Senate Bill sb2092c1

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    Florida Senate - 2004                           CS for SB 2092

    By the Committee on Judiciary; and Senators Villalobos and
    Smith




    308-2275-04

  1                      A bill to be entitled

  2         An act relating to elderly persons; providing a

  3         short title; creating s. 410.701, F.S.;

  4         providing legislative intent; creating s.

  5         410.702, F.S.; providing definitions; creating

  6         s. 410.703, F.S.; providing that the financial

  7         exploitation of an elderly person is unlawful;

  8         providing for declaratory or injunctive relief,

  9         damages in case of injury or loss, and

10         reasonable attorney's fees and costs; providing

11         jurisdiction in case of death of the elderly

12         person; providing that certain persons may

13         bring an action on behalf of an elderly person

14         under the act; providing for advancement of a

15         trial on the docket; authorizing the Attorney

16         General to conduct an investigation and bring a

17         civil suit in circuit court for a violation of

18         the act; requiring that an award of attorney's

19         fees and costs of the action and investigation

20         by the Attorney General be deposited into the

21         Elder Victims Trust Fund; creating s. 410.704,

22         F.S.; providing that punitive damages may not

23         exceed a certain amount; providing an

24         exception; requiring that punitive damages be

25         equally divided between the claimant and the

26         Elder Victims Trust Fund according to certain

27         conditions; requiring the Department of Revenue

28         to collect punitive damages payable to the

29         Elder Victims Trust Fund; creating s. 410.705,

30         F.S.; requiring the Department of Elderly

31         Affairs to develop and implement educational

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    Florida Senate - 2004                           CS for SB 2092
    308-2275-04




 1         initiatives concerning the exploitation of

 2         elderly persons; prohibiting a party from

 3         recovering punitive damages under the act in

 4         addition to punitive damages under ch. 772,

 5         F.S.; providing that lack of knowledge of an

 6         elderly person's age is not a defense;

 7         providing that a waiver of rights or remedies

 8         by an elderly person under this act is

 9         unenforceable and void; providing an effective

10         date.

11  

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

13  

14         Section 1.  This act may be cited as the "Financial

15  Protection for the Elderly Act."

16         Section 2.  Section 410.701, Florida Statutes, is

17  created to read:

18         410.701  Legislative intent.--The Legislature

19  recognizes that elderly persons are frequent victims of

20  deceptive and unfair acts and business practices and are often

21  unusually vulnerable to such conduct. The provisions of ss.

22  410.701-410.705 shall be construed liberally to promote the

23  protection of elderly persons and to provide elderly persons

24  individually and collectively the rights and means to recover

25  from those who engage in financial exploitation.

26         Section 3.  Section 410.702, Florida Statutes, is

27  created to read:

28         410.702  Definitions.--As used in ss. 410.701-410.705,

29  the term:

30         (1)  "Deception" includes:

31  

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    Florida Senate - 2004                           CS for SB 2092
    308-2275-04




 1         (a)  A false or misleading misrepresentation of

 2  material fact or circumstance; or

 3         (b)  An omission of a material fact which fact is

 4  reasonably necessary in order to make the representations

 5  made, in light of the circumstances under which they were

 6  made, not misleading.

 7         (2)  "Department" means the Department of Elderly

 8  Affairs.

 9         (3)  "Elderly person" means a person in this state who

10  is older than 60 years of age.

11         (4)  "Financial institution" includes a bank, bank

12  holding company, credit card bank, banking organization,

13  savings association, trust company, credit union, investment

14  company, insurance company, or money-market mutual fund.

15         (5)  "Financial exploitation" means to obtain or use,

16  or endeavor to obtain or use, an elderly person's moneys,

17  funds, assets, or property, by deception or intimidation, or

18  by unfair or unconscionable acts or practices. The term

19  includes any act causing, bringing about, participating in,

20  facilitating, counseling, or aiding or abetting financial

21  exploitation of an elderly person.

22         (6)  "Intimidation" means communication by word or act

23  to an elderly person that he or she will be deprived of food,

24  nutrition, clothing, shelter, medicine, medical services,

25  money, or financial support or will suffer physical violence.

26         (7)  "Obtains or uses" means any manner of:

27         (a)  Taking or exercising control over moneys,

28  property, funds, or assets; or

29         (b)  Making any use, disposition, or transfer of

30  moneys, property, funds, or assets.

31  

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    Florida Senate - 2004                           CS for SB 2092
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 1         (8)  "Unconscionable" shall be determined by the court.

 2  In determining whether an act or practice is unconscionable,

 3  the court shall consider all relevant circumstances,

 4  including, but not limited to whether:

 5         (a)  The defendant took advantage of the inability of

 6  the elderly person to protect his or her own interests because

 7  of the elderly person's physical or mental infirmity,

 8  ignorance, illiteracy, inability to understand the language of

 9  an agreement, or similar factor;

10         (b)  The elderly person was unable to receive a

11  material benefit from the subject of the transaction;

12         (c)  At the time of the transaction, the defendant knew

13  or should have known there was no reasonable probability of

14  payment of the attendant financial obligation by the elderly

15  person, when due;

16         (d)  The defendant induced the elderly person to enter

17  into a transaction that the defendant knew or should have

18  known was excessively one-sided in favor of the defendant, to

19  the elderly person's detriment;

20         (e)  The act or practice of the defendant shocks the

21  conscience or offends public policy; or

22         (f)  The defendant seeks a waiver of the rights and

23  remedies provided in this section.

24         Section 4.  Section 410.703, Florida Statutes, is

25  created to read:

26         410.703  Financial exploitation; civil actions.--

27         (1)  Financial exploitation of an elderly person by a

28  financial institution is declared unlawful and against the

29  public policy of this state.

30         (2)  Without regard to any other remedy or relief to

31  which an elderly person may or may not be entitled, an elderly

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    Florida Senate - 2004                           CS for SB 2092
    308-2275-04




 1  person aggrieved by a violation of this section may bring an

 2  action in circuit court to obtain a declaratory judgment that

 3  an act or practice violates this section or to enjoin a person

 4  who has violated, is violating, or is otherwise likely to

 5  violate this section.

 6         (3)  If an elderly person suffers injury or loss as a

 7  result of a violation of this section, he or she may bring an

 8  action for damages, including, but not limited to, punitive

 9  damages, if appropriate, in any court of competent

10  jurisdiction.

11         (4)  A plaintiff who prevails in any action brought

12  under this section is entitled to recover reasonable

13  attorney's fees and costs.

14         (5)  The death of an elderly person does not cause the

15  court to lose jurisdiction of any claim for relief under this

16  section. Any action brought under this section may be brought

17  in any court of competent jurisdiction by the elderly person,

18  or the elderly person's guardian or family member, by a person

19  or organization acting on behalf of the elderly person with

20  the consent of the elderly person or his or her guardian or

21  family member, or by the personal representative, executor, or

22  trustee of the estate of a deceased elderly person.

23         (6)  In an action under this section in which an

24  elderly person is a party, the elderly person may move the

25  court to advance the trial on the docket. The presiding judge,

26  after consideration of the age and health of the party, may

27  advance the trial on the docket. The motion may be filed and

28  served with the civil complaint or at any time thereafter.

29         (7)  Notwithstanding any other provision of law, the

30  Attorney General may:

31  

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    Florida Senate - 2004                           CS for SB 2092
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 1         (a)  Conduct an investigation, administer oaths, and

 2  subpoena witnesses if the Attorney General has reason to

 3  believe that a person has engaged in, or is engaging in,

 4  financial exploitation of an elderly person.

 5         (b)  Bring a civil action in circuit court:

 6         1.  To obtain a declaratory judgment that an act or

 7  practice violates this section or to enjoin a person who has

 8  violated, is violating, or is otherwise likely to violate this

 9  section; or

10         2.  For actual damages or restitution on behalf of an

11  elderly person who has suffered a loss as a result of a

12  violation of this section.

13         (8)  In the case of any successful action brought by

14  the Attorney General under this section, the costs of the

15  action, together with reasonable attorney's fees shall be

16  awarded to the Attorney General. Any moneys received by the

17  Attorney General for attorney's fees and costs of

18  investigation or litigation in enforcement under this section

19  shall be deposited in the Elder Victims Trust Fund.

20         Section 5.  Section 410.704, Florida Statutes, is

21  created to read:

22         410.704  Exploitation of an elderly person; punitive

23  damages; limitation.--

24         (1)  An award of punitive damages under this section

25  may not exceed $1 million.

26         (2)  Notwithstanding subsection (1), this section does

27  not prohibit an appropriate court from exercising its

28  discretion in determining the adequacy of an award of punitive

29  damages which is less than three times the amount of

30  compensatory damages.

31  

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    Florida Senate - 2004                           CS for SB 2092
    308-2275-04




 1         (3)  The jury may not be instructed or informed as to

 2  the provisions of this section.

 3         (4)  Notwithstanding any law to the contrary, the

 4  amount of punitive damages awarded under this section shall be

 5  equally divided between the claimant and the Elder Victims

 6  Trust Fund, as follows:

 7         (a)  After trial or summary judgment, the clerk of the

 8  court shall transmit a copy of any verdict and final judgment

 9  providing for punitive damages under this section to the Chief

10  Financial Officer by certified mail. In the final judgment,

11  the court shall order the percentages of the punitive damages

12  award, payable in equal divisions between the claimant and the

13  Elder Victims Trust Fund as provided in this section.

14         (b)  If a settlement agreement is entered into between

15  the parties to the action after a jury verdict awarding

16  punitive damages in an action brought under this section has

17  been returned, the parties must provide for an equal share of

18  the punitive damages payable to the Elder Victims Trust Fund

19  and the claimant.

20         (c)  The Department of Revenue shall collect or cause

21  to be collected all punitive damages payable to the Elder

22  Victims Trust Fund. Such punitive damages shall be deposited

23  in the Elder Victims Trust Fund in accordance with this

24  section.

25         (d)  If the full amount of punitive damages awarded

26  cannot be collected, the claimant and the other recipients

27  designated under this section are each entitled to equal

28  shares of the punitive damages collected.

29         Section 6.  Section 410.705, Florida Statutes, is

30  created to read:

31  

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    Florida Senate - 2004                           CS for SB 2092
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 1         410.705  Exploitation of elderly persons; educational

 2  initiatives; non-waiver; cumulative remedies.--

 3         (1)  The department shall develop and implement

 4  statewide educational initiatives to inform elderly persons,

 5  law enforcement agencies, members of the judicial system,

 6  social services, professionals, and the public of the

 7  prevalence of, and methods for preventing, deceptive and

 8  unfair acts or practices that victimize elderly persons and

 9  inform these groups of the provisions of this chapter, chapter

10  415, s. 775.0844, s. 772.11, s. 812.0145, and of the rights

11  and remedies available to elderly persons.

12         (2)  The rights and remedies provided in ss.

13  410.701-410.705 are in addition to and cumulative with other

14  legal and administrative remedies available to an elderly

15  person, except that a party may not recover punitive damages

16  under this section in addition to punitive damages under s.

17  772.11.

18         (3)  Lack of knowledge of the elderly person's age does

19  not constitute a defense to a cause of action brought under

20  ss. 410.701-410.705.

21         (4)  Proof of individual or actual reliance is not

22  required in order to state a cause of action brought under ss.

23  410.701-410.705.

24         (5)  Any waiver by an elderly person of the rights or

25  provisions of ss. 410.701-410.705 or any relief or remedies

26  provided to any elderly person under ss. 410.701-410.705 is

27  unenforceable and void.

28         Section 7.  This act shall take effect upon becoming a

29  law.

30  

31  

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    Florida Senate - 2004                           CS for SB 2092
    308-2275-04




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2092

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    -    Removes new language that provided specific penalties for
 5       the crime of financial exploitation of a person over the
         age of sixty, and based the severity of the criminal
 6       penalty on the value of the funds, assets or property.

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