Senate Bill sb0222e2

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    CS for SB 222                                 Second Engrossed



  1                      A bill to be entitled

  2         An act relating to delivery of written legal

  3         notice; amending s. 48.031, F.S.; deleting the

  4         requirement to use certified mail in service of

  5         a subpoena on a witness in specified cases;

  6         prohibiting a finding of contempt for failure

  7         to appear in response to a subpoena that is not

  8         delivered by certified mail; allowing the

  9         posting of a criminal witness subpoena under

10         specified conditions; requiring the placement

11         of certain information on the copy of the

12         process served; providing for alternative

13         methods of service under certain circumstances;

14         amending s. 48.081, F.S.; providing alternative

15         methods of service on a corporation; amending

16         s. 48.21, F.S.; requiring servers of process to

17         provide certain information on the return of

18         service; amending s. 48.29, F.S.; revising the

19         requirement that certified process servers

20         provide certain information on the face of the

21         process served; amending s. 83.13, F.S.;

22         authorizing the party who had a distress writ

23         issued to deliver the writ to a sheriff in

24         another county; amending s. 624.307, F.S.;

25         allowing the Chief Financial Officer, when

26         serving as the attorney to receive service of

27         all legal process for certain regulated

28         persons, to send the process by any verifiable

29         means to the person last designated by the

30         regulated person to receive the process,

31         instead of requiring the process to be sent by


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    CS for SB 222                                 Second Engrossed



 1         registered or certified mail; amending s.

 2         832.07, F.S.; providing for alternative method

 3         of notice sent by the holder to the maker or

 4         drawer of a check, draft, or order, payment of

 5         which is refused because of lack of funds or

 6         credit; amending s. 409.257, F.S.; revising a

 7         provision for service of witness subpoenas, to

 8         conform; providing an effective date.

 9  

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

11  

12         Section 1.  Subsection (3) of section 48.031, Florida

13  Statutes, is amended, and subsections (5) and (6) are added to

14  that section, to read:

15         48.031  Service of process generally; service of

16  witness subpoenas.--

17         (3)(a)  The service of process of witness subpoenas,

18  whether in criminal cases or civil actions, shall is to be

19  made as provided in subsection (1). However, service of a

20  subpoena on a witness in a criminal traffic case, a

21  misdemeanor case, or a second degree or third degree felony

22  may be made by certified United States mail directed to the

23  witness at the last known address, and the such service must

24  be mailed at least 7 days prior to the date of the witness's

25  required appearance. Failure of a witness to appear in

26  response to a subpoena served by United States mail that is

27  not certified may not be grounds for finding the witness in

28  contempt of court.

29         (b)  A criminal witness subpoena may be posted by a

30  person authorized to serve process at the witness's residence

31  if three attempts to serve the subpoena, made at different


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    CS for SB 222                                 Second Engrossed



 1  times of the day or night on different dates, have failed. The

 2  subpoena must be posted at least 5 days prior to the date of

 3  the witness's required appearance.

 4         (5)  A person serving process shall place on the copy

 5  served, the date and time of service and his or her

 6  identification number and initials for all service of process.

 7         (6)  If the only address for a person to be served,

 8  which is discoverable through public records, is a private

 9  mailbox, substitute service may be made by leaving a copy of

10  the process with the person in charge of the private mailbox,

11  but only if the process server determines that the person to

12  be served maintains a mailbox at that location.

13         Section 2.  Subsection (3) of section 48.081, Florida

14  Statutes, is amended to read:

15         48.081  Service on corporation.--

16         (3)(a)  As an alternative to all of the foregoing,

17  process may be served on the agent designated by the

18  corporation under s. 48.091.  However, if service cannot be

19  made on a registered agent because of failure to comply with

20  s. 48.091, service of process shall be permitted on any

21  employee at the corporation's principal place of business or

22  on any employee of the registered agent.

23         (b)  If the address provided for the registered agent,

24  officer, director, or principal place of business is a

25  residence or private mailbox, service on the corporation may

26  be made by serving the registered agent, officer, or director

27  in accordance with s. 48.031.

28         Section 3.  Section 48.21, Florida Statutes, is amended

29  to read:

30         48.21  Return of execution of process.--Each person who

31  effects service of process All officers to whom process is


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    CS for SB 222                                 Second Engrossed



 1  directed shall note on it, or on a return-of-service form

 2  attached thereto, the date and time when it comes to hand, the

 3  date and time when it is served executed, the manner of

 4  service execution, the name of the person on whom it was

 5  served executed and, if the such person is served in a

 6  representative capacity, the position occupied by the person.

 7  A failure to state the foregoing facts invalidates the

 8  service, but the return is amendable to state the truth at any

 9  time on application to the court from which the process

10  issued.  On amendment, service is as effective as if the

11  return had originally stated the omitted facts. A failure to

12  state all the facts in the return shall subject the person

13  effecting service officer so failing to a fine not exceeding

14  $10, in the court's discretion.

15         Section 4.  Subsection (6) of section 48.29, Florida

16  Statutes, is amended to read:

17         48.29  Certification of process servers.--

18         (6)  A certified process server shall place the

19  information provided in s. 48.031(5) on the copy served.

20         (a)  A certified process server shall place on the face

21  of any process served by him or her, his or her printed name,

22  signature, and identification number, and words stating that

23  he or she is a certified process server in the circuit wherein

24  he or she is serving the process. In addition, the certified

25  process server shall endorse on the original process, and on

26  all copies served, the date and hour of service.

27         (b)  Return of service shall be made by a certified

28  process server on a form which has been reviewed and approved

29  by the court.

30         Section 5.  Section 83.13, Florida Statutes, is amended

31  to read:


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    CS for SB 222                                 Second Engrossed



 1         83.13  Levy of writ.--The sheriff shall execute the

 2  writ by service on defendant and, upon the order of the court,

 3  by levy on property distrainable for rent or advances, if

 4  found in the sheriff's jurisdiction. If the property is not so

 5  found but is in another jurisdiction, the party who had the

 6  writ issued sheriff shall deliver the writ to the proper

 7  sheriff in the other jurisdiction; and that the other sheriff

 8  shall execute the writ, upon order of the court, by levying on

 9  the property and delivering it to the sheriff of the county in

10  which the action is pending, to be disposed of according to

11  law, unless he or she is ordered by the court from which the

12  writ emanated to hold the property and dispose of it in his or

13  her jurisdiction according to law. If the plaintiff shows by a

14  sworn statement that the defendant cannot be found within the

15  state, the levy on the property suffices as service on the

16  defendant.

17         Section 6.  Subsection (8) is added to section 624.307,

18  Florida Statutes, to read:

19         624.307  General powers; duties.--

20         (8)  Upon receiving service of legal process issued in

21  any civil action or proceeding in this state against any

22  regulated person required to appoint the Chief Financial

23  Officer as its attorney to receive service of all legal

24  process, the Chief Financial Officer, as attorney, may, in

25  lieu of sending the process by registered or certified mail,

26  send the process by any other verifiable means to the person

27  last designated by the regulated person to receive the

28  process.

29         Section 7.  Subsection (1) of section 832.07, Florida

30  Statutes, is amended to read:

31         832.07  Prima facie evidence of intent; identity.--


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    CS for SB 222                                 Second Engrossed



 1         (1)  INTENT.--

 2         (a)  In any prosecution or action under this chapter,

 3  the making, drawing, uttering, or delivery of a check, draft,

 4  or order, payment of which is refused by the drawee because of

 5  lack of funds or credit, shall be prima facie evidence of

 6  intent to defraud or knowledge of insufficient funds in, or

 7  credit with, such bank, banking institution, trust company, or

 8  other depository, unless such maker or drawer, or someone for

 9  him or her, shall have paid the holder thereof the amount due

10  thereon, together with a service charge not to exceed the

11  service fees authorized under s. 832.08(5) or an amount of up

12  to 5 percent of the face amount of the check, whichever is

13  greater, within 15 7 days after receiving written notice has

14  been sent to the address printed on the check or given at the

15  time of issuance that such check, draft, or order has not been

16  paid to the holder thereof, and bank fees incurred by the

17  holder. In the event of legal action for recovery, the maker

18  or drawer may be additionally liable for court costs and

19  reasonable attorney's fees. Notice mailed by certified or

20  registered mail, evidenced by return receipt, or by

21  first-class mail, evidenced by an affidavit of service of

22  mail, to the address printed on the check or given at the time

23  of issuance shall be deemed sufficient and equivalent to

24  notice having been received by the maker or drawer, whether

25  such notice shall be returned undelivered or not. The form of

26  such notice shall be substantially as follows:

27  

28         "You are hereby notified that a check, numbered _____,

29  in the face amount of $_____, issued by you on

30  ...  (date)  ..., drawn upon ...  (name of bank)  ..., and

31  payable to _____, has been dishonored. Pursuant to Florida


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    CS for SB 222                                 Second Engrossed



 1  law, you have 15 7 days from the date receipt of this notice

 2  to tender payment of the full amount of such check plus a

 3  service charge of $25, if the face value does not exceed $50,

 4  $30, if the face value exceeds $50 but does not exceed $300,

 5  $40, if the face value exceeds $300, or an amount of up to 5

 6  percent of the face amount of the check, whichever is greater,

 7  the total amount due being $_____ and _____ cents. Unless this

 8  amount is paid in full within the time specified above, the

 9  holder of such check may turn over the dishonored check and

10  all other available information relating to this incident to

11  the state attorney for criminal prosecution. You may be

12  additionally liable in a civil action for triple the amount of

13  the check, but in no case less than $50, together with the

14  amount of the check, a service charge, court costs, reasonable

15  attorney fees, and incurred bank fees, as provided in s.

16  68.065."

17  

18  Subsequent persons receiving a check, draft, or order from the

19  original payee or a successor endorsee have the same rights

20  that the original payee has against the maker of the

21  instrument, provided such subsequent persons give notice in a

22  substantially similar form to that provided above. Subsequent

23  persons providing such notice shall be immune from civil

24  liability for the giving of such notice and for proceeding

25  under the forms of such notice, so long as the maker of the

26  instrument has the same defenses against these subsequent

27  persons as against the original payee. However, the remedies

28  available under this section may be exercised only by one

29  party in interest.

30         (b)  When a check is drawn on a bank in which the maker

31  or drawer has no account or a closed account, it shall be


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    CS for SB 222                                 Second Engrossed



 1  presumed that such check was issued with intent to defraud,

 2  and the notice requirement set forth in this section shall be

 3  waived.

 4         Section 8.  Section 409.257, Florida Statutes, is

 5  amended to read:

 6         409.257  Service of process.--The service of initial

 7  process and orders in lawsuits filed by the department, under

 8  this act, shall be served by the sheriff in the county where

 9  the person to be served may be found. The sheriff shall be

10  reimbursed at the prevailing rate of federal financial

11  participation for service of process and orders as allowed by

12  law. The sheriff shall bill the department monthly as provided

13  for in s. 30.51(2). In addition, process and orders may be

14  served or executed by authorized agents of the department at

15  the department's discretion; provided that the agent of the

16  department does not take any action against personal property,

17  real property, or persons. Notices and other intermediate

18  process, except witness subpoenas, shall be served by the

19  department as provided for in the Florida Rules of Civil

20  Procedure. Witness subpoenas shall be served by the department

21  by United States certified mail as provided for in s.

22  48.031(3).

23         Section 9.  This act shall take effect July 1, 2004.

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