Senate Bill 1598c2

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    Florida Senate - 2000                    CS for CS for SB 1598

    By the Committees on Judiciary, Criminal Justice and Senator
    Campbell




    308-2071-00

  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 CS for SB 1598
    308-2071-00




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

  2

  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 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,

31

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    Florida Senate - 2000                    CS for 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 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:

  7

  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.

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

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

19         5.  The property is wrongfully detained by defendant.

20  Defendant came into possession of the property by:

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

22  knowledge, information, and belief, defendant detains the

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

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

25  or attachment against the plaintiff's property.

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

27  that the property was misappropriated and orders the return of

28  the property to the claimant:

29         1.  The claimant may recover from the pawnbroker the

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

31  attorney's fees; and

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    Florida Senate - 2000                    CS for CS for SB 1598
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  1         2.  If the conveying customer is convicted of theft, a

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

  3  court shall order the conveying customer to repay the

  4  pawnbroker the full amount the conveying customer received

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

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

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

  8  charges or any agreement in which adjudication is withheld;

  9  and

10         3.  The conveying customer shall be responsible to pay

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

12  pawnbroker in defending a replevin action or any other civil

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

14  violation of this paragraph.

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

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

17  pending criminal case related to the property. The criminal

18  court has jurisdiction to determine ownership of the property,

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

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

21  shall be entered following a hearing and after proper notice

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

23  criminal case.

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

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

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

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

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

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

30  is considered to be:

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    Florida Senate - 2000                    CS for CS for SB 1598
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  1         1.  An agreement by the person who sells, pledges, or

  2  delivers the tangible personal property that the person is

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

  4  and proceedings arising out of the pledge or sale transaction

  5  filed by either a resident or nonresident plaintiff;

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

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

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

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

10  pledge, or delivery; and

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

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

13  personally served in this state.

14         (16)  PAMPHLET.--

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

16  describing a claimant's rights to recover property under

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

18  obligated to reimburse or otherwise pay the pawnbroker to

19  recover misappropriated property. The pamphlet must also

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

21  developing the pamphlet, the agency shall consult with the

22  Attorney General, the Department of Law Enforcement, the

23  Florida Sheriffs Association, the Florida Police Chiefs

24  Association, the Florida Pawnbrokers Association, and any

25  other interested party.

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

27  law enforcement agencies for distribution to any victim of a

28  crime who believes that misappropriated property belonging to

29  the victim is in the possession of a pawnbroker.

30         (17)  DISCLOSURES.--

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    Florida Senate - 2000                    CS for CS for SB 1598
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  1         (a)  The agency shall adopt, by rule, a disclosure form

  2  that contains substantially the following statement:

  3

  4  IF YOU BELIEVE THAT PROPERTY STOLEN FROM YOU HAS BEEN PAWNED

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

  6  REIMBURSE OR OTHERWISE PAY THIS PAWNSHOP IN ORDER TO RECOVER

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

  8  RIGHTS AND RESPONSIBILITIES:

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

10  provide notice of your claim to the pawnbroker by certified

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

12  signed receipt. The notice must contain a complete and

13  accurate description of the purchased or pledged goods and

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

15  enforcement agency's report on the misappropriation of such

16  property.

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

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

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

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

21  pawnbroker with a copy of the petition.

22         3.  The pawnbroker shall hold the property described in

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

24  parties or by a court.

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

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

27  the service fees.

28

29         (b)  The agency shall distribute the disclosure forms

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

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

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    Florida Senate - 2000                    CS for CS for SB 1598
    308-2071-00




  1  misappropriated, the pawnbroker shall provide the person with

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

  3  parties.

  4         (24)(22)  RULEMAKING AUTHORITY.--The agency department

  5  has authority to adopt rules pursuant to chapter 120 to

  6  implement the provisions of this section.

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

  8

  9          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
10                            CS/SB 1598

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12  Removes unnecessary language from the form petition a claimant
    must file in court, pursuant to s. 539.001(15), F.S., to
13  retrieve his or her misappropriated property from a
    pawnbroker.
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