House Bill 1433c1

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    Florida House of Representatives - 2000             CS/HB 1433

        By the Committee on Business Regulation & Consumer Affairs
    and Representatives Levine, Bloom, Bense, Jacobs and Argenio





  1                      A bill to be entitled

  2         An act relating to pawnbrokers and secondhand

  3         dealers; creating s. 943.0546, F.S.; requiring

  4         the Department of Law Enforcement to administer

  5         a statewide database of pawnshop transactions

  6         and acquisitions of secondhand goods; requiring

  7         local law enforcement agencies to submit

  8         records of such transactions to the department;

  9         authorizing a law enforcement agency to access

10         the database only for investigative purposes

11         and subject to specified conditions; requiring

12         the department to submit an annual report to

13         the Legislature; requiring the department to

14         adopt rules; amending s. 539.001, F.S.;

15         revising a definition; specifying the form of a

16         petition under which a claimant may bring an

17         action to recover possession of misappropriated

18         property; providing for a court to determine

19         the disposition of misappropriated property as

20         part of a criminal case; requiring the

21         Department of Agriculture and Consumer Services

22         to prescribe a pamphlet describing a claimant's

23         rights to recover misappropriated property from

24         a pawnbroker; requiring that the division

25         prescribe by rule a disclosure form; requiring

26         that such form be provided to any person

27         demanding the return of property from a

28         pawnbroker; clarifying agency for rulemaking

29         purposes; providing an effective date.

30

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

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  1         Section 1.  Section 943.0546, Florida Statutes, is

  2  created to read:

  3         943.0546  Database of records of pawnshop transactions

  4  and secondhand goods acquisitions.--

  5         (1)  The department shall establish and maintain a

  6  statewide database of records of pawnshop transactions and

  7  secondhand goods acquisitions which are submitted to the

  8  department from local law enforcement agencies.

  9         (2)  Each local law enforcement agency that collects

10  records of pawnshop transactions or secondhand goods

11  acquisitions under chapter 538 or chapter 539 shall, as soon

12  as practicable, transfer the information contained in the

13  records to the department in a format and manner established

14  by the department after consultation with the Florida Sheriffs

15  Association and the Florida Police Chiefs Association.

16         (3)  Notwithstanding the requirements of ss. 538.04(1)

17  and 539.001(9) to deliver the transaction forms to the local

18  law enforcement agency, a secondhand dealer or pawnbroker

19  shall deliver or electronically transfer the transaction forms

20  to the department upon authorization of the local law

21  enforcement agency responsible for receiving the transaction

22  forms and after the department and local law enforcement

23  agency have entered into an agreement.

24         (4)  A law enforcement agency may access the database

25  for official criminal investigative purposes, subject to the

26  following conditions:

27         (a)  The database may not be used for research or

28  statistical purposes that are unrelated to official criminal

29  investigative purposes.

30         (b)  Names of persons submitted to the statewide

31  database may only be compared against the names of persons who

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  1  are the subject of an active warrant for a felony offense or

  2  an offense that involves theft and that has been entered into

  3  the Florida Crime Information System.

  4         (c)  An inquiry into the database by a law enforcement

  5  agency must be for an official criminal investigative purpose

  6  that is related to an offense enumerated in s. 775.087, or a

  7  similar offense in another jurisdiction, or that is related to

  8  any offense that involves theft.

  9         (5)  The department may not sell or otherwise provide

10  to any private entity the information supplied to the

11  department under this section and the department shall

12  maintain the confidentiality of records pursuant to s.

13  539.003.

14         (6)  Beginning February 1, 2001, the department shall

15  submit to the President of the Senate and the Speaker of the

16  House of Representatives an annual report that includes an

17  analysis of the stolen property identified through the

18  database during the previous calendar year. The annual report

19  must include a separate analysis of transaction information

20  submitted by pawnbrokers and transaction information submitted

21  by secondhand dealers.

22         (7)  The department shall adopt rules to administer

23  this section.

24         Section 2.  Paragraph (a) of subsection (2), paragraph

25  (h) of subsection (12), subsection (15), and subsection (22)

26  of section 539.001, Florida Statutes, are amended, subsections

27  (16) through (21) are renumbered as subsections (18) through

28  (23), respectively, and new subsections (16) and (17) are

29  added to said section, to read:

30         539.001  The Florida Pawnbroking Act.--

31         (2)  DEFINITIONS.--As used in this section, the term:

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  1         (a)  "Agency" means the Division of Consumer Services

  2  of the Department of Agriculture and Consumer Services.

  3         (12)  PROHIBITED ACTS.--A pawnbroker, or an employee or

  4  agent of a pawnbroker, may not:

  5         (h)  Fail to return or replace pledged goods to a

  6  pledgor upon payment of the full amount due the pawnbroker,

  7  unless the pledged goods have been placed under a hold order

  8  under subsection (18) (16), or taken into custody by a court

  9  or otherwise disposed of by court order.

10         (15)  CLAIMS AGAINST PURCHASED GOODS OR PLEDGED GOODS

11  HELD BY PAWNBROKERS.--

12         (a)  To obtain possession of purchased or pledged goods

13  held by a pawnbroker which a claimant claims to be

14  misappropriated, the claimant must notify the pawnbroker by

15  certified mail, return receipt requested, or in person

16  evidenced by signed receipt, of the claimant's claim to the

17  purchased or pledged goods. The notice must contain a complete

18  and accurate description of the purchased or pledged goods and

19  must be accompanied by a legible copy of the applicable law

20  enforcement agency's report on the misappropriation of such

21  property. If the claimant and the pawnbroker do not resolve

22  the matter within 10 days after the pawnbroker's receipt of

23  the notice, the claimant may petition the court to order the

24  return of the property, naming the pawnbroker as a defendant,

25  and must serve the pawnbroker with a copy of the petition. The

26  pawnbroker shall hold the property described in the petition

27  until the right to possession is resolved by the parties or by

28  a court of competent jurisdiction. The court shall waive any

29  filing fee for the petition to recover the property, and the

30  sheriff shall waive the service fees.

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  1         (b)  The claimant may bring an action in a court of

  2  competent jurisdiction by petition in substantially the

  3  following form:

  4

  5         Plaintiff A. B., sues defendant C. D., and

  6         alleges:

  7         1.  This is an action to recover possession of

  8         personal property in............County,

  9         Florida.

10         2.  The description of the property is:

11         ...(list property).... To the best of

12         plaintiff's knowledge, information, and belief,

13         the value of the property is $.............

14         3.  Plaintiff is entitled to the possession of

15         the property under a security agreement

16         dated........, ...(year)..., a copy of which is

17         attached.

18         4.  To plaintiff's best knowledge, information,

19         and belief, the property is located at.........

20         5.  The property is wrongfully detained by

21         defendant. Defendant came into possession of

22         the property by:  ...(describe method of

23         possession).... To plaintiff's best knowledge,

24         information, and belief, defendant detains the

25         property because:  ...(give reasons)....

26         6.  The property has not been taken under an

27         execution or attachment against the plaintiff's

28         property.

29         (c)(b)  If, after notice and a hearing, the court finds

30  that the property was misappropriated and orders the return of

31  the property to the claimant:

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  1         1.  The claimant may recover from the pawnbroker the

  2  cost of the action, including the claimant's reasonable

  3  attorney's fees; and

  4         2.  If the conveying customer is convicted of theft, a

  5  violation of this section, or dealing in stolen property, the

  6  court shall order the conveying customer to repay the

  7  pawnbroker the full amount the conveying customer received

  8  from the pawnbroker for the property, plus all applicable pawn

  9  service charges. As used in this paragraph, the term

10  "convicted of" includes a plea of nolo contendere to the

11  charges or any agreement in which adjudication is withheld;

12  and

13         3.  The conveying customer shall be responsible to pay

14  all attorney's fees and taxable costs incurred by the

15  pawnbroker in defending a replevin action or any other civil

16  matter wherein it is found that the conveying customer was in

17  violation of this paragraph.

18         (d)  In addition to the civil petition to recover the

19  property, the state attorney may file a motion as part of a

20  pending criminal case related to the property. The criminal

21  court has jurisdiction to determine ownership of the property,

22  to order the return of the property or other disposition, and

23  to order any appropriate restitution to any person. Such order

24  shall be entered following a hearing and after proper notice

25  to the pawnbroker, the victim, and the defendant in the

26  criminal case.

27         (e)(c)  If the court finds that the claimant failed to

28  comply with the requirements in paragraph (a) or otherwise

29  finds against the claimant, the claimant is liable for the

30  defendants' costs, including reasonable attorney's fees.

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  1         (f)(d)  The sale, pledge, or delivery of tangible

  2  personal property to a pawnbroker by any person in this state

  3  is considered to be:

  4         1.  An agreement by the person who sells, pledges, or

  5  delivers the tangible personal property that the person is

  6  subject to the jurisdiction of the court in all civil actions

  7  and proceedings arising out of the pledge or sale transaction

  8  filed by either a resident or nonresident plaintiff;

  9         2.  An appointment of the Secretary of State by any

10  nonresident of this state as that person's lawful attorney and

11  agent upon whom may be served all process in suits pertaining

12  to the actions and proceedings arising out of the sale,

13  pledge, or delivery; and

14         3.  An agreement by any nonresident that any process in

15  any suit so served has the same legal force and validity as if

16  personally served in this state.

17         (16)  PAMPHLET.--

18         (a)  The agency shall prescribe, by rule, a pamphlet

19  describing a claimant's rights to recover property under

20  subsection (15) and specifying that the claimant is not

21  obligated to reimburse or otherwise pay the pawnbroker to

22  recover misappropriated property. The pamphlet must also

23  contain the form of the petition in paragraph (15)(b). In

24  developing the pamphlet, the agency shall consult with the

25  Attorney General, the Department of Law Enforcement, the

26  Florida Sheriffs Association, the Florida Police Chiefs

27  Association, the Florida Pawnbrokers Association, and any

28  other interested party.

29         (b)  The agency shall distribute the pamphlets to local

30  law enforcement agencies for distribution to any victim of a

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  1  crime who believes that misappropriated property belonging to

  2  the victim is in the possession of a pawnbroker.

  3         (17)  DISCLOSURES.--

  4         (a)  The agency shall adopt, by rule, a disclosure form

  5  that contains substantially the following statement:

  6

  7         IF YOU BELIEVE THAT PROPERTY STOLEN FROM YOU

  8         HAS BEEN PAWNED OR SOLD TO THIS PAWNSHOP, YOU

  9         ARE UNDER NO LEGAL OBLIGATION TO REIMBURSE OR

10         OTHERWISE PAY THIS PAWNSHOP IN ORDER TO RECOVER

11         THE PROPERTY. FLORIDA LAW PROVIDES THAT YOU

12         HAVE THE FOLLOWING RIGHTS AND RESPONSIBILITIES:

13

14         1.  To obtain possession of the property, you must

15  provide notice of your claim to the pawnbroker by certified

16  mail, return receipt requested, or in person evidenced by

17  signed receipt. The notice must contain a complete and

18  accurate description of the purchased or pledged goods and

19  must be accompanied by a legible copy of the applicable law

20  enforcement agency's report on the misappropriation of such

21  property.

22         2.  If you and the pawnbroker do not resolve the matter

23  within 10 days after the pawnbroker's receipt of the notice,

24  you may petition a court to order the return of the property,

25  naming the pawnbroker as a defendant, and you must serve the

26  pawnbroker with a copy of the petition.

27         3.  The pawnbroker shall hold the property described in

28  the petition until the right to possession is resolved by the

29  parties or by a court.

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  1         4.  The court shall waive any filing fee for the

  2  petition to recover the property, and the sheriff shall waive

  3  the service fees.

  4         (b)  The agency shall distribute the disclosure forms

  5  to all pawnbrokers. When a person enters a pawnshop and

  6  demands the return of property that he or she claims has been

  7  misappropriated, the pawnbroker shall provide the person with

  8  the disclosure form and the form shall be signed by both

  9  parties.

10         (24)(22)  RULEMAKING AUTHORITY.--The agency department

11  has authority to adopt rules pursuant to chapter 120 to

12  implement the provisions of this section.

13         Section 3.  This act shall take effect July 1, 2000.

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