House Bill 4009e1

CODING: Words stricken are deletions; words underlined are additions.







                                          HB 4009, First Engrossed



  1                      A bill to be entitled

  2         An act relating to securities transactions;

  3         amending s. 517.12, F.S.; limiting certain

  4         assessment fee reductions under certain

  5         circumstances; amending s. 517.1203, F.S.;

  6         providing for allocations from the Securities

  7         Guaranty Fund for certain purposes; providing

  8         for certain additional disbursements from the

  9         fund; extending the period for filing claims;

10         creating s. 517.1204, F.S.; creating the

11         Investment Fraud Restoration Financing

12         Corporation; providing purposes; providing for

13         a board of directors; providing powers and

14         duties of the corporation; authorizing the

15         department and the corporation to enter into

16         service contracts for certain purposes;

17         authorizing the corporation to issue evidences

18         of indebtedness for payment of certain claims;

19         providing requirements and limitations;

20         authorizing the corporation to validate bond

21         obligations; exempting the corporation from

22         certain taxes and assessments; providing

23         application; prohibiting benefits or earnings

24         of the corporation from inuring to private

25         persons; providing for reversion of corporate

26         property to the Securities Guaranty Fund upon

27         dissolution of the corporation; providing for

28         the State Board of Administration to be trustee

29         of the corporation's securities; amending s.

30         517.131, F.S.; providing a limitation on

31         allocations from the Securities Guaranty Fund


                                  1

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1         under certain circumstances; providing an

  2         effective date.

  3

  4         WHEREAS, it is a fundamental regulatory duty of the

  5  Division of Securities and Investor Protection of the

  6  Department of Banking and Finance to ensure the integrity of

  7  the Florida securities market in accordance with chapter 517,

  8  Florida Statutes, and

  9         WHEREAS, it is the duty of the Division of Securities

10  and Investor Protection to successfully conduct investigations

11  of fraudulent securities transactions and to discover

12  falsification or concealment of facts for the benefit of the

13  investing public, and

14         WHEREAS, during the period beginning in April 1985

15  through October 1985, personnel in the Division of Securities

16  and Investor Protection, with regard to investors doing

17  business with GIC Government Securities, Inc., were remiss in

18  permitting the sale of securities which should not have been

19  allowed to be sold pursuant to chapter 517, Florida Statutes,

20  and failed to prevent the falsification or concealment of

21  facts, and

22         WHEREAS, as a result of that failure, over 1,300

23  Florida citizens, many of whom were elderly, lost their life

24  savings or suffered devastating monetary losses because of

25  doing business with GIC Government Securities, Inc., which at

26  the time was inadequately regulated by the Division of

27  Securities and Investor Protection, and

28         WHEREAS, the victimization by GIC Government

29  Securities, Inc., of investors has harmed the integrity of the

30  Florida securities market as well as the trust vested in the

31  state to regulate this market, and


                                  2

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1         WHEREAS, such harm threatens the viability of these

  2  markets and consequently the economic welfare of the state and

  3  its citizens, and

  4         WHEREAS, the Legislature has sought to repair the harm

  5  these fraudulent securities activities have inflicted on the

  6  integrity of the Florida securities market and the trust

  7  vested in the state to regulate this market by establishing a

  8  program to reimburse these victims for unrecoverable losses

  9  due to unsatisfied judgments and unrecompensable bankruptcy

10  claims, and

11         WHEREAS, many of the victims of GIC Government

12  Securities, Inc., were unable to obtain adequate reimbursement

13  for claims filed with the Securities Guaranty Fund under s.

14  517.131, Florida Statutes, and

15         WHEREAS, many of the victims of GIC Government

16  Securities, Inc., obtained judgments which were unsatisfied,

17  failed to be recompensed by the bankruptcy courts, and were

18  unable to obtain adequate reimbursement from the Securities

19  Guaranty Fund under s. 517.131, Florida Statutes, and

20         WHEREAS, the Legislature created s. 517.1203, Florida

21  Statutes, for the purpose of reimbursing victims of GIC

22  Government Securities, Inc., for the full amount of their

23  monetary losses, and

24         WHEREAS, annual revenues allocated to reimburse victims

25  of GIC Government Securities, Inc., are limited and have

26  proven insufficient to meet claims as they are approved, and

27         WHEREAS, many of the victims of GIC Government

28  Securities, Inc., are elderly and may not live long enough to

29  have funds sufficient to reimburse them become available, and

30         WHEREAS, it is necessary to fulfill the intent and

31  purposes of chapter 517, Florida Statutes, and further it is


                                  3

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1  hereby determined to be in the best interest of, and necessary

  2  for the protection of, the public health, safety, and general

  3  welfare of the residents of this state, and therefore a

  4  paramount public purpose, to provide for the creation of a

  5  nonprofit public benefit corporation to assist in reimbursing

  6  the victims of GIC Government Securities, Inc., and to

  7  authorize the department to enter into one or more service

  8  contracts with such corporation for the provision of financing

  9  services related to such functions and to make payments

10  thereunder from the amount on deposit in the Securities

11  Guaranty Fund, subject to annual appropriation by the

12  Legislature, and

13         WHEREAS, to achieve these purposes and in order to

14  facilitate and expedite the remedial measures instituted by

15  the Legislature with respect to the victims of GIC Government

16  Securities, Inc., it is in the best interest of the residents

17  of this state to authorize such corporation to issue evidences

18  of indebtedness payable from amounts paid by the Department of

19  Banking and Finance under any such service contract entered

20  into between the department and such corporation, and

21         WHEREAS, the Legislature is taking this action only

22  after balancing all the competing needs of the state, NOW,

23  THEREFORE,

24

25  Be It Enacted by the Legislature of the State of Florida:

26

27         Section 1.  Subsection (10) of section 517.12, Florida

28  Statutes, is amended to read:

29         517.12  Registration of dealers, associated persons,

30  investment advisers, and branch offices.--

31


                                  4

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1         (10)  An applicant for registration shall pay an

  2  assessment fee of $200, in the case of a dealer or investment

  3  adviser, or $40, in the case of an associated person.  The

  4  assessment fee of an associated person shall be reduced to $30

  5  but only after the department determines upon a determination,

  6  by final order of the department, that sufficient funds have

  7  been allocated to the Securities Guaranty Fund pursuant to s.

  8  517.1203 to satisfy all valid claims filed in accordance with

  9  s. 517.1203(2) and after all amounts payable under any service

10  contract entered into by the department pursuant to s.

11  517.1204, and all notes, bonds, certificates of indebtedness,

12  other obligations, or evidences of indebtedness secured by

13  such notes, bonds, certificates of indebtedness, or other

14  obligations, have been paid or provision has been made for the

15  payment of such amounts, notes, bonds, certificates of

16  indebtedness, other obligations, or evidences of indebtedness.

17  An associated person not having current fingerprint cards

18  filed with the National Association of Securities Dealers or a

19  national securities exchange registered with the Securities

20  and Exchange Commission shall be assessed an additional fee to

21  cover the cost for said fingerprint cards to be processed by

22  the department.  Such fee shall be determined by rule of the

23  department.  Each dealer and each investment adviser shall pay

24  an assessment fee of $100 for each office in this state,

25  except its designated principal office. Such fees become the

26  revenue of the state, except for those assessments provided

27  for under s. 517.131(1) until such time as the Securities

28  Guaranty Fund satisfies the statutory limits, and are not

29  returnable in the event that registration is withdrawn or not

30  granted.

31


                                  5

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1         Section 2.  Section 517.1203, Florida Statutes, is

  2  amended to read:

  3         517.1203  Allocation and disbursement of assessment

  4  fees.--

  5         (1)  Notwithstanding s. 517.131(1) and until the

  6  department determines by final order that sufficient funds

  7  have been allocated to the Securities Guaranty Fund pursuant

  8  to this section to satisfy all valid claims filed in

  9  accordance with subsection (2), an additional amount equal to

10  25 percent of all revenues received as assessment fees

11  pursuant to s. 517.12(10) and (11) from persons applying for

12  or renewing registrations as associated persons shall be

13  allocated to the Securities Guaranty Fund and disbursed as

14  provided in this section. This allocation shall continue until

15  the department determines, by final order, that sufficient

16  funds have been allocated to the Securities Guaranty Fund

17  pursuant to this section to satisfy all valid claims filed in

18  accordance with subsection (2) and until all amounts payable

19  under any service contract entered into by the department

20  pursuant to s. 517.1204, and all notes, bonds, certificates of

21  indebtedness, other obligations, or evidences of indebtedness

22  secured by such notes, bonds, certificates of indebtedness or

23  other obligations, have been paid or provision has been made

24  for the payment of such amounts, notes, bonds, certificates of

25  indebtedness, other obligations, or evidences of indebtedness.

26  This assessment fee shall be part of the regular license fee

27  and shall be transferred to or deposited into the Securities

28  Guaranty Fund.  The moneys allocated to the Securities

29  Guaranty Fund under this section shall not be included in the

30  calculation of the allocation of the assessment fees referred

31  to in s. 517.131(1)(b).  Moneys allocated under this section


                                  6

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1  in excess of the valid claims filed pursuant to subsection (2)

  2  shall be allocated to the Anti-Fraud Trust Fund.

  3         (2)(a)  Notwithstanding the provisions of ss. 517.131

  4  and 517.141, moneys allocated to in the Securities Guaranty

  5  Fund under this section shall be used to pay amounts payable

  6  under any service contract entered into by the department

  7  pursuant to s. 517.1204, subject to annual appropriation by

  8  the Legislature, and to pay investors who have filed claims

  9  with the Department of Banking and Finance after October 1,

10  1996, and on or before December 31, 1998 1997, who have:

11         1.  Received a final judgment against an associated

12  person of GIC Government Securities, Inc., based upon

13  allegations which would amount to a violation of s. 517.07 or

14  s. 517.301; or

15         2.  Demonstrated to the department that the claimant

16  has suffered monetary damages as a result of the acts or

17  actions of GIC Government Securities, Inc., or any associated

18  person thereof, based upon allegations which would amount to a

19  violation of s. 517.07 or s. 517.301.

20         (b)1.  Claims shall be paid in the order that they have

21  been filed with the department, unless the department has

22  noticed its intent to deny the claim in whole or in part.  If

23  a notice of intent to deny a claim in whole or in part is

24  issued, the claim shall not be paid until a final order has

25  been entered which is not subject to an order staying its

26  effect.

27         2.  If at any time the money in the Securities Guaranty

28  Fund allocated under this section is insufficient to satisfy

29  any valid claim or portion of a valid claim approved by the

30  department under this section, the department shall prorate

31  the payment based upon the ratio that the person's claim bears


                                  7

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1  to the total approved claims filed on the same day.  The

  2  department shall satisfy the unpaid claims as soon as a

  3  sufficient amount of money has been deposited in or

  4  transferred to the fund as provided in this section.

  5         3.  A claimant shall not be substantially affected by

  6  the payment of another person's claim.

  7         (c)  Claims shall be limited to the amount of the

  8  investment, reduced by any amounts received from a bankruptcy

  9  proceeding or from any other source. If an investor is

10  deceased, the award shall be made to the surviving spouse. If

11  the investor and surviving spouse are both deceased, the award

12  shall be made pursuant to the laws of descent and

13  distribution. Neither the department nor the Investment Fraud

14  Restoration Financing Corporation shall make payment to

15  assignees, secured parties, lien creditors, or other such

16  entities.

17         (3)  In rendering a determination, the department may

18  rely on records from the bankruptcy proceeding regarding GIC

19  Government Securities, Inc., unless there is good cause to

20  believe that the record is not genuine.

21         (4)  Amounts deposited into the Securities Guaranty

22  Fund pursuant to this section shall be applied to or allocated

23  for payment of amounts payable by the department pursuant to

24  paragraph (2)(a), under a service contract entered into by the

25  department pursuant to s. 517.1204, subject to annual

26  appropriation by the Legislature, before making or providing

27  for any other disbursements from the fund.

28         Section 3.  Section 517.1204, Florida Statutes, is

29  created to read:

30         517.1204  Investment Fraud Restoration Financing

31  Corporation.--


                                  8

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1         (1)  The Investment Fraud Restoration Financing

  2  Corporation is hereby created as a nonprofit public benefit

  3  corporation for the purpose of financing the remedial measures

  4  instituted by the Legislature with respect to the victims of

  5  GIC Government Securities, Inc., and the payment of approved

  6  claims pursuant to s. 517.1203. The fulfillment of the

  7  purposes of the corporation promotes the health, safety, and

  8  general welfare of the people of the state and serves

  9  essential governmental functions and a paramount public

10  purpose. The corporation shall terminate on July 1, 2021, or

11  upon fulfillment of all of the purposes of this section,

12  whichever occurs earlier.

13         (2)  The corporation shall be governed by a board of

14  directors consisting of the assistant comptroller, the

15  Secretary of Elderly Affairs or the secretary's designee and

16  the executive director of the Department of Veterans' Affairs

17  or the executive director's designee. The executive director

18  of the State Board of Administration shall be the chief

19  executive officer of the corporation and shall direct and

20  supervise the administrative affairs of the corporation and

21  shall control, direct, and supervise the operation of the

22  corporation.  The corporation shall also have such other

23  officers as may be determined by the board of directors.

24         (3)  The corporation shall have all the powers of a

25  corporate body under the laws of this state to the extent not

26  inconsistent with or restricted by the provisions of this

27  section, including, but not limited to, the power to:

28         (a)  Adopt, amend, and repeal bylaws not inconsistent

29  with this section.

30         (b)  Sue and be sued.

31         (c)  Adopt and use a common seal.


                                  9

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1         (d)  Acquire, purchase, hold, lease, and convey such

  2  real and personal property as may be proper or expedient to

  3  carry out the purposes of the corporation and this section,

  4  and to sell, lease, or otherwise dispose of such property.

  5         (e)  Elect or appoint and employ such officers, agents,

  6  and employees as the corporation deems advisable to operate

  7  and manage the affairs of the corporation, which officers,

  8  agents, and employees may be officers or employees of the

  9  department and the state agencies represented on the board of

10  directors of the corporation.

11         (f)  Borrow money and issue notes, bonds, certificates

12  of indebtedness, or other obligations or evidences of

13  indebtedness necessary to pay claims approved pursuant to s.

14  517.1203 payable from the Securities Guaranty Fund.

15         (g)  Make and execute any and all contracts, trust

16  agreements, and other instruments and agreements necessary or

17  convenient to accomplish the purposes of the corporation and

18  this section.

19         (h)  Select, retain, and employ professionals,

20  contractors, or agents, which may include the Division of Bond

21  Finance of the State Board of Administration, as is necessary

22  or convenient to enable or assist the corporation in carrying

23  out the purposes of the corporation and this section.

24         (i)  Do any act or thing necessary or convenient to

25  carry out the purposes of the corporation and this section and

26  the powers provided in this section.

27         (4)  The corporation is authorized to enter into one or

28  more service contracts with the department pursuant to which

29  the corporation shall provide services to the department in

30  connection with financing the functions and activities

31  provided for in s. 517.1203.  The department may enter into


                                  10

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1  one or more such service contracts with the corporation and

  2  provide for payments under such contracts pursuant to s.

  3  517.1203(2)(a), subject to annual appropriation by the

  4  Legislature.  The proceeds from such service contracts may be

  5  used for the costs and expenses of administration of the

  6  corporation after payments as set forth in subsection (5).

  7  Each service contract shall have a term not to exceed 15 years

  8  and shall terminate no later than July 1, 2021.  The aggregate

  9  amount payable from the Securities Guaranty Fund under all

10  such service contracts shall not exceed the amount provided by

11  s. 517.1203(1). In compliance with provisions of s. 287.0641

12  and other applicable provisions of law, the obligations of the

13  department under such service contracts shall not constitute a

14  general obligation of the state or a pledge of the faith and

15  credit or taxing power of the state nor shall such obligations

16  be construed in any manner as an obligation of the State Board

17  of Administration or entities for which it invests funds,

18  other than the department as provided in this section, but

19  shall be payable solely from amounts available in the

20  Securities Guaranty Fund, subject to annual appropriation.  In

21  compliance with this subsection and s. 287.0582, such service

22  contracts shall expressly include the following statement:

23  "The State of Florida's performance and obligation to pay

24  under this contract is contingent upon an annual appropriation

25  by the Legislature."

26         (5)  The corporation may issue and incur notes, bonds,

27  certificates of indebtedness, or other obligations or

28  evidences of indebtedness payable from and secured by amounts

29  payable to the corporation by the department under a service

30  contract entered into pursuant to subsection (4) for the

31  purpose of the simultaneous payment of all claims approved


                                  11

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1  pursuant to s. 517.1203. The term of any such note, bond,

  2  certificate of indebtedness, or other obligation or evidence

  3  of indebtedness shall not exceed 15 years. The corporation may

  4  select a financing team and issue obligations through

  5  competitive bidding or negotiated contracts, whichever is most

  6  cost-effective.  Any such indebtedness of the corporation

  7  shall not constitute a debt or obligation of the state or a

  8  pledge of the faith and credit or taxing power of the state,

  9  but shall be payable from and secured by payments made by the

10  department under the service contract pursuant to subsection

11  (4).

12         (6)  The corporation shall pay all claims approved

13  pursuant to s. 517.1203 as determined by and at the direction

14  of the department.

15         (7)  The corporation is exempt from taxation and

16  assessments of any nature whatsoever upon its income and any

17  property, assets, or revenues acquired, received, or used in

18  the furtherance of the purposes provided in this chapter.  The

19  obligations of the corporation incurred pursuant to subsection

20  (5) and the interest and income on such obligations and all

21  security agreements, letters of credit, liquidity facilities,

22  or other obligations or instruments arising out of, entered

23  into in connection with, or given to secure payment of such

24  obligations are exempt from all taxation, provided such

25  exemption does not apply to any tax imposed by chapter 220 on

26  the interest, income, or profits on debt obligations owned by

27  corporations.

28         (8)  The corporation may validate any bonds issued

29  pursuant to this section, as provided in chapter 75. The

30  validation complaint shall be filed only in the circuit court

31  for Leon County. The notice required under s. 75.06 shall be


                                  12

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1  published in Leon County and the complaint and order of the

  2  circuit court shall be served only on the State Attorney for

  3  the Second Judicial Circuit. The provisions of ss. 75.04(2)

  4  and 75.06(2) shall not apply to a validation complaint filed

  5  as authorized in this subsection. The validation of the first

  6  bonds issued pursuant to this section may be appealed to the

  7  Supreme Court and such appeal shall be handled on an expedited

  8  basis.

  9         (9)  The corporation shall not take any action which

10  will materially and adversely affect the rights of holders of

11  any obligations issued under this section as long as such

12  obligations are outstanding.

13         (10)  The corporation shall not be deemed to be a

14  special district for purposes of chapter 189 or a unit of

15  local government for purposes of part III of chapter 218.  The

16  provisions of chapters 120 and 215, except the limitation on

17  interest rates provided by s. 215.84 which applies to

18  obligations of the corporation issued pursuant to this

19  section, and part I of chapter 287, except ss. 287.0582 and

20  287.0641, shall not apply to this section, the corporation

21  created in this section, the service contracts entered into

22  pursuant to this section, or debt obligations issued by the

23  corporation as provided in this section.

24         (11)  In no event shall any of the benefits or earnings

25  of the corporation inure to the benefit of any private person,

26  except those persons identified pursuant to s. 517.1203.

27         (12)  Upon dissolution of the corporation, title to all

28  property owned by the corporation shall revert to the

29  Securities Guaranty Fund.

30         (13)  The corporation may contract with the State Board

31  of Administration to serve as trustee with respect to debt


                                  13

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1  obligations issued by the corporation as provided by this

  2  section and to hold, administer, and invest proceeds of such

  3  debt obligations and other funds of the corporation and to

  4  perform other services required by the corporation.  The State

  5  Board of Administration may perform such services and may

  6  contract with others to provide all or a part of such services

  7  and to recover the costs and expenses of providing such

  8  services.

  9         Section 4.  Paragraph (a) of subsection (1) of section

10  517.131, Florida Statutes, is amended to read:

11         517.131  Securities Guaranty Fund.--

12         (1)(a)  The Treasurer shall establish a Securities

13  Guaranty Fund.  An amount not exceeding 20 percent of all

14  revenues received as assessment fees pursuant to s. 517.12(10)

15  and (11) for dealers and investment advisers and an amount not

16  exceeding 10 percent of all revenues received as assessment

17  fees pursuant to s. 517.12(10) and (11) for associated persons

18  shall be allocated to the fund.  An additional amount not

19  exceeding 3.5 percent of all revenues received as assessment

20  fees for associated persons pursuant to s. 517.12(10) and (11)

21  shall be allocated to the Securities Guaranty Fund but only

22  after the department determines upon a determination, by final

23  order of the department, that sufficient funds have been

24  allocated to the fund pursuant to s. 517.1203 to satisfy all

25  valid claims filed in accordance with s. 517.1203(2) and after

26  all amounts payable under any service contract entered into by

27  the department pursuant to s. 517.1204, and all notes, bonds,

28  certificates of indebtedness, other obligations, or evidences

29  of indebtedness secured by such notes, bonds, certificates of

30  indebtedness or other obligations, have been paid or provision

31  has been made for the payment of such amounts, notes, bonds,


                                  14

CODING: Words stricken are deletions; words underlined are additions.






                                          HB 4009, First Engrossed



  1  certificates of indebtedness, other obligations, or evidences

  2  of indebtedness. This assessment fee shall be part of the

  3  regular license fee and shall be transferred to or deposited

  4  in the Securities Guaranty Fund.

  5         Section 5.  This act shall take effect upon becoming a

  6  law.

  7

  8

  9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  15