Senate Bill sb1300

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    Florida Senate - 2004                                  SB 1300

    By Senator Garcia





    40-839-04

  1                      A bill to be entitled

  2         An act relating to consumer services; amending

  3         s. 493.6101, F.S.; expanding the definition of

  4         the term "repossession" for purposes of the

  5         regulation of repossession services; amending

  6         s. 493.6102, F.S.; revising the applicability

  7         of ch. 493, F.S., governing private

  8         investigative, private security, and

  9         repossession services; amending s. 493.6110,

10         F.S.; revising the insurance requirements for

11         licensure as a security agency under such

12         chapter; amending s. 493.6118, F.S.; revising

13         the grounds for discipline of persons or

14         entities that are licensed as, or applicants

15         for licensure as, a recovery agency, recovery

16         agent, and recovery agent intern under such

17         chapter; providing an effective date.

18  

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

20  

21         Section 1.  Subsection (22) of section 493.6101,

22  Florida Statutes, is amended to read:

23         493.6101  Definitions.--

24         (22)  "Repossession" means the recovery of a motor

25  vehicle as defined under s. 320.01(1), a or mobile home as

26  defined in s. 320.01(2), a or motorboat as defined under s.

27  327.02, an aircraft as defined in s. 330.27(1), a personal

28  watercraft as defined in s. 327.02, an all-terrain vehicle as

29  defined in s. 316.2074, farm equipment as defined under s.

30  686.402, or industrial equipment, by an individual who is

31  authorized by the legal owner, lienholder, or lessor to

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    Florida Senate - 2004                                  SB 1300
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 1  recover, or to collect money payment in lieu of recovery of,

 2  that which has been sold or leased under a security agreement

 3  that contains a repossession clause. As used in this

 4  subsection, the term "industrial equipment" includes, but is

 5  not limited to, tractors, road rollers, cranes, fork lifts,

 6  backhoes, bulldozers, and other vehicles that are propelled by

 7  power other than muscular power, and used in the manufacture

 8  of goods and services.  A repossession is complete when a

 9  licensed recovery agent is in control, custody, and possession

10  of such motor vehicle, mobile home, or motorboat.

11         Section 2.  Subsection (3) of section 493.6102, Florida

12  Statutes, is amended to read:

13         493.6102  Inapplicability of this chapter.--This

14  chapter shall not apply to:

15         (3)  Any individual solely, exclusively, and regularly

16  employed as an unarmed investigator or recovery agent in

17  connection with the business of her or his employer, when

18  there exists an employer-employee relationship.

19         Section 3.  Section 493.6110, Florida Statutes, is

20  amended to read:

21         493.6110  Licensee's insurance.--A Class "B" No agency

22  license may not shall be issued unless the applicant first

23  files with the department a certification of insurance

24  evidencing commercial general liability coverage as delineated

25  below. The coverage shall provide the department as an

26  additional insured for the purpose of receiving all notices of

27  modification or cancellation of such insurance. Coverage shall

28  be written by an insurance company which is lawfully engaged

29  to provide insurance coverage in Florida. Coverage shall

30  provide for a combined single-limit policy in the amount of at

31  least $300,000, which policy shall include comprehensive

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    Florida Senate - 2004                                  SB 1300
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 1  general liability coverage for death, bodily injury, property

 2  damage, and personal injury coverage including false arrest,

 3  detention or imprisonment, malicious prosecution, libel,

 4  slander, defamation of character, and violation of the right

 5  of privacy. Coverage shall insure for the liability of all

 6  employees licensed by the department while acting in the

 7  course of their employment.

 8         (1)  The licensed agency shall notify the department of

 9  any claim against such insurance.

10         (2)  The licensed agency shall notify the department

11  immediately upon cancellation of the insurance policy, whether

12  such cancellation was initiated by the insurance company or

13  the insured agency.

14         (3)  The agency license shall be automatically

15  suspended upon the date of cancellation unless evidence of

16  insurance is provided to the department prior to the effective

17  date of cancellation.

18         Section 4.  Section 493.6118, Florida Statutes, is

19  amended to read:

20         493.6118  Grounds for disciplinary action.--

21         (1)  The following constitute grounds for which

22  disciplinary action specified in subsection (2) may be taken

23  by the department against any licensee, agency, or applicant

24  regulated by this chapter, or any unlicensed person engaged in

25  activities regulated under this chapter.

26         (a)  Fraud or willful misrepresentation in applying for

27  or obtaining a license.

28         (b)  Use of any fictitious or assumed name by an agency

29  unless the agency has department approval and qualifies under

30  s. 865.09.

31  

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 1         (c)  Being found guilty of or entering a plea of guilty

 2  or nolo contendere to, regardless of adjudication, or being

 3  convicted of a crime that directly relates to the business for

 4  which the license is held or sought.  A plea of nolo

 5  contendere shall create a rebuttable presumption of guilt to

 6  the underlying criminal charges, and the department shall

 7  allow the individual being disciplined or denied an

 8  application for a license to present any mitigating

 9  circumstances surrounding his or her plea.

10         (d)  A false statement by the licensee that any

11  individual is or has been in his or her employ.

12         (e)  A finding that the licensee or any employee is

13  guilty of willful betrayal of a professional secret or any

14  unauthorized release of information acquired as a result of

15  activities regulated under this chapter.

16         (f)  Proof that the applicant or licensee is guilty of

17  fraud or deceit, or of negligence, incompetency, or

18  misconduct, in the practice of the activities regulated under

19  this chapter.

20         (g)  Conducting activities regulated under this chapter

21  without a license or with a revoked or suspended license.

22         (h)  Failure of the licensee to maintain in full force

23  and effect the general liability insurance coverage required

24  by s. 493.6110.

25         (i)  Impersonating, or permitting or aiding and

26  abetting an employee to impersonate, a law enforcement officer

27  or an employee of the state, the United States, or any

28  political subdivision thereof by identifying himself or

29  herself as a federal, state, county, or municipal law

30  enforcement officer or official representative, by wearing a

31  uniform or presenting or displaying a badge or credentials

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 1  that would cause a reasonable person to believe that he or she

 2  is a law enforcement officer or that he or she has official

 3  authority, by displaying any flashing or warning vehicular

 4  lights other than amber colored, or by committing any act that

 5  is intended to falsely convey official status.

 6         (j)  Commission of an act of violence or the use of

 7  force on any person except in the lawful protection of one's

 8  self or another from physical harm.

 9         (k)  Knowingly violating, advising, encouraging, or

10  assisting the violation of any statute, court order, capias,

11  warrant, injunction, or cease and desist order, in the course

12  of business regulated under this chapter.

13         (l)  Soliciting business for an attorney in return for

14  compensation.

15         (m)  Transferring or attempting to transfer a license

16  issued pursuant to this chapter.

17         (n)  Employing or contracting with any unlicensed or

18  improperly licensed person or agency to conduct activities

19  regulated under this chapter, or performing any act that

20  assists, aids, or abets a person or business entity in

21  engaging in unlicensed activity, when the licensure status was

22  known or could have been ascertained by reasonable inquiry.

23         (o)  Failure or refusal to cooperate with or refusal of

24  access to an authorized representative of the department

25  engaged in an official investigation pursuant to this chapter.

26         (p)  Failure of any partner, principal corporate

27  officer, or licensee to have his or her identification card in

28  his or her possession while on duty.

29         (q)  Failure of any licensee to have his or her license

30  in his or her possession while on duty, as specified in s.

31  493.6111(1).

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 1         (r)  Failure or refusal by a sponsor to certify a

 2  biannual written report on an intern or to certify completion

 3  or termination of an internship to the department within 15

 4  working days.

 5         (s)  Failure to report to the department any person

 6  whom the licensee knows to be in violation of this chapter or

 7  the rules of the department.

 8         (t)  Violating any provision of this chapter.

 9         (u)  In addition to the grounds for disciplinary action

10  prescribed in paragraphs (a)-(t), Class "R" recovery agencies,

11  Class "E" recovery agents, and Class "EE" recovery agent

12  interns are prohibited from committing the following acts:

13         1.  Recovering a motor vehicle, mobile home, or

14  motorboat, aircraft, personal watercraft, all-terrain vehicle,

15  farm equipment, or industrial equipment that has been sold

16  under a conditional sales agreement or under the terms of a

17  chattel mortgage before authorization has been received from

18  the legal owner or mortgagee.

19         2.  Charging for expenses not actually incurred in

20  connection with the recovery, transportation, storage, or

21  disposal of repossessed property a motor vehicle, mobile home,

22  motorboat, or personal property obtained in a repossession.

23         3.  Using any motor vehicle, mobile home, or motorboat

24  that has been repossessed property, or using personal property

25  obtained in a repossession, for the personal benefit of a

26  licensee or an officer, director, partner, manager, or

27  employee of a licensee.

28         4.  Selling property a motor vehicle, mobile home, or

29  motorboat recovered under the provisions of this chapter,

30  except with written authorization from the legal owner or the

31  mortgagee thereof.

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 1         5.  Failing to notify the police or sheriff's

 2  department of the jurisdiction in which the repossessed

 3  property is recovered within 2 hours after recovery.

 4         6.  Failing to remit moneys, collected in lieu of

 5  recovery of a motor vehicle, mobile home, or motorboat,

 6  aircraft, personal watercraft, all-terrain vehicle, farm

 7  equipment, or industrial equipment to the client within 10

 8  working days.

 9         7.  Failing to deliver to the client a negotiable

10  instrument that is payable to the client, within 10 working

11  days after receipt of such instrument.

12         8.  Falsifying, altering, or failing to maintain any

13  required inventory or records regarding disposal of personal

14  property contained in or on repossessed property a recovered

15  motor vehicle, mobile home, or motorboat pursuant to s.

16  493.6404(1).

17         9.  Carrying any weapon or firearm when he or she is on

18  private property and performing duties under his or her

19  license whether or not he or she is licensed pursuant to s.

20  790.06.

21         10.  Soliciting from the legal owner the recovery of

22  property subject to repossession after such property has been

23  seen or located on public or private property if the amount

24  charged or requested for such recovery is more than the amount

25  normally charged for such a recovery.

26         11.  Wearing, presenting, or displaying a badge in the

27  course of performing a repossession regulated by this chapter

28  repossessing a motor vehicle, mobile home, or motorboat.

29         (2)  When the department finds any violation of

30  subsection (1), it may do one or more of the following:

31  

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 1         (a)  Deny an application for the issuance or renewal of

 2  a license.

 3         (b)  Issue a reprimand.

 4         (c)  Impose an administrative fine not to exceed $1,000

 5  for every count or separate offense.

 6         (d)  Place the licensee on probation for a period of

 7  time and subject to such conditions as the department may

 8  specify.

 9         (e)  Suspend or revoke a license.

10         (3)  The department may deny an application for

11  licensure citing lack of good moral character only if the

12  finding by the department of lack of good moral character is

13  supported by clear and convincing evidence.  In such cases,

14  the department shall furnish the applicant a statement

15  containing the findings of the department, a complete record

16  of the evidence upon which the determination was based, and a

17  notice of the rights of the applicant to an administrative

18  hearing and subsequent appeal.

19         (4)  Notwithstanding the provisions of paragraph (1)(c)

20  and subsection (2):

21         (a)  If the applicant or licensee has been convicted of

22  a felony, the department shall deny the application or revoke

23  the license unless and until civil rights have been restored

24  by the State of Florida or by a state acceptable to Florida

25  and a period of 10 years has expired since final release from

26  supervision.

27         (b)  A Class "G" applicant who has been convicted of a

28  felony shall also have had the specific right to possess,

29  carry, or use a firearm restored by the State of Florida.

30         (c)  If the applicant or licensee has been found guilty

31  of, entered a plea of guilty to, or entered a plea of nolo

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 1  contendere to a felony and adjudication of guilt is withheld,

 2  the department shall deny the application or revoke the

 3  license until a period of 3 years has expired since final

 4  release from supervision.

 5         (d)  A plea of nolo contendere shall create a

 6  rebuttable presumption of guilt to the underlying criminal

 7  charges, and the department shall allow the person being

 8  disciplined or denied an application for a license to present

 9  any mitigating circumstances surrounding his or her plea.

10         (e)  The grounds for discipline or denial cited in this

11  subsection shall be applied to any disqualifying criminal

12  history regardless of the date of commission of the underlying

13  criminal charge.  Such provisions shall be applied

14  retroactively and prospectively.

15         (5)  Upon revocation or suspension of a license, the

16  licensee shall forthwith return the license which was

17  suspended or revoked.

18         (6)  The agency license and the approval or license of

19  each officer, partner, or owner of the agency are

20  automatically suspended upon entry of a final order imposing

21  an administrative fine against the agency, until the fine is

22  paid, if 30 calendar days have elapsed since the entry of the

23  final order. All owners and corporate or agency officers or

24  partners are jointly and severally liable for agency fines.

25  Neither the agency license or the approval or license of any

26  officer, partner, or owner of the agency may be renewed, nor

27  may an application be approved if the owner, licensee, or

28  applicant is liable for an outstanding administrative fine

29  imposed under this chapter. An individual's approval or

30  license becomes automatically suspended if a fine imposed

31  against the individual or his or her agency is not paid within

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 1  30 days after the date of the final order, and remains

 2  suspended until the fine is paid. Notwithstanding the

 3  provisions of this subsection, an individual's approval or

 4  license may not be suspended nor may an application be denied

 5  when the licensee or the applicant has an appeal from a final

 6  order pending in any appellate court.

 7         (7)  An applicant or licensee shall be ineligible to

 8  reapply for the same class of license for a period of 1 year

 9  following final agency action resulting in the denial or

10  revocation of a license applied for or issued under this

11  chapter. This time restriction shall not apply to

12  administrative denials wherein the basis for denial was:

13         (a)  An inadvertent error or omission on the

14  application;

15         (b)  The experience documented by the department was

16  insufficient at the time of application;

17         (c)  The department was unable to complete the criminal

18  background investigation due to insufficient information from

19  the Department of Law Enforcement, the Federal Bureau of

20  Investigation, or any other applicable law enforcement agency;

21  or

22         (d)  Failure to submit required fees.

23         Section 5.  This act shall take effect October 1, 2004.

24  

25            *****************************************

26                          SENATE SUMMARY

27    Expands the definition of the term "repossession" for
      purposes of regulating recovery agents and agencies.
28    Provides that chapter 493, Florida Statutes, relating to
      private investigative, private security, and repossession
29    agencies applies to recovery agents. Clarifies that
      provisions relating to proof of commercial general
30    liability insurance as a condition of licensure apply
      only to security agencies. Provides additional grounds
31    for disciplining recovery agencies, recovery agents, and
      recovery agent interns.
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