Senate Bill 1598c1

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    Florida Senate - 2000                           CS for SB 1598

    By the Committee on Criminal Justice and Senator Campbell





    307-1872-00

  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 of

14         Law Enforcement to adopt rules; amending s.

15         539.001, F.S., relating to the Florida

16         Pawnbroking Act; specifying the form of a

17         petition under which a claimant may bring an

18         action to recover possession of misappropriated

19         property; providing for a court to determine

20         the disposition of misappropriated property as

21         part of a criminal case; requiring the Division

22         of Consumer Services of the Department of

23         Agriculture and Consumer Services to prescribe

24         a pamphlet to describe a claimant's rights to

25         recover misappropriated property from a

26         pawnbroker; requiring that the division

27         prescribe by rule a disclosure form; requiring

28         that such form be provided to any person

29         demanding the return of property from a

30         pawnbroker; providing rulemaking authority;

31         providing an effective date.

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    Florida Senate - 2000                           CS for SB 1598
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  1  Be It Enacted by the Legislature of the State of Florida:

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  3         Section 1.  Section 943.0546, Florida Statutes, is

  4  created to read:

  5         943.0546  Database of records of pawnshop transactions

  6  and secondhand-goods acquisitions.--

  7         (1)  The department shall establish and maintain a

  8  statewide database of records of pawnshop transactions and

  9  secondhand-goods acquisitions which are submitted to the

10  department from local law enforcement agencies.

11         (2)  Each local law enforcement agency that collects

12  records of pawnshop transactions or secondhand-goods

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

14  as practicable, transfer the information contained in the

15  records to the department in a format and manner established

16  by the department after consultation with the Florida Sheriffs

17  Association and the Florida Police Chiefs Association.

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

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

20  law enforcement agency, a secondhand dealer or pawnbroker

21  shall deliver or electronically transfer the transaction forms

22  to the department upon authorization of the local law

23  enforcement agency responsible for receiving the transaction

24  forms and after the department and local law enforcement

25  agency have entered into an agreement.

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

27  for official criminal investigative purposes, subject to the

28  following conditions:

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

30  statistical purposes that are unrelated to official criminal

31  investigative purposes.

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    Florida Senate - 2000                           CS for SB 1598
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  1         (b)  Names of persons submitted to the statewide

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

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

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

  5  the Florida Crime Information System.

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

  7  agency must be for an official criminal investigative purpose

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

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

10  any offense that involves theft.

11         (5)  The department may not, without legislative

12  authority, sell or otherwise provide to any private entity the

13  information supplied to the department under this section.

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), and subsection (15) of section

26  539.001, Florida Statutes, are amended, and present

27  subsections (16), (17), (18), (19), (20), and (21) of that

28  section are redesignated as subsections (18), (19), (20),

29  (21), (22), and (23), respectively, present subsection (22) of

30  that section is redesignated as subsection (24) and amended,

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    Florida Senate - 2000                           CS for SB 1598
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  1  and new subsections (16) and (17) are added to that section,

  2  to read:

  3         539.001  The Florida Pawnbroking Act.--

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

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

  6  of the Department of Agriculture and Consumer Services.

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

  8  agent of a pawnbroker, may not:

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

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

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

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

13  or otherwise disposed of by court order.

14         (15)  CLAIMS AGAINST PURCHASED GOODS OR PLEDGED GOODS

15  HELD BY PAWNBROKERS.--

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

17  held by a pawnbroker which a claimant claims to be

18  misappropriated, the claimant must notify the pawnbroker by

19  certified mail, return receipt requested, or in person

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

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

22  and accurate description of the purchased or pledged goods and

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

24  enforcement agency's report on the misappropriation of such

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

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

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

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

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

30  pawnbroker shall hold the property described in the petition

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

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    Florida Senate - 2000                           CS for SB 1598
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  1  a court of competent jurisdiction. The court shall waive any

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

  3  sheriff shall waive the service fees.

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

  5  competent jurisdiction by petition in substantially the

  6  following form:

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  8         Plaintiff A. B., sues defendant C. D., and alleges:

  9         1.  This is an action to recover possession of personal

10  property in............County, Florida.

11         2.  The description of the property is:  ...(list

12  property).... To the best of plaintiff's knowledge,

13  information, and belief, the value of the property is

14  $.............

15         3.  Plaintiff is entitled to the possession of the

16  property under a security agreement dated........,

17  ...(year)..., a copy of which is attached.

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

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

20         5.  The property is wrongfully detained by defendant.

21  Defendant came into possession of the property by:

22  ...(describe method of possession).... To plaintiff's best

23  knowledge, information, and belief, defendant detains the

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

25         6.  The property has not been taken under an execution

26  or attachment against the plaintiff's property.

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

28  that the property was misappropriated and orders the return of

29  the property to the claimant:

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    Florida Senate - 2000                           CS for SB 1598
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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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    Florida Senate - 2000                           CS for SB 1598
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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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    Florida Senate - 2000                           CS for SB 1598
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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 HAS BEEN PAWNED

  8  OR SOLD TO THIS PAWNSHOP, YOU ARE UNDER NO LEGAL OBLIGATION TO

  9  REIMBURSE OR OTHERWISE PAY THIS PAWNSHOP IN ORDER TO RECOVER

10  THE PROPERTY. FLORIDA LAW PROVIDES THAT YOU HAVE THE FOLLOWING

11  RIGHTS AND RESPONSIBILITIES:

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

13  provide notice of your claim to the pawnbroker by certified

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

15  signed receipt. The notice must contain a complete and

16  accurate description of the purchased or pledged goods and

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

18  enforcement agency's report on the misappropriation of such

19  property.

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

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

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

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

24  pawnbroker with a copy of the petition.

25         3.  The pawnbroker shall hold the property described in

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

27  parties or by a court.

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

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

30  the service fees.

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    Florida Senate - 2000                           CS for SB 1598
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  1         (b)  The agency shall distribute the disclosure forms

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

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

  4  misappropriated, the pawnbroker shall provide the person with

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

  6  parties.

  7         (24)(22)  RULEMAKING AUTHORITY.--The agency department

  8  has authority to adopt rules pursuant to chapter 120 to

  9  implement the provisions of this section.

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

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    Florida Senate - 2000                           CS for SB 1598
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1598

  3

  4  -     Clarifies that pawnbrokers need only submit pawn
          transaction forms to the Department of Law Enforcement,
  5        when authorized by the local law enforcement agency to
          do so.
  6
    -     Provides that the Department of Law Enforcement must
  7        agree with the local law enforcement agency to accept
          pawn transaction forms directly from pawnbrokers.
  8
    -     Contains specified conditions for when database may be
  9        accessed by a law enforcement agency, as follows:

10       -      database may not be used for research or
                statistical purposes unrelated to official
11              criminal investigative purposes.

12       -      database may be checked for persons with active
                felony warrants or theft offenses.
13
         -      database may also be checked in a criminal
14              investigation for an enumerated offense in s.
                775.087, F.S. (murder, sexual battery, etc.), or a
15              similar offense in another jurisdiction, or a
                theft offense.
16
    -     Requires the Department of Law Enforcement to make an
17        annual report to the Legislature regarding the database.

18  -     Restores current law providing that claimant is liable
          for pawnbroker's costs and attorney's fees when claimant
19        fails to follow procedures or looses action.

20  -     Revises definition of agency and provision authorizing
          the Department of Agriculture and Consumer Services to
21        rulemake in chapter 539.

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