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Senate Bill 0258

Florida Senate - 1998 SB 258 By Senators Williams and Latvala 4-368-98 1 A bill to be entitled 2 An act relating to secondhand dealers; amending 3 s. 538.06, F.S.; providing limitations on 4 vehicle title loan transactions; creating s. 5 538.065, F.S.; providing for the licensure of 6 dealers making title loan transactions; 7 providing fees; providing for regulation by the 8 Department of Banking and Finance; providing 9 guidelines for the operation of title loan 10 businesses; providing grounds for discipline of 11 licensees; providing penalties; prohibiting 12 certain acts; creating s. 538.067, F.S.; 13 providing for the examination of certain 14 records; providing examination fees; creating 15 s. 538.069, F.S.; providing immunity; providing 16 for the issuance of subpoenas; providing powers 17 and duties of the Department of Banking and 18 Finance; providing for the adoption of rules; 19 amending s. 538.09, F.S.; exempting certain 20 secondhand dealers from registering with the 21 Department of Revenue; providing an effective 22 date. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Section 538.06, Florida Statutes, is 27 amended to read: 28 538.06 Holding period; physical possession; records; 29 title loan transactions.-- 30 (1) A secondhand dealer may shall not sell, barter, 31 exchange, alter, adulterate, or in any way dispose of any 1 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 secondhand goods within 15 calendar days after of the date of 2 acquisition of the goods. Such holding periods are not 3 applicable when the person known by the secondhand dealer to 4 be the person from whom the goods were acquired desires to 5 redeem, repurchase, or recover the goods, if provided the 6 dealer can produce the record of the original transaction with 7 verification that the customer is the person from whom the 8 goods were originally acquired. 9 (2) A secondhand dealer must maintain actual physical 10 possession of all secondhand goods throughout a transaction 11 and may not. It is unlawful for a secondhand dealer to accept 12 title to or any other form of security in secondhand goods in 13 lieu of actual physical possession. A secondhand dealer who 14 accepts title or any other form of security in secondhand 15 goods in lieu of actual physical possession commits a 16 misdemeanor of the first degree, punishable as provided in s. 17 775.082 or s. 775.083. 18 (3) Upon probable cause that goods held by a 19 secondhand dealer are stolen, a law enforcement officer with 20 jurisdiction may extend the holding period to a maximum of 60 21 days. However, the holding period may be extended beyond 60 22 days by a court of competent jurisdiction upon a finding of 23 probable cause that the property is stolen and further holding 24 is necessary for the purposes of trial or to safeguard such 25 property. The dealer shall assume all responsibility, civil 26 or criminal, relative to the property or evidence in question, 27 including responsibility for the actions of any employee with 28 respect thereto. 29 (4) All dealers in secondhand property regulated by 30 this chapter must shall maintain transaction records for 5 31 years. 2 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 (5) Subject to the restrictions in s. 538.15 and s. 2 538.065, a secondhand dealer may engage in a title loan 3 transaction, and the physical possession provisions of 4 subsection (2) do shall not apply if the following conditions 5 are met: 6 (a) The secondhand dealer maintains physical 7 possession of the motor vehicle title. 8 (b) The owner maintains possession of, or control 9 over, the motor vehicle throughout the transaction. 10 (c) The owner is not required to pay rent or any other 11 charge for the use of the motor vehicle. 12 (d) The secondhand dealer delivers to the borrower, at 13 the time a loan is made, a clear and distinct statement in 14 English which shows the loan amount, origination date, and 15 maturity date; the nature of the security; the name and 16 address of the borrower and the dealer; and the rate of 17 interest charged. 18 (6)(d) A secondhand dealer who engages in a motor 19 vehicle title loan transaction may has the right to repossess 20 the motor vehicle upon failure of the owner to redeem the 21 title. The secondhand dealer may shall only repossess a motor 22 vehicle through an agent who is licensed by the state to 23 repossess motor vehicles. The secondhand dealer may dispose of 24 the motor vehicle as provided in s. 538.16. However, any sale 25 or disposal of the motor vehicle must shall be made through a 26 motor vehicle dealer licensed under s. 320.27. 27 (a) A secondhand dealer may lend a maximum of $25,000 28 in a vehicle title loan transaction and may charge a maximum 29 interest rate of 30 percent per annum computed on the first 30 $1,000 of the principal amount; 24 percent per annum on that 31 part of the principal amount exceeding $1,000 and not 3 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 exceeding $2,000; and 18 percent per annum on that part of the 2 principal amount exceeding $2,000 and not exceeding $25,000. 3 The original principal amount is the same amount as the amount 4 financed as defined by the federal Truth in Lending Act and 5 Regulation Z of the Board of Governors of the Federal Reserve 6 System. In determining compliance with the statutory maximum 7 interest and finance charges, the computations must be simple 8 interest and not add-on interest or any other computations. 9 When two or more interest rates are to be applied to the 10 principal amount, the dealer may charge interest at that 11 single annual percentage rate which, if applied according to 12 the actuarial method to each of the scheduled periodic 13 balances of principal, would produce at maturity the same 14 total amount of interest as would result from the application 15 of the two or more rates otherwise permitted, based upon the 16 assumption that all payments are made as agreed. 17 (b) The annual percentage rate that may be charged in 18 a vehicle title loan transaction may equal, but not exceed, 19 the annual percentage rate that must be computed and disclosed 20 as required by the federal Truth in Lending Act and Regulation 21 Z of the Board of Governors of the Federal Reserve System. 22 The maximum annual percentage rate of finance charge that may 23 be charged is 12 times the maximum monthly rate, and the 24 maximum monthly rate must be computed on the basis of 25 one-twelfth of the annual rate for each full month. The 26 Department of Banking and Finance shall establish the rate for 27 each day in a fraction of a month when the period for which 28 the charge is computed is more or less than 1 month. 29 (c) Any charges, including interest, in excess of the 30 combined total of all charges permitted by this chapter 31 constitute a violation of chapter 687 governing interest and 4 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 usury, and the penalties of that chapter apply. If a bona fide 2 error occurs, the dealer must refund or credit the borrower 3 with the amount of the overcharge within 20 days after the 4 discovery of such error. 5 (e) A secondhand dealer who accepts a motor vehicle 6 title in a title loan transaction may charge a maximum fee of 7 22 percent per month. 8 (f) No charges other than those charges permitted in 9 paragraph (e) shall be allowed, and said charges shall be 10 fully disclosed, conspicuously in writing, and initialed by 11 the motor vehicle owner at the initiation of the transaction. 12 Section 2. Section 538.065, Florida Statutes, is 13 created to read: 14 538.065 Application for motor vehicle title loan 15 license; fees; etc.-- 16 (1) Application for a license to make motor vehicle 17 title loans under this chapter must be in writing, under oath, 18 in the form prescribed by the Department of Banking and 19 Finance, and must contain the name and residence and business 20 addresses of the applicant and, if the applicant is a 21 partnership or association, of each member thereof and, if a 22 corporation, of each officer and director thereof; the county 23 and municipality with the address where the business is to be 24 conducted; and any other information the department requires. 25 The applicant shall pay a biennial license fee of $300. 26 Applications, except for applications to renew or reactivate a 27 license, must be accompanied by an investigation fee of $200. 28 (2) Fees shall be collected by the Department of 29 Banking and Finance and deposited into the State Treasury to 30 the credit of the department. The department may employ 31 examiners or clerks as necessary and fix their compensation. 5 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 (3) Upon the filing of an application for licensure 2 and payment of all fees, the Department of Banking and Finance 3 shall investigate the facts concerning the applicant's 4 proposed activities. If the department determines that a 5 license should be granted, it shall issue the license for a 6 period not to exceed 2 years. Biennial licensure periods and 7 procedures for renewal of licenses shall be established by the 8 department. If the department determines that grounds exist 9 for denial of an application other than an application to 10 renew a license, it shall deny such application, return to the 11 applicant the license fee, and retain the investigation fee. 12 (a) A license that is not renewed at the end of the 13 biennium automatically reverts to inactive status. An inactive 14 license may be reactivated upon submission of a completed 15 reactivation application, payment of the biennial license fee, 16 and payment of a reactivation fee equal to the biennial 17 license fee. A license expires on the date on which it has 18 become inactive for 6 months. 19 (b) Only one place of business may be maintained under 20 a license, but the department may issue additional licenses to 21 a licensee upon compliance with the provisions governing 22 issuance of a single license. 23 (c) A licensee may not change the place of business 24 maintained under a license without prior approval of the 25 department. A licensee who wishes to change a place of 26 business must give written notice to the department, and, if 27 the department finds that the proposed location is reasonably 28 accessible to borrowers under existing loan contracts, it 29 shall amend the license accordingly. If the department does 30 not so find, it shall enter an order denying relocation of the 31 business to the requested location. 6 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 (d) A licensee may make vehicle title loans within a 2 place of business in which other business is conducted, unless 3 the department finds that the conduct of such other business 4 results in an evasion of this chapter. Upon such finding, the 5 department shall order the licensee to desist from such 6 activities. 7 (e) A person who purchases substantially all of the 8 assets of any existing licensed vehicle title loan business 9 must give immediate notice to the department and shall be 10 granted a 90-day temporary license for the place of business 11 within 10 days after the department receives an application 12 for a permanent license. Issuance of a temporary license for 13 a business nullifies the existing license for that business. 14 (f) Licenses are not transferable or assignable. A 15 licensee may invalidate any license by delivering it to the 16 department with a written notice of the delivery, but such 17 delivery does not affect any civil or criminal liability or 18 the department's authority to enforce this chapter. 19 (g) The department may deny a license application if 20 the applicant or any person with power to direct the 21 management or policies of the applicant's business is the 22 subject of a pending criminal prosecution in any jurisdiction, 23 until conclusion of such criminal prosecution. 24 (4) The following acts are violations of this chapter 25 and constitute grounds for the disciplinary actions in 26 subsection (5): 27 (a) A material misstatement of fact in an application 28 for a license; 29 (b) Failure to maintain liquid assets of at least 30 $25,000 at all times for the operation of business at a 31 licensed location or proposed location; 7 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 (c) Failure to demonstrate financial responsibility, 2 experience, character, or general fitness required to command 3 the confidence of the public and to warrant the belief that 4 the business is lawful and within the purposes of this 5 chapter; 6 (d) The violation, knowingly or without the exercise 7 of due care, of this chapter, any rule or order adopted under 8 this chapter, or any written agreement entered into with the 9 Department of Banking and Finance; 10 (e) Any act of fraud, misrepresentation, or deceit, 11 regardless of reliance by or damage to a borrower, or any 12 illegal activity, in connection with a transaction under this 13 chapter. Such acts include the willful imposition of illegal 14 or excessive charges or misrepresentation, circumvention, or 15 concealment of any matter required to be revealed to a 16 borrower; 17 (f) The use of unreasonable collection practices or 18 false, deceptive, or misleading advertising in connection with 19 vehicle title loans; 20 (g) Failure to maintain records required by this 21 chapter, by any rule or order adopted under this chapter, or 22 by any agreement entered into with the Department of Banking 23 and Finance; or 24 (h) Refusal to permit inspection of books or records 25 in an investigation or examination by the Department of 26 Banking and Finance or refusal to comply with a subpoena 27 issued by the department. 28 (5) Upon a finding by the Department of Banking and 29 Finance that a person has committed any of the acts in 30 subsection (4), the department may enter an order: 31 (a) Denying an application for a license; 8 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 (b) Revoking or suspending a license; 2 (c) Placing a licensee or an applicant on probation 3 for a period of time and subject to such conditions as the 4 department may specify; 5 (d) Placing permanent restrictions or conditions upon 6 issuance or maintenance of a license; 7 (e) Issuing a reprimand; or 8 (f) Imposing an administrative fine not to exceed 9 $1,000 for each act. 10 (6) The Department of Banking and Finance may take any 11 of the actions specified in subsection (5) against any 12 partnership, corporation, or association, if the department 13 finds that any of the acts in subsection (4) have been 14 committed by a member of the partnership, an officer or 15 director of the corporation or association, or any person with 16 power to direct the management or policies of the partnership, 17 corporation, or association. 18 (7) A licensee is responsible for the acts of the 19 licensee's employee or agent if, with knowledge of such acts, 20 the licensee retained profits, benefits, or advantages 21 accruing from such acts or ratified the conduct of the 22 employee or agent as a matter of law or fact. 23 (8) The license must be conspicuously posted in the 24 place of business of the licensee. 25 Section 3. Section 538.067, Florida Statutes, is 26 created to read: 27 538.067 Investigations and records of secondhand 28 dealers making title loans.-- 29 (1)(a) The Department of Banking and Finance shall 30 investigate and examine any secondhand dealer who is licensed 31 to make motor vehicle title loans or other person as necessary 9 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 to determine compliance with this chapter. The department may 2 examine books, accounts, records, and other documents or 3 matters and compel the production of relevant books, records, 4 and other documents and materials relative to an examination 5 or investigation. Examinations of a licensee may not be made 6 more often than once a year unless the department has reason 7 to believe the licensee is not complying with this chapter. 8 Each licensee shall pay an examination fee based upon the 9 amount of outstanding loans due the licensee at the time of 10 the examination, as follows: 11 12 Amount Outstanding Examination Fee 13 From $0 to $50,000........................................$100 14 From $50,000.01 to $100,000...............................$125 15 From $100,000.01 to $250,000..............................$150 16 From $250,000.01 to $500,000..............................$200 17 From $500,000.01 and over.................................$325 18 19 (b) The licensee shall also pay the travel expense and 20 per diem subsistence allowance provided in s. 112.061, but is 21 not required to pay a per diem fee and expenses of an 22 examination that requires more than 30 worker-days in any one 23 year unless the examination is due to fraudulent practices of 24 the licensee, in which case the licensee must pay the entire 25 cost regardless of time consumed. 26 (2) Any person who has reason to believe that this 27 chapter has been or will be violated may file a written 28 complaint with the Department of Banking and Finance. 29 (3) Each licensee shall maintain, for at least 2 years 30 after making the final entry on any loan, records to enable 31 10 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 the Department of Banking and Finance to determine whether the 2 licensee is complying with this chapter. 3 (4) A licensee that operates two or more licensed 4 places of business in this state may maintain records of all 5 offices at one location, if a written request is filed with 6 the Department of Banking and Finance which designates the 7 location where the records are to be maintained. 8 Section 4. Section 538.069, Florida Statutes, is 9 created to read: 10 538.069 Liability; subpoenas; enforcement; rules.-- 11 (1) A person is not in violation of this chapter nor 12 subject to any civil or criminal liability for any act or 13 omission made in good-faith reliance upon an order, 14 declaratory statement, or rule issued by the Department of 15 Banking and Finance, notwithstanding a subsequent decision by 16 a court of competent jurisdiction invalidating the order, 17 declaratory statement, or rule. 18 (2) The Department of Banking and Finance may issue 19 and serve subpoenas to compel the attendance of witnesses and 20 the production of documents in any matter pertaining to this 21 chapter. The department may administer oaths and affirmations 22 to any person whose testimony is required. If any person 23 refuses to testify or obey a subpoena, the department may 24 enforce the subpoena in the same manner as subpoenas issued 25 under the Administrative Procedure Act. Witnesses are entitled 26 to the same fees and mileage as they are entitled to by law 27 for serving as witnesses in the circuit court, unless the 28 examination or investigation is held at the place of business 29 or residence of the witness. 30 31 11 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 (3) In addition to any other powers conferred upon it 2 to enforce or administer this chapter, the Department of 3 Banking and Finance may: 4 (a) Bring an action in any court of competent 5 jurisdiction to enforce or administer this chapter, any rule 6 or order adopted under this chapter, or any written agreement 7 entered into with the department. The department may seek any 8 relief at law or equity, including a temporary or permanent 9 injunction, appointment of a receiver or administrator, or an 10 order of restitution. 11 (b) Issue and serve upon a person an order requiring 12 the person to cease and desist and take corrective action 13 whenever the department finds that such person is violating, 14 has violated, or is about to violate this chapter, any rule or 15 order adopted under this chapter, or any written agreement 16 entered into with the department. 17 (c) Impose and collect an administrative fine against 18 any person found to have violated this chapter, any rule or 19 order adopted under this chapter, or any written agreement 20 entered into with the department, in an amount not to exceed 21 $1,000 for each violation. 22 (4) The Department of Banking and Finance may adopt 23 rules to administer this act. 24 Section 5. Subsection (1) of section 538.09, Florida 25 Statutes, is amended to read: 26 538.09 Registration.-- 27 (1) A secondhand dealer may shall not engage in the 28 business of purchasing, consigning, or pawning secondhand 29 goods from any location without registering with the 30 Department of Revenue. However, a secondhand dealer who 31 engages in a motor vehicle title loan transaction is exempt 12 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 from the provisions of this section, but must be licensed by 2 the Department of Banking and Finance pursuant to s. 538.065. 3 A fee equal to the federal and state costs for processing 4 required fingerprints must be submitted to the department with 5 each application for registration. One application is required 6 for each dealer. If a secondhand dealer is the owner of more 7 than one secondhand store location, the application must list 8 each location, and the department shall issue a duplicate 9 registration for each location. For purposes of subsections 10 (4) and (5) of this section, these duplicate registrations 11 shall be deemed individual registrations. A dealer must shall 12 pay a fee of $6 per location at the time of registration and 13 an annual renewal fee of $6 per location on October 1 of each 14 year. All fees collected, less costs of administration, shall 15 be transferred into a trust fund to be established and 16 entitled the Secondhand Dealer and Secondary Metals Recycler 17 Clearing Trust Fund. The Department of Revenue shall forward 18 the full set of fingerprints to the Department of Law 19 Enforcement for state and federal processing, if provided the 20 federal service is available, to be processed for any criminal 21 justice information as defined in s. 943.045. The cost of 22 processing such fingerprints shall be payable to the 23 Department of Law Enforcement by the Department of Revenue. 24 The department may issue a temporary registration to each 25 location pending completion of the background check by state 26 and federal law enforcement agencies, but shall revoke such 27 temporary registration if the completed background check 28 reveals a prohibited criminal background. An applicant for a 29 secondhand dealer registration must be a natural person who 30 has reached the age of 18 years. 31 13 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 258 4-368-98 1 (a) If the applicant is a partnership, all the 2 partners must apply. 3 (b) If the applicant is a joint venture, association, 4 or other noncorporate entity, all members of such joint 5 venture, association, or other noncorporate entity must make 6 application for registration as natural persons. 7 (c) If the applicant is a corporation, the 8 registration must include the name and address of the such 9 corporation's registered agent for service of process in the 10 state and a certified copy of statement from the Secretary of 11 State that the corporation is duly organized in the state or, 12 if the corporation is organized in a state other than Florida, 13 a certified copy of statement from the Secretary of State that 14 the corporation is duly qualified to do business in this 15 state. If the dealer has more than one location, the 16 application must list each location owned by the same legal 17 entity and the department shall issue a duplicate registration 18 for each location. 19 Section 6. This act shall take effect upon becoming a 20 law. 21 22 ***************************************** 23 SENATE SUMMARY 24 Provides for the regulation by the Department of Banking and Finance of secondhand dealers who make title loan 25 transactions and exempts such dealers from registering with the Department of Revenue. Establishes licensure and 26 examination requirements and fees. Prohibits certain acts related to such transactions and prescribes penalties for 27 violations. Authorizes the Department of Banking and Finance to issue subpoenas and adopt rules. Provides a 28 limitation of liability for certain persons. (See bill for details.) 29 30 31 14