by law to extend credit, by means of false or fraudulent pretenses, representations, or promises, is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 14, ch. 92-303; s. 3, ch. 97-30; s. 521, ch. 97-102; s. 1707, ch. 2003-261; s. 6, ch. 2004-340; s. 89, ch. 2004-390.
655.033 Cease and desist orders.—
(1) The office may issue and serve upon any state financial institution, subsidiary, or service corporation, or upon any financial institution-affiliated party, a complaint stating charges whenever the office has reason to believe that such state financial institution, subsidiary, service corporation, financial institution-affiliated party, or individual named therein is engaging in or has engaged in conduct that is:
(a) An unsafe or unsound practice;
(b) A violation of any law relating to the operation of a financial institution;
(c) A violation of any rule of the commission;
(d) A violation of any order of the office;
(e) A breach of any written agreement with the office;
(f) A prohibited act or practice pursuant to s. 655.0322; or
(g) A willful failure to provide information or documents to the office or any appropriate federal agency, or any of its representatives, upon written request.
(2) The complaint must contain the statement of facts and notice of opportunity for a hearing pursuant to ss. 120.569 and 120.57.
(3) If no hearing is requested within the time allowed by ss. 120.569 and 120.57, or if a hearing is held and the office finds that any of the charges are true, the office may enter an order directing the state financial institution, subsidiary, service corporation, financial institution-affiliated party, or the individual named therein to cease and desist from engaging in the conduct complained of and to take corrective action.
(4) If the state financial institution, subsidiary, service corporation, financial institution-affiliated party, or the individual named in such order fails to respond to the complaint within the time allotted in ss. 120.569 and 120.57, such failure constitutes a default and justifies the entry of a cease and desist order.
(5) A contested or default cease and desist order is effective when reduced to writing and served upon the state financial institution, subsidiary, service corporation, financial institution-affiliated party, or the individual named therein. An uncontested cease and desist order is effective as agreed.
(6) Whenever the office finds that conduct described in subsection (1) is likely to cause insolvency, substantial dissipation of assets or earnings of the state financial institution, subsidiary, or service corporation or substantial prejudice to the depositors, members, or shareholders, it may issue an emergency cease and desist order requiring the state financial institution, subsidiary, service corporation, or financial institution-affiliated party to immediately cease and desist from engaging in the conduct complained of and to take corrective action. The emergency order is effective immediately upon service of a copy of the order upon the state financial institution, subsidiary, service corporation, or financial institution-affiliated party and remains effective for 90 days. If the office begins nonemergency cease and desist proceedings under subsection (1), the emergency order remains effective until the conclusion of the proceedings under ss. 120.569 and 120.57. Any emergency order entered under this subsection is confidential and exempt from s. 119.07(1) until the emergency order is made permanent, unless the office finds that such confidentiality will result in substantial risk of financial loss to the public.
History.—s. 1, ch. 80-273; s. 5, ch. 84-216; s. 1, ch. 85-65; s. 3, ch. 89-229; s. 1, ch. 91-307; ss. 1, 3, 15, ch. 92-303; s. 411, ch. 96-406; s. 290, ch. 96-410; s. 1708, ch. 2003-261.
655.034 Injunctions.—Whenever a violation of the financial institutions codes is threatened or impending and such violation will cause substantial injury to a state financial institution or to the depositors, members, creditors, or stockholders thereof, the circuit court has jurisdiction to hear any complaint filed by the office and, upon proper showing, to issue an injunction restraining such violation or granting other such appropriate relief.
History.—s. 1, ch. 82-214; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 16, ch. 92-303; s. 1709, ch. 2003-261.
655.037 Removal of a financial institution-affiliated party by the office.—
(1) The office may issue and serve upon any financial institution-affiliated party and upon the state financial institution, subsidiary, or service corporation involved, a complaint stating charges whenever the office has reason to believe that the financial institution-affiliated party is engaging or has engaged in conduct that is:
(a) An unsafe or unsound practice;
(b) A prohibited act or practice;
(c) A willful violation of any law relating to financial institutions;
(d) A violation of any other law involving fraud or moral turpitude which constitutes a felony;
(e) A violation of s. 655.50, relating to the Florida Control of Money Laundering in Financial Institutions Act; chapter 896, relating to offenses related to financial transactions; or any similar state or federal law;
(f) A willful violation of any rule of the commission;
(g) A willful violation of any order of the office;
(h) A willful breach of any written agreement with the office; or
(i) An act of commission or omission or a practice which is a breach of trust or a breach of fiduciary duty.
(2) The complaint must contain the statement of facts and notice of opportunity for a hearing pursuant to ss. 120.569 and 120.57.
(3) If no hearing is requested within the time allowed by ss. 120.569 and 120.57, or if a hearing is held and the office finds that any of the charges in the complaint are true and that the state financial institution has suffered or will likely suffer loss or other damage or that the interests of the depositors, members, or shareholders could be seriously prejudiced by reason of such violation or practice or breach of fiduciary duty or that the financial institution-affiliated party has received financial gain by reason of such violation, practice, or breach of fiduciary duty, and that such violation, practice, or breach of fiduciary duty is one involving personal dishonesty on the part of such financial institution-affiliated party or a continuing disregard for the safety or soundness of the state financial institution, subsidiary, or service corporation, the office may enter an order removing the financial institution-affiliated party or restricting or prohibiting participation by such financial institution-affiliated party in the affairs of that particular state financial institution, subsidiary, or service corporation or any other state financial institution, subsidiary, or service corporation.
(4) If the financial institution-affiliated party fails to respond to the complaint within the time allowed in ss. 120.569 and 120.57, such failure constitutes a default and justifies the entry of an order of removal.
(5) A contested or default order of removal is effective when reduced to writing and served on the state financial institution, subsidiary, or service corporation and the financial institution-affiliated party. An uncontested order of removal is effective as agreed.
(6)(a) The chief executive officer, or the person holding the equivalent office, of a state financial institution shall promptly notify the office if he or she has actual knowledge that any financial institution-affiliated party is charged with a felony in a state or federal court.
(b) Whenever any financial institution-affiliated party is charged with a felony in a state or federal court, or in the courts of any foreign country with which the United States maintains diplomatic relations, and such charge alleges violation of any law involving fraud, currency transaction reporting, money laundering, theft, or moral turpitude and the charge under such foreign law is equivalent to a felony charge under state or federal law, the office may enter an emergency order suspending such financial institution-affiliated party or restricting or prohibiting participation by such financial institution-affiliated party in the affairs of that particular state financial institution, subsidiary, or service corporation or any other financial institution, subsidiary, or service corporation, upon service of the order upon the state financial institution, subsidiary, or service corporation and the financial institution-affiliated party so charged. The order shall contain notice of opportunity for a hearing pursuant to ss. 120.569 and 120.57, where the financial institution-affiliated party may request a postsuspension hearing to show that continued service to or participation in the affairs of the state financial institution, subsidiary, or service corporation does not pose a threat to the interests of the state financial institution’s depositors, members, or stockholders, or threaten to impair public confidence in the state financial institution. In accordance with applicable commission rules, the office shall notify the financial institution-affiliated party whether the order suspending or prohibiting the financial institution-affiliated party from participation in the affairs of a state financial institution, subsidiary, or service corporation will be rescinded or otherwise modified. The emergency order will remain in effect, unless otherwise modified by the office, until the criminal charge is disposed of. The acquittal of the financial institution-affiliated party charged, or the final, unappealed dismissal of all charges against such person, will dissolve the emergency order, but will not prohibit the office from instituting proceedings under subsection (1). If the financial institution-affiliated party charged is convicted or pleads guilty or nolo contendere, whether or not an adjudication of guilt is entered by the court, the emergency order becomes final.
(7) Any financial institution-affiliated party removed from office pursuant to this section is not eligible for reelection to such position or to any official position in any financial institution in this state except with the written consent of the office. Any financial institution-affiliated party who is removed, restricted, or prohibited from participation in the affairs of a state financial institution pursuant to this section may petition the office for modification or termination of any such removal, restriction, or prohibition.
(8) The resignation, termination of employment or participation, or separation from a state financial institution, subsidiary, or service corporation of the financial institution-affiliated party does not affect the jurisdiction and authority of the office to issue any notice and proceed under this section against such financial institution-affiliated party, if such notice is served before the end of the 6-year period beginning on the date such person ceases to be such a financial institution-affiliated party with respect to such state financial institution, subsidiary, or service corporation.
History.—s. 1, ch. 80-273; s. 439, ch. 81-259; ss. 5, 6, ch. 84-216; s. 39, ch. 85-62; s. 1, ch. 85-65; s. 4, ch. 89-229; s. 1, ch. 90-51; s. 1, ch. 91-307; ss. 1, 17, ch. 92-303; s. 291, ch. 96-410; s. 1758, ch. 97-102; s. 1710, ch. 2003-261.
655.0385 Disapproval of directors and executive officers.—
(1) Each state financial institution shall notify the office of the proposed appointment of any individual to the board of directors or the appointment or employment of any individual as an executive officer or equivalent position at least 60 days before such appointment or employment becomes effective, if the state financial institution:
(a) Has been chartered for less than 2 years;
(b) Has undergone a change in control or conversion within the preceding 2 years. The office may exempt a financial institution from this paragraph if it operates in a safe and sound manner;
(c) Is not in compliance with the minimum capital requirements applicable to such financial institution; or
(d) Is otherwise operating in an unsafe and unsound condition, as determined by the office, on the basis of such financial institution’s most recent report of condition or report of examination.
(2) A state financial institution may not appoint any individual to the board of directors, or employ any individual as an executive officer or equivalent position, if the office issues a notice of disapproval with respect to that person.
(3) The office shall issue a notice of disapproval if the competence, experience, character, or integrity of the individual to be appointed or employed indicates that it is not in the best interests of the depositors, the members, or the public to permit the individual to be employed by or associated with the state financial institution.
(4) Beginning 1 year after opening, each notification of a proposed appointment of an individual to the board of directors must be accompanied by a nonrefundable fee of $35.
(5) The commission may adopt rules to implement this section.
History.—s. 18, ch. 92-303; s. 3, ch. 93-111; s. 1, ch. 99-138; s. 1711, ch. 2003-261; s. 7, ch. 2004-340; s. 90, ch. 2004-390.
655.03855 Provisional directors and executive officers.—
(1) If a state financial institution has an insufficient number of directors to meet the minimum requirements of s. 657.021 or s. 658.33 for 30 days or longer, there are an insufficient number of executive officers, or the qualifications of the executive officers are insufficient to operate the financial institution in a safe and sound manner, the office may appoint one or more provisional directors or executive officers by order.
(2) A provisional director has all the rights and powers of a duly elected director, including the right to notice of and to vote at meetings of directors. A provisional executive officer has all the rights and powers provided in the financial institution’s articles of incorporation or bylaws, or as specified by the office in the appointment order. A provisional director or executive officer must be an impartial person and may not be a shareholder, member, or creditor of the financial institution or its affiliate. Additional qualifications, if any, may be determined by the office consistent with the financial institutions codes. Provisional directors and executive officers shall serve until the provisional director’s or executive officer’s tenure is ended by order of the office.
(3) A provisional director or executive officer is not liable for any action taken or decision made, except as provided in the financial institutions codes and s. 607.0831. If directed by the office, provisional directors and executive officers must submit reports to the office as to the financial and operating condition of the financial institution and recommendations as to appropriate corrective actions to be taken by the institution.
(4) The office shall allow reasonable compensation, if applicable, to a provisional director or executive officer appointed under this section for services rendered, and reimbursement or direct payment of all reasonable costs and expenses, which shall be paid by the financial institution. The office is not liable for any appointment, action, or decision made pursuant to this section.
History.—s. 3, ch. 2011-194.
655.0386 Transactions with financial institution-affiliated parties.—
(1) CONFLICT OF INTEREST.—A financial institution-affiliated party may not engage or participate, directly or indirectly, in any business or transaction conducted on behalf of or involving the state financial institution, subsidiary, or service corporation which would result in a conflict of the party’s own personal interests with those of the state financial institution, subsidiary, or service corporation with which he or she is affiliated, unless:
(a) Such business or transactions are conducted in good faith and are honest, fair, and reasonable to the state financial institution, subsidiary, or service corporation and are on terms no more favorable than would be offered to a disinterested third party;
(b) A full disclosure of such business or transaction and the nature of the financial institution-affiliated party’s interest is made to the board of directors;
(c) Such business or transactions are approved in good faith by the board of directors, any interested director abstaining, and such approval is recorded in the minutes;
(d) Any profits inuring to the financial institution-affiliated party are not at the expense of the state financial institution, subsidiary, or service corporation and do not prejudice the best interests of the state financial institution, subsidiary, or service corporation in any way; and
(e) Such business or transactions do not represent a breach of the financial institution-affiliated party’s fiduciary duty and are not fraudulent, illegal, or ultra vires.
(2) DISCLOSURE OF PERSONAL INTEREST.—Without limitation by any of the specific provisions of this section, the commission or office may require the disclosure by financial institution-affiliated parties of their personal interests, directly or indirectly, in any business or transactions on behalf of or involving the state financial institution, subsidiary, or service corporation and of their control of or active participation in enterprises having activities related to the business of the state financial institution, subsidiary, or service corporation.
(3) SPECIFIED RESTRICTIONS.—The following restrictions governing the conduct of financial institution-affiliated parties expressly are specified, but such specification is not to be construed in any manner as excusing such parties from the observance of any other aspect of the general fiduciary duty owed by them to the state financial institution which they serve:
(a) Remuneration.—A director of a state bank, association, or trust company may not accept director fees unless the director fees have been previously approved by the board of directors and such fees represent reasonable compensation for service as a director or member of a committee. This section does not limit or preclude reasonable compensation as otherwise authorized by subsection (1) for a director who also provides goods or services to the state bank, association, or trust company.
(b) Assets.—Except as provided in ss. 657.039 and 658.48, a financial institution-affiliated party may not have any interest, directly or indirectly, in the proceeds of a loan or investment or of a purchase or sale made by the state financial institution, subsidiary, or service corporation unless such loan, investment, purchase, or sale is authorized expressly by resolution of the board of directors and unless such resolution is approved by vote of at least a majority of the directors of the state financial institution with all interested parties taking no part in such vote.
(c) Liabilities.—A financial institution-affiliated party may not have any interest, direct or indirect, in the purchase at less than its face value of any evidence of a savings account, deposit, or other indebtedness issued by the state financial institution, subsidiary, or service corporation.
(d) Voting rights; office.—A financial institution-affiliated party acting as proxy for a stockholder of a state financial institution, subsidiary, or service corporation may not exercise, transfer, or delegate such vote or votes in any consideration of a private benefit or advantage, direct or indirect. The voting rights of stockholders and directors may not be the subject of sale, barter, exchange, or similar transaction, either directly or indirectly. Any financial institution-affiliated party who violates the provisions of this section is accountable to the state financial institution, subsidiary, or service corporation for any increment.
History.—s. 19, ch. 92-303; s. 53, ch. 95-211; s. 522, ch. 97-102; s. 1712, ch. 2003-261.
655.0391 Retention of supervision by office.—A state financial institution may not cause to be performed, by contract or otherwise, any financial-institution services for itself, whether at or away from its main or branch office or on or off its premises, unless assurances satisfactory to the office are furnished to the office by both the state financial institution and the person performing such services that the performance thereof will be subject to regulation and examination by the office to the same extent as if such services were being performed by the state financial institution itself on its own premises.
History.—s. 20, ch. 92-303; s. 1713, ch. 2003-261.
655.0392 Place of transacting business.—Any financial institution, except a credit union, organized under the laws of this state or federal law may apply for space in any building owned or leased by the state, political subdivision, or municipality in the community or political subdivision in which the financial institution does business. The application must be addressed to the officer charged with the allotment of space in such building, who, if space is available, may allot the space at a commercially reasonable rate. A credit union may apply for such space under the provisions of s. 657.008(4).
History.—s. 21, ch. 92-303.
655.041 Administrative fines; enforcement.—
(1) The office may, by complaint, initiate a proceeding pursuant to chapter 120 to impose an administrative fine against any person found to have violated any provision of the financial institutions codes or a cease and desist order of the office or any written agreement with the office. No such proceeding shall be initiated and no fine shall accrue pursuant to this section until after such person has been notified in writing of the nature of the violation and has been afforded a reasonable period of time, as set forth in the notice, to correct the violation and has failed to do so.
(2) Any such fine may not exceed $2,500 a day for each violation except as provided in this section.
(a) If the office determines that any such person has recklessly violated any provision of the financial institutions codes or a cease and desist order of the office or any written agreement with the office, which violation results in more than a minimal loss to a financial institution, subsidiary, or service corporation, or a pecuniary benefit to such person, the office may impose a fine not exceeding $10,000 a day for each day the violation continues.
(b) If the office determines that any such person has knowingly violated any provision of the financial institutions codes or a cease and desist order of the office or any written agreement with the office, which violation results in more than a minimal loss to a financial institution, subsidiary, or service corporation, or a pecuniary benefit to such a person, the office may impose a fine not exceeding the lesser of $500,000 per day or 1 percent of the total assets in the case of a financial institution, or $50,000 per day in any other case for each day the violation continues.
(c) The office may by complaint impose an administrative fine, not exceeding $10,000 a day, upon any financial institution-affiliated party, and upon a state financial institution, subsidiary, service corporation, or affiliate, who refuses to permit an examiner to examine a state financial institution, subsidiary, or service corporation, who refuses to permit an examiner to review the books and records of an affiliate, or who refuses to give an examiner any information required in the course of any examination or review of the books and records.
(3) Any administrative fine levied by the office may be enforced by the office by appropriate proceedings in the circuit court of the county in which such person resides or in which the principal office of a state financial institution is located. In any administrative or judicial proceeding arising under this section, a party may elect to correct the violation asserted by the office and, upon doing so, any fine ceases to accrue; however, an election to correct the violation does not render any administrative or judicial proceeding moot.
History.—s. 1, ch. 80-273; s. 1, ch. 85-65; s. 5, ch. 89-229; s. 1, ch. 91-307; ss. 1, 22, ch. 92-303; s. 1714, ch. 2003-261.
655.043 Articles of incorporation; amendments; approval.—A bank, trust company, or association may not amend its articles of incorporation without the written approval of the office.
History.—s. 7, ch. 84-216; s. 1, ch. 85-65; s. 2, ch. 85-82; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 4, ch. 93-111; s. 2, ch. 2001-243; s. 1715, ch. 2003-261.
655.044 Accounting practices; bad debts ineligible to be carried as assets.—
(1) Except as otherwise provided by law, a state financial institution shall observe United States generally accepted accounting principles. The commission may authorize exceptions to such accounting principles by rule.
(2) A state financial institution, subsidiary, or service corporation may not carry as an asset any note, obligation, or security which it does not own absolutely or which is known by the state financial institution to be fraudulent or otherwise worthless; and a state financial institution may not carry as an asset, in any report to the office or in any published report, any note or other obligation which is past due or upon which no interest has been paid for 1 year or longer or which has been determined by the office to be a loss. However, past due paper may be carried to the extent of the reasonable value of any lien or other collateral given to secure such obligation; and, if the obligation is in the process of collection, it may be carried at its reasonable value as determined by the board of directors. The office may order the revision of any value so determined hereunder.
(3) A financial institution shall keep at its main office correct and complete books of accounts, membership or stockholder records, and minutes of the proceedings of members, stockholders, directors, and the executive committee. Complete records of all business transacted at the main office shall be maintained at the main office. Control records of all business transacted at each branch office shall be accessible to the main office. Accessibility may be provided by physical retention of records or by electronic or other means.
(4) Each branch office of a financial institution shall keep detailed records of all transactions at that office and shall furnish full control records to the main office. Records of such transactions may be furnished by electronic or other means.
(5) The fiscal year of a financial institution shall end on the last day of December.
History.—s. 8, ch. 84-216; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 23, ch. 92-303; s. 1716, ch. 2003-261; s. 3, ch. 2005-181; s. 4, ch. 2011-194.
655.045 Examinations, reports, and internal audits; penalty.—
(1) The office shall conduct an examination of the condition of each state financial institution during each 18-month period. The office may conduct more frequent examinations based upon the risk profile of the financial institution, prior examination results, or significant changes in the institution or its operations. The office may use continuous, phase, or other flexible scheduling examination methods for very large or complex state financial institutions and financial institutions owned or controlled by a multi-financial institution holding company. The office shall consider examination guidelines from federal regulatory agencies in order to facilitate, coordinate, and standardize examination processes.
(a) With respect to, and examination of, the condition of a state institution, the office may accept an examination made by an appropriate federal regulatory agency, or may make a joint or concurrent examination with the federal agency. The office may furnish a copy of all examinations or reviews made of financial institutions or their affiliates to the state or federal agencies participating in the examination, investigation, or review, or as otherwise authorized by s. 655.057.
(b) If, as a part of an examination or investigation of a state financial institution, subsidiary, or service corporation, the office has reason to believe that the conduct or business operations of an affiliate may have a negative impact on the state financial institution, subsidiary, or service corporation, the office may conduct such examination or investigation of the affiliate as the office deems necessary.
(c) The office may recover the costs of examination and supervision of a state financial institution, subsidiary, or service corporation that is determined by the office to be engaged in an unsafe or unsound practice. The office may also recover the costs of any review conducted pursuant to paragraph (b) of any affiliate of a state financial institution determined by the office to have contributed to an unsafe or unsound practice at a state financial institution, subsidiary, or service corporation.
(d) For the purposes of this section, the term “costs” means the salary and travel expenses directly attributable to the field staff examining the state financial institution, subsidiary, or service corporation, and the travel expenses of any supervisory staff required as a result of examination findings. The mailing of any costs incurred under this subsection must be postmarked within 30 days after the date of receipt of a notice stating that such costs are due. The office may levy a late payment of up to $100 per day or part thereof that a payment is overdue, unless excused for good cause. However, for intentional late payment of costs, the office may levy an administrative fine of up to $1,000 per day for each day the payment is overdue.
(e) The office may require an audit of a state financial institution, subsidiary, or service corporation by an independent certified public accountant, or other person approved by the office, if the office, after conducting an examination of the state financial institution, subsidiary, or service corporation, or after accepting an examination of such state financial institution by an appropriate state or federal regulatory agency, determines that an audit is necessary in order to ascertain the condition of the financial institution, subsidiary, or service corporation. The cost of such audit shall be paid by the state financial institution, subsidiary, or state service corporation.
(2)(a) Each state financial institution, subsidiary, or service corporation shall submit a report, at least four times each calendar year, as of such dates as the commission or office determines. Such report must include such information as the commission by rule requires for that type of institution.
(b) The office shall levy an administrative fine of up to $100 per day for each day the report is past due, unless it is excused for good cause. However, for intentional late filing of the report required under paragraph (a), the office shall levy an administrative fine of up to $1,000 per day for each day the report is past due.
(3)(a) The board of directors of each state financial institution or, in the case of a credit union, the supervisory committee or audit committee shall perform or cause to be performed, within each calendar year, an internal audit of each state financial institution, subsidiary, or service corporation and to file a copy of the report and findings of such audit with the office on a timely basis. Such internal audit must include such information as the commission by rule requires for that type of institution.
(b) With the approval of the office, the board of directors or, in the case of a credit union, the supervisory committee may elect, in lieu of such periodic audits, to adopt and implement an adequate continuous audit system and procedure which must include full, adequate, and continuous written reports to, and review by, the board of directors or, in the case of a credit union, the supervisory committee, together with written statements of the actions taken thereon and reasons for omissions to take actions, all of which shall be noted in the minutes and filed among the records of the board of directors or, in the case of a credit union, the supervisory committee. If at any time such continuous audit system and procedure, including the reports and statements, becomes inadequate, in the judgment of the office, the state financial institution shall promptly make such changes as may be required by the office to cause the same to accomplish the purpose of this section.
(c) Any de novo state financial institution open less than 4 months is exempt from the audit requirements of this section.
(4) A copy of the report of each examination must be furnished to the entity examined. Such report shall be presented to the board of directors at its next regular or special meeting.
History.—s. 1, ch. 80-273; s. 2, ch. 82-214; s. 143, ch. 83-216; s. 1, ch. 85-65; s. 3, ch. 85-82; s. 2, ch. 90-197; s. 1, ch. 91-307; ss. 1, 24, ch. 92-303; s. 5, ch. 93-111; s. 4, ch. 97-30; s. 523, ch. 97-102; s. 1717, ch. 2003-261; s. 8, ch. 2004-340; s. 91, ch. 2004-390; s. 5, ch. 2011-194.
655.047 Assessments; financial institutions.—
(1) Each state financial institution shall pay to the office a semiannual assessment based on the total assets as shown on the statement of condition of the financial institution on the last business day in December and the last business day in June of each year.
(2) The mailing of a semiannual assessment must be postmarked on or before January 31 and July 31 of each year. The office may levy a late payment penalty of up to $100 per day or part thereof that a semiannual assessment payment is overdue, unless it is excused for good cause. However, for intentional late payment of a semiannual assessment, the office shall levy an administrative fine of up to $1,000 a day for each day the semiannual assessment is overdue.
(3) The assessments required by this section cover the 6-month period following the first day of the month in which they are due. The office may prorate the amount of the semiannual assessment; however, no portion of a semiannual assessment is refundable.
History.—s. 3, ch. 90-197; s. 1, ch. 91-307; ss. 1, 25, ch. 92-303; s. 1718, ch. 2003-261.
655.049 Deposit of fees and assessments.—The assessments, application fees, late payment penalties, civil penalties, administrative fines, and other fees or penalties provided for in the financial institutions codes shall, in all cases, be paid directly to the office, which shall deposit all thereof in the Financial Institutions’ Regulatory Trust Fund, which fund shall be used by the office to pay its costs for administration of the financial institutions codes. The office shall determine and report to the Legislature whether the fees and assessments provided in the financial institutions codes and assessed against and collected from the financial institutions that are subject to the financial institutions codes support the office’s expenditures. The Financial Institutions’ Regulatory Trust Fund is subject to the service charge imposed pursuant to chapter 215.
History.—s. 1, ch. 80-273; s. 440, ch. 81-259; s. 23, ch. 83-339; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 26, ch. 92-303; s. 1719, ch. 2003-261.
655.057 Records; limited restrictions upon public access.—
(1) Except as otherwise provided in this section and except for such portions thereof which are otherwise public record, all records and information relating to an investigation by the office are confidential and exempt from the provisions of s. 119.07(1) until such investigation is completed or ceases to be active. For purposes of this subsection, an investigation is considered “active” while such investigation is being conducted by the office with a reasonable, good faith belief that it may lead to the filing of administrative, civil, or criminal proceedings. An investigation does not cease to be active if the office is proceeding with reasonable dispatch, and there is a good faith belief that action may be initiated by the office or other administrative or law enforcement agency. After an investigation is completed or ceases to be active, portions of such records relating to the investigation shall be confidential and exempt from the provisions of s. 119.07(1) to the extent that disclosure would:
(a) Jeopardize the integrity of another active investigation;
(b) Impair the safety and soundness of the financial institution;
(c) Reveal personal financial information;
(d) Reveal the identity of a confidential source;
(e) Defame or cause unwarranted damage to the good name or reputation of an individual or jeopardize the safety of an individual; or
(f) Reveal investigative techniques or procedures.
(2) Except as otherwise provided in this section and except for such portions thereof which are public record, reports of examinations, operations, or condition, including working papers, or portions thereof, prepared by, or for the use of, the office or any state or federal agency responsible for the regulation or supervision of financial institutions in this state are confidential and exempt from the provisions of s. 119.07(1). However, such reports or papers or portions thereof may be released to:
(a) The financial institution under examination;
(b) Any holding company of which the financial institution is a subsidiary;
(c) Proposed purchasers if necessary to protect the continued financial viability of the financial institution, upon prior approval by the board of directors of such institution;
(d) Persons proposing in good faith to acquire a controlling interest in or to merge with the financial institution, upon prior approval by the board of directors of such financial institution;
(e) Any officer, director, committee member, employee, attorney, auditor, or independent auditor officially connected with the financial institution, holding company, proposed purchaser, or person seeking to acquire a controlling interest in or merge with the financial institution; or
(f) A fidelity insurance company, upon approval of the financial institution’s board of directors. However, a fidelity insurance company may receive only that portion of an examination report relating to a claim or investigation being conducted by such fidelity insurance company.
(g) Examination, operation, or condition reports of a financial institution shall be released by the office within 1 year after the appointment of a liquidator, receiver, or conservator to such financial institution. However, any portion of such reports which discloses the identities of depositors, bondholders, members, borrowers, or stockholders, other than directors, officers, or controlling stockholders of the institution, shall remain confidential and exempt from the provisions of s. 119.07(1).
Any confidential information or records obtained from the office pursuant to this paragraph shall be maintained as confidential and exempt from the provisions of s. 119.07(1).
(3) The provisions of this section do not prevent or restrict:
(a) Publishing reports required to be submitted to the office pursuant to s. 655.045(2)(a) or required by applicable federal statutes or regulations to be published.
(b) Furnishing records or information to any other state, federal, or foreign agency responsible for the regulation or supervision of financial institutions, including Federal Home Loan Banks.
(c) Disclosing or publishing summaries of the condition of financial institutions and general economic and similar statistics and data, provided that the identity of a particular financial institution is not disclosed.
(d) Reporting any suspected criminal activity, with supporting documents and information, to appropriate law enforcement and prosecutorial agencies.
(e) Furnishing information upon request to the Chief Financial Officer or the Division of Treasury of the Department of Financial Services regarding the financial condition of any financial institution that is, or has applied to be, designated as a qualified public depository pursuant to chapter 280.
Any confidential information or records obtained from the office pursuant to this subsection shall be maintained as confidential and exempt from the provisions of s. 119.07(1).
(4)(a) Orders of courts or of administrative law judges for the production of confidential records or information shall provide for inspection in camera by the court or the administrative law judge and, after the court or administrative law judge has made a determination that the documents requested are relevant or would likely lead to the discovery of admissible evidence, said documents shall be subject to further orders by the court or the administrative law judge to protect the confidentiality thereof. Any order directing the release of information shall be immediately reviewable, and a petition by the office for review of such order shall automatically stay further proceedings in the trial court or the administrative hearing until the disposition of such petition by the reviewing court. If any other party files such a petition for review, it will operate as a stay of such proceedings only upon order of the reviewing court.
(b) Confidential records and information furnished pursuant to a legislative subpoena shall be kept confidential by the legislative body or committee which received the records or information, except in a case involving investigation of charges against a public official subject to impeachment or removal, and then disclosure of such information shall be only to the extent determined by the legislative body or committee to be necessary.
(5) Every credit union and mutual association shall maintain, in the principal office where its business is transacted, full and correct records of the names and residences of all the members of the credit union or mutual association. Such records shall be subject to the inspection of all the members of the credit union or mutual association, and the officers authorized to assess taxes under state authority, during business hours of each business day. A current list of members shall be made available to the office’s examiners for their inspection and, upon the request of the office, shall be submitted to the office. Except as otherwise provided in this subsection, the list of the members of the credit union or mutual association is confidential and exempt from the provisions of s. 119.07(1).
(6) Every bank, trust company, and stock association shall maintain, in the principal office where its business is transacted, full and complete records of the names and residences of all the shareholders of the bank, trust company, or stock association and the number of shares held by each. Such records shall be subject to the inspection of all the shareholders of the bank, trust company, or stock association, and the officers authorized to assess taxes under state authority, during business hours of each banking day. A current list of shareholders shall be made available to the office’s examiners for their inspection and, upon the request of the office, shall be submitted to the office. Except as otherwise provided in this subsection, any portion of this list which reveals the identities of the shareholders is confidential and exempt from the provisions of s. 119.07(1).
(7) Materials supplied to the office or to employees of any financial institution by other governmental agencies, federal or state, shall remain the property of the submitting agency or the corporation, and any document request must be made to the appropriate agency. Any confidential documents supplied to the office or to employees of any financial institution by other governmental agencies, federal or state, shall be confidential and exempt from the provisions of s. 119.07(1). Such information shall be made public only with the consent of such agency or the corporation.
(8) Examination reports, investigatory records, applications, and related information compiled by the office, or photographic copies thereof, shall be retained by the office for a period of at least 10 years.
(9) A copy of any document on file with the office which is certified by the office as being a true copy may be introduced in evidence as if it were the original. The commission shall establish a schedule of fees for preparing true copies of documents.
(10) Any person who willfully discloses information made confidential by this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 1, ch. 80-273; s. 441, ch. 81-259; s. 9, ch. 84-216; s. 1, ch. 85-65; s. 4, ch. 85-82; s. 13, ch. 88-185; s. 6, ch. 89-229; s. 1, ch. 91-307; ss. 1, 3, 28, 216, ch. 92-303; s. 412, ch. 96-406; s. 292, ch. 96-410; s. 1720, ch. 2003-261; s. 4, ch. 2005-181.
655.059 Access to books and records; confidentiality; penalty for disclosure.—
(1) The books and records of a financial institution are confidential and shall be made available for inspection and examination only:
(a) To the office or its duly authorized representative;
(b) To any person duly authorized to act for the financial institution;
(c) To any federal or state instrumentality or agency authorized to inspect or examine the books and records of an insured financial institution;
(d) With respect to an international banking corporation, to the home-country supervisor of the corporation, provided:
1. The supervisor provides advance notice to the office that the supervisor intends to examine the Florida office of the corporation.
2. The supervisor confirms to the office that the purpose of the examination is to ensure the safety and soundness of the corporation.
3. The books and records pertaining to customer deposit, investment, and custodial accounts are not disclosed to the supervisor.
4. At any time during the conduct of the examination, the office reserves the right to have an examiner present or to participate jointly in the examination.
For purposes of this paragraph, “home-country supervisor” means the governmental entity in the corporation’s home country with responsibility for the supervision and regulation of the corporation;
(e) As compelled by a court of competent jurisdiction, pursuant to a subpoena issued pursuant to the Florida Rules of Civil Procedure, the Florida Rules of Criminal Procedure, or the Federal Rules of Civil Procedure, or pursuant to a subpoena issued in accordance with state or federal law. Prior to the production of the books and records of a financial institution, the party seeking production must reimburse the financial institution for the reasonable costs and fees incurred in compliance with the production. If the parties disagree regarding the amount of reimbursement, the party seeking the records may request the court or agency having jurisdiction to set the amount of reimbursement;
(f) As compelled by legislative subpoena as provided by law, in which case the provisions of s. 655.057 apply;
(g) Pursuant to a subpoena, to any federal or state law enforcement or prosecutorial instrumentality authorized to investigate suspected criminal activity;
(h) As authorized by the board of directors of the financial institution; or
(i) As provided in subsection (2).
(2)(a) Each depositor, borrower, member, or stockholder has the right to inspect such books and records of a financial institution as pertain to her or his loans or accounts or the determination of her or his voting rights.
(b) The books and records pertaining to the deposit accounts and loans of depositors, borrowers, members, and stockholders of any financial institution shall be kept confidential by the financial institution and its directors, officers, and employees and shall not be released except upon express authorization of the account holder as to her or his own accounts, loans, or voting rights. However, information relating to any loan made by a financial institution may be released without the borrower’s authorization in a manner prescribed by the board of directors for the purpose of meeting the needs of commerce and for fair and accurate credit information. Information may also be released, without the authorization of a member or depositor but in a manner prescribed by the board of directors, to verify or corroborate the existence or amount of a customer’s or member’s account when such information is reasonably provided to meet the needs of commerce and to ensure accurate credit information. In addition, a financial institution, affiliate, and its subsidiaries, and any holding company of the financial institution or subsidiary of such holding company, may furnish to one another information relating to their customers or members, subject to the requirement that each corporation receiving information that is confidential maintain the confidentiality of such information and not provide or disclose such information to any unaffiliated person or entity. Notwithstanding this paragraph, nothing in this subsection shall prohibit a financial institution from disclosing financial information as referenced in this subsection as permitted by Pub. L. No. 106-102(1999), as set forth in 15 U.S.C.A. s. 6802, as amended.
(c) A person who willfully violates the provisions of this section that relate to unlawful disclosure of confidential information is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—ss. 7, 30, ch. 89-229; s. 1, ch. 91-307; ss. 1, 29, ch. 92-303; s. 524, ch. 97-102; s. 1, ch. 97-109; s. 4, ch. 2001-243; s. 1721, ch. 2003-261; s. 9, ch. 2004-340; s. 92, ch. 2004-390.
655.061 Competitive equality with federally organized or chartered financial institutions.—Subject to the prior approval of the office pursuant to commission rule or office order of general application, state financial institutions subject to the financial institutions codes may make any loan or investment or exercise any power which they could make or exercise if incorporated or operating in this state as a federally chartered or regulated financial institution of the same type and are entitled to all privileges and protections granted federally chartered or regulated financial institutions of the same type under federal statutes and regulations. The provisions of this section take precedence over, and must be given effect over, any other general or specific provisions of the financial institutions codes to the contrary. In issuing an order or rule under this section, the office or commission shall consider the importance of maintaining a competitive dual system of financial institutions and whether such an order or rule is in the public interest.
History.—s. 1, ch. 80-273; s. 1, ch. 85-65; s. 1, ch, 88-113; s. 1, ch. 91-307; ss. 1, 30, ch. 92-303; s. 1722, ch. 2003-261.
655.071 International banking facilities; definitions; notice before establishment.—
(1) “International banking facility” means a set of asset and liability accounts segregated on the books and records of a banking organization, as that term is defined in s. 201.23, that includes only international banking facility deposits, borrowings, and extensions of credit, as those terms shall be defined by the commission pursuant to subsection (2).
(2) The commission shall by rule define the terms “deposit,” “borrowing,” and “extension of credit” as they relate to the activities of international banking facilities. These definitions shall take into account all transactions in which international banking facilities are permitted to engage by regulations of the Board of Governors of the Federal Reserve System, as from time to time amended. When adopting such rules, the commission shall also consider the public interest, including the need to maintain a sound and competitive banking system, as well as the purpose of this act, which is to create an environment conducive to the conduct of an international banking business in the state.
(3) Before establishing an international banking facility, a state-chartered or state-licensed banking organization shall notify the office in the manner prescribed by rule of the commission.
History.—s. 7, ch. 81-179; s. 1, ch. 83-129; s. 1, ch. 85-65; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1723, ch. 2003-261; s. 25, ch. 2006-312.
655.41 Definitions.—As used in ss. 655.41-655.419, the term:
(1) “Financial entity” means a financial institution whose principal office is in this state.
(2) “Capital stock financial institution” means a financial institution that is authorized to issue capital stock.
(3) “Mutual financial institution” means a financial institution that is not authorized to issue stock and the assets of which are owned by its members.
History.—s. 4, ch. 82-214; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 31, ch. 92-303; s. 5, ch. 97-30; s. 6, ch. 2011-194.
655.411 Conversion of charter.—
(1) A financial entity may apply to the office for permission to convert its charter without changing its business form or to do business as another type of financial entity in accordance with the following procedures:
(a) The board of directors must approve a plan of conversion by a majority vote of all the directors. The plan must include a statement of:
1. The type of financial entity which would result if the application were approved and the proposed name under which it would do business.
2. The method and schedule for terminating any activities and disposing of any assets or liabilities that would not conform to the requirements of the resulting financial entity.
3. The impact of such change on the financial entity’s business plan and operations, including any effect on the availability of particular financial services in the market area served by the financial entity.
4. Such financial data as may be required to determine compliance with the capital, reserve, and liquidity requirements applicable to the resulting financial entity.
5. Such other information as the commission may by rule require.
(b) Following approval by the board of directors, the conversion plan, together with a certified copy of the authorizing resolution adopted by the board, must be submitted to the office for approval before being submitted to the members or stockholders of the financial entity. The application for conversion must be in the form prescribed by the commission, contain such additional information as the commission or office reasonably requires, and be accompanied by a filing fee in accordance with s. 657.066(3) or s. 658.73. Additionally, the office is authorized to assess any financial entity, applying to convert pursuant to this section, a nonrefundable examination fee to cover the actual costs of any examination required as a part of the application process.
(c) The office shall approve the plan if it finds that:
1. The resulting financial entity would have an adequate capital structure with regard to its activities and its deposit liabilities.
2. The proposed conversion would not cause a substantially adverse effect on the financial condition of the financial entity.
3. The officers and directors have sufficient experience, ability, and standing to indicate a reasonable promise for the successful operation of the resulting financial entity.
4. The schedule for termination of any nonconforming activities and disposition of any nonconforming assets and liabilities is reasonably prompt, and the plan for such termination and disposition does not include an unsafe or unsound practice.
5. The officers or directors have not been convicted of, or pled guilty or nolo contendere to, a violation of s. 655.50, relating to money laundering in financial institutions; chapter 896, relating to offenses related to financial transactions; or any similar state or federal law.
6. The resulting financial entity is able to comply with the applicable terms of any regulatory action in effect before the date of the conversion.
7. The current and resulting primary federal regulatory agencies do not object to the proposed conversion.
If the office disapproves the plan, it shall state its objections and give the financial entity an opportunity to amend the plan to overcome such objections. The office may deny an application by an entity that is subject to a cease and desist order or other supervisory restriction or order imposed by a state or federal supervisory authority, insurer, or guarantor.
(d) If the office approves the plan, it may be submitted to the members or stockholders at an annual meeting or at any special meeting called to consider such action. Upon a favorable vote of a majority of the total number of votes eligible to be cast or, in the case of a credit union, a majority of the members present at the meeting, the plan is adopted. Copies of the minutes of the proceedings of such meeting of the members or stockholders, verified by the affidavit of an officer, as established in the bylaws of the financial institution, must be filed with the office within 10 days after such meeting. Such verified copies of the proceedings of such meeting are presumptive evidence of the holding and action of such meeting. If the members or stockholders approve the plan of conversion, the directors shall then execute new articles of incorporation or amendments to existing articles and two copies of the new bylaws. The directors shall insert in the articles of incorporation the following: “This (bank, association, etc.) is incorporated by conversion from a (national bank, state association, etc.) .”
(e) If the members or stockholders adopt the plan of conversion, the financial entity shall apply to the appropriate insurer for a commitment for insurance of accounts for the shares and deposits of the resulting financial entity.
(f) The plan shall not take effect until the office has received notice that the commitment for insurance of accounts has been given by the insurer. Upon receipt of such notice, the office shall issue a new charter to the financial entity authorizing it to transact business pursuant to applicable law.
(2) The commission may provide by rule for any additional procedures to be followed by any national or federal financial entity seeking to convert its charter pursuant to this section.
(3) A mutual financial institution requesting approval to convert its charter may not be converted into a capital stock financial institution until it has complied with the requirements of s. 665.033(1) and (2). For this purpose, references in s. 665.033(1) and (2) to associations are deemed to refer also to credit unions; but, in the case of a credit union, the provision therein concerning proxy statements does not apply.
(4) This section does not authorize a capital stock financial institution to convert to a mutual financial institution.
(5) Nothing in the law of this state shall restrict the right of a state financial institution to convert to a national or federal financial institution upon compliance with the laws of the United States, and, upon completion of such conversion, it shall surrender its charter as a state financial institution.
History.—s. 4, ch. 82-214; s. 144, ch. 83-216; s. 10, ch. 84-216; s. 1, ch. 85-65; s. 5, ch. 85-82; s. 2, ch. 90-51; s. 1, ch. 91-307; ss. 1, 32, ch. 92-303; s. 6, ch. 93-111; s. 5, ch. 2001-243; s. 1724, ch. 2003-261; s. 5, ch. 2005-181; s. 7, ch. 2011-194.
655.412 Merger and consolidation.—
(1) With the approval of the office, any capital stock financial institution may be merged into or consolidated with another capital stock financial institution or a mutual financial institution. The provisions of ss. 658.41-658.45 govern any merger or consolidation pursuant to this subsection; and, for this purpose, references therein to banks and trust companies are deemed to refer to capital stock financial institutions.
(2) A mutual financial institution may not be merged into a capital stock financial institution until it has first converted into a capital stock financial institution in accordance with s. 665.033(1) and (2). For this purpose, references in s. 665.033(1) and (2) to associations are deemed to refer also to credit unions; but, in the case of a credit union, the provision therein concerning proxy statements does not apply.
(3) An application to merge or consolidate pursuant to this section must be accompanied by a filing fee in accordance with s. 658.73.
History.—s. 4, ch. 82-214; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 33, ch. 92-303; s. 1725, ch. 2003-261.
655.414 Acquisition of assets; assumption of liabilities.—With prior approval of the office and upon such conditions as the commission prescribes by rule, a financial entity may acquire all or substantially all of the assets of, or assume all or any part of the liabilities of, any other financial institution in accordance with the procedures and subject to the following conditions and limitations:
(1) ADOPTION OF A PLAN.—The board of directors of the acquiring or assuming financial entity and the board of directors of the transferring financial institution must adopt, by a majority vote, a plan for such acquisition, assumption, or sale on terms that are mutually agreed upon. The plan must include:
(a) The names and types of financial institutions involved.
(b) A statement setting forth the material terms of the proposed acquisition, assumption, or sale, including the plan for disposition of all assets and liabilities not subject to the plan.
(c) A provision for liquidation, if applicable, of the transferring financial institution upon execution of the plan, or a provision setting forth the business plan for the continued operation of each financial institution after the execution of the plan.
(d) A statement that the entire transaction is subject to written approval of the office and approval of the members or stockholders of the transferring financial institution.
(e) If a stock financial institution is the transferring financial institution and the proposed sale is not for cash, a clear and concise statement that dissenting stockholders of the institution are entitled to the rights set forth in s. 658.44(4) and (5).
(f) The proposed effective date of the acquisition, assumption, or sale and such other information and provisions as necessary to execute the transaction or as required by the office.
(2) APPROVAL OF OFFICE.—Following approval by the board of directors of each participating financial institution, the plan, together with certified copies of the authorizing resolutions adopted by the boards and a completed application with a nonrefundable filing fee, must be forwarded to the office for approval or disapproval. The office shall approve the plan of acquisition, assumption, or sale if it appears that:
(a) The resulting financial entity or entities would have an adequate capital structure in relation to their activities and their deposit liabilities;
(b) The plan is fair to all parties; and
(c) The plan is not contrary to the public interest.
If the office disapproves the plan, it shall state its objections and give the parties an opportunity to amend the plan to overcome such objections.
(3) VOTE OF MEMBERS OR STOCKHOLDERS.—If the office approves the plan, it may be submitted to the members or stockholders of the transferring financial institution at an annual meeting or at a special meeting called to consider such action. Upon a majority vote of the total number of votes eligible to be cast or, in the case of a credit union, a majority vote of the members present at the meeting, the plan is adopted.
(4) ADOPTED PLAN; CERTIFICATE; ABANDONMENT.—
(a) If the plan is adopted by the members or stockholders of the transferring financial institution, the president or vice president and the cashier, manager, or corporate secretary of such institution shall submit the adopted plan to the office, together with a certified copy of the resolution of the members or stockholders approving it.
(b) Upon receipt of the certified copies and evidence that the participating financial institutions have complied with all applicable state and federal law and rules, the office shall certify, in writing, to the participants that the plan has been approved.
(c) Notwithstanding approval of the members or stockholders or certification by the office, the board of directors of the transferring financial institution may abandon such a transaction without further action or approval by the members or stockholders, subject to the rights of third parties under any contracts relating thereto.
(5) FEDERALLY CHARTERED OR OUT-OF-STATE INSTITUTION AS A PARTICIPANT.—If one of the participants in a transaction under this section is a federally chartered financial institution or an out-of-state financial institution, all participants must also comply with requirements imposed by federal and other state law for the acquisition, assumption, or sale and provide evidence of such compliance to the office as a condition precedent to the issuance of a certificate authorizing the transaction; however, if the purchasing or assuming financial institution is a federal or out-of-state state-chartered financial institution and the transferring state financial entity will be liquidated, approval of the office is not required.
(6) STOCK INSTITUTION ACQUIRING MUTUAL INSTITUTION.—A mutual financial institution may not sell all or substantially all of its assets to a stock financial institution until it has first converted into a capital stock financial institution in accordance with s. 665.033(1) and (2). For this purpose, references in s. 665.033(1) and (2) to associations also refer to credit unions but, in the case of a credit union, the provision concerning proxy statements does not apply.
History.—s. 4, ch. 82-214; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 34, ch. 92-303; s. 6, ch. 97-30; s. 1726, ch. 2003-261; s. 8, ch. 2011-194.
655.416 Book value of assets.—Upon the effective date of a merger, consolidation, conversion, or acquisition pursuant to ss. 655.41-655.419, an asset may not be carried on the books of the resulting financial entity at a valuation higher than that at which it was carried on the books of a participating or converting financial institution at the time of its last examination by a state or federal examiner before such effective date without written approval from the office.
History.—s. 4, ch. 82-214; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 35, ch. 92-303; s. 1727, ch. 2003-261; s. 9, ch. 2011-194.
655.417 Effect of merger, consolidation, conversion, or acquisition.—From and after the effective date of a merger, consolidation, conversion, or acquisition, the resulting financial entity or entities may conduct business in accordance with the terms of the plan as approved, subject to the following conditions and limitations:
(1) CONTINUING ENTITY.—Even though the charter of a participating or converting financial institution may have been terminated, the resulting financial entity is deemed to be a continuation of the participating or converting financial institution such that all acquired property of the participating or converting institution, including rights, titles, and interests in and to all property of whatsoever kind, whether real, personal, or mixed, and things in action, and all rights, privileges, interests, and assets of any conceivable value or benefit which are then existing, or pertaining to it, or which would inure to it, are immediately vested in and continue to be the property of the resulting financial entity, by act of law and without any conveyance or transfer and without further act or deed. The resulting financial entity has, holds, and enjoys the same in its own right as fully and to the same extent as the same was possessed, held, and enjoyed by the participating or converting financial institution and, at the time such merger, consolidation, conversion, or acquisition takes effect, the resulting financial entity has and succeeds to all the rights, obligations, and relations of the participating or converting institution.
(2) EFFECT ON JUDICIAL PROCEEDINGS.—Any pending action or other judicial proceeding to which the participating or converting financial institution is a party is not abated by reason of such merger, consolidation, conversion, or acquisition but may be prosecuted to final judgment, order, or decree as if such action had not been taken. The resulting financial entity may continue such action in its new name, and any judgment, order, or decree that might have been rendered for or against the participating or converting institution may be rendered for or against the resulting financial entity.
(3) CREDITORS’ RIGHTS.—The resulting financial entity in a merger, consolidation, conversion, or acquisition is liable for all obligations of the participating or converting financial institution which existed before such action, and the action taken does not prejudice the right of a creditor of the participating or converting financial institution to have his or her debts paid out of the assets thereof, nor may such creditor be deprived of, or prejudiced in, any action against the officers, directors, members, or other persons participating in the conduct of the affairs of a participating or converting financial institution for any neglect or misconduct.
(4) EXCEPTION.—In the case of an acquisition of assets or assumption of liabilities pursuant to s. 655.414, subsections (1), (2), and (3) apply only to the assets acquired and the liabilities assumed by the resulting financial entity if sufficient assets to satisfy all liabilities not assumed by the resulting financial entity are retained by the transferring financial institution.
History.—s. 4, ch. 82-214; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 36, ch. 92-303; s. 525, ch. 97-102; s. 10, ch. 2011-194.
655.418 Nonconforming activities; cessation.—If, as a result of a merger, consolidation, conversion, or acquisition, the resulting financial entity is to be of a different type or of a different character than any one or all of the participating or converting financial institutions, such resulting financial entity is subject to the following conditions and limitations:
(1) PLAN FOR TERMINATION.—The plan of merger, consolidation, conversion, or acquisition must set forth the method and schedule for terminating those activities that are not permitted by the laws of this state for the resulting financial entity but were authorized for the participating or converting financial institutions.
(2) EFFECTIVE DATE.—The plan of merger, consolidation, conversion, or acquisition must state that, from the effective date of such action, the resulting financial entity will not engage in any nonconforming activities, except to the extent necessary to fulfill obligations existing before the merger, consolidation, conversion, or acquisition pursuant to subsection (4).
(3) COMPLIANCE WITH LENDING AND INVESTMENT LIMITATIONS.—If, as a result of such merger, consolidation, conversion, or acquisition, the resulting financial entity will exceed any lending, investment, or other limitations imposed by law, the financial entity must conform to such limitations within such period of time as is established by the office.
(4) DIVESTITURE.—The office may, as a condition to such merger, consolidation, conversion, or acquisition, require a nonconforming activity to be divested in accordance with such additional requirements as it considers appropriate under the circumstances.
History.—s. 4, ch. 82-214; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 37, ch. 92-303; s. 1728, ch. 2003-261; s. 11, ch. 2011-194.
655.4185 Emergency action.—
(1) Notwithstanding any other provision of the financial institutions codes or chapter 120, if the office or the appropriate federal regulatory agency, or the appropriate home state regulatory agency for an out-of-state state financial institution, finds that immediate action is necessary to prevent the probable failure of one or more financial institutions; aid in the resolution of a receivership, conservatorship, or liquidation of a financial institution; or otherwise protect the depositors of a failing financial institution, the office may issue an emergency order authorizing:
(a) The merger of such failing institution with an appropriate state financial institution;
(b) An appropriate state financial institution to acquire any of the assets or assume any of the liabilities, or any combination thereof, of the failing institution, including all rights, powers, and responsibilities as fiduciary in an instance in which the failing institution is actively engaged in the exercise of trust powers;
(c) The conversion of a failing institution into a state financial institution that is not failing;
(d) The chartering of a new state financial institution to acquire any of the assets or assume any of the liabilities, or any combination thereof, of a failing institution and to assume rights, powers, and responsibilities as fiduciary in a case in which such failing institution is engaged in the exercise of trust powers;
(e) The direct or indirect acquisition of control of the failing institution;
(f) The appointment of provisional directors, executive officers, or other employees for the failing institution pursuant to s. 655.03855; or
(g) Any other capital or liquidity restoration plan or action deemed prudent by the office.
(2) Any finding by the office must be based upon reports or other information furnished to it by the failing financial institution, by a state or federal financial institution examiner or regulatory entity, or upon other evidence from which it is reasonable to conclude that the failing institution is insolvent, is threatened with imminent insolvency, or lacks a board of directors or executive management that can operate the entity in a safe and sound manner. The office may disallow intangible assets, deferred tax assets, loan or lease loss reserves, subordinated debt, and illegally obtained currency, monetary instruments, funds, or other financial resources from the capitalization requirements of the financial institutions codes. The stockholders of a failing institution that is acquired by another financial institution are entitled to the same procedural rights and compensation for the remaining value of their shares as is provided for dissenters in s. 658.44, except that they may not vote against the transaction. Any transaction authorized by this section may be accomplished through the organization of a successor financial institution.
(3) The office may provide prior approval of business entities or individuals who, pursuant to this section, may charter a new state financial institution or acquire control of, purchase, merge with, or become directors and executive officers of, a failing financial institution. The application for prior approval must be in the form prescribed by the commission by rule and be accompanied by a nonrefundable filing fee of $7,500.
History.—s. 6, ch. 2005-181; s. 12, ch. 2011-194.
655.419 Effect.—The provisions of ss. 655.41-655.419 relating to merger, consolidation, conversion, or acquisition of assets of any financial institution are cumulative with all other provisions of the financial institutions codes and do not modify, limit, or repeal any other provisions except as expressly provided in the codes or as stated in an emergency order issued by the office pursuant to s. 655.4185.
History.—s. 4, ch. 82-214; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 38, ch. 92-303; s. 13, ch. 2011-194.
655.50 Florida Control of Money Laundering in Financial Institutions Act; reports of transactions involving currency or monetary instruments; when required; purpose; definitions; penalties.—
(1) This section may be cited as the “Florida Control of Money Laundering in Financial Institutions Act.”
(2) It is the purpose of this section to require submission to the office of certain reports and maintenance of certain records of transactions involving currency or monetary instruments when such reports and records deter the use of financial institutions to conceal the proceeds of criminal activity and have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.
(3) As used in this section, the term:
(a) “Currency” means currency and coin of the United States or of any other country.
(b) “Financial institution” means a financial institution, as defined in 31 U.S.C. s. 5312, including a credit card bank, located in this state.
(c) “Financial transaction” means a transaction involving the movement of funds by wire or other means or involving one or more monetary instruments, which in any way or degree affects commerce, or a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, commerce in any way or degree.
(d) “Monetary instruments” means coin or currency of the United States or of any other country, travelers’ checks, personal checks, bank checks, money orders, investment securities in bearer form or otherwise in such form that title thereto passes upon delivery, and negotiable instruments in bearer form or otherwise in such form that title thereto passes upon delivery.
(e) “Transaction” means a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected.
(f) “Report” means a report of each deposit, withdrawal, exchange of currency, or other payments or transfer, by, through, or to that financial institution, that involves a transaction required or authorized to be reported by this section, and includes the electronic submission of such information in the manner provided for by rule of the commission.
(g) “Specified unlawful activity” means any “racketeering activity” as defined in s. 895.02.
(4)(a) Every financial institution shall keep a record of each financial transaction occurring in this state known to it to involve currency or other monetary instrument, as the commission prescribes by rule, of a value in excess of $10,000, to involve the proceeds of specified unlawful activity, or to be designed to evade the reporting requirements of this section, chapter 896, or any similar state or federal law and shall maintain appropriate procedures to ensure compliance with this section, chapter 896, and any other similar state or federal law.
(b) Multiple financial transactions shall be treated as a single transaction if the financial institution has knowledge that they are made by or on behalf of any person and result in either cash in or cash out totaling more than $10,000 during any business day, as defined in s. 655.89.
(c) Any financial institution may keep a record of any financial transaction occurring in this state, regardless of the value, if it suspects the transaction to involve the proceeds of specified unlawful activity.
(d) A financial institution, or officer, employee, or agent thereof, that files a report in good faith pursuant to this section is not liable to any person for loss or damage caused in whole or in part by the making, filing, or governmental use of the report, or any information contained therein.
(5)(a) Each financial institution shall file a report with the office of the record required under paragraphs (4)(a) and (b) and any record maintained pursuant to paragraph (4)(c). Each record filed pursuant to subsection (4) must be filed at such time and contain such information as the commission requires by rule.
(b) The timely filing of the report required by 31 U.S.C. s. 5313 with the appropriate federal agency is deemed compliance with the reporting requirements of this subsection unless the reports are not regularly and comprehensively transmitted by the federal agency to the office.
(6) Each financial institution shall maintain a record of each designation of a person granted exemption under the authority of 31 U.S.C. s. 5313, including any name, address, and taxpayer identification number of the exempt person, as well as the name and address of the financial institution and the signature of the financial institution official designating the exempt person. Such record of exemptions shall be made available to the office for inspection and copying and shall be submitted to the office within 15 days after request.
(7) All reports and records filed with the office pursuant to this section are confidential and exempt from s. 119.07(1). However, the office shall provide any report filed pursuant to this section, or information contained therein, to federal, state, and local law enforcement and prosecutorial agencies, and any federal or state agency responsible for the regulation or supervision of financial institutions.
(8)(a) Each financial institution shall maintain for a minimum of 5 calendar years full and complete records of all financial transactions, including all records required by 31 C.F.R. parts 103.33 and 103.34.
(b) The financial institution shall retain a copy of all reports filed with the office under subsection (4) for a minimum of 5 calendar years after submission of the report.
(c) The financial institution shall retain a copy of all records of exemption for each designation of exempt person made pursuant to subsection (6) for a minimum of 5 calendar years after termination of exempt status of such customer.
(9) In addition to any other power conferred upon it to enforce and administer this chapter and the financial institutions codes, the office may:
(a) Bring an action in any court of competent jurisdiction to enforce or administer this section. In such action, the office may seek award of any civil penalty authorized by law and any other appropriate relief at law or equity.
(b) Pursuant to s. 655.033, issue and serve upon a person an order requiring such person to cease and desist and take corrective action whenever the office finds that such person is violating, has violated, or is about to violate any provision of this section, chapter 896, or any similar state or federal law; any rule or order adopted under this section, chapter 896, or any similar state or federal law; or any written agreement related to this section, chapter 896, or any similar state or federal law and entered into with the office.
(c) Pursuant to s. 655.037, issue and serve upon any person an order of removal whenever the office finds that such person is violating, has violated, or is about to violate any provision of this section, chapter 896, or any similar state or federal law; any rule or order adopted under this section, chapter 896, or any similar state or federal law; or any written agreement related to this section, chapter 896, or any similar state or federal law and entered into with the office.
(d) Impose and collect an administrative fine against any person found to have violated any provision of this section, chapter 896, or any similar state or federal law; any rule or order adopted under this section, chapter 896, or any similar state or federal law; or any written agreement related to this section, chapter 896, or any similar state or federal law and entered into with the office, in an amount not exceeding $10,000 a day for each willful violation or $500 a day for each negligent violation.
(10)(a) Except as provided in paragraph (b), a person who willfully violates any provision of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A person who willfully violates or knowingly causes another to violate any provision of this section, when the violation involves:
1. Financial transactions totaling or exceeding $300 but less than $20,000 in any 12-month period, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083; or
2. Financial transactions totaling or exceeding $20,000 but less than $100,000 in any 12-month period is guilty of a felony of the second degree, punishable as provided in s. 775.082 or s. 775.083; or
3. Financial transactions totaling or exceeding $100,000 in any 12-month period is guilty of a felony of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) In addition to the penalties otherwise authorized by ss. 775.082 and 775.083, a person who has been convicted of or who has pleaded guilty or nolo contendere to having violated paragraph (b) may be sentenced to pay a fine not exceeding $250,000 or twice the value of the financial transaction, whichever is greater, except that on a second or subsequent conviction for or plea of guilty or nolo contendere to a violation of paragraph (b), the fine may be up to $500,000 or quintuple the value of the financial transaction, whichever is greater.
(d) A financial institution as defined in s. 655.005 that willfully violates this section is also liable for a civil penalty of not more than the greater of the value of the financial transaction involved or $25,000. However, the civil penalty may not exceed $100,000.
(e) A person other than a financial institution as defined in s. 655.005 who violates this section is also liable for a civil penalty of not more than the greater of the value of the financial transaction involved or $25,000.
(11) In any prosecution brought pursuant to this section, the common law corpus delicti rule does not apply. The defendant’s confession or admission is admissible during trial without the state having to prove the corpus delicti if the court finds in a hearing conducted outside the presence of the jury that the defendant’s confession or admission is trustworthy. Before the court admits the defendant’s confession or admission, the state must prove by a preponderance of the evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement by the defendant. Hearsay evidence is admissible during the presentation of evidence at the hearing. In making its determination, the court may consider all relevant corroborating evidence, including the defendant’s statements.
History.—s. 11, ch. 84-216; s. 1, ch. 85-65; s. 6, ch. 85-82; s. 1, ch. 87-192; s. 1, ch. 89-319; s. 73, ch. 91-282; s. 1, ch. 91-307; ss. 1, 3, 39, ch. 92-303; s. 80, ch. 94-209; s. 86, ch. 95-211; s. 8, ch. 96-252; s. 8, ch. 96-260; s. 413, ch. 96-406; s. 5, ch. 97-78; s. 14, ch. 2000-360; s. 13, ch. 2001-64; s. 6, ch. 2001-243; s. 1729, ch. 2003-261; s. 25, ch. 2004-335; s. 8, ch. 2004-391; s. 10, ch. 2005-209; s. 5, ch. 2006-168.
655.51 Employment information.—
(1) It is not unlawful for any person to provide employment information to a financial institution or a financial institution regulatory agency, or to any person providing employment information to a financial institution or a financial institution regulatory agency, about an employee’s, or former employee’s, known or suspected involvement in a violation of any state or federal law, rule, or regulation which has been reported to state or federal authorities.
(2) A person is not civilly liable for providing such employment information unless the information provided is false and the person providing the information does so with reckless disregard for the truth.
History.—s. 1, ch. 89-36; s. 1, ch. 90-192; s. 1, ch. 91-307; ss. 1, 40, ch. 92-303.
655.55 Law applicable to deposits in and contracts relating to extensions of credit by a deposit or lending institution located in this state.—
(1) The law of this state, excluding its law regarding comity and conflict of laws, governs all aspects, including without limitation the validity and effect, of any deposit account in a branch or office in this state of a deposit or lending institution, including a deposit account otherwise covered by s. 671.105(1), regardless of the citizenship, residence, location, or domicile of any other party to the contract or agreement governing such deposit account, and regardless of any provision of any law of the jurisdiction of the residence, location, or domicile of such other party, whether or not such deposit account bears any other relation to this state, except that this section does not apply to any such deposit account:
(a) To the extent provided to the contrary in s. 671.105(2); or
(b) To the extent that all parties to the contract or agreement governing such deposit account have agreed in writing that the law of another jurisdiction will govern it.
(2) The law of this state, excluding its law regarding comity and conflict of laws, governs all aspects, including without limitation the validity and effect, of any contract relating to an extension of credit made by a branch or office in this state of a deposit or lending institution, including a contract otherwise covered by s. 671.105(1), if the contract expressly provides that it will be governed by the law of this state, regardless of the citizenship, residence, location, or domicile of any other party to such contract and regardless of any provision of any law of the jurisdiction of the residence, location, or domicile of such other party, whether or not such contract bears any other relation to this state, except that this section does not apply to any such contract to the extent provided to the contrary in s. 671.105(2).
(3) As used in this section, the term:
(a) “Deposit or lending institution” means any of the following:
1. A bank, trust company, credit union, or association organized and existing under the laws of this or any other state.
2. An international bank agency, representative office, or international administrative office operating pursuant to the laws of this state or any branch or other office of an international banking corporation operating pursuant to the laws of this state.
3. A national banking corporation organized and existing pursuant to the provisions of the National Bank Act, 12 U.S.C. ss. 21 et seq.
4. A federal association organized and existing pursuant to the provisions of the Home Owners’ Loan Act of 1933, 12 U.S.C. ss. 1461 et seq.
5. A federal credit union organized and existing pursuant to the provisions of the Federal Credit Union Act, 12 U.S.C. ss. 1751 et seq.
6. A federal agency operating pursuant to the provisions of the International Banking Act of 1978, 12 U.S.C. ss. 3101 et seq.
7. An agreement corporation operating pursuant to s. 25 of the Federal Reserve Act, 12 U.S.C. ss. 601 et seq.
8. An Edge Act corporation organized pursuant to the provisions of s. 25(a) of the Federal Reserve Act, 12 U.S.C. ss. 611 et seq.
(b) “Deposit account” means any deposit or account in one or more names including, without limitation, any certificate of deposit, time deposit, credit balance, checking account, interest-bearing account, non-interest-bearing account, individual retirement account (IRA), money market account, NOW account, transaction account, savings account, passbook account, joint account, convenience account, escrow account, trust account, custodial account, fiduciary account, deposit in trust, or Totten trust account.
(c) “Contract relating to extension of credit” means any contract or agreement relating to any extension of credit, including, without limitation, any loan agreement, letter of credit, promissory note, letter of intent, loan commitment, credit facility agreement, confirmation or advice of letter of credit, letter of credit application or reimbursement agreement, overdraft agreement, revolving credit agreement, construction loan agreement, floor plan agreement, acceptance, pledge agreement, hypothecation agreement, assignment, mortgage, security agreement, power of attorney, subordination agreement, assumption agreement, loan modification agreement, guaranty, surety agreement, indemnity agreement, or workout agreement.
(4) Notwithstanding any law that limits or affects the right of a person to maintain an action or proceeding, any person may, to the extent permitted under the United States Constitution, maintain an action or proceeding in this state against any person or other entity residing or located outside this state if the action or proceeding arises out of a deposit account or contract relating to an extension of credit which, pursuant to subsection (1) or subsection (2), is governed in whole or in part by the law of this state.
(5) This section does not affect the law governing any transactions other than deposit accounts or contracts relating to extensions of credit specified herein, nor does this section affect the jurisdiction of the courts of this state over any dispute arising under any transactions other than deposit accounts or contracts relating to extensions of credit specified herein.
(6) This section applies to deposit accounts and contracts relating to extensions of credit entered into before, on, or after July 1, 1988. However, this section does not apply to any deposit accounts existing on July 1, 1988, if either party to the contract or agreement governing the deposit account provides the other party with a written objection to the application of this section within 6 months of July 1, 1988.
History.—s. 1, ch. 88-180; s. 1, ch. 89-296; s. 1, ch. 91-307; ss. 1, 41, ch. 92-303.
655.56 Collection of fines, interest, or premiums on loans made by financial institutions.—No fines, interest, or premiums paid on the following loans made by any financial institution shall be deemed usurious, and the same may be collected as debts of like amount are now collected by law in this state and according to the terms and stipulations of the agreement between the financial institution and the borrower:
(1) Loans secured by a first lien on real estate.
(2) Loans secured by savings accounts to the extent of the withdrawal value thereof.
(3) Loans secured by the pledge of those loans described in subsections (1) and (2) and by the pledge of investments of a type in which the financial institution is authorized to invest, provided the loans and investments so pledged shall be subject to all restrictions and requirements which would be applicable were the financial institution to invest directly in such loans or investments.
(4) Loans secured by a wrap-around mortgage, inferior to the first mortgage, in which the mortgagee is contractually obligated to make the payments required under the first mortgage.
History.—s. 42, ch. 92-303.
655.60 Appraisals.—
(1) The office is authorized to cause to be made appraisals of real estate or other property held by any state financial institution, subsidiary, or service corporation or securing the assets of the state financial institution, subsidiary, or service corporation when specific facts or information with respect to real estate or other property held, secured loans, or lending, or when in its opinion the state financial institution’s policies, practices, operating results, and trends give evidence that the state financial institution’s appraisals or evaluations of ability to make payments may be excessive, that lending or investment may be of a marginal nature, that appraisal policies and loan practices may not conform with generally accepted and established professional standards, or that real estate or other property held by the state financial institution, subsidiary, or service corporation or assets secured by real estate or other property are overvalued. In lieu of causing such appraisals to be made, the office may accept any appraisal caused to be made by an appropriate state or federal regulatory agency or other insuring agency or corporation of a state financial institution. Unless otherwise ordered by the office, an appraisal of real estate or other property pursuant to this section must be made by a licensed or certified appraiser or appraisers selected by the office, and the cost of such appraisal shall be paid promptly by such state financial institution, subsidiary, or service corporation directly to such appraiser or appraisers upon receipt by the state financial institution of a statement of such cost bearing the written approval of the office. A copy of the report of each appraisal caused to be made by the office pursuant to this section shall be furnished to the state financial institution, subsidiary, or service corporation within a reasonable time, not exceeding 60 days, following the completion of such appraisal and may be furnished to the insuring agency or corporation or federal or state regulatory agency.
(2) A state financial institution may not make loans based on the security of real estate unless appraisal standards and policies have been previously established by the board of directors. Such standards must be in written form and include, without limitation, information required by rules of the commission.
(3) If any appraisal required pursuant to this section discloses that any asset of a state financial institution, subsidiary, or service corporation is overvalued on its books, the office may require the state financial institution, subsidiary, or service corporation to charge off such asset or portion thereof pursuant to s. 655.044.
History.—s. 43, ch. 92-303; s. 1730, ch. 2003-261.
655.762 Sale of assets.—A state financial institution may sell any asset in the ordinary course of business or with the approval of the office in any other circumstances.
History.—s. 44, ch. 92-303; s. 1731, ch. 2003-261.
655.769 Definitions of terms used in ss. 655.77-655.91.—As used in ss. 655.77-655.91, the term:
(1) “Check” includes a share draft of a credit union.
(2) “Deposit” includes a share of a credit union.
(3) “Depositor” includes a member of a credit union.
(4) “Institution” means any state or national bank, state or federal association, or state or federal credit union.
History.—s. 45, ch. 92-303.
655.77 Deposits by minors.—Deposits made by a minor, or made in the minor’s name by other than a court-appointed guardian, may be withdrawn by the minor in the absence of an agreement to the contrary made between the institution and the depositor at the time the account is opened. In case of any such agreement, such moneys, until the minor’s disabilities are removed, may be withdrawn by the person or persons designated in such agreement.
History.—s. 46, ch. 92-303; s. 526, ch. 97-102.
655.78 Deposit accounts in two or more names.—
(1) Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons may be paid to, or on the order of, either or any of such persons or to, or on the order of, the guardian of the property of any such person who is incompetent, whether the other or others are competent. The check or other order for payment to any such person or guardian is a valid and sufficient release and discharge of the obligation of the institution for funds transferred thereby.
(2) In the case of a credit union, a member may designate any person or persons to hold deposits with the member in joint tenancy with the right of survivorship; but a joint tenant, unless he or she is a member in his or her own right, may not be permitted to vote, obtain a loan, or hold office or be required to pay an entrance or membership fee.
History.—s. 47, ch. 92-303; s. 527, ch. 97-102.
655.79 Deposits and accounts in two or more names; presumption as to vesting on death.—
(1) Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons shall be presumed to have been intended by such persons to provide that, upon the death of any one of them, all rights, title, interest, and claim in, to, and in respect of such deposit account, less all proper setoffs and charges in favor of the institution, vest in the surviving person or persons. Any deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.
(2) The presumption created in this section may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent. In the absence of such proof, all rights, title, interest, and claims in, to, and in respect of such deposits and account and the additions thereto, and the obligation of the institution created thereby, less all proper setoffs and charges in favor of the institution against any one or more of such persons, upon the death of any such person, vest in the surviving person or persons, notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance on the part of any person and notwithstanding that the provisions hereof may constitute or cause a vesting or disposition of property or rights or interests therein, testamentary in nature, which, except for the provisions of this section, would or might otherwise be void or voidable.
(3) This section does not abridge, impair, or affect the validity, effectiveness, or operation of any of the provisions of ss. 655.78 and 674.405 or the rights of institutions to make payments as therein provided.
History.—s. 48, ch. 92-303; s. 8, ch. 2008-75.
655.80 Convenience accounts.—
(1) A convenience account is a deposit account, other than a certificate of deposit, in the name of one individual (principal), in which one or more other individuals have been designated as agents with the right to make deposits to and to withdraw funds from or draw checks on such account. The designation of agents, the substitution or removal of agents, or any other change in the contractual terms or provisions governing a convenience account may be made only by the principal. Except as otherwise provided in this section, the agency relationship created under this account is not affected by the subsequent death or incompetence of the principal.
(2) All rights, interests, and claims in, to, and in respect of, such deposits and convenience account and the additions thereto shall be those of the principal only.
(3) Any balance standing to the credit of a convenience account shall be paid to the guardian of the property of the principal, to any person designated in a court order entered pursuant to s. 735.206, to any person designated by letter or other writing as authorized by s. 735.301, or to the personal representative of the deceased principal’s estate, upon presentation of effective written notice and, if applicable, proof of judicial appointment of such guardian or personal representative by a court of competent jurisdiction. No such court order or letter, written notice, or proof of judicial appointment is effective until it is served upon and received by an officer of the institution during regular banking hours and in such time and in such manner as to afford the institution a reasonable opportunity to act on it prior to the happening of any of the events described in s. 674.303. No other notice, knowledge, or other information shown to have been available to an institution affects its right to the protection provided by this section.
(4) Payment by an institution pursuant to this section is a valid and sufficient release and discharge to the institution from all claims for payments so paid.
(5) Without qualifying any other right to setoff or lien, and subject to any contractual provision, if the principal is indebted to the institution, the institution has a right to setoff against the account.
History.—s. 49, ch. 92-303.
655.82 Pay-on-death accounts.—
(1) As used in this section:
(a) “Account” means a contract of deposit between a depositor and an institution, including, but not limited to, a checking account, savings account, certificate of deposit, and share account.
(b) “Beneficiary” means a person named as one to whom sums on deposit in an account are payable on request after death of all parties or for whom a party is named as trustee.
(c) “Devisee” means any person designated in a will to receive a testamentary disposition of real or personal property.
(d) “Heirs” means those persons, including a surviving spouse, who are entitled, under the laws of this state regarding intestate succession, to the property of a decedent.
(e) “Multiple-party account” means an account payable on request to one or more of two or more parties, whether or not a right of survivorship is mentioned.
(f) “Party” means a person who, by the terms of an account, has a present right, subject to request, to payment from the account other than as a beneficiary.
(g) “Payment” means disbursement of sums on deposit, and includes withdrawal, payment to a party or third person pursuant to check or other request, and a pledge of sums on deposit by a party, or a setoff, reduction, or other disposition of all or part of an account pursuant to a pledge.
(h) “Pay-on-death designation” means the designation of:
1. A beneficiary in an account payable on request to one party during the party’s lifetime and on the party’s death to one or more beneficiaries, or to one or more parties during their lifetimes and on death of all of them to one or more beneficiaries; or
2. A beneficiary in an account in the name of one or more parties as trustee for one or more beneficiaries if the relationship is established by the terms of the account and there is no subject of the trust other than the sums on deposit in the account, whether or not payment to the beneficiary is mentioned.
(i) “Personal representative” means an executor, administrator, curator, successor personal representative, special administrator, or any other person who performs substantially the same function under the law governing their status.
(j) “Receive,” as it relates to notice to an institution, means receipt in the office or branch office of the institution in which the account is established, but if the terms of the account require notice at a particular place, in the place required.
(k) “Request” means a request for payment complying with all terms of the account, including special requirements concerning necessary signatures and regulations of the institution; but, for purposes of this section, if terms of the account condition payment on advance notice, a request for payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for payment.
(l) “Successor” means any person, other than a creditor, who is entitled to property of a decedent under the decedent’s will or otherwise.
(m) “Sums on deposit” means the balance payable on an account, including interest and dividends earned, whether or not included in the current balance, and any deposit of life insurance proceeds added to the account by reason of death of a party.
(n) “Terms of the account” means the deposit agreement and other terms and conditions, including the form, of the contract of deposit.
(2) A beneficiary in an account having a pay-on-death designation has no right to sums on deposit during the lifetime of any party.
(3) In an account with a pay-on-death designation:
(a) On the death of one of two or more parties, sums on deposit in the account belong to the surviving party or parties.
(b) On the death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries. If two or more beneficiaries survive, sums on deposit belong to them in equal and undivided shares, and, unless otherwise provided in a depository agreement written between December 31, 1994, and July 1, 2001, there is no right of survivorship in the event of death of a beneficiary thereafter. If no beneficiary survives, sums on deposit belong to the estate of the last surviving party.
(4) A pay-on-death designation in a multiple-party account without right of survivorship is ineffective. For purposes of this section, designation of an account as a tenancy in common establishes that the account is without right of survivorship.
(5) The ownership right of a surviving party or beneficiary, or of the decedent’s estate, in sums on deposit is subject to requests for payment made by a party before the party’s death, whether paid by the institution before or after death, or unpaid. The surviving party or beneficiary, or the decedent’s estate, is liable to the payee of an unpaid request for payment. The liability is limited to a proportionate share of the amount transferred under this section, to the extent necessary to discharge the request for payment.
(6) An institution, on request, may pay sums on deposit in an account with a pay-on-death designation to:
(a) One or more of the parties, whether or not another party is disabled, incapacitated, or deceased when the payment is requested and whether or not a party survives another party;
(b) The beneficiary or beneficiaries, if proof of death is presented to the institution showing that the beneficiary or beneficiaries survived all persons named as parties; or
(c) The personal representative, if any, or, if there is none, the heirs or devisees of a deceased party, if proof of death is presented to the institution showing that the deceased party was the survivor of all other persons named on the account either as a party or beneficiary.
(7) Payment made pursuant to this section discharges the institution from all claims for amounts so paid, whether or not the payment is consistent with the beneficial ownership of the account as between parties, beneficiaries, or their successors. Payment may be made whether or not a party or beneficiary is disabled, incapacitated, or deceased when payment is requested, received, or made.
(8) A beneficiary in an account at a credit union having a pay-on-death designation, unless the beneficiary is a member in her or his own right, may not be permitted to vote, obtain an extension of credit, or hold office or be required to pay an entrance or membership fee.
(9) The following is an example of the form of a contract of deposit that may be used to select a pay-on-death account for use by one or more parties:
SINGLE-PARTY ACCOUNT OR MULTIPLE-PARTY
ACCOUNT WITH PAY-ON-DEATH DESIGNATION
PARTIES (Name each party):
OWNERSHIP (Select one and initial):
SINGLE-PARTY ACCOUNT
MULTIPLE-PARTY ACCOUNT
RIGHTS AT DEATH (Select one and initial):
SINGLE-PARTY ACCOUNT
At death of the party, ownership passes as part of the party’s estate.
SINGLE-PARTY ACCOUNT WITH A PAY-ON-DEATH DESIGNATION
(Name one or more beneficiaries):
At death of the party, ownership passes to the designated pay-on-death beneficiaries and is not part of the party’s estate.
MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP
At death of a party, ownership passes to the surviving party or parties.
MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP AND A PAY-ON-DEATH DESIGNATION
(Name one or more beneficiaries):
At death of the last surviving party, ownership passes to the designated pay-on-death beneficiaries and is not part of the last surviving party’s estate.
History.—s. 1, ch. 94-216; s. 529, ch. 97-102; s. 21, ch. 2001-243.
655.825 Deposits in trust; applicability of s. 655.82 in place of former s. 655.81.—
(1) Because deposits in trust are also accounts with a pay-on-death designation as described in s. 655.82, it is the intent of the Legislature that the provisions of s. 655.82 shall apply to and govern deposits in trust. References to s. 655.81 in any depository agreement shall be interpreted after the effective date of this act as references to s. 655.82.
(2) This section shall take effect July 1, 2001, and shall apply to deposits made to a depository account created after December 31, 1994.
History.—s. 3, ch. 2001-243.
655.83 Adverse claim to a deposit or fiduciary account.—Notice to any institution of an adverse claim to a deposit or fiduciary account standing on its books to the credit of any person does not obligate the institution to recognize the adverse claimant unless the adverse claimant also either:
(1) Procures a restraining order, injunction, or other appropriate process having specific application to the institution issued by a court of competent jurisdiction in a cause therein instituted by such claimant wherein the person to whose credit the deposit or fiduciary account stands is made a party and served with process; or
(2) Obtains in favor of the institution, in a form, amount, and with sureties acceptable to it, a bond indemnifying the institution from any and all liability (including liabilities for penalties), loss, damage, costs, and expenses should it act to give effect to the adverse claim, including the decision not to honor the check or other order of the person to whose credit the deposit or fiduciary account stands on the books of the institution. Upon receipt of such bond, the institution shall hold the account pending agreement between the claimant and the person to whose credit the deposit or fiduciary account stands on the books of the institution or pending receipt of a restraining order, injunction, or other process pursuant to subsection (1).
History.—s. 51, ch. 92-303.
655.84 Limitations; statements as correct.—
(1) Unless written objection thereto has been theretofore delivered by the depositor to the institution, a statement of account rendered by any institution in this state to a depositor, with a description of the amount and type (such as deposit, withdrawal, debit, credit, or any similar designation) of entries to such account, which description may be on accompanying documents or on the statement itself, shall, after the expiration of 2 years from the date rendered, be conclusively presumed to be correct; and the depositor is thereafter barred from questioning same.
(2) In the absence of a written contract between an institution and a depositor providing otherwise, the statement of account is deemed to have been rendered to the depositor within the meaning of this section when prepared and lodged by the institution at its statement window or other customary place for delivery to the depositor. Any such statement of account which is not demanded by the depositor within 3 years may be destroyed by the institution without accountability or liability therefor to anyone.
(3) This section does not relieve a depositor from any duty or obligation imposed by law or by contract heretofore or hereafter made to examine such statement of account and to report any disputed debits, credits, errors, or irregularities within a shorter period of time than mentioned in this section, or from the legal consequences of the depositor’s failure to perform any such duty or obligation.
History.—s. 52, ch. 92-303.
655.85 Settlement of checks.—Whenever any check is forwarded or presented to an institution for payment, except when presented by the payee in person, the paying institution or remitting institution may pay or remit the same, at its option, either in money or in exchange drawn on its reserve agent or agents in the City of New York or in any reserve city within the Sixth Federal Reserve District; however, an institution may not settle any check drawn on it otherwise than at par. The provisions of this section do not apply with respect to the settlement of a check sent to such institution as a special collection item.
History.—s. 53, ch. 92-303.
655.851 Unclaimed credit balances.—Credit balances held by a financial institution, credit union, or participant as defined in 12 U.S.C. s. 4001(19) which result from the performance of or participation in check-clearing functions, whether pursuant to a contractual relationship between financial institutions, credit unions, or participants; through a clearinghouse as defined by s. 674.104; or through a clearinghouse association as defined by 12 U.S.C. s. 4001(8), are not subject to s. 717.117. This section is intended to clarify existing law and to be remedial in nature and applies to credit balances held before, on, or after July 1, 2007.
History.—s. 1, ch. 2007-142.
655.86 Issuance of postdated checks.—It is the duty of the person drawing a postdated check to notify, in writing, the separate office or branch of the institution upon which such check is drawn, giving a complete description thereof, including the name of the payee, the date, the number, and the amount thereof; otherwise, the institution is not liable for paying such check.
History.—s. 54, ch. 92-303.
655.89 Legal holidays; business days; business and transactions.—
(1) In this section, the term:
(a) “Business day” means that part of any day on which an institution is open to the public for carrying on substantially all its banking functions, trust functions, or transactions. A financial institution is deemed to be “closed” on any day, or any part of a day, when it is not open to the public for carrying on substantially all its banking functions, trust functions, and transactions.
(b) “Legal holiday” means a statutory holiday or a permissive holiday. A “statutory holiday” is any day which, by the laws of this state or the United States, is designated or recognized as a legal or public holiday. A “permissive holiday” is any one day, other than a statutory holiday, in each week on which an institution is customarily closed.
(c) “Transaction” means any one or more of the functions and elements of the business of an institution and includes, but is not limited to, the receipt or giving of any notice; the receipt or acceptance of deposits; the transmission, acceptance, payment, dishonor, and giving notice of dishonor of items; and its obligations and duties with respect to all thereof; and the word “transact” means to take action or nonaction the result of which is a transaction.
(2) Any institution may, but unless otherwise required by law is not required to, be closed or be open only for limited transactions and functions or purposes on any legal holiday. When an institution is closed as provided or permitted by law, it is not under any obligation or duty to conduct any of its business or effectuate any transaction. An institution is open only for limited transactions and functions or purposes when one or more, but fewer than all, of its branches, separate or other offices, departments, sections, or other functional elements of its business, which customarily are open to the public for carrying on the banking or trust business and transactions, are not open to the public for such purposes. When, as provided or permitted by law, an institution is open only for limited transactions and functions or purposes, it is not under any obligation or duty to conduct or transact, at or from such of its branches, separate or other offices, departments, sections, or other functional elements of its business which are not open to the public for such purposes, any of the business or transactions customarily conducted or transacted therefrom or thereat.
(3) When any statutory holiday occurs on a Sunday or on a day when an institution customarily is closed, such institution may, but unless otherwise required by law is not required to, elect to be closed or to be open only for limited transactions and functions or purposes on the next preceding or the next following day which, except for the provisions of this section, would not be a legal holiday, and such day so elected is, with respect to such institution, a legal holiday as to all transactions and for all purposes and laws.
(4) Any legal holiday on which an institution is closed or is open only for limited transactions and functions or purposes may, if the institution elects, be deemed and treated with respect to all transactions and for all purposes and laws, including, but not limited to, the Uniform Commercial Code, as not a business day; and any notice, item, or deposit of money received on any such day may be treated as being received at the opening of the next business day, and any transaction or other business which would or should have occurred or been transacted on any such legal holiday may be treated as postponed by law to the next business day.
(5) An institution may establish the regular and customary hours of each day during which each of its branches, separate or other offices, departments, sections, or functional elements of its business will be operated for the transaction of the business customarily conducted or transacted at or from each such branch, office, department, section, or functional element of business, and the regular and customary hours during which each thereof will be open to the public for the conduct of such business and transactions, and it is not necessary that the same hours be established for all thereof or that the hours so established for any thereof be the same on every day.
(6) With prior written approval of the office, an institution may designate another day or other days on which the institution may be closed and which day or days will not be considered business days.
(7) An institution may, but unless otherwise required by law is not under or subject to any obligation or duty to, effectuate any transaction or transact any business on any legal holiday; at any time before the beginning, or after the close, of its business day; or outside the regular and customary hours established as provided in subsection (5) or subsection (6) of any separate or other office or branch or any department, section, or functional element of business. If the institution elects to do so, it has all the rights provided by law with respect to such transaction or business, and, at its election, any such transactions or business shall be treated as having occurred or as having been transacted on that day or on its next following business day, except that any transaction or business occurring before the beginning of its regular business day shall be treated as occurring at the beginning of that business day.
(8) No liability or loss of rights of any kind on the part of any institution accrues or results by reason of any institution being closed or open only for limited functions or purposes, or by reason of any branch, separate or other office, department, section, or functional element of business being operated or open for the transaction of business only during the regular and customary hours established by the institution, as provided in this section.
History.—s. 55, ch. 92-303; s. 1732, ch. 2003-261.
655.90 Closing during emergencies and other special days.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Commissioner” means the director of the Office of Financial Regulation and any other person lawfully exercising such powers.
(b) “Emergency” means any condition or occurrence, actual or threatened, which may interfere physically with the conduct of normal business operations of an institution or of one or more or all of the departments, sections, functions, offices, or facilities of an institution, or which poses an imminent or existing threat to the safety or security of persons or property, or both. Without limiting the generality of the foregoing, an emergency may exist, arise, or be imminent as the result of any one or more, actual or threatened, of the following: fires; floods; earthquakes; tornadoes; hurricanes; wind, rain, or other storms; labor disputes and strikes; power failures; transportation failures; interruption of communication facilities; shortages of fuel, food, transportation, or labor; robberies or burglaries or attempted robberies or burglaries; actual or threatened enemy attacks; epidemics or other catastrophes; explosions; and riots, civil commotions, and other acts of lawlessness or violence, actual or threatened.
(c) “Office” means any place at which an institution transacts its business or conducts operations relating to its business. However, this section does not authorize an institution to conduct its banking business at any place or places not otherwise authorized or permitted by law.
(d) “Officers” means the person or persons designated by the board of directors, board of trustees, or other governing body of an institution to act for the institution in carrying out the provisions of this section or, in the absence of any such designation or in the absence of the officers so designated, the president or any other officer currently in charge of the institution or of the office or offices in question.
(e) The authorizations herein provided for an institution “to close” in case of an emergency means and includes the authority not to open on any business or banking day and, if having opened, to close and suspend business.
(2) POWERS OF COMMISSIONER.—Whenever the commissioner is of the opinion that an emergency exists, or is impending, in this state or in any part of this state, he or she may, by proclamation, authorize state and nationally or federally chartered institutions, if not inconsistent with, and if it does not infringe upon, paramount federal law, located in the affected area or areas to close or to close any or all the departments, sections, functions, offices, or facilities thereof. In addition, if the commissioner is of the opinion that an emergency exists, or is impending, which affects, or may affect, a particular institution or institutions, or one or more particular departments, sections, functions, offices, or facilities thereof, but not institutions located in the area generally, he or she may authorize the particular institution or institutions to close or to close one or more of the departments, sections, functions, offices, or facilities thereof. The institution or institutions affected by any such proclamation or authorization may close in accordance therewith. Such institutions and such of the departments, sections, functions, offices, or facilities thereof so closed may remain closed until the commissioner proclaims that the emergency has ended, or until such earlier time as the officers of the institution determine that the institution or any of its departments, sections, functions, offices, or facilities, theretofore closed because of the emergency, should reopen, and, in either event, for such further time thereafter as may reasonably be required to reopen.
(3) POWERS OF OFFICERS.—
(a) Whenever the officers of an institution are of the opinion that an emergency exists, or is impending, which affects, or may affect, the institution or one or more or all of its departments, sections, functions, offices, or facilities, they shall have the authority, in the reasonable exercise of their discretion, to close the institution or any one or more or all of the departments, sections, functions, offices, or facilities thereof on any business day or days during the continuation of such emergency, even if the commissioner has not issued and does not issue a proclamation of emergency. The office or offices so closed may remain closed until such time as the officers determine that the emergency has ended and for such further time thereafter as may reasonably be required to reopen. However, in no case may such institution or any department, section, function, office, or facility thereof remain closed pursuant to this paragraph for more than 48 consecutive hours, excluding other legal holidays, without requesting the approval of the commissioner.
(b) The officers of an institution may close the institution or any one or more or all of the institution’s departments, sections, functions, offices, or facilities on any day or days designated, by proclamation of the President of the United States or the Governor of this state, as a day or days of mourning, rejoicing, or other special observance.
(4) NOTICE TO BE GIVEN.—
(a) An institution chartered under the laws of this state closing, or closing any of its departments, sections, functions, offices, or facilities, pursuant to the authority granted under subsection (3) shall give notice of its action to the commissioner as promptly as conditions reasonably permit and by any means reasonably available.
(b) A national or federal institution closing, or closing any of its departments, sections, functions, offices, or facilities, pursuant to the authority granted by this section shall give notice of its action to the appropriate federal regulatory agency as promptly as conditions reasonably permit and by any means reasonably available.
(5) EFFECT OF CLOSING AND PARTIAL CLOSING.—
(a) Any day on which an institution, or any one or more of its departments, sections, functions, offices, or facilities, is closed during all or any part of its normal banking hours pursuant to the authorization granted in this section is, with respect to such institution or, if not all its departments, sections, functions, offices, or facilities are closed, then with respect to any of its departments, sections, functions, offices, or facilities which are closed, a legal holiday for all purposes with respect to any business of any kind or character of the institution, or of any of its departments, sections, functions, offices, or facilities, so closed, including, but without limiting the generality of the foregoing, matters relating to the time payable, the presenting for payment or acceptance, and the protesting and giving notice of protest and notice of dishonor of bills of exchange, checks, promissory notes, and other items drawn on or payable at such institution and relating to any other banking business of any kind or character. No liability or loss of rights of any kind on the part of any institution or director, officer, or employee thereof accrues or results by virtue of any closing authorized by this section.
(b) On any day which by the provisions of this section is deemed or declared to be a legal holiday with respect to any institution or institutions or office or offices thereof, the officers thereof may, in the exercise of their discretion, cause such institution or any office thereof to open its doors or facilities for the transaction or conduct of a limited business by the operation of one or more, but less than all, of its departments, sections, offices, functions, or facilities. On any day when, pursuant to the provisions of this section, less than all the departments, sections, functions, offices, or facilities are open, at the election of such institution the limited business transacted or conducted on such day is deemed for all purposes as transacted or conducted on the next following business day which is not deemed or declared as a legal holiday pursuant to the provisions of this section or of any other provision of law.
(6) PROVISIONS CUMULATIVE.—The provisions of this section shall be construed and applied as being in addition to, and not in substitution for or limitation of, any other law of this state or of the United States authorizing the closing of an institution or excusing the delay by an institution in the performance of its duties and obligations because of emergencies or conditions beyond the institution’s control or otherwise.
History.—s. 56, ch. 92-303; s. 530, ch. 97-102; s. 31, ch. 99-155; s. 1733, ch. 2003-261.
655.91 Records of institutions and copies thereof; retention and destruction.—
(1) In this section, “records” of an institution means and includes all books of account and other books of every kind, journals, ledgers, statements, instruments, documents, files, messages, writings of every kind, and other internal or other data and other information of every description, made or received by an institution in the regular course of its business or otherwise, regardless of the mode in which it is recorded.
(2) Institutions need not preserve or retain any of their records or copies thereof for a period longer than is expressly required by an applicable statute or rule or regulation of this state or the United States which identifies, either specifically or by type or category, the relevant records or copies thereof or, if there is no such statute or rule or regulation which specifies a retention period applicable to the records or copies thereof, for a period longer than 5 years. An institution may destroy any of its records or copies thereof after the expiration of the retention period determined as provided in this subsection.
(3) No liability shall accrue against any institution because of the destruction of any of its records or copies thereof as permitted by subsection (2), and in any judicial or other action or proceeding in which any such records or copies thereof may be called in question or be demanded of the institution or any officer or employee thereof, a showing that such records or copies thereof have been destroyed in accordance with the provisions of subsection (2) is a sufficient excuse for the failure to produce them.
(4) Any institution may at any time make, or cause to be made, a copy or copies of any or all of its records, and any such copy duly certified, authenticated, or identified by a responsible officer or agent of the institution under whose supervision the records or copies are kept shall, in all cases and in all courts and places, be admitted and received as evidence with a like force and effect as the original record, whether or not the original is in existence.
(5) The original of any record of an institution includes the data or other information comprising a record stored or transmitted in or by means of any electronic, computerized, mechanized, or other information storage or retrieval or transmission system or device which can upon request generate, regenerate, or transmit the precise data or other information comprising the record; and an original also includes the visible data or other information so generated, regenerated, or transmitted if it is legible or can be made legible by enlargement or other process.
(6) Copies of records of an institution, heretofore or hereafter made, include duplicates or counterparts of an original produced from the same impression or process as the original by carbon or other chemical or substance or process; negative and positive film and prints of an original or copy and reproductions and facsimiles of an original or copy, whether or not the same size, produced by photographic, microphotographic, photostatic, xerographic, electronic, computerized, or mechanized process, or by any other process, and enlargements and reductions thereof; and the data or other information comprising a record stored or transmitted as provided in subsection (5), and the visible data or other information generated or regenerated or transmitted by such information storage or retrieval or transmission system or device, if it is legible or can be made legible by enlargement or other process.
History.—s. 57, ch. 92-303.
655.921 Transaction of business by out-of-state financial institutions; exempt transactions in the financial institutions codes.—
(1) Nothing in the financial institutions codes shall be construed to prohibit a financial institution having its principal place of business outside this state and not operating branches in this state from:
(a) Contracting in this state with any person to acquire from such person a part, or the entire, interest in a loan that such person proposes to make, has heretofore made, or hereafter makes, together with a like interest in any security instrument covering real or personal property in the state proposed to be given or hereafter or heretofore given to such person to secure or evidence such loan.
(b) Entering into mortgage servicing contracts with persons authorized to transact business in this state and enforcing in this state the obligations heretofore or hereafter acquired by it in the transaction of business outside this state or in the transaction of any business authorized by this section.
(c) Acquiring, holding, leasing, mortgaging, contracting with respect to, or otherwise protecting, managing, or conveying property in this state which has heretofore or may hereafter be assigned, transferred, mortgaged, or conveyed to it as security for, or in whole or in part in satisfaction of, a loan or loans made by it or obligations acquired by it in the transaction of any business authorized by this section.
(d) Making loans or committing to make loans to any person located in this state and soliciting compensating deposit balances in connection therewith.
(2) No such financial institution shall be deemed to be transacting business in this state, or be required to qualify so to do, solely by reason of the performance of any of the acts or business authorized in this section.
History.—s. 58, ch. 92-303; s. 10, ch. 2004-340; s. 93, ch. 2004-390.
655.922 Banking business by unauthorized persons; use of name.—
(1) No person other than a financial institution authorized to do business in this state pursuant to the financial institutions codes of any state or federal law shall, in this state, engage in the business of soliciting or receiving funds for deposit or of issuing certificates of deposit or of paying checks; and no person shall establish or maintain a place of business in this state for any of the functions, transactions, or purposes mentioned in this subsection. Any person who violates the provisions of this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. This subsection does not prohibit the issuance or sale by a financial institution of traveler’s checks, money orders, or other instruments for the transmission or payment of money, by or through employees or agents of the financial institution off the financial institution’s premises.
(2) No person other than a financial institution shall, in this state:
(a) Transact business under any name or title that contains the words “bank,” “banco,” “banque,” “banker,” “banking,” “trust company,” “savings and loan association,” “savings bank,” or “credit union,” or words of similar import, in any context or in any manner;
(b) Use any name, word, sign, symbol, or device in any context or in any manner; or
(c) Circulate or use any letterhead, billhead, circular, paper, or writing of any kind or otherwise advertise or represent in any manner,
which indicates or reasonably implies that the business being conducted or advertised is the kind or character of business transacted or conducted by a financial institution or which is likely to lead any person to believe that such business is that of a financial institution; however, the words “bank,” “banker,” “banking,” “trust company,” “savings and loan association,” “savings bank,” or “credit union,” or the plural of any thereof, may be used by, and in the corporate or other name or title of, any company which is or becomes a financial institution holding company pursuant to federal law; any subsidiary of any such financial institution holding company which includes as a part of its name or title all or any part, or abbreviations, of the name or title of the financial institution holding company of which it is a subsidiary; any trade organization or association, whether or not incorporated, functioning for the purpose of promoting the interests of financial institutions or financial institution holding companies, the active members of which are financial institutions or financial institution holding companies; and any international development bank chartered pursuant to part II of chapter 663.
(3) No person may use the name or logo of any financial institution or an affiliate or subsidiary thereof, or use a name similar to that of a financial institution or an affiliate or subsidiary thereof, to market or solicit business from a customer or prospective customer of such institution if:
(a) The solicitation is done without the written consent of the financial institution or its affiliate or subsidiary; and
(b) A reasonable person would believe that the materials originated from, are endorsed by, or are connected with the financial institution or its affiliates or subsidiaries.
(4) Any court, in a proceeding brought by the office, by any financial institution the principal place of business of which is in this state, or by any other person residing, or whose principal place of business is located, in this state and whose interests are substantially affected thereby, may enjoin any person from violating any of the provisions of this section. For the purposes of this subsection, the interests of a trade organization or association are deemed to be substantially affected if the interests of any of its members are so affected. In addition, the office may issue and serve upon any person who violates any of the provisions of this section a complaint seeking a cease and desist order in accordance with the procedures and in the manner prescribed by s. 655.033.
(5) Nothing in this section shall be construed to prohibit the lawful establishment or the lawful operations of a financial institution and nothing in this code shall be construed to prohibit any advertisement or other activity in this state by any person if such prohibition would contravene any applicable federal law which preempts the law of this state.
(6) The commission shall adopt rules to administer this section.
History.—s. 59, ch. 92-303; s. 12, ch. 96-168; s. 1734, ch. 2003-261; s. 11, ch. 2004-340; s. 94, ch. 2004-390.
655.93 Definitions for ss. 655.93-655.94.—As used in ss. 655.93-655.94, the term:
(1) “Lessee” means a person who contracts with a lessor for the use of a safe-deposit box.
(2) “Lessor” means a financial institution that rents safe-deposit facilities.
(3) “Safe-deposit box” means a safe-deposit box, vault, or other safe-deposit receptacle maintained by a lessor, and the rules relating thereto apply to property or documents kept in safekeeping in the financial institution’s vault.
History.—s. 60, ch. 92-303.
655.931 Authority to engage in safe-deposit business.—A financial institution may maintain and lease safe-deposit boxes and may accept property or documents for safekeeping if, except in the case of property or documents accepted through night depositories, it issues a receipt therefor.
History.—s. 61, ch. 92-303.
655.932 Lease to minor.—A lessor may lease a safe-deposit box to, and in connection therewith deal with, a minor with the same effect as if leasing to and dealing with a person of full legal capacity.
History.—s. 62, ch. 92-303.
655.933 Access by fiduciaries.—If a safe-deposit box is made available by a lessor to one or more persons acting as fiduciaries, the lessor may, except as otherwise expressly provided in the lease or the writings pursuant to which such fiduciaries are acting, allow access thereto as follows:
(1) By any one or more of the persons acting as personal representatives.
(2) By any one or more of the persons otherwise acting as fiduciaries if authorized in writing, which writing is signed by all other persons so acting.
(3) By any agent authorized in writing, which writing is signed by all persons acting as fiduciaries.
History.—s. 63, ch. 92-303.
655.934 Effect of lessee’s death or incapacity.—If a lessor without knowledge of the death or an order determining the incapacity of the lessee deals with the lessee’s agent in accordance with a written power of attorney or a durable power of attorney signed by such lessee, the transaction binds the lessee’s estate and the lessee.
History.—s. 64, ch. 92-303; s. 1, ch. 2010-132.
655.935 Search procedure on death of lessee.—If satisfactory proof of the death of the lessee is presented, a lessor shall permit the person named in a court order for that purpose, or if no order has been served upon the lessor, the spouse, a parent, an adult descendant, or a person named as a personal representative in a copy of a purported will produced by such person, to open and examine the contents of a safe-deposit box leased or coleased by a decedent, or any documents delivered by a decedent for safekeeping, in the presence of an officer of the lessor.
(1) If requested by such person, the lessor shall remove and deliver only:
(a) Any writing purporting to be a will of the decedent, to the court having probate jurisdiction in the county in which the financial institution is located.
(b) Any writing purporting to be a deed to a burial plot or to give burial instructions, to the person making the request for a search.
(c) Any document purporting to be an insurance policy on the life of the decedent, to the beneficiary named therein.
(2) The officer of the lessor shall make a complete copy of any document removed and delivered pursuant to this section and place that copy, together with a memorandum of delivery identifying the name of the officer, the person to whom the document was delivered, the purported relationship of the person to whom the document was delivered, and the date of delivery, in the safe-deposit box leased or coleased by the decedent.
(3) The lessor may charge reasonable fees to cover costs incurred pursuant to this section.
(4) Access granted pursuant to this section is not considered the initial opening of the safe-deposit box pursuant to s. 733.6065.
History.—s. 65, ch. 92-303; s. 1, ch. 2006-134; s. 67, ch. 2006-213; s. 2, ch. 2010-132.
655.936 Delivery of safe-deposit box contents or property held in safekeeping to personal representative.—
(1) Subject to the provisions of subsection (3), the lessor shall immediately deliver to a personal representative appointed by a court in this state, upon presentation of a certified copy of his or her letters of authority, all property deposited with it by the decedent for safekeeping, and shall grant the personal representative access to any safe-deposit box in the decedent’s name and permit him or her to remove from such box any part or all of the contents thereof.
(2) If a personal representative of a deceased lessee has been appointed by a court of any other state, a lessor may, at its discretion, after 3 months from the issuance to such personal representative of his or her letters of authority, deliver to such personal representative all properties deposited with it for safekeeping and the contents of any safe-deposit box in the name of the decedent if at such time the lessor has not received written notice of the appointment of a personal representative in this state, and such delivery is a valid discharge of the lessor for all property or contents so delivered. A personal representative appointed by a court of any other state shall furnish the lessor with an affidavit setting forth facts showing the domicile of the deceased lessee to be other than this state and stating that there are no unpaid creditors of the deceased lessee in this state, together with a certified copy of his or her letters of authority. A lessor making delivery pursuant to this subsection shall maintain in its files a receipt executed by such personal representative which itemizes in detail all property so delivered.
(3) Notwithstanding the provisions of subsection (1), after the death of a lessee of a safe-deposit box, the lessor shall permit the initial opening of the safe-deposit box and the removal of the contents of the safe-deposit box in accordance with s. 733.6065.
(4) A lessor is not liable for damages or penalty by reason of any delivery made pursuant to this section.
History.—s. 66, ch. 92-303; s. 531, ch. 97-102; s. 12, ch. 97-240; s. 3, ch. 2001-226; s. 2, ch. 2006-134; s. 68, ch. 2006-213.
655.937 Access to safe-deposit boxes leased in two or more names.—
(1) Unless specifically provided in the lease or rental agreement to the contrary, 1if a safe-deposit box is rented or leased in the names of two or more lessees, access to the safe-deposit box will be granted to:
(a) Either or any of such lessees, regardless of whether or not the other lessee or lessees or any of them are living or competent.
(b) Subject to s. 655.933, those persons named in s. 655.933.
(c) Subject to s. 655.935, those persons named in s. 655.935.
(d) Subject to s. 733.6065, the personal representative of the estate of either or any of such lessees who is deceased, or the guardian of the property of either or any of such lessees who is incapacitated.
(2) In all cases described in subsection (1), the signature on the safe-deposit entry or access record, or the receipt or acquittance, in the case of property or documents otherwise held for safekeeping, is a valid and sufficient release and discharge to the lessor for granting access to such safe-deposit box or for the delivery of such property or documents otherwise held for safekeeping.
(3) A lessor may not be held liable for damages or penalty by reason of any access granted or delivery made pursuant to this section.
(4) The right of access by a colessee is separate from the rights and responsibilities of other persons who may be granted access to a safe-deposit box after the death or incapacity of another colessee, and such right of access is not subject to the provisions of s. 655.935, s. 733.6065, or other requirements imposed upon personal representatives, guardians, or other fiduciaries.
(5) After the death of a colessee, the surviving colessee or any other person who is granted access to the safe-deposit box pursuant to this section may make a written inventory of the box, which must be conducted by the person making the request in the presence of one other person as specified in this subsection. Each person present shall verify the contents of the box by signing a copy of the inventory under penalty of perjury.
(a) If the person making the written inventory is a surviving colessee, the other person may be any other person granted access pursuant to this section, an employee of the institution where the box is located, or an attorney licensed in this state.
(b) If the person making the written inventory is not a surviving colessee, the other person may be a surviving colessee, an employee of the institution where the box is located, or an attorney licensed in this state.
History.—s. 67, ch. 92-303; s. 3, ch. 2006-134; s. 69, ch. 2006-213.
1Note.—As amended by s. 69, ch. 2006-213. The amendment by s. 3, ch. 2006-134, added the word “when” instead of “if.”
655.938 Adverse claims to contents of safe-deposit box.—
(1) An adverse claim to the contents of a safe-deposit box, or to property held in safekeeping, is not sufficient to require the lessor to deny access to its lessee unless:
(a) The lessor is directed to do so by a court order issued in an action in which the lessee is served with process and named as a party by a name which identifies the lessee with the name in which the safe-deposit box is leased or the property held; or
(b) The safe-deposit box is leased or the property is held in the name of a lessee with the addition of words indicating that the contents or property are held in a fiduciary capacity, and the adverse claim is supported by a written statement of facts disclosing that it is made by, or on behalf of, a beneficiary and that there is reason to know that the fiduciary will misappropriate the trust property.
(2) A claim is also an adverse claim if one of several lessees claims, contrary to the terms of the lease, an exclusive right of access, or if one or more persons claim a right of access as agents or officers of a lessee to the exclusion of others as agents or officers, or if it is claimed that a lessee is the same person as one using another name.
History.—s. 68, ch. 92-303.
655.939 Limiting right of access for failure to comply with security procedures.—If any individual who has a right of access to a safe-deposit box is unwilling or unable for any reason or cause to comply with any of the lessor’s normal requirements or procedures in connection with such access relating to security, safety, or protection, the lessor has the right to limit or deny access to the safe-deposit box by such individual unless all lessees of such safe-deposit box take such action as is necessary to ensure reasonable compliance with such security, safety, or protection requirements or procedures.
History.—s. 69, ch. 92-303.
655.94 Special remedies for nonpayment of rent.—
(1) If the rental due on a safe-deposit box has not been paid for 3 months, the lessor may send a notice by certified mail to the last known address of the lessee stating that the safe-deposit box will be opened and its contents stored at the expense of the lessee unless payment of the rental is made within 30 days. If the rental is not paid within 30 days from the mailing of the notice, the box may be opened in the presence of an officer of the lessor and of a notary public. The contents shall be sealed in a package by a notary public who shall write on the outside the name of the lessee and the date of the opening. The notary public shall execute a certificate reciting the name of the lessee, the date of the opening of the box, and a list of its contents. The certificate shall be included in the package, and a copy of the certificate shall be sent by certified mail to the last known address of the lessee. The package shall then be placed in the general vaults of the lessor at a rental not exceeding the rental previously charged for the box. The lessor has a lien on the package and its contents to the extent of any rental due and owing plus the actual, reasonable costs of removing the contents from the safe-deposit box.
(2) If the contents of the safe-deposit box have not been claimed within 1 year after the mailing of the certificate, the lessor may send a further notice to the last known address of the lessee stating that, unless the accumulated charges are paid within 30 days, the contents of the box will be sold at public auction at a specified time and place or, in the case of securities listed on a stock exchange, will be sold upon the exchange on or after a specified date and unsalable items will be destroyed. The time, place, and manner of sale shall also be posted conspicuously on the premises of the lessor and advertised once in a newspaper of general circulation in the community. If the articles are not claimed, they may then be sold in accordance with the notice. The balance of the proceeds, after deducting accumulated charges, including the expenses of advertising and conducting the sale, shall be deposited to the credit of the lessee in any account maintained by the lessee, or, if none, shall be deemed a deposit account with the financial institution operating the safe-deposit facility, and shall be identified on the books of the financial institution as arising from the sale of contents of a safe-deposit box.
(3) Any documents or writings of a private nature, and having little or no apparent value, need not be offered for sale, but shall be retained, unless claimed by the owner, for the period specified for unclaimed contents, after which they may be destroyed.
History.—s. 70, ch. 92-303; s. 12, ch. 2004-340; s. 95, ch. 2004-390.
655.942 Standards of conduct; institutions.—
(1) A financial institution that is licensed or authorized to do business pursuant to the financial institutions codes, or its officers, directors, or employees may not make or grant any loan or gratuity to any employee of the office who has authority to examine or otherwise supervise such financial institution.
(2) A financial institution which violates this section shall be subject to penalties as provided in s. 655.041.
History.—s. 71, ch. 92-303; s. 32, ch. 99-155; s. 1735, ch. 2003-261.
655.943 Applications; verification.—All information required by the financial institutions codes or rule of the commission to be furnished in conjunction with applications to form, acquire or acquire assets of, merge, or change control of a financial institution must be verified by the office by all reasonable means available. The office shall conduct a detailed review of all financial information provided by an applicant, including a review of assets totaling 5 percent or more of the applicant’s net worth.
History.—s. 72, ch. 92-303; s. 1736, ch. 2003-261.
655.946 Single interest insurance placed by financial institutions.—
(1) If a financial institution purchases, or causes to be issued, insurance coverage to protect its security interest in a loan or indebtedness, and pursuant to contract or other agreement the borrower is responsible for payment of the premium, the financial institution must notify the borrower within 30 days after such purchase or issuance, in writing sent by first-class mail, of the following:
(a) The financial institution has purchased or caused to be issued an insurance policy which covers only its property interest which is the security for the loan or indebtedness.
(b) The borrower may avoid any additional premium charges by purchasing an acceptable dual interest insurance policy within 30 days after this notice, which shall terminate the single interest policy as of the effective date of the dual interest policy, and that any unearned premium paid will be returned, plus interest.
(2) This section does not apply to single interest insurance policies which provide coverage for property which is in transit or for conversion, embezzlement, or secretion by the borrower.
History.—s. 73, ch. 92-303.
655.947 Debt cancellation products.—
(1) Debt cancellation products may be offered, and a fee may be charged, by financial institutions and subsidiaries of financial institutions subject to this section and the rules and orders of the commission or office. As used in this section, the term “financial institutions” includes those defined in s. 655.005, insured depository institutions as defined in 12 U.S.C. s. 1813, and subsidiaries of such institutions.
(2) A financial institution shall manage the risks associated with debt cancellation products in accordance with prudent safety and soundness principles. A financial institution shall establish and maintain effective risk management and control processes over its debt cancellation products and programs. Such processes shall include appropriate recognition and financial reporting of income, expenses, assets, and liabilities and appropriate treatment of all expected and unexpected losses associated with the products. Each financial institution shall also assess the adequacy of its internal control and risk mitigation activities in view of the nature and scope of its debt cancellation products and programs.
(3) The commission shall adopt rules pursuant to ss. 120.536(1) and 120.54 to administer this section, which rules must be consistent with 12 C.F.R. part 37, as amended.
(4) For the purposes of this section and any rules adopted pursuant to this section, a periodic payment option is not required to be offered for any debt cancellation product designed to protect a customer against a deficiency between the outstanding loan or lease amount and the value of the motor vehicle that is used as collateral for the loan or lease.
History.—s. 10, ch. 2008-75; s. 14, ch. 2011-194.
655.948 Significant events; notice required.—
(1) Unless exempted by the office pursuant to subsection (4), every financial institution shall notify the office of the occurrence of any of the events listed in subsection (2) by filing with the office a disclosure in a form to be specified by the commission. The form shall include the number and caption of all applicable events, along with a summary of each. Completed forms shall be certified for authenticity and accuracy by the chief executive officer of the financial institution.
(2) Events for which disclosure forms must be filed and the filing schedule for each are as follows:
(a) To be disclosed within 30 days of the occurrence of the event:
1. The addition, resignation, or termination of a director, executive officer, independent internal auditor, or independent credit review officer;
2. The acquisition or divestiture of an asset or assets the value of which exceeds 20 percent of capital as of the date of the most recent call report. Any assets listed in s. 657.042(1) or s. 658.67(1) are excluded from such disclosure requirements;
3. Any change in general counsel or outside auditors who are used to certify financial statements;
4. Any interruption of fidelity insurance coverage;
5. Any credit extension to an executive officer and his or her related interests that, when aggregated with the amount of all other extensions of credit to that executive officer and his or her related interests, exceeds 15 percent of the capital accounts of the financial institution;
6. Any suspected criminal act perpetrated against a financial institution, subsidiary, or service corporation. However, no liability shall be incurred by any financial institution, subsidiary, service corporation, or financial institution-affiliated party as a result of making a good faith effort to fulfill this disclosure requirement; or
7. The acquisition or divestiture of a wholly owned or majority owned subsidiary or service corporation.
(b) Every financial institution shall notify the office within 30 days of the existence of any asset which is defined as a nonaccrual asset and which is in excess of 15 percent of total assets.
(3) A financial institution which fails to file a disclosure form within 30 days after the occurrence shall be subject to the fines provided in s. 655.041.
(4)(a) The office must exempt a financial institution from any of the provisions of this section if the office determines that such financial institution is operating in a safe and sound manner pursuant to commission rules relating to safe and sound operations. The commission shall adopt rules defining the term “safe and sound” and explicitly stating the criteria which shall constitute operating in a safe and sound manner.
(b) Notwithstanding paragraph (a), all newly chartered financial institutions shall be subject to the requirements of subsections (1) and (2) for 3 years.
History.—s. 218, ch. 92-303; s. 7, ch. 93-111; s. 532, ch. 97-102; s. 2, ch. 99-138; s. 1737, ch. 2003-261; s. 128, ch. 2005-2.
655.949 Personnel; qualifications.—The office shall establish and publish educational, professional, and other appropriate qualifications for each position in the office authorized to participate in the regulation of financial institutions, including positions with the authority to overrule the actions or decisions of professional examiners or legal staff in their exercise of their duties under the financial institutions codes. Such qualifications shall contain at a minimum sufficient experience and expertise in the regulation of financial institutions as to clearly justify the exercise of authority to overrule the actions or decisions of professional examiners or legal staff.
History.—s. 74, ch. 92-303; s. 1738, ch. 2003-261.
655.954 Financial institution loans; credit cards.—
(1) Notwithstanding any other provision of law, a financial institution shall have the power to make loans or extensions of credit to any person on a credit card or overdraft financing arrangement and to charge, in any billing cycle, interest on the outstanding amount at a rate that is specified in a written agreement, between the financial institution and borrower, governing the credit card account. Such credit card agreement may modify any terms or conditions of such credit card account upon prior written notice of such modification as specified by the terms of the agreement governing the credit card account or by the Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., as amended, and the rules and regulations adopted under such act. Any such notice provided by a financial institution shall specify that the borrower has the right to surrender the credit card whereupon the borrower shall have the right to continue to pay off the borrower’s credit card account in the same manner and under the same terms and conditions as then in effect. The borrower’s failure to surrender the credit card prior to the modifications becoming effective shall constitute a consent to the modifications.
(2) In conjunction with entering into any contract or agreement for a loan, line of credit, or loan extension, a financial institution, insured depository institution as defined in 12 U.S.C. s. 1813, and subsidiaries of such institutions may offer, for a fee or otherwise, optional debt cancellation products pursuant to s. 655.947 and rules adopted under that section. The financial institution may not require the purchase of a debt cancellation product as a condition for making the loan, line of credit, or loan extension.
(3) For the purpose of this section, the term:
(a) “Billing cycle” has the same meaning as ascribed to it under the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., as amended, and the associated regulations which are in effect as of January 31, 2008.
(b) “Interest” means those charges considered a finance charge under the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., as amended, and the associated regulations which are in effect as of January 31, 2008.
History.—s. 1, ch. 69-339; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 10, 15, ch. 79-274; s. 1, ch. 79-592; ss. 40, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 88-58; ss. 1, 4, ch. 91-307; ss. 1, 212, ch. 92-303; s. 11, ch. 2008-75.
Note.—Former s. 659.181; s. 658.50.
655.960 Definitions; ss. 655.960-655.965.—As used in this section and ss. 655.961-655.965, unless the context otherwise requires:
(1) “Access area” means any paved walkway or sidewalk which is within 50 feet of any automated teller machine. The term does not include any street or highway open to the use of the public, as defined in s. 316.003(53)(a) or (b), including any adjacent sidewalk, as defined in s. 316.003(47).
(2) “Access device” has the same meaning as set forth in Federal Reserve Board Regulation E, 12 C.F.R. part 205, promulgated pursuant to the Electronic Fund Transfer Act, 15 U.S.C. ss. 1601 et seq.
(3) “Automated teller machine” means any electronic information processing device located in this state which accepts or dispenses cash in connection with a credit, deposit, checking, or convenience account. The term does not include devices used solely to facilitate check guarantees or check authorizations or which are used in connection with the acceptance or dispensing of cash on a person-to-person basis, such as by a store cashier.
(4) “Candlefoot power” means the light intensity of candles on a horizontal plane at 36 inches above ground level and 5 feet in front of the area to be measured.
(5) “Control,” with respect to an access area or defined parking area, means to have the present legal authority to determine how, when, and by whom such area is to be used, and how such area is to be maintained, lighted, and landscaped. If an operator leases an access area or defined parking area as lessee, such lessee shall not be considered to have control for the purposes of ss. 655.960-655.965.
(6) “Customer” means a natural person to whom an access device has been issued for personal, family, or household use.
(7) “Defined parking area” means that portion of any parking area open for customer parking which is contiguous to an access area with respect to an automated teller machine, is regularly, principally, and lawfully used for parking by users of the automated teller machine while conducting automated teller machine transactions during the hours of darkness, and is owned or leased by the operator of the automated teller machine or owned or controlled by the party leasing the automated teller machine site to the operator. The term does not include any parking area which is not open or regularly used for parking by users of the automated teller machine who are conducting automated teller machine transactions during the hours of darkness. A parking area is not open if it is physically closed to access or if conspicuous signs indicate that it is closed. If a multiple level parking area satisfies the conditions of this subsection and would therefore otherwise be a defined parking area, only the single parking level deemed by the operator of the automated teller machine to be the most directly accessible to the users of the automated teller machine shall be considered a parking area.
(8) “Financial institution office” means a main office or principal office, as defined in s. 655.005, and a branch or branch office as defined in s. 658.12(4).
(9) “Hours of darkness” means the period that commences 30 minutes after sunset and ends 30 minutes before sunrise.
(10) “Operator” means any financial institution, as defined in s. 655.005, other business entity, or any person who controls the use or operation by a customer or other member of the general public of an automated teller machine. An operator controls the use or operation of an automated teller machine for the purposes of ss. 655.960-655.965 if such person or entity has the present legal authority to determine when and by whom the automated teller machine may be used or operated and how it is to be maintained in compliance with the provisions of ss. 655.960-655.965. An operator does not include any person or entity which is not a financial institution, if the primary function of such person or entity is to provide data processing services for automated teller machine transactions or to provide for the exchange, transfer, or dissemination of electronic funds transfer data.
(11) Terms which are defined in the financial institution codes, unless the context otherwise requires, have the meanings ascribed to them therein for purposes of ss. 655.960-655.965.
History.—s. 1, ch. 94-343.
655.961 Violation of specified provisions not negligence per se.—A violation of the provisions of ss. 655.960-655.965 or any regulation made pursuant thereto does not constitute negligence per se.
History.—s. 1, ch. 94-343; s. 84, ch. 2000-158.
655.962 Lighting; mirrors; landscaping.—
(1) Each operator, or other person responsible for an automated teller machine pursuant to ss. 655.960-655.965, shall provide lighting during the hours of darkness with respect to an open and operating automated teller machine and any defined parking area, access area, and the exterior of an enclosed automated teller machine installation, as follows:
(a) There shall be a minimum of 10 candlefoot power at the face of the automated teller machine and extending in an unobstructed direction outward 5 feet.
(b) There shall be a minimum of 2 candlefoot power within 50 feet in all unobstructed directions from the face of the automated teller machine. If the automated teller machine is located within 10 feet of the corner of the building and the automated teller machine is generally accessible from the adjacent side, there shall be a minimum of 2 candlefoot power along the first 40 unobstructed feet of the adjacent side of the building.
(c) There shall be a minimum of 2 candlefoot power in that portion of the defined parking area within 60 feet of the automated teller machine.
(2) The operator shall provide reflective mirrors or surfaces at each automated teller machine which provide the customer with a rear view while the customer is engaged in using the automated teller machine.
(3) The operator, or other person responsible pursuant to ss. 655.960-655.965 for an automated teller machine, shall ensure that the height of any landscaping, vegetation, or other physical obstructions in the area required to be lighted pursuant to subsection (1) for any open and operating automated teller machine shall not exceed 3 feet, except that trees trimmed to a height of 10 feet and whose diameters are less than 2 feet and manmade physical obstructions required by statute, law, code, ordinance, or other governmental regulation shall not be affected by this subsection.
History.—s. 1, ch. 94-343; s. 85, ch. 2000-158; s. 14, ch. 2001-64.
655.963 Access devices.—Customers receiving access devices shall be furnished by the respective issuers thereof with such information regarding safety precautions as the commission may require by rule. This information shall be furnished by personally delivering or mailing the information to each customer whose mailing address as to the account to which the access device relates is in this state. Such information shall be furnished with respect to access devices issued on or after October 1, 1994, at or before the time the customer is furnished with his or her access device. With respect to a customer to whom an “accepted access device,” as defined in Federal Reserve Board Regulation E, 12 C.F.R. part 205, has been issued prior to October 1, 1994, the information shall be delivered on or before 6 months from October 1, 1994. Only one notice need be furnished per household, and if access devices are furnished to more than one customer for a single account or set of accounts or on the basis of a single application or other request for access devices, only a single notice need be furnished in satisfaction of the notification responsibilities as to those customers. The information may be included with other disclosures related to the access device furnished to the customer, such as with any initial or periodic disclosure statement furnished pursuant to the Electronic Fund Transfer Act.
History.—s. 1, ch. 94-343; s. 1739, ch. 2003-261.
655.964 Application.—
(1) The provisions of ss. 655.961 and 655.962 do not apply to any automated teller machine which is:
(a) Located inside of a building, unless it is a freestanding installation which exists for the sole purpose of providing an enclosure for the automated teller machine.
(b) Located inside a building, except to the extent a transaction can be conducted from outside the building.
(c) Located in any area, including any access area, building, enclosed space, or parking area which is not controlled by the operator.
(2) The provisions of ss. 655.960-655.965 shall not be construed to create any duty, responsibility, or obligation for any person or entity whose primary function is to provide for the exchange, transfer, or dissemination of electronic funds transfer data and is not otherwise a financial institution, as defined in s. 655.005, or an operator.
History.—s. 1, ch. 94-343.
655.965 Preemption; prohibition.—Except as expressly provided, the provisions of this section and ss. 655.960-655.964 supersede and preempt all rules, regulations, codes, or ordinances of any city, county, municipality, or other political subdivision of this state, and of any local agency regarding customer safety at automated teller machines located in this state.
History.—s. 1, ch. 94-343.
655.966 Automated teller machine; surcharge disclosure.—
(1) The operator or owner of an automated teller machine in this state may charge an access fee or surcharge to a customer for the use of that machine. The fee or surcharge must be disclosed in compliance with 12 C.F.R. part 205, as amended.
(2)(a) Subject to the requirements of subsection (1), an agreement to operate or share an automated teller machine may not prohibit, limit, or restrict the right of the operator or owner of an automated teller machine, as defined in s. 655.960(3), to charge an access fee or surcharge, not otherwise prohibited under state or federal law, to a customer conducting a transaction using an account from an international banking corporation as defined in s. 663.01(6).
(b) Notwithstanding paragraph (a), this section does not prohibit or otherwise limit the ability of an operator or owner of an automated teller machine to voluntarily enter into an agreement regarding participation in an access fee-free or surcharge-free network.
History.—s. 1, ch. 2006-216; s. 1, ch. 2008-166.
655.967 State-funded endowments.—A state-mandated endowment funded through a general appropriations act prior to 1990 may be maintained in trust accounts in financial institutions as defined in s. 655.005.
History.—s. 9, ch. 2008-75.