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2012 Florida Statutes
Chapter 538
SECONDHAND DEALERS AND SECONDARY METALS RECYCLERS
SECONDHAND DEALERS AND SECONDARY METALS RECYCLERS
CHAPTER 538
SECONDHAND DEALERS AND SECONDARY METALS RECYCLERS
PART I
SECONDHAND DEALERS(ss. 538.03-538.17)
PART II
SECONDARY METALS RECYCLERS(ss. 538.18-538.28)
PART III
MAIL-IN SECONDHAND PRECIOUS METALS DEALERS(ss. 538.31-538.37)
PART I
SECONDHAND DEALERS538.03 Definitions; applicability.
538.04 Recordkeeping requirements; penalties.
538.05 Inspection of records and premises of secondhand dealers.
538.06 Holding period.
538.07 Penalty for violation of chapter.
538.08 Stolen goods; petition for return.
538.09 Registration.
538.11 Powers and duties of department; rules.
538.15 Certain acts and practices prohibited.
538.17 Local regulation of secondhand dealers.
538.03 Definitions; applicability.—
(1) As used in this part, the term:
(a) “Acquire” means to obtain by purchase, consignment, or trade.
(b) “Appropriate law enforcement official” means the sheriff of the county in which a secondhand dealer is located or, if the secondhand dealer is located within a municipality, both the police chief of the municipality and the sheriff; however, the sheriff or police chief may designate as the appropriate law enforcement official for that county or municipality, as applicable, any law enforcement officer working within that respective county or municipality. This paragraph does not limit the authority or duties of the sheriff.
(c) “Consignment shop” means a shop engaging in the business of accepting for sale, on consignment, secondhand goods which, having once been used or transferred from the manufacturer to the dealer, are then received into the possession of a third party.
(d) “Department” means the Department of Revenue.
(e) “Precious metals” means any item containing any gold, silver, or platinum, or any combination thereof, excluding any chemical or any automotive, photographic, electrical, medical, or dental materials or electronic parts.
(f) “Precious metals dealer” means a secondhand dealer who normally or regularly engages in the business of buying used precious metals for resale. The term does not include those persons involved in the bulk sale of precious metals from one secondhand or precious metals dealer to another.
(g) “Secondhand dealer” means any person, corporation, or other business organization or entity which is not a secondary metals recycler subject to part II and which is engaged in the business of purchasing, consigning, or trading secondhand goods.
(h) “Secondhand goods” means personal property previously owned or used, which is not regulated metals property regulated under part II and which is purchased, consigned, or traded as used property. Such secondhand goods do not include office furniture, pianos, books, clothing, organs, coins, motor vehicles, costume jewelry, cardio and strength training or conditioning equipment designed primarily for indoor use, and secondhand sports equipment that is not permanently labeled with a serial number. For purposes of this paragraph, “secondhand sports equipment” does not include golf clubs.
(i) “Secondhand store” means the place or premises at which a secondhand dealer is registered to conduct business as a secondhand dealer or conducts business.
(j) “Transaction” means any purchase, consignment, or trade of secondhand goods by a secondhand dealer.
(2) This chapter does not apply to:
(a) Any secondhand goods transaction involving an organization or entity registered with the state as a nonprofit, religious, or charitable organization or any school-sponsored association or organization other than a secondary metals recycler subject to the provisions of part II.
(b) A law enforcement officer acting in an official capacity.
(c) A trustee in bankruptcy, executor, administrator, or receiver who has presented proof of such status to the secondhand dealer.
(d) Any public official acting under judicial process or authority who has presented proof of such status to the secondhand dealer.
(e) A sale on the execution, or by virtue of any process issued by a court, if proof thereof has been presented to the secondhand dealer.
(f) Any garage sale operator who holds garage sales less than 10 weekends per year.
(g) Any person at antique, coin, or collectible shows or sales.
(h) Any person who sells household personal property as an agent for the property owner or their representative pursuant to a written agreement at that person’s residence.
(i) The purchase, consignment, or trade of secondhand goods from one secondhand dealer to another secondhand dealer when the selling secondhand dealer has complied with the requirements of this chapter.
(j) Any person accepting a secondhand good as a trade-in for a similar item of greater value.
(k) Any auction business as defined in s. 468.382 operating as an auction business in the buying and selling of estates, business inventory, surplus merchandise, or business liquidations.
(l) Any business that is registered with the Department of Revenue for sales tax purposes as an antique dealer pursuant to chapter 212 and that purchases secondhand goods from the property owner or her or his representative at the property owner’s residence pursuant to a written agreement that states the name, address, and telephone number of the property owner and the type of property purchased.
(m) A business that contracts with other persons or entities to offer its secondhand goods for sale, purchase, consignment, or trade via an Internet website, and that maintains a shop, store, or other business premises for this purpose, if all of the following apply:
1. The secondhand goods must be available on the website for viewing by the public at no charge;
2. The records of the sale, purchase, consignment, or trade must be maintained for at least 2 years;
3. The records of the sale, purchase, consignment, or trade, and the description of the secondhand goods as listed on the website, must contain the serial number of each item, if any;
4. The secondhand goods listed on the website must be searchable based upon the state or zip code;
5. The business must provide the appropriate law enforcement official with the name or names under which it conducts business on the website;
6. The business must allow the appropriate law enforcement official to inspect its business premises at any time during normal business hours;
7. Any payment by the business resulting from such a sale, purchase, consignment, or trade must be made to the person or entity with whom the business contracted to offer the goods and must be made by check or via a money services business licensed under part II of chapter 560; and
8.a. At least 48 hours after the estimated time of contracting to offer the secondhand goods, the business must verify that any item having a serial number is not stolen property by entering the serial number of the item into the Department of Law Enforcement’s stolen article database located at the Florida Crime Information Center’s public access system website. The business shall record the date and time of such verification on the contract covering the goods. If such verification reveals that an item is stolen property, the business shall immediately remove the item from any website on which it is being offered and notify the appropriate law enforcement official; or
b. The business must provide the appropriate law enforcement official with an electronic copy of the name, address, phone number, driver license number, and issuing state of the person with whom the business contracted to offer the goods, as well as an accurate description of the goods, including make, model, serial number, and any other unique identifying marks, numbers, names, or letters that may be on an item, in a format agreed upon by the business and the appropriate law enforcement official. This information must be provided to the appropriate law enforcement official within 24 hours after entering into the contract unless other arrangements are made between the business and the law enforcement official.
(n) Any person offering his or her own personal property for sale, purchase, consignment, or trade via an Internet website, or a person or entity offering the personal property of others for sale, purchase, consignment, or trade via an Internet website, when that person or entity does not have, and is not required to have, a local occupational or business license for this purpose.
(o) A business whose primary business is the sale, rental, or trade of motion picture videos or video games, if the business:
1. Requires the sellers of secondhand goods to have a current account with the business;
2. Has on file in a readily accessible format the name, current residential address, home and work telephone numbers, government-issued identification number, place of employment, date of birth, gender, and right thumbprint of each seller of secondhand goods;
3. Purchases secondhand goods from the property owner or his or her representative at the place of business pursuant to an agreement in writing and signed by the property owner which describes the property purchased, states the date and time of the purchase, and states that the seller is the lawful owner of the property;
4. Retains such purchase agreements for not less than 1 year; and
5. Pays for the purchased property in the form of a store credit that is issued to the seller and is redeemable solely by the seller or another authorized user of the seller’s account with that business.
(p) A motor vehicle dealer as defined in s. 320.27.
(3) This part does not apply to secondary metals recyclers regulated under part II, except for s. 538.11, which applies to both secondhand dealers and secondary metals recyclers.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 1, ch. 90-318; s. 4, ch. 91-429; s. 202, ch. 92-303; s. 1, ch. 93-97; s. 1, ch. 95-287; s. 745, ch. 97-103; s. 1, ch. 98-30; ss. 17, 21, ch. 2000-138; s. 1, ch. 2006-201; s. 51, ch. 2008-177; s. 1, ch. 2009-158; s. 1, ch. 2009-162; s. 1, ch. 2012-179.
538.04 Recordkeeping requirements; penalties.—
(1) A secondhand dealer shall complete a secondhand dealers transaction form at the time of the actual transaction. A secondhand dealer shall maintain a copy of a completed transaction form on the registered premises for at least 1 year after the date of the transaction. However, the secondhand dealer shall maintain a copy of the transaction form for not less than 3 years. Unless other arrangements are agreed upon by the secondhand dealer and the appropriate law enforcement official, the secondhand dealer shall, within 24 hours after acquiring any secondhand goods, deliver to such official a record of the transaction on a form approved by the Department of Law Enforcement. Such record shall contain:
(a) The time, date, and place of the transaction.
(b) A complete and accurate description of the goods acquired, including the following information, if applicable:
1. Brand name.
2. Model number.
3. Manufacturer’s serial number.
4. Size.
5. Color, as apparent to the untrained eye.
6. Precious metal type, weight, and content if known.
7. Gemstone description, including the number of stones, if applicable.
8. In the case of firearms, the type of action, caliber or gauge, number of barrels, barrel length, and finish.
9. Any other unique identifying marks, numbers, or letters.
(c) A description of the person from whom the goods were acquired, including:
1. Full name, current residential address, workplace, and home and work phone numbers.
2. Height, weight, date of birth, race, gender, hair color, eye color, and any other identifying marks.
3. The right thumbprint, free of smudges and smears, of the person from whom the goods were acquired.
(d) Any other information required by the form approved by the Department of Law Enforcement.
(2) The secondhand dealer shall require verification of the identification by the exhibition of a government-issued photographic identification card such as a driver’s license or military identification card. The record shall contain the type of identification exhibited, the issuing agency, and the number thereon.
(3) The seller shall sign a statement verifying that the seller is the rightful owner of the goods or is entitled to sell, consign, or trade the goods.
(4) Any person who knowingly gives false verification of ownership or who gives a false or altered identification, and who receives money from a secondhand dealer for goods sold, consigned, or traded commits:
(a) If the value of the money received is less than $300, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the value of the money received is $300 or more, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) Secondhand dealers are exempt from the provisions of this section for all transactions involving secondhand sports equipment except secondhand sports equipment that is permanently labeled with a serial number.
(6) If the appropriate law enforcement official supplies a secondhand dealer with appropriate software and the secondhand dealer has computer capability, the secondhand dealer must electronically transmit secondhand dealer transactions required by this section to such official. If a secondhand dealer does not have computer capability, the appropriate law enforcement official may provide the secondhand dealer with a computer and all equipment necessary to electronically transmit secondhand dealer transactions. The appropriate law enforcement official shall retain ownership of the computer, unless otherwise agreed upon, and the secondhand dealer shall maintain the computer in good working order, except for ordinary wear. A secondhand dealer who transmits secondhand dealer transactions electronically is not required to also deliver the original or paper copies of the secondhand transaction forms to the appropriate law enforcement official. However, such official may, for purposes of a criminal investigation, request the secondhand dealer to deliver the original transaction form that was electronically transmitted. The secondhand dealer shall deliver the form to the appropriate law enforcement official within 24 hours after receipt of the request.
(7) If the original transaction form is lost or destroyed by the appropriate law enforcement official, a copy may be used by the secondhand dealer as evidence in court. When an electronic image of a customer’s identification is accepted for a transaction, the secondhand dealer must maintain the electronic image in order to meet the recordkeeping requirements applicable to the original transaction form. If a criminal investigation occurs, the secondhand dealer shall, upon request, provide a clear and legible copy of the image to the appropriate law enforcement official.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 2, ch. 90-318; s. 4, ch. 91-429; s. 2, ch. 98-30; s. 2, ch. 2006-201; s. 2, ch. 2012-179.
538.05 Inspection of records and premises of secondhand dealers.—
(1) The entire registered premises and required records of each secondhand dealer are subject to inspection during regular business hours by any law enforcement officer having jurisdiction.
(2) The inspection authorized by subsection (1) shall consist of an examination on the registered premises of the inventory and required records to determine whether the records and inventory are being maintained on the registered premises as required by s. 538.04 and whether the holding period required by s. 538.06 is being complied with.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 3, ch. 90-318; s. 4, ch. 91-429; s. 2, ch. 93-97; s. 3, ch. 2006-201.
538.06 Holding period.—
(1) A secondhand dealer shall not sell, barter, exchange, alter, adulterate, use, or in any way dispose of any secondhand goods within 15 calendar days of the date of acquisition of the goods. Such holding periods are not applicable when the person known by the secondhand dealer to be the person from whom the goods were acquired desires to redeem, repurchase, or recover the goods, provided the dealer can produce the record of the original transaction with verification that the customer is the person from whom the goods were originally acquired.
(2) A secondhand dealer must maintain actual physical possession of all secondhand goods throughout a transaction. It is unlawful for a secondhand dealer to accept title or any other form of security in secondhand goods in lieu of actual physical possession. A secondhand dealer who accepts title or any other form of security in secondhand goods in lieu of actual physical possession commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) Upon probable cause that goods held by a secondhand dealer are stolen, a law enforcement officer with jurisdiction may place a 90-day written hold order on the goods. However, the hold may be extended beyond 90 days by a court of competent jurisdiction upon a finding of probable cause that the property is stolen and further holding is necessary for the purposes of trial or to safeguard such property. The dealer shall assume all responsibility, civil or criminal, relative to the property or evidence in question, including responsibility for the actions of any employee with respect thereto.
(4) While a hold order is in effect, the secondhand dealer must, upon request, release the property subject to the hold order to the custody of a law enforcement officer with jurisdiction for use in a criminal investigation. The release of the property to the custody of the law enforcement officer is not considered a waiver or release of the secondhand dealer’s rights or interest in the property. Upon completion of the criminal proceeding, the property must be returned to the secondhand dealer unless the court orders other disposition. When such other disposition is ordered, the court shall additionally order the person from whom the secondhand dealer acquired the property to pay restitution to the secondhand dealer in the amount that the secondhand dealer paid for the property together with reasonable attorney’s fees and costs.
(5) All dealers in secondhand property regulated by this chapter shall maintain transaction records for 3 years.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 90-318; s. 4, ch. 91-429; s. 3, ch. 93-97; s. 2, ch. 95-287; s. 21, ch. 2000-138; s. 4, ch. 2006-201.
538.07 Penalty for violation of chapter.—
(1) Except where otherwise provided herein, a person who knowingly violates any provision of this chapter commits a misdemeanor of the first degree, punishable as provided in s. 775.082 and by a fine not to exceed $10,000.
(2) When the lawful owner recovers stolen property from a secondhand dealer and the person who sold or pledged the stolen property to the secondhand dealer is convicted of theft, a violation of this section, or dealing in stolen property, the court shall order the defendant to make restitution to the secondhand dealer or the lawful owner, as applicable, pursuant to s. 775.089.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; s. 3, ch. 93-37; s. 5, ch. 2006-201.
538.08 Stolen goods; petition for return.—
(1) If the secondhand dealer contests the identification or ownership of the property, the person alleging ownership of the property may, provided that a timely report of the theft of the goods was made to the proper authorities, bring an action for replevin in the county or circuit court by petition in substantially the following form:
Plaintiff A. B. sues defendant C. D., and alleges:
1. This is an action to recover possession of personal property in County, Florida.
2. The description of the property is: (list property) . To the best of plaintiff’s knowledge, information, and belief, the value of the property is $ .
3. Plaintiff is entitled to the possession of the property under a security agreement dated , (year) , a copy of which is attached.
4. To plaintiff’s best knowledge, information, and belief, the property is located at .
5. The property is wrongfully detained by defendant. Defendant came into possession of the property by (describe method of possession) . To plaintiff’s best knowledge, information, and belief, defendant detains the property because (give reasons) .
6. The property has not been taken under an execution or attachment against plaintiff’s property.
(2) The filing fees shall be waived by the clerk of the court, and the service fees shall be waived by the sheriff. The court shall award the prevailing party attorney’s fees and costs. In addition, when the filing party prevails in the replevin action, the court shall order payment of filing fees to the clerk and service fees to the sheriff.
(3) Upon the filing of the petition, the court shall set a hearing to be held at the earliest possible time. Upon the receipt of a petition for a writ by a secondhand dealer, the dealer shall hold the property at issue until the court determines the respective interests of the parties.
(4) In addition to the civil petition for return remedy, the state may file a motion as part of a pending criminal case related to the property. The criminal court has jurisdiction to determine ownership, to order return or other disposition of the property, and to order any appropriate restitution to any person. Such order shall be entered upon hearing after proper notice has been given to the secondhand dealer, the victim, and the defendant in the criminal case.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; s. 4, ch. 93-97; s. 24, ch. 99-6.
538.09 Registration.—
(1) A secondhand dealer shall not engage in the business of purchasing, consigning, or trading secondhand goods from any location without registering with the Department of Revenue. A fee equal to the federal and state costs for processing required fingerprints must be submitted to the department with each application for registration. One application is required for each dealer. If a secondhand dealer is the owner of more than one secondhand store location, the application must list each location, and the department shall issue a duplicate registration for each location. For purposes of subsections (4) and (5) of this section, these duplicate registrations shall be deemed individual registrations. A dealer shall pay a fee of $6 per location at the time of registration and an annual renewal fee of $6 per location on October 1 of each year. All fees collected, less costs of administration, shall be transferred into the Operating Trust Fund. The Department of Revenue shall forward the full set of fingerprints to the Department of Law Enforcement for state and federal processing, provided the federal service is available, to be processed for any criminal justice information as defined in s. 943.045. The cost of processing such fingerprints shall be payable to the Department of Law Enforcement by the Department of Revenue. The department may issue a temporary registration to each location pending completion of the background check by state and federal law enforcement agencies, but shall revoke such temporary registration if the completed background check reveals a prohibited criminal background. An applicant for a secondhand dealer registration must be a natural person who has reached the age of 18 years.
(a) If the applicant is a partnership, all the partners must apply.
(b) If the applicant is a joint venture, association, or other noncorporate entity, all members of such joint venture, association, or other noncorporate entity must make application for registration as natural persons.
(c) If the applicant is a corporation, the registration must include the name and address of such corporation’s registered agent for service of process in the state and a certified copy of statement from the Secretary of State that the corporation is duly organized in the state or, if the corporation is organized in a state other than Florida, a certified copy of statement from the Secretary of State that the corporation is duly qualified to do business in this state. If the dealer has more than one location, the application must list each location owned by the same legal entity and the department shall issue a duplicate registration for each location.
(2) The secondhand dealer shall furnish with her or his registration a complete set of her or his fingerprints, certified by an authorized law enforcement officer, and a recent fullface photographic identification card of herself or himself. The Department of Law Enforcement shall report its findings to the Department of Revenue within 30 days after the date fingerprint cards are submitted for criminal justice information.
(3) The secondhand dealer’s registration shall be conspicuously displayed at her or his registered location. A secondhand dealer must hold secondhand goods at the registered location until 15 days after the secondhand transaction or until any extension of the holding period has expired, whichever is later.
(4) The department may impose a civil fine of up to $10,000 for each violation of this section, which fine shall be transferred into the General Revenue Fund. If the fine is not paid within 60 days, the department may bring a civil action under s. 120.69 to recover the fine.
(5) In addition to the fine provided in subsection (4), registration under this section may be denied or any registration granted may be revoked, restricted, or suspended by the department if the department determines that the applicant or registrant:
(a) Has violated any provision of this chapter or any rule or order made pursuant to this chapter;
(b) Has made a material false statement in the application for registration;
(c) Has been guilty of a fraudulent act in connection with any purchase or sale or has been or is engaged in or is about to engage in any practice, purchase, or sale which is fraudulent or in violation of the law;
(d) Has made a misrepresentation or false statement to, or concealed any essential or material fact from, any person in making any purchase or sale;
(e) Is making purchases or sales through any business associate not registered in compliance with the provisions of this chapter;
(f) Has, within the preceding 10-year period for new registrants who apply for registration on or after October 1, 2006, been convicted of, or has entered a plea of guilty or nolo contendere to, or had adjudication withheld for, a crime against the laws of this state or any other state or of the United States which relates to registration as a secondhand dealer or which involves theft, larceny, dealing in stolen property, receiving stolen property, burglary, embezzlement, obtaining property by false pretenses, possession of altered property, any felony drug offense, any violation of s. 812.015, or any fraudulent dealing;
(g) Has had a final judgment entered against her or him in a civil action upon grounds of fraud, embezzlement, misrepresentation, or deceit; or
(h) Has failed to pay any sales tax owed to the Department of Revenue.
In the event the department determines to deny an application or revoke a registration, it shall enter a final order with its findings on the register of secondhand dealers and their business associates, if any; and denial, suspension, or revocation of the registration of a secondhand dealer shall also deny, suspend, or revoke the registration of such secondhand dealer’s business associates.
(6) Upon the request of a law enforcement official, the Department of Revenue shall release to the official the name and address of any secondhand dealer registered to do business within the official’s jurisdiction.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 5, ch. 90-318; s. 4, ch. 91-429; s. 3, ch. 92-79; s. 16, ch. 94-353; s. 746, ch. 97-103; s. 6, ch. 2006-201; s. 4, ch. 2007-14; s. 71, ch. 2012-5.
538.11 Powers and duties of department; rules.—The same duties and privileges imposed by chapter 212 upon dealers of tangible personal property respecting the keeping of books and records and accounts and compliance with rules of the department shall apply to and be binding upon all persons who are subject to the provisions of this chapter. The department shall administer, collect, and enforce the registration authorized under this chapter pursuant to the same procedures used in the administration, collection, and enforcement of the general state sales tax imposed under chapter 212, except as provided in this section. The provisions of chapter 212 regarding the keeping of records and books shall apply. The department is authorized to employ persons and incur other expenses for which funds are appropriated by the Legislature. The department is empowered to adopt such rules, and shall prescribe and publish such forms, as may be necessary to effectuate the purposes of this chapter. The Legislature hereby finds that the failure to promptly implement the provisions of this chapter would present an immediate threat to the welfare of the state. Therefore, the executive director of the department is hereby authorized to adopt emergency rules pursuant to s. 120.54(4), for purposes of implementing this chapter. Notwithstanding any other provision of law, such emergency rules shall remain effective for 6 months from the date of adoption. Other rules of the department related to and in furtherance of the orderly implementation of the chapter shall not be subject to a rule challenge under s. 120.56(2) or a drawout proceeding under s. 120.54(3)(c)2. but, once adopted, shall be subject to an invalidity challenge under s. 120.56(3). Such rules shall be adopted by the Governor and Cabinet and shall become effective upon filing with the Department of State, notwithstanding the provisions of s. 120.54(3)(e)6.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; s. 247, ch. 96-410; s. 35, ch. 97-99; s. 25, ch. 2001-63.
538.15 Certain acts and practices prohibited.—It is unlawful for a secondhand dealer or any employee thereof to do or allow any of the following acts:
(1) Knowingly make a transaction with:
(a) Any person who is under the influence of drugs or alcohol when such condition is visible or apparent;
(b) Any person under the age of 18 years; or
(c) Any person using a name other than her or his own name or the registered name of her or his business.
(2) Have a secondhand store open or engage in or conduct business as a secondhand dealer between the hours of 10 p.m. and 8 a.m. A secondhand dealer shall not conduct any transaction at a drive-through window or similar device.
(3) Fail to pay any sales tax owed to the Department of Revenue or fail to have a sales tax registration number.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; s. 3, ch. 95-287; s. 747, ch. 97-103; s. 21, ch. 2000-138.
538.17 Local regulation of secondhand dealers.—Nothing in this chapter shall preclude political subdivisions of the state and municipalities from enacting laws more restrictive than the provisions of this chapter.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429.
PART II
SECONDARY METALS RECYCLERS538.18 Definitions.
538.19 Records required; limitation of liability.
538.20 Inspection of regulated metals property and records.
538.21 Hold notice.
538.22 Exemptions.
538.23 Violations and penalties.
538.235 Method of payment.
538.24 Stolen regulated metals property; petition for return.
538.25 Registration.
538.26 Certain acts and practices prohibited.
538.28 Local government regulation.
538.18 Definitions.—As used in this part, the term:
(1) “Appropriate law enforcement official” means the sheriff of the county in which a secondary metals recycler is located or, if the secondary metals recycler is located within a municipality, the police chief of the municipality in which the secondary metals recycler is located; however, the sheriff or police chief may designate as the appropriate law enforcement official for the county or municipality, as applicable, any law enforcement officer working within that respective county or municipality. This subsection does not limit the authority or duties of the sheriff.
(2) “Department” means the Department of Revenue.
(3) “Ferrous metals” means any metals containing significant quantities of iron or steel.
(4) “Fixed location” means any site occupied by a secondary metals recycler as owner of the site or as lessee of the site under a lease or other rental agreement providing for occupation of the site by the secondary metals recycler for a total duration of not less than 364 days.
(5) “Money” means a medium of exchange authorized or adopted by a domestic or foreign government as part of its currency.
(6) “Nonferrous metals” means metals not containing significant quantities of iron or steel, including, without limitation, copper, brass, aluminum, bronze, lead, zinc, nickel, and alloys thereof, excluding precious metals subject to regulation under part I.
(7) “Personal identification card” means a valid Florida driver license, a Florida identification card issued by the Department of Highway Safety and Motor Vehicles, an equivalent form of identification issued by another state, a passport, or an employment authorization issued by the United States Bureau of Citizenship and Immigration Services that contains an individual’s photograph and current address.
(8) “Purchase transaction” means a transaction in which a secondary metals recycler gives consideration for regulated metals property.
(9) “Regulated metals property” means any item composed primarily of any nonferrous metals. The term does not include aluminum beverage containers, used beverage containers, or similar beverage containers; however, the term includes stainless steel beer kegs and items made of ferrous metal obtained from any restricted regulated metals property.
(10) “Restricted regulated metals property” means any regulated metals property listed in s. 538.26(5)(b) the sale of which is restricted as provided in s. 538.26(5)(a).
(11) “Secondary metals recycler” means any person who:
(a) Is engaged, from a fixed location, in the business of purchase transactions or gathering or obtaining ferrous or nonferrous metals that have served their original economic purpose or is in the business of performing the manufacturing process by which ferrous metals or nonferrous metals are converted into raw material products consisting of prepared grades and having an existing or potential economic value; or
(b) Has facilities for performing the manufacturing process by which ferrous metals or nonferrous metals are converted into raw material products consisting of prepared grades and having an existing or potential economic value, other than by the exclusive use of hand tools, by methods including, without limitation, processing, sorting, cutting, classifying, cleaning, baling, wrapping, shredding, shearing, or changing the physical form or chemical content thereof.
(12) “Utility” means a public utility or electric utility as defined in s. 366.02 or a person, firm, corporation, association, or political subdivision, whether private, municipal, county, or cooperative, that is engaged in the sale, generation, provision, or delivery of gas, electricity, heat, water, oil, sewer service, or telephone, telegraph, radio, telecommunications, or communications service.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 6, ch. 90-318; s. 4, ch. 91-429; s. 94, ch. 2004-5; s. 1, ch. 2008-69; s. 3, ch. 2012-179.
538.19 Records required; limitation of liability.—
(1) A secondary metals recycler shall maintain a legible paper record of all purchase transactions to which such secondary metals recycler is a party. A secondary metals recycler shall also maintain a legible electronic record, in the English language, of all such purchase transactions. The appropriate law enforcement official may provide data specifications regarding the electronic record format, but such format must be approved by the Department of Law Enforcement. An electronic record of a purchase transaction shall be electronically transmitted to the appropriate law enforcement official no later than 10 a.m. of the business day following the date of the purchase transaction. The record transmitted to the appropriate law enforcement official must not contain the price paid for the items. A secondary metals recycler who transmits such records electronically is not required to also deliver the original or paper copies of the transaction forms to the appropriate law enforcement official. However, such official may, for purposes of a criminal investigation, request the secondary metals recycler to make available the original transaction form that was electronically transmitted. This original transaction form must include the price paid for the items. The secondary metals recycler shall make the form available to the appropriate law enforcement official within 24 hours after receipt of the request.
(2) The following information must be maintained on the form approved by the Department of Law Enforcement for each purchase transaction:
(a) The name and address of the secondary metals recycler.
(b) The name, initials, or other identification of the individual entering the information on the ticket.
(c) The date and time of the transaction.
(d) The weight, quantity, or volume, and a description of the type of regulated metals property purchased in a purchase transaction.
(e) The amount of consideration given in a purchase transaction for the regulated metals property.
(f) A signed statement from the person delivering the regulated metals property stating that she or he is the rightful owner of, or is entitled to sell, the regulated metals property being sold. If the purchase involves a stainless steel beer keg, the seller must provide written documentation from the manufacturer that the seller is the owner of the stainless steel beer keg or is an employee or agent of the manufacturer.
(g) The distinctive number from the personal identification card of the person delivering the regulated metals property to the secondary metals recycler.
(h) A description of the person from whom the regulated metals property was acquired, including:
1. Full name, current residential address, workplace, and home and work phone numbers.
2. Height, weight, date of birth, race, gender, hair color, eye color, and any other identifying marks.
3. The right thumbprint, free of smudges and smears.
4. Vehicle description to include the make, model, and tag number of the vehicle and trailer of the person selling the regulated metals property.
5. Any other information required by the form approved by the Department of Law Enforcement.
(i) A photograph, videotape, or digital image of the regulated metals being sold.
(j) A photograph, videotape, or similar likeness of the person receiving consideration in which such person’s facial features are clearly visible.
(3) A secondary metals recycler complies with the requirements of this section if it maintains an electronic database containing the information required by subsection (2) as long as the electronic information required by subsection (2), along with an electronic oath of ownership with an electronic signature of the seller of the secondary metals being purchased by the secondary metals recyclers and an electronic image of the seller’s right thumbprint that has no smudges and smears, can be downloaded onto a paper form in the image of the form approved by the Department of Law Enforcement as provided in subsection (2).
(4) A secondary metals recycler shall maintain or cause to be maintained the information required by this section for not less than 3 years from the date of the purchase transaction.
(5) A secondary metals recycler registered with the department that purchases a motor vehicle from a licensed salvage motor vehicle dealer as defined in s. 320.27 or another secondary metals recycler registered with the department and uses a mechanical crusher to convert the vehicle to scrap metal must obtain a signed statement from the seller stating that the seller has surrendered the vehicle’s certificate of title to the Department of Highway Safety and Motor Vehicles as provided in s. 319.30 or otherwise complied with the titling requirements provided by law for conversion of the vehicle to scrap metal. A secondary metals recycler is not liable for the seller’s failure to comply with the titling requirements provided by law for conversion of a motor vehicle to scrap metal if the secondary metals recycler obtains and maintains the seller’s signed statement.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; s. 748, ch. 97-103; s. 2, ch. 2008-69; s. 5, ch. 2012-179.
538.20 Inspection of regulated metals property and records.—During the usual and customary business hours of a secondary metals recycler, a law enforcement officer shall, after properly identifying herself or himself as a law enforcement officer, have the right to inspect:
(1) Any and all purchased regulated metals property in the possession of the secondary metals recycler, and
(2) Any and all records required to be maintained under s. 538.19.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; s. 749, ch. 97-103.
538.21 Hold notice.—
(1) Whenever a law enforcement officer has reasonable cause to believe that certain items of regulated metals property in the possession of a secondary metals recycler have been stolen, the law enforcement officer may issue a hold notice to the secondary metals recycler.
(a) The hold notice shall be in writing, shall be delivered to the secondary metals recycler, shall specifically identify those items of regulated metals property that are believed to have been stolen and that are subject to the notice, and shall inform the secondary metals recycler of the information contained in this section.
(b) Upon receipt of the notice issued in accordance with this section, the secondary metals recycler receiving the notice may not process or remove the items of regulated metals property identified in the notice, or any portion thereof, from the place of business of the secondary metals recycler for 15 calendar days after receipt of the notice by the secondary metals recycler, unless sooner released by a law enforcement officer.
(2) No later than the expiration of the foregoing 15-day period, a law enforcement officer may issue a second hold notice to the secondary metals recycler, which shall be an extended hold notice.
(a) The extended hold notice shall be in writing, shall be delivered to the secondary metals recycler, shall specifically identify those items of regulated metals property that are believed to have been stolen and that are subject to the extended hold notice, and shall inform the secondary metals recycler of the information contained in this section.
(b) Upon receipt of the extended hold notice issued in accordance with this section, the secondary metals recycler receiving the extended hold notice may not process or remove the items of regulated metals property identified in the notice, or any portion thereof, from the place of business of the secondary metals recycler for 45 calendar days after receipt of the extended hold notice by the secondary metals recycler, unless sooner released by a law enforcement officer.
(3) At the expiration of the hold period or, if extended in accordance with this section, at the expiration of the extended hold period, the hold is automatically released and the secondary metals recycler may dispose of the regulated metals property unless other disposition has been ordered by a court of competent jurisdiction.
(4) This section provides a uniform statewide process and preempts municipal or county ordinances enacted after December 31, 2008, relating specifically to secondary metals recyclers holding such metals.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; s. 2, ch. 2009-162.
538.22 Exemptions.—This part shall not apply to purchases of regulated metals property from:
(1) Organizations, corporations, or associations registered with the state as charitable, philanthropic, religious, fraternal, civic, patriotic, social, or school-sponsored organizations or associations, or from any nonprofit corporation or association;
(2) A law enforcement officer acting in an official capacity;
(3) A trustee in bankruptcy, executor, administrator, or receiver who has presented proof of such status to the secondary metals recycler;
(4) Any public official acting under judicial process or authority who has presented proof of such status to the secondary metals recycler;
(5) A sale on the execution, or by virtue of any process issued by a court, if proof thereof has been presented to the secondary metals recycler; or
(6) A manufacturing, industrial, or other commercial vendor that generates regulated materials in the ordinary course of business.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429.
538.23 Violations and penalties.—
(1)(a) Except as provided in paragraph (b), a secondary metals recycler who knowingly and intentionally:
1. Violates s. 538.20 or s. 538.21;
2. Engages in a pattern of failing to keep records required by s. 538.19;
3. Violates 1s. 538.26(4); or
4. Violates s. 538.235,
commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) A secondary metals recycler who commits a third or subsequent violation of paragraph (a) commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) A secondary metals recycler is presumed to know upon receipt of stolen regulated metals property in a purchase transaction that the regulated metals property has been stolen from another if the secondary metals recycler knowingly and intentionally fails to maintain the information required in s. 538.19 and shall, upon conviction of a violation of s. 812.015, be punished as provided in s. 812.014(2) or (3).
(3) Any person who knowingly gives false verification of ownership or who gives a false or altered identification and who receives money or other consideration from a secondary metals recycler in return for regulated metals property commits:
(a) A felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the value of the money or other consideration received is less than $300.
(b) A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the value of the money or other consideration received is $300 or more.
(4) If a lawful owner recovers stolen regulated metals property from a secondary metals recycler who has complied with this part, and the person who sold the regulated metals property to the secondary metals recycler is convicted of theft, a violation of this section, or dealing in stolen property, the court shall order the defendant to make full restitution, including, without limitation, attorneys’ fees, court costs, and other expenses to the secondary metals recycler pursuant to s. 775.089.
(5) A person acting as a secondary metals recycler who is not registered with the department under s. 538.25 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; ss. 3, 4, ch. 92-79; s. 2, ch. 92-157; s. 4, ch. 93-37; s. 10, ch. 95-184; s. 3, ch. 2008-69; s. 10, ch. 2012-179; s. 1, ch. 2012-185.
538.235 Method of payment.—
(1) A secondary metals recycler may not enter into any cash transaction:
(a) In excess of $1,000 for the purchase of regulated metals property; or
(b) In any amount for the purchase of restricted regulated metals property.
(2) Payment in excess of $1,000 for the purchase of regulated metals property shall be made by check issued to the seller of the metal and payable to the seller.
(3) Payment for the purchase of restricted regulated metals property shall be made by check issued to the seller of the metal and payable to the seller or by electronic payment to the seller’s bank account or the seller’s employer’s bank account.
(a) Each check shall be mailed by the secondary metals recycler directly to the street address of the seller that is on file with the secondary metals recycler unless otherwise provided in this part. A check may not be mailed to a post office box. Electronic payments shall be transmitted to an account for which the seller is listed as an account holder or an employee or agent of the seller.
(b) Each check or electronic payment shall be mailed or transmitted by the secondary metals recycler to the seller within 3 days after the purchase transaction unless otherwise provided in this section.
(c) The secondary metals recycler may provide a check at the time of the purchase transaction, rather than mailing the check as required in paragraph (a), if the seller is:
1. An organization, corporation, or association registered with the state as a charitable, philanthropic, religious, fraternal, civic, patriotic, social, or school-sponsored organization or association, or any nonprofit corporation or association;
2. A law enforcement officer acting in an official capacity;
3. A trustee in bankruptcy, executor, administrator, or receiver who has presented proof of such status to the secondary metals recycler;
4. A public official acting under judicial process or authority who has presented proof of such status to the secondary metals recycler;
5. A sheriff acting under the authority of a court’s writ of execution, or by virtue of any process issued by a court, if proof thereof has been presented to the secondary metals recycler; or
6. A manufacturing, industrial, or other commercial vendor that generates regulated materials in the ordinary course of business.
History.—s. 4, ch. 2008-69; s. 6, ch. 2012-179.
538.24 Stolen regulated metals property; petition for return.—
(1) If the secondary metals recycler contests the identification or ownership of the regulated metals property, the party other than the secondary metals recycler claiming ownership of any stolen goods in the possession of a secondary metals recycler may, provided that a timely report of the theft of the regulated metals property was made to the proper authorities, bring an action for replevin in the county or circuit court by petition in substantially the following form:
Plaintiff A. B. sues defendant C. D., and alleges:
1. This is an action to recover possession of personal property in County, Florida.
2. The description of the property is: (list property) . To the best of plaintiff’s knowledge, information, and belief, the value of the property is $ .
3. Plaintiff is the lawful owner of the property and can identify the property as belonging to the plaintiff in the following manner: (explain basis of identification) .
4. Plaintiff is entitled to the possession of the property under a security agreement dated , (year) , a copy of which is attached.
5. To the plaintiff’s best knowledge, information, and belief, the property is located at .
6. The property is wrongfully detained by defendant. Defendant came into possession of the property by (describe method of possession) . To plaintiff’s best knowledge, information, and belief, defendant detains the property because (give reasons) .
7. The property has not been taken under an execution or attachment against plaintiff’s property.
(2) The filing fees shall be waived by the clerk of the court and the service fee shall be waived by the sheriff. The court may award the prevailing party reasonable attorney’s fees and costs.
(3) Upon the filing of the petition, the court shall set a hearing to be held at the earliest possible time. Upon the receipt by a secondary metals recycler of a petition for return, the secondary metals recycler shall hold, and shall not process or otherwise alter, the regulated metals property at issue, or any portion thereof, until the court determines the respective interests of the parties.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 4, ch. 91-429; s. 25, ch. 99-6.
538.25 Registration.—
(1) A person may not engage in business as a secondary metals recycler at any location without registering with the department. The department shall accept applications only from a fixed business address. The department may not accept an application that provides an address of a hotel room or motel room, a vehicle, or a post office box.
(a) A fee equal to the federal and state costs for processing required fingerprints must be submitted to the department with each application for registration. One application is required for each secondary metals recycler. If a secondary metals recycler is the owner of more than one secondary metals recycling location, the application must list each location, and the department shall issue a duplicate registration for each location. For purposes of subsections (3), (4), and (5), these duplicate registrations shall be deemed individual registrations. A secondary metals recycler shall pay a fee of $6 per location at the time of registration and an annual renewal fee of $6 per location on October 1 of each year. All fees collected, less costs of administration, shall be transferred into the Operating Trust Fund.
(b) The department shall forward the full set of fingerprints to the Department of Law Enforcement for state and federal processing, provided the federal service is available, to be processed for any criminal justice information as defined in s. 943.045. The cost of processing such fingerprints shall be payable to the Department of Law Enforcement by the department. The department may issue a temporary registration to each location pending completion of the background check by state and federal law enforcement agencies, but shall revoke such temporary registration if the completed background check reveals a prohibited criminal background. The Department of Law Enforcement shall report its findings to the Department of Revenue within 30 days after the date fingerprint cards are submitted for criminal justice information.
(c) An applicant for a secondary metals recycler registration must be a natural person who has reached the age of 18 years or a corporation organized or qualified to do business in the state.
1. If the applicant is a natural person, the registration must include a complete set of her or his fingerprints, certified by an authorized law enforcement officer, and a recent fullface photographic identification card of herself or himself.
2. If the applicant is a partnership, all the partners must make application for registration.
3. If the applicant is a corporation, the registration must include the name and address of such corporation’s registered agent for service of process in the state and a certified copy of statement from the Secretary of State that the corporation is duly organized in the state or, if the corporation is organized in a state other than Florida, a certified copy of the statement that the corporation is duly qualified to do business in this state.
(2) A secondary metals recycler’s registration shall be conspicuously displayed at the place of business set forth on the registration. A secondary metals recycler shall not dispose of property at any location until any holding period has expired.
(3) The Department of Revenue may impose a civil fine of up to $10,000 for each knowing and intentional violation of this section, which fine shall be transferred into the General Revenue Fund. If the fine is not paid within 60 days, the department may bring a civil action under s. 120.69 to recover the fine.
(4) In addition to the fine provided in subsection (3), registration under this section may be denied or any registration granted may be revoked, restricted, or suspended by the department if, after October 2, 1989, and within a 24-month period immediately preceding such denial, revocation, restriction, or suspension:
(a) The applicant or registrant has been convicted of knowingly and intentionally:
1. Violating s. 538.20 or s. 538.21;
2. Engaging in a pattern of failing to keep records as required by s. 538.19;
3. Making a material false statement in the application for registration; or
4. Engaging in a fraudulent act in connection with any purchase or sale of regulated metals property;
(b) The applicant or registrant has been convicted of, or entered a plea of guilty or nolo contendere to, a felony committed by the secondary metals recycler against the laws of the state or of the United States involving theft, larceny, dealing in stolen property, receiving stolen property, burglary, embezzlement, obtaining property by false pretenses, possession of altered property, or any felony drug offense or of knowingly and intentionally violating the laws of the state relating to registration as a secondary metals recycler; or
(c) The applicant has, after receipt of written notice from the department of failure to pay sales tax, failed or refused to pay, within 30 days after the secondary metals recycler’s receipt of such written notice, any sales tax owed to the department.
(5) A denial of an application, or a revocation, restriction, or suspension of a registration, by the department shall be probationary for a period of 12 months in the event that the secondary metals recycler subject to such action has not had any other application for registration denied, or any registration revoked, restricted, or suspended, by the department within the previous 24-month period.
(a) If, during the 12-month probationary period, the department does not again deny an application or revoke, restrict, or suspend the registration of the secondary metals recycler, the action of the department shall be dismissed and the record of the secondary metals recycler cleared thereof.
(b) If, during the 12-month probationary period, the department, for reasons other than those existing prior to the original denial or revocation, restriction, or suspension, again denies an application or revokes, restricts, or suspends the registration of the secondary metals recycler, the probationary nature of such original action shall terminate and both the original action of the department and the action of the department causing the termination of the probationary nature thereof shall immediately be reinstated against the secondary metals recycler.
(6) Upon the request of a law enforcement official, the Department of Revenue shall release to the official the name and address of any secondary metals recycler registered to do business within the official’s jurisdiction.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 7, ch. 90-318; s. 4, ch. 91-429; s. 17, ch. 94-353; s. 750, ch. 97-103; s. 5, ch. 2007-14; s. 5, ch. 2008-69; s. 72, ch. 2012-5; s. 7, ch. 2012-179.
538.26 Certain acts and practices prohibited.—It is unlawful for a secondary metals recycler to do or allow any of the following acts:
(1) Purchase regulated metals property, restricted regulated metals property, or ferrous metals before 7 a.m. or after 7 p.m.
(2) Purchase regulated metals property, restricted regulated metals property, or ferrous metals from any seller who presents such property for sale at the registered location of the secondary metals recycler when such property was not transported in a motor vehicle.
(3) Purchase regulated metals property, restricted regulated metals property, or ferrous metals from any location other than a fixed location.
(4) Purchase regulated metals property from a seller who:
(a) Uses a name other than his or her own name or the registered name of the seller’s business;
(b) Is younger than 18 years of age; or
(c) Is visibly or apparently under the influence of drugs or alcohol.
(5)(a) Purchase any restricted regulated metals property listed in paragraph (b) unless the secondary metals recycler obtains reasonable proof that the seller:
1. Owns such property. Reasonable proof of ownership may include, but is not limited to, a receipt or bill of sale; or
2. Is an employee, agent, or contractor of the property’s owner who is authorized to sell the property on behalf of the owner. Reasonable proof of authorization to sell the property includes, but is not limited to, a signed letter on the owner’s letterhead, dated no later than 90 days before the sale, authorizing the seller to sell the property.
(b) The purchase of any of the following regulated metals property is subject to the restrictions provided in paragraph (a):
1. A manhole cover.
2. An electric light pole or other utility structure and its fixtures, wires, and hardware that are readily identifiable as connected to the utility structure.
3. A guard rail.
4. A street sign, traffic sign, or traffic signal and its fixtures and hardware.
5. Communication, transmission, distribution, and service wire from a utility, including copper or aluminum bus bars, connectors, grounding plates, or grounding wire.
6. A funeral marker or funeral vase.
7. A historical marker.
8. Railroad equipment, including, but not limited to, a tie plate, signal house, control box, switch plate, E clip, or rail tie junction.
9. Any metal item that is observably marked upon reasonable inspection with any form of the name, initials, or logo of a governmental entity, utility company, cemetery, or railroad.
10. A copper, aluminum, or aluminum-copper condensing or evaporator coil, including its tubing or rods, from an air-conditioning or heating unit, excluding coils from window air-conditioning or heating units and motor vehicle air-conditioning or heating units.
11. An aluminum or stainless steel container or bottle designed to hold propane for fueling forklifts.
12. A stainless steel beer keg.
13. A catalytic converter or any nonferrous part of a catalytic converter unless purchased as part of a motor vehicle.
14. Metallic wire that has been burned in whole or in part to remove insulation.
15. A brass or bronze commercial valve or fitting, referred to as a “fire department connection and control valve” or an “FDC valve,” that is commonly used on structures for access to water for the purpose of extinguishing fires.
16. A brass or bronze commercial potable water backflow preventer valve that is commonly used to prevent backflow of potable water from commercial structures into municipal domestic water service systems.
17. A shopping cart.
18. A brass water meter.
19. A storm grate.
20. A brass sprinkler head used in commercial agriculture.
History.—s. 2, ch. 89-533; s. 1, ch. 90-192; s. 8, ch. 90-318; s. 4, ch. 91-429; s. 1, ch. 92-157; s. 6, ch. 2008-69; s. 8, ch. 2012-179.
538.28 Local government regulation.—
(1) The regulation of purchase transactions involving regulated metals property is preempted to the state. Except as provided in subsection (2), an ordinance or regulation adopted by a county or municipality relating to the purchase or sale of regulated metals property or the registration or licensure of secondary metals recyclers is void.
(2) This part does not preempt an ordinance or regulation originally enacted by a county or municipality before March 1, 2012. Such ordinance or regulation may subsequently be amended to incorporate any provision of this part.
(3) This section does not apply to a county as defined in s. 125.011(1) until July 1, 2013.
History.—s. 9, ch. 2012-179.
PART III
MAIL-IN SECONDHANDPRECIOUS METALS DEALERS
538.31 Definitions; applicability.
538.32 Registration, transaction, and recordkeeping requirements; penalties.
538.33 Tendering payment.
538.34 Inspection of records and premises.
538.35 Holding period.
538.36 Acts and practices prohibited; penalties.
538.37 Powers and duties of department.
538.31 Definitions; applicability.—
(1) As used in this part, the term:
(a) “Department” means the Department of Revenue.
(b) “Jewelry” means a personal ornament that contains precious metals and may contain gemstones.
(c) “Mail-in secondhand precious metals dealer” means any person or entity that:
1. Conducts business within this state and that contracts with other persons or entities to buy precious metals or jewelry through an Internet website, the United States mail, or telemarketing; or
2. Conducts business within this state and regularly engages in the business of purchasing jewelry or precious metals through the mail or Internet-based transactions.
(d) “Precious metals” means any item containing any gold, silver, or platinum, or any combination thereof.
(e) “Seller” means any person or entity offering precious metals or jewelry for purchase which belong solely to that person or entity and has absolute authority to sell such goods.
(f) “Transaction” includes any event relating to the purchase of secondhand precious metals or jewelry by a mail-in secondhand precious metals dealer.
(2) This part does not apply to:
(a) Any person or entity that is available to the public for walk-in business and regulated under part I.
(b) The purchase, consignment, or trade of secondhand precious metals or jewelry with another mail-in secondhand precious metals dealer or secondhand dealer regulated under part I.
History.—s. 2, ch. 2009-158; s. 3, ch. 2009-162.
538.32 Registration, transaction, and recordkeeping requirements; penalties.—
(1) A mail-in secondhand precious metals dealer may not conduct business under this part without registering with the department and complying with all registration regulations as set forth in s. 538.09.
(2) A mail-in secondhand precious metals dealer may not remit payment to a seller unless the seller has provided the following information:
(a) The seller’s name, address, telephone number, and e-mail address, if available.
(b) The seller’s driver’s license number and issuing state or other government-issued identification number.
(c) A sworn statement made by the seller that the seller is of lawful age and that the driver’s license number or other government-issued identification number and other identifying information provided by the seller is true and correct and that the seller is the lawful owner of the goods with absolute authority to sell the goods. The statement must include the following language: “I declare under penalty of perjury that the foregoing is true and correct.”
(3) For every transaction, the secondhand dealer must keep a record of the following:
(a) A complete and accurate description of the seller’s goods, including:
1. Precious metal type, or, if jewelry, the type of jewelry.
2. Any other unique identifying marks, numbers, or letters. The description must be in an electronic format agreed upon by the dealer and the appropriate law enforcement agency.
(b) The date that the seller’s goods were received by the mail-in secondhand precious metals dealer.
This information must be provided to the appropriate law enforcement agency within 24 hours after entering into the contract unless other arrangements are made between the business and the law enforcement agency.
(4) For every transaction, pictures of the secondhand goods which are the subject of the transaction must be available online for electronic viewing, via a website accessible by username and password only, by a law enforcement agency at no charge. In addition, the electronic files must be searchable by a law enforcement agency for queries concerning property descriptions, secondhand dealer transaction information, and the seller’s personal identification, including address, state of residence, and zip code.
(5) The mail-in secondhand precious metals dealer must maintain, for a period of not less than 2 years, all information under subsections (2) and (3) and all records of any transaction between the dealer and seller in a form that is easily retrievable upon request by a law enforcement agency.
(6) The mail-in secondhand precious metals dealer must provide the appropriate law enforcement agency with an electronic copy of the name, address, phone number, driver’s license number, or government-issued identification number, and issuing state of the person from whom the dealer purchased or acquired the precious metals or jewelry.
(7)(a) If the seller fails to provide the information required under paragraphs (2)(a) and (b), the secondhand dealer may verify the identity and information of the seller through a national provider of personal identification verification services. Evidence from the personal identification verification service must be maintained by the secondhand dealer and available for review by a law enforcement agency upon request.
(b) Alternatively, a secondhand dealer must give written notice to the seller, by United States mail or e-mail if an e-mail address is provided by the seller, that information otherwise required to be given by the seller under subsection (2) has not been provided by the seller to the secondhand dealer. Notice of the deficient information must be sent by the secondhand dealer no later than 10 days after the transaction is received by the secondhand dealer. The secondhand dealer must specify in the notice that:
1. The seller must provide the missing information or must request the return of the property from the secondhand dealer within 30 days after receiving the notice from the secondhand dealer; and
2. The failure of the seller to provide the missing information or request return of the property within the applicable 30-day time period shall result in abandonment of the seller’s property to the Bureau of Unclaimed Property of the Department of Financial Services pursuant to chapter 717.
(c) If the seller fails to remedy the deficiency in information or request return of the property within 30 days after receiving the notice, the seller’s property is deemed abandoned and is relinquished to the Bureau of Unclaimed Property pursuant to chapter 717 if the property’s true market value is greater than $50 as defined in chapter 717.
(d) Within 24 hours after the expiration of the 30-day hold period for the property, the secondhand dealer must notify the appropriate law enforcement agency of the abandonment of the property by electronic transmission or by sending a copy of the completed form authorized by chapter 717 to the Department of Financial Services, Bureau of Unclaimed Property.
(8)(a) If there is probable cause that goods held by a secondhand dealer are stolen, the law enforcement agency with jurisdiction over the secondhand dealer may place a 90-day written hold order on the goods and may take possession of the goods from the dealer during the 90-day hold period. The 90-day hold period may be extended beyond 90 days by a court of competent jurisdiction upon a finding of probable cause that the property is stolen and further holding is necessary for the purpose of trial or to safeguard the property.
(b) If the secondhand dealer maintains possession of the goods during any hold period, the secondhand dealer assumes all responsibility, civil and criminal, for the safekeeping of the property or evidence in question, including responsibility for the actions of any employee of the dealer.
(c) While a hold order is in effect, the secondhand dealer must, if in possession of the goods, release the property subject to the hold order to the custody of a law enforcement agency for use in a criminal investigation. Release of the property to the law enforcement agency is not considered a waiver or release of the secondhand dealer’s rights or interest in the property unless the secondhand dealer is not owed restitution for the property.
(d) The property must be returned to the secondhand dealer upon completion of the criminal proceeding unless the court orders an alternative disposition or the secondhand dealer is not due restitution for the property. When another disposition is ordered, the court shall additionally order the person from whom the secondhand dealer acquired the property to pay restitution to the secondhand dealer in the amount that the secondhand dealer paid for the property together with reasonable attorney’s fees and costs.
(9) If a secondhand dealer contests the identification or ownership of the property, the person alleging ownership of the property may, if a timely report of the theft of the goods was made to the proper authorities, bring an action for replevin in the county or circuit court by petition in substantially the following form:
(a) Plaintiff A. B. sues defendant C. D., and alleges:
1. This is an action to recover possession of personal property in County, Florida.
2. The description of the property is: (list property). To the best of plaintiff’s knowledge, information, and belief, the value of the property is $ .
3. Plaintiff is entitled to the possession of the property under a security agreement dated , (year), a copy of which is attached.
4. To plaintiff’s best knowledge, information, and belief, the property is located at .
5. The property is wrongfully detained by defendant. Defendant came into possession of the property by (describe method of possession). To plaintiff’s best knowledge, information, and belief, defendant detains the property because (give reasons).
6. The property has not been taken under an execution or attachment against plaintiff’s property.
(b) The filing fees shall be waived by the clerk of the court and the service fees shall be waived by the sheriff. The court shall award the prevailing party attorney’s fees and costs. In addition, if the filing party prevails in the replevin action, the court shall order payment of filing fees to the clerk and service fees to the sheriff.
(c) Upon the filing of the petition, the court shall set a hearing to be held at the earliest possible time. Upon receipt of a petition for a writ by a secondhand dealer, the dealer shall hold the property at issue until the court determines the respective interests of the parties.
(d) In addition to the civil petition for return remedy, the state may file a motion as part of a pending criminal case related to the property. The criminal court has jurisdiction to determine ownership, to order return or other disposition of the property, and to order any appropriate restitution to any person. The order must be entered upon hearing after proper notice has been given to the secondhand dealer, the victim, and the defendant in the criminal case.
History.—s. 2, ch. 2009-158; s. 3, ch. 2009-162.
538.33 Tendering payment.—Any payment by the mail-in secondhand precious metals dealer resulting from the sale, purchase, consignment, or trade of precious metals must be made to the person or entity by check to a lawful bank account or via a money services business licensed under part II of chapter 560.
History.—s. 2, ch. 2009-158; s. 3, ch. 2009-162.
538.34 Inspection of records and premises.—The dealer must allow a law enforcement agency to inspect its business records, inventory, and premises during normal business hours to ensure compliance with this part.
History.—s. 2, ch. 2009-158; s. 3, ch. 2009-162.
538.35 Holding period.—
(1) The dealer may not sell, barter, exchange, alter, adulterate, use, or in any way dispose of any goods purchased from a seller within 10 calendar days after the date payment is issued for acquisition of the goods.
(2) Records of the sale, purchase, consignment, or trade of precious metals or jewelry must be maintained by the business for at least 2 years after the date of the transaction.
History.—s. 2, ch. 2009-158; s. 3, ch. 2009-162.
538.36 Acts and practices prohibited; penalties.—
(1) Any dealer not registered with the department as a mail-in secondhand precious metals dealer, or who fails to comply with this part, commits a felony of the third degree for each completed transaction, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If an officer or corporation is convicted or found guilty of, or pleads nolo contendere to, any such offense, the officer or corporation may not operate thereafter for 1 year as a mail-in secondhand precious metals dealer within the state.
(2) Any person who knowingly gives false personal identifying information to the dealer, who provides a driver’s license number or government-issued identification number that does not belong to him or her, or who makes any false statement with respect to being of lawful age or his or her ownership of goods, and who receives payment from the dealer commits:
(a) If the value of the money received is less than $300, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the value of the money received is $300 or more, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) The penalty provisions of s. 538.07 apply to any dealer who knowingly violates any provision of this part.
History.—s. 2, ch. 2009-158; s. 3, ch. 2009-162.
538.37 Powers and duties of department.—The department has the authority provided under s. 538.11.
History.—s. 2, ch. 2009-158; s, 3, ch. 2009-162.