Senate Bill sb1526c3
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Florida Senate - 2001 CS for CS for CS for SB's 1526 & 314
By the Committees on Finance and Taxation; Commerce and
Economic Opportunities; Banking and Insurance; and Senators
Constantine and Campbell
314-1826-01
1 A bill to be entitled
2 An act relating to the Money Transmitter's
3 Code; amending s. 560.103, F.S.; revising
4 definitions; amending s. 560.111, F.S.;
5 providing penalties for specified violations of
6 the deferred presentment act; amending s.
7 560.114, F.S.; providing additional grounds for
8 disciplinary action; providing for continuation
9 of certain administrative proceedings under
10 certain circumstances; amending s. 560.118,
11 F.S.; eliminating the authority to assess
12 examination fees; amending s. 560.119, F.S.;
13 revising the deposit of fees and assessments;
14 amending s. 560.204, F.S.; clarifying exemption
15 from registration fees under part III of ch.
16 560, F.S.; amending s. 560.205, F.S.; adding a
17 fee for authorized vendor or branch locations;
18 amending s. 560.206, F.S.; amending the
19 registration period; amending s. 560.207, F.S.;
20 conforming and clarifying the fee for late
21 renewals; amending the renewal application fee;
22 amending s. 560.208, F.S.; requiring
23 notification of vendor or branch locations;
24 requiring a nonrefundable fee and financial
25 statement; amending s. 560.307, F.S.; applying
26 the application fee to check cashers and
27 foreign currency exchanges and adding a fee for
28 authorized vendors or branch locations;
29 requiring notification of vendor or branch
30 locations; amending s. 560.308, F.S.;
31 increasing the registration and renewal fee for
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1 each registrant; clarifying the fee to be
2 charged for late renewal; creating part IV, ch.
3 560, F.S., consisting of ss. 560.401, 560.402,
4 560.403, 560.404, 560.405, 560.406, 560.407,
5 and 560.408, F.S.; providing a short title;
6 providing definitions; providing registration
7 requirements for deferred presentment
8 transactions; providing for filing fees;
9 providing limitations; specifying requirements
10 and limitations for engaging in deferred
11 presentment transactions; providing
12 prohibitions; providing for fees; providing
13 limitations; requiring certain notice;
14 specifying criteria and requirements for
15 deposit and redemption of a drawer's check;
16 providing procedures for recovering damages for
17 worthless checks; requiring maintenance of
18 records for a time certain; providing
19 legislative intent; requiring the Comptroller
20 to submit a report to the President of the
21 Senate and the Speaker of the House of
22 Representatives concerning the effectiveness of
23 this act; providing an effective date.
24
25 Be It Enacted by the Legislature of the State of Florida:
26
27 Section 1. Paragraph (d) is added to subsection (4) of
28 section 560.103, Florida Statutes, and subsection (10) of that
29 section is amended, to read:
30 560.103 Definitions.--As used in the code, unless the
31 context otherwise requires:
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1 (4) "Code" means the "Money Transmitters' Code,"
2 consisting of:
3 (d) Part IV of this chapter, relating to deferred
4 presentments.
5 (10) "Money transmitter" means any person located in
6 or doing business in this state who acts as a payment
7 instrument seller, foreign currency exchanger, check casher,
8 or funds transmitter, or deferred presentment provider.
9 Section 2. Subsection (4) is added to section 560.111,
10 Florida Statutes, to read:
11 560.111 Prohibited acts and practices.--
12 (4) Any person who willfully violates any provision of
13 s. 560.403, s. 560.404, s. 560.405, or s. 560.407 commits a
14 felony of the third degree, punishable as provided in s.
15 775.082, s. 775.083, or s. 775.084.
16 Section 3. Paragraphs (w) and (x) are added to
17 subsection (1) of section 560.114, Florida Statutes, to read:
18 560.114 Disciplinary actions.--
19 (1) The following actions by a money transmitter or
20 money transmitter-affiliated party are violations of the code
21 and constitute grounds for the issuance of a cease and desist
22 order, the issuance of a removal order, the denial of a
23 registration application or the suspension or revocation of
24 any registration previously issued pursuant to the code, or
25 the taking of any other action within the authority of the
26 department pursuant to the code:
27 (w) Failure to pay any fee, charge, or fine under the
28 code.
29 (x) Engaging or advertising engagement in the business
30 of a money transmitter without a registration, unless the
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1 person is exempted from the registration requirements of the
2 code.
3 Section 4. Subsection (1) of section 560.118, Florida
4 Statutes, is amended to read:
5 560.118 Examinations, reports, and internal audits;
6 penalty.--
7 (1)(a) The department may conduct an examination of a
8 money transmitter or authorized vendor by providing not less
9 than 15 days' advance notice to the money transmitter or
10 authorized vendor. However, if the department suspects that
11 the money transmitter or authorized vendor has violated any
12 provisions of this code or any criminal laws of this state or
13 of the United States or is engaging in an unsafe and unsound
14 practice, the department may, at any time without advance
15 notice, conduct an examination of all affairs, activities,
16 transactions, accounts, business records, and assets of any
17 money transmitter or any money transmitter-affiliated party
18 for the protection of the public. For the purpose of
19 examinations, the department may administer oaths and examine
20 a money transmitter or any of its affiliated parties
21 concerning their operations and business activities and
22 affairs. The department may accept an audit or examination
23 from any appropriate regulatory agency or from an independent
24 third party with respect to the operations of a money
25 transmitter or an authorized vendor. The department may also
26 make a joint or concurrent examination with any state or
27 federal regulatory agency. The department may furnish a copy
28 of all examinations made of such money transmitter or
29 authorized vendor to the money transmitter and any appropriate
30 regulatory agency provided that such agency agrees to abide by
31 the confidentiality provisions as set forth in chapter 119.
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1 (b) Persons subject to this chapter who are examined
2 shall make available to the department or its examiners the
3 accounts, records, documents, files, information, assets, and
4 matters which are in their immediate possession or control and
5 which relate to the subject of the examination. Those
6 accounts, records, documents, files, information, assets, and
7 matters not in their immediate possession shall be made
8 available to the department or the department's examiners
9 within 10 days after actual notice is served on such persons.
10 (c) The audit of a money transmitter required under
11 this section may be performed by an independent third party
12 that has been approved by the department or by a certified
13 public accountant authorized to do business in the United
14 States. The examination of a money transmitter or authorized
15 vendor required under this section may be performed by an
16 independent third party that has been approved by the
17 department or by a certified public accountant authorized to
18 do business in the United States. The cost of such an
19 independent examination or audit shall be directly borne by
20 the money transmitter or authorized vendor.
21 (d) The department may recover the costs of a regular
22 examination and supervision of a money transmitter or
23 authorized vendor; however, the department may not recover the
24 costs of more than one examination in any 12-month period
25 unless the department has determined that the money
26 transmitter or authorized vendor is operating in an unsafe or
27 unsound or unlawful manner.
28 (e) The department may, by rule, set a maximum per-day
29 examination cost for a regular examination. Such per-day cost
30 may be less than that required to fully compensate the
31 department for costs associated with the examination. For the
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1 purposes of this section, "costs" means the salary and travel
2 expenses directly attributable to the field staff examining
3 the money transmitter or authorized vendor, and the travel
4 expenses of any supervisory staff required as a result of
5 examination findings. Reimbursement for such costs incurred
6 under this subsection must be postmarked no later than 30 days
7 after the date of receipt of a notice stating that such costs
8 are due. The department may levy a late payment penalty of up
9 to $100 per day or part thereof that a payment is overdue,
10 unless the late payment penalty is excused for good cause. In
11 excusing any such late payment penalty, the department may
12 consider the prior payment history of the money transmitter or
13 authorized vendor.
14 Section 5. Section 560.119, Florida Statutes, is
15 amended to read:
16 560.119 Deposit of fees and assessments.--The
17 application fees, registration renewal fees, examination fees,
18 late payment penalties, civil penalties, administrative fines,
19 and other fees or penalties provided for in the code shall, in
20 all cases, be paid directly to the department, which shall
21 deposit such proceeds into the Financial Institutions'
22 Regulatory Trust Fund. Each year, the Legislature shall
23 appropriate from the trust fund to the department sufficient
24 moneys to pay the department's costs for administration of the
25 code. The Financial Institutions' Regulatory Trust Fund is
26 subject to the service charge imposed pursuant to chapter 215.
27 Section 6. Subsection (2) of section 560.204, Florida
28 Statutes, is amended to read:
29 560.204 Requirement of registration.--
30 (2) A person registered pursuant to this part is
31 permitted to engage in the activities authorized by this part.
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1 A person registered pursuant to this part may also engage in
2 the activities authorized under part III and is exempt from
3 the registration fee required by s. 560.307.
4 Section 7. Subsection (2) of section 560.205, Florida
5 Statutes, is amended to read:
6 560.205 Qualifications of applicant for registration;
7 contents.--
8 (2) Each application for registration must be
9 submitted under oath to the department on such forms as the
10 department prescribes by rule and must be accompanied by a
11 nonrefundable application investigation fee. Such fee may not
12 exceed $500 for each payment instrument seller or funds
13 transmitter and $50 for each authorized vendor or location
14 operating within this state and may be waived by the
15 department for just cause. The application forms shall set
16 forth such information as the department reasonably requires,
17 including, but not limited to:
18 (a) The name and address of the applicant, including
19 any fictitious or trade names used by the applicant in the
20 conduct of its business.
21 (b) The history of the applicant's material
22 litigation, criminal convictions, pleas of nolo contendere,
23 and cases of adjudication withheld.
24 (c) A description of the activities conducted by the
25 applicant, the applicant's history of operations, and the
26 business activities in which the applicant seeks to engage in
27 this state.
28 (d) A list identifying the applicant's proposed
29 authorized vendors in this state, including the location or
30 locations in this state at which the applicant and its
31 authorized vendors propose to conduct registered activities.
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1 (e) A sample authorized vendor contract, if
2 applicable.
3 (f) A sample form of payment instrument, if
4 applicable.
5 (g) The name and address of the clearing financial
6 institution or financial institutions through which the
7 applicant's payment instruments will be drawn or through which
8 such payment instruments will be payable.
9 (h) Documents revealing that the net worth and bonding
10 requirements specified in s. 560.209 have been or will be
11 fulfilled.
12 Section 8. Section 560.206, Florida Statutes, is
13 amended to read:
14 560.206 Investigation of applicants.--Upon the filing
15 of a properly completed application, accompanied by the
16 nonrefundable application fee and other required documents,
17 the department shall investigate to ascertain whether the
18 qualifications and requirements prescribed by this part have
19 been met. If the department finds that the applicant meets
20 such qualifications and requirements, the department shall
21 issue the applicant a registration to engage in the business
22 of selling payment instruments and transmitting funds in this
23 state. Any registration issued under this part shall remain
24 effective through April 30 of the second year following the
25 date of issuance of the registration, not to exceed 24 months,
26 unless during such period the registration is in effect
27 through April 30 next following its date of issuance unless
28 otherwise specified by the department or earlier surrendered,
29 suspended, or revoked.
30 Section 9. Section 560.207, Florida Statutes, is
31 amended to read:
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1 560.207 Renewal of registration; registration fee.--
2 (1) Registration may be renewed for a 24-month period
3 or the remainder of any such period without proration
4 following the date of its expiration, upon the filing with the
5 department of an application and other statements and
6 documents as may reasonably be required of registrants by the
7 department. However, the registrant must remain qualified for
8 such registration under the provisions of this part.
9 (2) All registration renewal applications shall be
10 accompanied by a renewal fee not to exceed $1,000, unless such
11 fee is waived by the department. All renewal applications must
12 be filed on or after January 1 of the year in which the
13 existing registration expires, but before the expiration date
14 of April 30 March 31. If the renewal application is filed
15 prior to the expiration date of an existing registration, no
16 late investigation fee shall be paid in connection with such
17 renewal application. If the renewal application is filed
18 within 60 calendar days after the expiration date of an
19 existing registration, then, in addition to the $1,000 renewal
20 fee, the renewal application shall be accompanied by a
21 nonrefundable late fee of $500 investigation fee pursuant to
22 s. 560.205(2). If the registrant has not filed a renewal
23 application within 60 calendar days after the expiration date
24 of an existing registration, a new application shall be filed
25 with the department pursuant to s. 560.205.
26 (3) Every registration renewal application shall also
27 include a 2-year registration renewal fee of $50 for each
28 authorized vendor or location operating within this state or,
29 at the option of the registrant, a total 2-year renewal fee of
30 $20,000 $5,000 may be paid to renew the registration of
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1 register all such locations currently registered at the time
2 of renewal operating within this state.
3 Section 10. Section 560.208, Florida Statutes, is
4 amended to read:
5 560.208 Conduct of business.--
6 (1) A registrant may conduct its business at one or
7 more locations within this state through branches or by means
8 of authorized vendors, as designated by the registrant.
9 (2) Within 60 days after the date a registrant either
10 opens a location within this state or authorizes an authorized
11 vendor to operate on the registrant's behalf within this
12 state, the registrant shall notify the department on a form
13 prescribed by the department by rule. The notification shall
14 be accompanied by a nonrefundable $50 fee for each authorized
15 vendor or location. Each notification shall also be
16 accompanied by a financial statement demonstrating compliance
17 with s. 560.209(1), unless compliance has been demonstrated by
18 a financial statement filed with the registrant's quarterly
19 report in compliance with s. 560.118(2). The financial
20 statement must be dated within 90 days of the date of
21 designation of the authorized vendor or location. This
22 subsection shall not apply to any authorized vendor or
23 location that has been designated by the registrant before
24 October 1, 2001.
25 (3) Within 60 days after the date a registrant closes
26 a location within this state or withdraws authorization for an
27 authorized vendor to operate on the registrant's behalf within
28 this state, the registrant shall notify the department on a
29 form prescribed by the department by rule.
30 Section 11. Section 560.307, Florida Statutes, is
31 amended to read:
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1 560.307 Fees.--
2 (1) The application shall be filed together with a
3 nonrefundable application investigation fee of that shall be
4 established by department rule; however, the investigation fee
5 may not exceed $250 for each check casher or foreign currency
6 exchanger and $50 for each authorized vendor or location
7 operating within this state. Such investigation fee shall
8 satisfy the fee requirement for the first year of registration
9 or the remaining part thereof.
10 (2) Within 60 days after the date a registrant either
11 opens a location within this state or authorizes an authorized
12 vendor to operate on the registrant's behalf within this
13 state, the registrant shall notify the department on a form
14 prescribed by the department by rule. The notification shall
15 be accompanied by a nonrefundable $50 fee for each authorized
16 vendor or location. This subsection shall not apply to any
17 authorized vendor or location that has been designated by the
18 registrant before October 1, 2001.
19 (3) Within 60 days after the date a registrant closes
20 a location within this state or withdraws authorization for an
21 authorized vendor to operate on the registrant's behalf within
22 this state, the registrant shall notify the department on a
23 form prescribed by the department by rule.
24 Section 12. Section 560.308, Florida Statutes, is
25 amended to read:
26 560.308 Registration terms; renewal; renewal fees.--
27 (1) Registration pursuant to this part shall remain
28 effective through the remainder of the second calendar year
29 following its date of issuance unless during such calendar
30 year the registration is surrendered, suspended, or revoked.
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1 (2) The department shall renew registration upon
2 receipt of a completed renewal form and payment of a
3 nonrefundable renewal fee, as provided by rule, not to exceed
4 $500. The completed renewal form and payment of the renewal
5 fee shall occur on or after June 1 of the year in which the
6 existing registration expires.
7 (3) In addition to the renewal fee required by
8 subsection (2), each registrant must register and pay a 2-year
9 $50 registration renewal fee of $50 for each authorized vendor
10 or location, including any authorized vendors, operating
11 within this state or, at the option of the registrant, a total
12 2-year renewal fee of $20,000 $5,000 may be paid to renew the
13 registration of register all such operating locations
14 currently registered at the time of renewal within this state.
15 (4) Registration that is not renewed on or before the
16 expiration date of the registration period automatically
17 expires. A renewal application and fee, and a late fee of $250
18 an investigation fee pursuant to s. 560.307, must be filed
19 within 60 calendar days after the expiration of an existing
20 registration in order for the registration to before
21 registration may be reinstated. If the registrant has not
22 filed a renewal application within 60 days after the
23 expiration date of an existing registration, a new application
24 must be filed with the department pursuant to s. 560.307.
25 Section 13. Part IV of chapter 560, Florida Statutes,
26 consisting of sections 560.401, 560.402, 560.403, 560.404,
27 560.405, 560.406, 560.407, and 560.408, Florida Statutes, is
28 created to read:
29 PART IV
30 DEFERRED PRESENTMENT
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1 560.401 Short title.--This part may be cited as the
2 "Deferred Presentment Act."
3 560.402 Definitions.--In addition to the definitions
4 provided in ss. 560.103, 560.202, and 560.302 and unless
5 otherwise clearly indicated by the context, for purposes of
6 this part:
7 (1) "Affiliate" means a person who directly or
8 indirectly through one or more intermediaries controls or is
9 controlled by, or is under common control with, a deferred
10 presentment provider.
11 (2) "Business day" means the hours during a particular
12 day during which a deferred presentment provider customarily
13 conducts business, not to exceed 15 consecutive hours during
14 that day.
15 (3) "Days" means calendar days.
16 (4) "Deferment period" means the number of days a
17 deferred presentment provider agrees to defer depositing or
18 presenting a payment instrument.
19 (5) "Deferred presentment provider" means a person who
20 engages in a deferred presentment transaction and is
21 registered under part II or part III of the code and has filed
22 a declaration of intent with the department.
23 (6) "Deferred presentment transaction" means providing
24 currency or a payment instrument in exchange for a person's
25 check and agreeing to hold that person's check for a period of
26 time prior to presentment, deposit, or redemption.
27 (7) "Drawer" means any person who writes a personal
28 check and upon whose account the check is drawn.
29 (8) "Rollover" means the termination or extension of
30 an existing deferred presentment agreement by the payment of
31 any additional fee and the continued holding of the check, or
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1 the substitution of a new check drawn by the drawer pursuant
2 to a new deferred presentment agreement.
3 (9) "Fee" means the fee authorized for the deferral of
4 the presentation of a check pursuant to this part.
5 (10) "Termination of an existing deferred presentment
6 agreement" means that the check that is the basis for an
7 agreement is redeemed by the drawer by payment in full in
8 cash, or is deposited and the deferred presentment provider
9 has evidence that such check has cleared. A verification of
10 sufficient funds in the drawer's account by the deferred
11 presentment provider shall not be sufficient evidence to deem
12 the existing deferred deposit transaction to be terminated.
13 (11) "Extension of an existing deferred presentment
14 agreement" means that a deferred presentment transaction is
15 continued by the drawer paying any additional fees and the
16 deferred presentment provider continues to hold the check for
17 another period of time prior to deposit, presentment, or
18 redemption.
19 560.403 Requirements of registration; declaration of
20 intent.--
21 (1) No person, unless otherwise exempt from this
22 chapter, shall engage in a deferred presentment transaction
23 unless the person is registered under the provisions of part
24 II or part III and has on file with the department a
25 declaration of intent to engage in deferred presentment
26 transactions. The declaration of intent shall be under oath
27 and on such form as the department prescribes by rule. The
28 declaration of intent shall be filed together with a
29 nonrefundable filing fee of $1,000. Any person who is
30 registered under part II or part III on the effective date of
31 this act and intends to engage in deferred presentment
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1 transactions shall have 60 days after the effective date of
2 this act to file a declaration of intent.
3 (2) A registrant under this part shall renew his or
4 her intent to engage in the business of deferred presentment
5 transactions or to act as a deferred presentment provider upon
6 renewing his or her registration under part II or part III and
7 shall do so by indicating his or her intent on the renewal
8 form and by submitting a nonrefundable deferred presentment
9 provider renewal fee of $1,000, in addition to any fees
10 required for renewal of registration under part II or part
11 III.
12 (3) A registrant under this part who fails to timely
13 renew his or her intent to engage in the business of deferred
14 presentment transactions or to act as a deferred presentment
15 provider shall immediately cease to engage in the business of
16 deferred presentment transactions or to act as a deferred
17 presentment provider.
18 (4) The notice of intent of a registrant under this
19 part who fails to timely renew his or her intent to engage in
20 the business of deferred presentment transactions or to act as
21 a deferred presentment provider on or before the expiration
22 date of the registration period automatically expires. A
23 renewal declaration of intent and fee, and a late fee of $500,
24 must be filed within 60 calendar days after the expiration of
25 an existing registration in order for the declaration of
26 intent to be reinstated. If the registrant has not filed a
27 renewal declaration of intent within 60 days after the
28 expiration date of an existing registration, a new declaration
29 must be filed with the department.
30 (5) No person, other than a financial institution as
31 defined in s. 655.005, shall be exempt from registration and
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1 declaration if such person engages in deferred presentment
2 transactions, regardless of whether such person is currently
3 exempt from registration under any provision of this code.
4 560.404 Requirements for deferred presentment
5 transactions.--
6 (1) Every deferred presentment transaction shall be
7 documented in a written agreement signed by both the deferred
8 presentment provider and the drawer.
9 (2) The deferred presentment transaction agreement
10 shall be executed on the day the deferred presentment provider
11 furnishes currency or a payment instrument to the drawer.
12 (3) Each written agreement shall contain the following
13 information, in addition to any information the department
14 requires by rule:
15 (a) The name or trade name, address, and telephone
16 number of the deferred presentment provider and the name and
17 title of the person who signs the agreement on behalf of the
18 deferred presentment provider.
19 (b) The date the deferred presentment transaction was
20 made.
21 (c) The amount of the drawer's check.
22 (d) The length of deferral period.
23 (e) The last day of the deferment period.
24 (f) The address and telephone number of the
25 department.
26 (g) A clear description of the drawer's payment
27 obligations under the deferred presentment transaction.
28 (h) The transaction number assigned by the
29 department's database.
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1 (4) Every deferred presentment provider shall furnish
2 to the drawer a copy of the deferred presentment transaction
3 agreement.
4 (5) The face amount of a check taken for deferred
5 presentment may not exceed $500 exclusive of the fees allowed
6 by this part.
7 (6) No deferred presentment provider or its affiliate
8 shall charge fees in excess of 10 percent of the currency or
9 payment instrument provided. However, a verification fee may
10 be charged in accordance with s. 560.309(4) and the rules
11 adopted pursuant to the code. The 10-percent fee may not be
12 applied to the verification fee. A deferred presentment
13 provider may charge only those fees specifically authorized in
14 this section.
15 (7) The fees authorized by this section may not be
16 collected before the drawer's check is presented or redeemed.
17 (8) No deferred presentment agreement shall be for a
18 term in excess of 31 days or less than 7 days.
19 (9) No deferred presentment provider shall require a
20 person to provide any additional security for the deferred
21 presentment transaction or any extension or require a person
22 to provide any additional guaranty from another person.
23 (10) A deferred presentment provider shall not include
24 any of the following provisions in any written agreement:
25 (a) A hold harmless clause;
26 (b) A confession of judgment clause;
27 (c) Any assignment of or order for payment of wages or
28 other compensation for services;
29 (d) A provision in which the drawer agrees not to
30 assert any claim or defense arising out of the agreement; or
31 (e) A waiver of any provision of this part.
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1 (11) Each deferred presentment provider shall
2 immediately provide the drawer with the full amount of any
3 check to be held, less only the fees permitted under this
4 section.
5 (12) The deferred presentment agreement and drawer's
6 check shall bear the same date, and the number of days of the
7 deferment period shall be calculated from this date. No
8 deferred presentment provider or person may alter or delete
9 the date on any written agreement or check held by the
10 deferred presentment provider.
11 (13) For each deferred presentment transaction, the
12 deferred presentment provider must comply with the disclosure
13 requirements of 12 C.F.R., Part 226, the federal
14 Truth-in-Lending Act, and Regulation Z of the Board of
15 Governors of the Federal Reserve Board. A copy of the
16 disclosure must be provided to the drawer at the time the
17 deferred presentment transaction is initiated.
18 (14) No deferred presentment provider or its affiliate
19 may accept or hold an undated check or a check dated on a date
20 other than the date on which the deferred presentment provider
21 agreed to hold the check and signed the deferred presentment
22 transaction agreement.
23 (15) Every deferred presentment provider shall hold
24 the drawer's check for the agreed number of days, unless the
25 drawer chooses to redeem the check before the agreed
26 presentment date.
27 (16) Proceeds in a deferred presentment transaction
28 may be made to the drawer in the form of the deferred
29 presentment provider's payment instrument if the deferred
30 presentment provider is registered under part II; however, no
31 additional fee may be charged by a deferred presentment
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1 provider or its affiliate for issuing or cashing the deferred
2 presentment provider's payment instrument.
3 (17) No deferred presentment provider may require the
4 drawer to accept its payment instrument in lieu of currency.
5 (18) No deferred presentment provider or its affiliate
6 may engage in the rollover of any deferred presentment
7 agreement. A deferred presentment provider shall not redeem,
8 extend, or otherwise consolidate a deferred presentment
9 agreement with the proceeds of another deferred presentment
10 transaction made by the same or an affiliated deferred
11 presentment provider.
12 (19) A deferred presentment provider may not enter
13 into a deferred presentment transaction with a person who has
14 an outstanding deferred presentment transaction with that
15 provider or with any other deferred presentment provider, or
16 with a person whose previous deferred presentment transaction
17 with that provider or with any other provider has been
18 terminated for less than 24 hours. The deferred presentment
19 provider must verify such information as follows:
20 (a) The deferred presentment provider shall maintain a
21 common database and shall verify whether that deferred
22 presentment provider or an affiliate has an outstanding
23 deferred presentment transaction with a particular person or
24 has terminated a transaction with that person within the
25 previous 24 hours.
26 (b) The deferred presentment provider shall access the
27 department's database established pursuant to subsection (23)
28 and shall verify whether any other deferred presentment
29 provider has an outstanding deferred presentment transaction
30 with a particular person or has terminated a transaction with
31 that person within the previous 24 hours. Prior to the time
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1 that the department has implemented such a database, the
2 deferred presentment provider may rely upon the written
3 verification of the drawer as provided in subsection (20).
4 (20) A deferred presentment provider shall provide the
5 following notice in a prominent place on each deferred
6 presentment agreement in at least 14-point type in
7 substantially the following form and must obtain the signature
8 of the drawer where indicated:
9
10 NOTICE
11 1. STATE LAW PROHIBITS YOU FROM HAVING MORE
12 THAN ONE DEFERRED PRESENTMENT AGREEMENT AT ANY
13 ONE TIME. STATE LAW ALSO PROHIBITS YOU FROM
14 ENTERING INTO A DEFERRED PRESENTMENT AGREEMENT
15 WITHIN 24 HOURS OF TERMINATING ANY PREVIOUS
16 DEFERRED PRESENTMENT AGREEMENT. FAILURE TO OBEY
17 THIS LAW COULD CREATE SEVERE FINANCIAL HARDSHIP
18 FOR YOU AND YOUR FAMILY.
19
20 YOU MUST SIGN THE FOLLOWING STATEMENT:
21 I DO NOT HAVE AN OUTSTANDING DEFERRED
22 PRESENTMENT AGREEMENT WITH ANY DEFERRED
23 PRESENTMENT PROVIDER AT THIS TIME. I HAVE NOT
24 TERMINATED A DEFERRED PRESENTMENT AGREEMENT
25 WITHIN THE PAST 24 HOURS.
26 (Signature of Drawer)
27
28 2. YOU CANNOT BE PROSECUTED IN CRIMINAL COURT
29 FOR A CHECK WRITTEN UNDER THIS AGREEMENT, BUT
30 ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE
31 THE DEBT MAY BE PURSUED AGAINST YOU.
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1
2 3. STATE LAW PROHIBITS A DEFERRED PRESENTMENT
3 PROVIDER (THIS BUSINESS) FROM ALLOWING YOU TO
4 "ROLL OVER" YOUR DEFERRED PRESENTMENT
5 TRANSACTION. THIS MEANS THAT YOU CANNOT BE
6 ASKED OR REQUIRED TO PAY AN ADDITIONAL FEE IN
7 ORDER TO FURTHER DELAY THE DEPOSIT OR
8 PRESENTMENT OF YOUR CHECK FOR PAYMENT. IF YOU
9 INFORM THE PROVIDER IN PERSON THAT YOU CANNOT
10 COVER THE CHECK OR PAY IN FULL THE AMOUNT OWING
11 AT THE END OF THE TERM OF THIS AGREEMENT, YOU
12 WILL RECEIVE A GRACE PERIOD EXTENDING THE TERM
13 OF THE AGREEMENT FOR AN ADDITIONAL 60 DAYS
14 AFTER THE ORIGINAL TERMINATION DATE, WITHOUT
15 ANY ADDITIONAL CHARGE. THE DEFERRED PRESENTMENT
16 PROVIDER SHALL REQUIRE THAT YOU, AS A CONDITION
17 OF OBTAINING THE GRACE PERIOD, COMPLETE
18 CONSUMER CREDIT COUNSELING PROVIDED BY AN
19 AGENCY INCLUDED ON THE LIST THAT WILL BE
20 PROVIDED TO YOU BY THIS PROVIDER. YOU MAY ALSO
21 AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT
22 PLAN APPROVED BY THAT AGENCY. IF YOU DO NOT
23 COMPLY WITH AND ADHERE TO A REPAYMENT PLAN
24 APPROVED BY THAT AGENCY, WE MAY DEPOSIT OR
25 PRESENT YOUR CHECK FOR PAYMENT AND PURSUE ALL
26 LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE THE
27 DEBT AT THE END OF THE 60-DAY GRACE PERIOD.
28
29 (21) The deferred presentment provider may not deposit
30 or present the drawer's check if the drawer informs the
31 provider in person that the drawer cannot redeem or pay in
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1 full in cash the amount due and owing the deferred presentment
2 provider. No additional fees or penalties may be imposed on
3 the drawer by virtue of any misrepresentation made by the
4 drawer as to the sufficiency of funds in the drawer's account.
5 In no event shall any additional fees be added to the amounts
6 due and owing to the deferred presentment provider.
7 (22)(a) If, by the end of the deferment period, the
8 drawer informs the deferred presentment provider in person
9 that the drawer cannot redeem or pay in full in cash the
10 amount due and owing the deferred presentment provider, the
11 deferred presentment provider shall provide a grace period
12 extending the term of the agreement for an additional 60 days
13 after the original termination date, without any additional
14 charge. The provider shall require that as a condition of
15 providing this grace period, that within the first 7 days of
16 the grace period the drawer make an appointment with a
17 consumer credit counseling agency within 7 days after the end
18 of the deferment period and complete the counseling by the end
19 of the grace period. The drawer may agree to, comply with, and
20 adhere to a repayment plan approved by the counseling agency.
21 If the drawer agrees to comply with and adhere to a repayment
22 plan approved by the counseling agency, the provider is also
23 required to comply with and adhere to that repayment plan. The
24 deferred presentment provider may not deposit or present the
25 drawer's check for payment before the end of the 60-day grace
26 period unless the drawer fails to comply with such conditions
27 or the drawer fails to notify the provider of such compliance.
28 Before each deferred presentment transaction, the provider may
29 verbally advise the drawer of the availability of the grace
30 period consistent with the provisions of the written notice in
31
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1 subsection (20), and shall not discourage the drawer from
2 using the grace period.
3 (b) At the commencement of the grace period, the
4 deferred presentment provider shall provide the drawer:
5 1. Verbal notice of the availability of the grace
6 period consistent with the written notice in subsection (20).
7 2. A list of approved consumer credit counseling
8 agencies prepared by the department. The department shall
9 prepare the list by October 1, 2001. The department list shall
10 include nonprofit consumer credit counseling agencies
11 affiliated with the National Foundation for Credit Counseling
12 which provide credit counseling services to Florida residents
13 in person, by telephone, or through the internet. The
14 department list must include phone numbers for the agencies,
15 the counties served by the agencies, and indicate the agencies
16 that provide telephone counseling and those that provide
17 internet counseling. The department shall update the list at
18 least once each year.
19 3. The following notice in at least 14-point type in
20 substantially the following form:
21
22 AS A CONDITION OF OBTAINING A GRACE PERIOD
23 EXTENDING THE TERM OF YOUR DEFERRED PRESENTMENT
24 AGREEMENT FOR AN ADDITIONAL 60 DAYS, UNTIL
25 [date], WITHOUT ANY ADDITIONAL FEES, YOU MUST
26 COMPLETE CONSUMER CREDIT COUNSELING PROVIDED BY
27 AN AGENCY INCLUDED ON THE LIST THAT WILL BE
28 PROVIDED TO YOU BY THIS PROVIDER. YOU MAY ALSO
29 AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT
30 PLAN APPROVED BY THE AGENCY. THE COUNSELING MAY
31 BE IN-PERSON, BY TELEPHONE, OR THROUGH THE
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1 INTERNET. YOU MUST NOTIFY US WITHIN SEVEN (7)
2 DAYS, BY [DATE], THAT YOU HAVE MADE AN
3 APPOINTMENT WITH SUCH A CONSUMER CREDIT
4 COUNSELING AGENCY. YOU MUST ALSO NOTIFY US
5 WITHIN SIXTY (60) DAYS, BY [DATE], THAT YOU
6 HAVE COMPLETED THE CONSUMER CREDIT COUNSELING.
7 WE MAY VERIFY THIS INFORMATION WITH THE AGENCY.
8 IF YOU FAIL TO PROVIDE EITHER THE 7-DAY OR
9 60-DAY NOTICE, OR IF YOU HAVE NOT MADE THE
10 APPOINTMENT OR COMPLETED THE COUNSELING WITHIN
11 THE TIME REQUIRED, WE MAY DEPOSIT OR PRESENT
12 YOUR CHECK FOR PAYMENT AND PURSUE ALL LEGALLY
13 AVAILABLE CIVIL MEANS TO ENFORCE THE DEBT.
14
15 (c) If a drawer completes an approved payment plan,
16 the deferred presentment provider shall pay one-half of the
17 drawer's fee for the deferred presentment agreement to the
18 consumer credit counseling agency.
19 (23) On or before March 1, 2002, the department shall
20 implement a common database with real-time access through an
21 internet connection for deferred presentment providers, as
22 provided in this subsection. The database must be accessible
23 to the department and the deferred presentment providers to
24 verify whether any deferred presentment transactions are
25 outstanding for a particular person. Deferred presentment
26 providers shall submit such data before entering into each
27 deferred presentment transaction in such format as the
28 department shall require by rule, including the drawer's name,
29 social security number or employment authorization alien
30 number, address, driver's license number, amount of the
31 transaction, date of transaction, the date that the
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1 transaction is closed, and such additional information as is
2 required by the department. The department may impose a fee
3 not to exceed $1 per transaction for data required to be
4 submitted by a deferred presentment provider. A deferred
5 presentment provider may rely on the information contained in
6 the database as accurate and is not subject to any
7 administrative penalty or civil liability as a result of
8 relying on inaccurate information contained in the database.
9 The department may adopt rules to administer and enforce the
10 provisions of this section and to assure that the database is
11 used by deferred presentment providers in accordance with this
12 section.
13 560.405 Deposit; redemption.--
14 (1) The deferred presentment provider or its affiliate
15 shall not present the drawer's check prior to the agreed-upon
16 date of presentment, as reflected in the deferred presentment
17 transaction agreement.
18 (2) Before a deferred presentment provider presents
19 the drawer's check, the check shall be endorsed with the
20 actual name under which the deferred presentment provider is
21 doing business.
22 (3) Notwithstanding the provisions of subsection (1),
23 in lieu of presentment, a deferred presentment provider may
24 allow the check to be redeemed at any time upon payment to the
25 deferred presentment provider in the amount of the face amount
26 of the drawer's check. However, payment may not be made in the
27 form of a personal check. Upon redemption, the deferred
28 presentment provider shall return the drawer's check that was
29 being held and provide a signed, dated receipt showing that
30 the drawer's check has been redeemed.
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1 (4) No drawer can be required to redeem his or her
2 check prior to the agreed-upon date; however, the drawer may
3 choose to redeem the check before the agreed-upon presentment
4 date.
5 560.406 Worthless checks.--If a check is returned to a
6 deferred presentment provider from a payor financial
7 institution due to lack of funds, a closed account, or a
8 stop-payment order, the deferred presentment provider may seek
9 collection pursuant to s. 68.065, except a deferred
10 presentment provider shall not be entitled to collect treble
11 damages pursuant s. 68.065. The notice sent by a deferred
12 deposit provider pursuant to s. 68.065 shall not include any
13 references to treble damages and must clearly state that the
14 deferred presentment provider is not entitled to recover such
15 damages. Except as otherwise provided in this part, an
16 individual who issues a personal check to a deferred
17 presentment provider under a deferred presentment agreement is
18 not subject to criminal penalty. If a check is returned to a
19 deferred presentment provider from a payor financial
20 institution due to insufficient funds, a closed account, or a
21 stop-payment order, the deferred presentment provider may
22 pursue all legally available civil remedies to collect the
23 check, including, but not limited to, the imposition of all
24 charges imposed on the deferred presentment provider by any
25 financial institution. In its collection practices, a deferred
26 presentment provider shall comply with the prohibitions
27 against harassment or abuse, false or misleading
28 representations, and unfair practices which are contained in
29 ss. 806, 807, and 808 of the Fair Debt Collections Practices
30 Act, 15 U.S.C. ss. 1692d, 1692e, 1692f. A violation of this
31 act is a deceptive and unfair trade practice and constitutes a
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1 violation of the Deceptive and Unfair Trade Practices Act,
2 part II, of chapter 501. In addition, a deferred presentment
3 provider shall comply with the applicable provisions of part
4 VI of chapter 559, the Consumer Collection Practices Act,
5 including, but not limited to, the provisions of s. 559.77.
6 560.407 Records.--
7 (1) Each registrant under this part must maintain all
8 books, accounts, records, and documents necessary to determine
9 the registrant's compliance with the provisions of the code.
10 Such books, accounts, records, and documents shall be retained
11 for a period of at least 3 years unless a longer period is
12 expressly required by the department, the laws of this state,
13 or any federal law.
14 (2) The records required to be maintained by the code
15 or any rule adopted pursuant thereto may be maintained by the
16 registrant at any location within this state, provided that
17 the registrant notifies the department, in writing, of the
18 location of the records in its application or otherwise.
19 (3) A registrant shall make records available to the
20 department for examination and investigation in this state, as
21 permitted by the code, within 7 days after receipt of a
22 written request.
23 (4) The original of any record of a registrant
24 includes the data or other information comprising a record
25 stored or transmitted in or by means of any electronic,
26 computerized, mechanized, or other information storage or
27 retrieval or transmission system or device that can upon
28 request generate, regenerate, or transmit the precise data or
29 other information comprising the record. An original also
30 includes the visible data or other information so generated,
31
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1 regenerated, or transmitted if it is legible or can be made
2 legible by enlargement or other process.
3 560.408 Legislative intent; report.--
4 (1) It is the intent of the Legislature to provide for
5 the regulation of deferred presentment transactions. It is
6 further the intent of the Legislature to prevent fraud, abuse,
7 and other unlawful activity associated with deferred
8 presentment transactions in part by:
9 (a) Providing for sufficient regulatory authority and
10 resources to monitor deferred presentment transactions.
11 (b) Preventing rollovers.
12 (c) Regulating the allowable fees charged in
13 connection with a deferred presentment transaction.
14 (2) The Comptroller shall submit a report to the
15 President of the Senate and the Speaker of the House of
16 Representatives on January 1, 2003, and January 1, 2004,
17 containing findings and conclusions concerning the
18 effectiveness of this act in preventing fraud, abuse, and
19 other unlawful activity associated with deferred presentment
20 transactions. The report may contain legislative
21 recommendations addressing the prevention of fraud, abuse, and
22 other unlawful activity associated with deferred presentment
23 transactions. Prior to filing the report, the Comptroller
24 shall consult with the Attorney General for the purpose of
25 including any recommendations or concerns expressed by the
26 Attorney General.
27 Section 14. This act shall take effect October 1,
28 2001.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 CS/CS/SB 1526 & 314
3
4 1) Clarifies conditions related to the 60-day grace period:
5 Drawer must inform the provider in person that they
cannot repay the loan;
6
Must complete, not just attend, credit counseling;
7
Drawer may enter a payment plan approved by a credit
8 counselor and the provider must also follow this plan;
9 If the drawer does not agree to a payment plan the loan
must be paid at the end of the grace period.
10
2) Clarifies that counseling may be accessed in person, by
11 telephone or by Internet.
12 3) Specifies that verbal & written notice must be provided
to the drawer at the beginning of the grace period
13
4) Specifies that the provider may attempt to discourage
14 use of the grace period
15 5) Exempts persons engaged in the selling or issuing of
payment instruments or in activity of a funds
16 transmitter from the registration fee requirements of s.
560.307, F.S.
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