Senate Bill sb2430

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    Florida Senate - 2004                                  SB 2430

    By Senator Crist





    12-1114A-04

  1                      A bill to be entitled

  2         An act relating to collection practices;

  3         amending s. 559.544, F.S.; requiring an

  4         applicant to apply to the Office of Financial

  5         Regulation to register as a commercial

  6         collection agency; amending s. 559.545, F.S.;

  7         requiring an applicant to comply with certain

  8         procedures to register as a commercial

  9         collection agency; prescribing that a

10         registration that is not renewed expires

11         automatically; providing procedures by which a

12         commercial collection agency may reinstate its

13         registration; amending s. 559.546, F.S.;

14         requiring each applicant to purchase a surety

15         bond; creating s. 559.5471, F.S.; detailing the

16         powers and duties of the office with respect to

17         regulating commercial collection agencies;

18         authorizing the office to adopt rules;

19         authorizing the office to issue subpoenas and

20         subpoenas duces tecum under certain conditions;

21         providing procedures the office may use when a

22         person does not comply with a subpoena;

23         permitting a court to grant injunctive or other

24         relief when a person does not comply with a

25         subpoena; authorizing the court to award

26         attorney's fees and costs to the office under

27         certain circumstances; creating s. 559.5473,

28         F.S.; authorizing the office to seek injunctive

29         relief under certain circumstances; authorizing

30         a court to appoint a receiver under specified

31         conditions; creating s. 559.5474, F.S.;

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 1         authorizing the office to issue cease and

 2         desist orders; creating s. 559.5475, F.S.;

 3         permitting specified documents made by a

 4         financial examiner to be admitted into evidence

 5         under certain conditions; creating s. 559.5476,

 6         F.S.; requiring each registrant to maintain

 7         business records; authorizing the office to

 8         adopt rules to designate the types of

 9         information a registrant must maintain;

10         creating s. 559.5477, F.S.; providing for

11         administrative remedies; specifying the grounds

12         under which a commercial collection agency may

13         have its registration suspended or revoked;

14         permitting a commercial collection agency to

15         terminate its registration; authorizing the

16         office to impose an administrative fine up to

17         $1,000 per violation; amending s. 559.55, F.S.;

18         providing definitions; amending s. 559.552,

19         F.S., relating to the relationship of state and

20         federal laws; providing for construing

21         interpretations of the Federal Trade Commission

22         and the federal courts when applying state and

23         federal laws and rules relating to consumer

24         collection practices; amending s. 559.553,

25         F.S.; requiring an applicant to provide certain

26         information to register as a consumer

27         collection agency; amending s. 559.555, F.S.;

28         revising application procedures for consumer

29         collection agencies; requiring an applicant to

30         furnish specified information; requiring an

31         applicant to report specified information on

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 1         crimes and licensure discipline committed by

 2         the applicant; listing the grounds for denying

 3         an application for registration; providing that

 4         registrations automatically expire; providing

 5         procedures for a consumer collection agency to

 6         renew its registration; amending s. 559.565,

 7         F.S.; providing that an out-of-state consumer

 8         collection agency otherwise subject to this

 9         state's jurisdiction is subject to sanctions

10         for committing prohibited practices; amending

11         s. 559.72, F.S.; specifying certain activities

12         as prohibited consumer collection practices;

13         amending s. 559.725, F.S.; authorizing the

14         office to conduct investigations of consumer

15         complaints; providing for the examination of a

16         registrant; creating s. 559.726, F.S.;

17         detailing the powers and duties of the office

18         with respect to regulating consumer collection

19         agencies; authorizing the office to adopt

20         rules; authorizing the office to issue

21         subpoenas and subpoenas duces tecum under

22         certain conditions; providing procedures the

23         office may use when a person does not comply

24         with a subpoena; permitting a court to grant

25         injunctive or other relief when a person does

26         not comply with a subpoena; authorizing the

27         court to award attorney's fees and costs to the

28         office under certain circumstances; creating s.

29         559.7262, F.S.; authorizing the office to seek

30         injunctive relief under certain circumstances;

31         creating s. 559.7263, F.S.; authorizing the

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 1         office to issue cease and desist orders;

 2         creating s. 559.7264, F.S.; permitting certain

 3         documents prepared by a financial examiner to

 4         be admitted into evidence under specified

 5         conditions; creating s. 559.7265, F.S.;

 6         requiring each registrant to maintain business

 7         records; authorizing the office to adopt rules

 8         to designate the types of information a

 9         registrant must maintain; amending s. 559.730,

10         F.S.; providing administrative remedies for

11         violating prohibited consumer collection

12         practices; specifying the prohibited practices

13         for which a consumer collection agency's

14         registration may be suspended or revoked;

15         providing that a consumer collection agency may

16         terminate its registration; authorizing the

17         office to assess an administrative fine of up

18         to $1,000 per violation; amending s. 559.77,

19         F.S.; providing for construing interpretations

20         of the Federal Trade Commission and the federal

21         courts when applying state and federal laws and

22         rules; amending s. 559.785, F.S.; specifying

23         certain activities that subject a person  to a

24         criminal penalty; repealing ss. 559.547 and

25         559.563, F.S., relating to void registrations;

26         providing an effective date.

27  

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

29  

30         Section 1.  Section 559.544, Florida Statutes, is

31  amended to read:

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 1         559.544  Registration required; exemptions.--

 2         (1)  A No person may not shall engage in business in

 3  this state as a commercial collection agency, as defined in

 4  this part, or continue to do business in this state as a

 5  commercial collection agency, unless the person without first

 6  registers with the office according to registering in

 7  accordance with this part and thereafter maintains the

 8  maintaining such registration.

 9         (2)  Each commercial collection agency doing business

10  in this state shall register with the office and annually

11  renew the such registration, providing the registration fee,

12  information, and surety bond required by this part.

13         (3)  A No registration is not shall be valid for any

14  commercial collection agency transacting business at any place

15  other than that designated in the registration unless the

16  office is first notified in advance of any change of location.

17  A registration under this part is not transferable or

18  assignable. Any commercial collection agency desiring to

19  change its registered name, location, or agent for service of

20  process at any time other than renewal of the registration

21  must shall notify the office of the such change prior to the

22  change.

23         (4)  The office may shall not accept an application for

24  any registration for any commercial collection agency as

25  validly made and filed with the office under this section

26  unless the application registration information furnished to

27  the office by the applicant registrant is complete under

28  pursuant to s. 559.545 and facially demonstrates that the

29  applicant such registrant is qualified to engage in business

30  as a commercial collection agency, including specifically that

31  neither the applicant or registrant nor any principal of the

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 1  applicant registrant has not engaged in any unlawful

 2  collection practices, dishonest dealings, acts of moral

 3  turpitude, or other criminal acts that reflect an inability to

 4  engage in the commercial collection agency business. The

 5  office shall inform any person whose application for

 6  registration is denied rejected by the office of the fact of

 7  and basis for the denial such rejection.  A prospective

 8  registrant is shall be entitled to be registered when her or

 9  his or its application registration information is complete on

10  its face, the applicable registration fee has been paid, and

11  the required evidence of current bond is furnished to the

12  office.

13         (5)  This section does shall not apply to:

14         (a)  A member of The Florida Bar, unless the such

15  person is primarily engaged in the collection of commercial

16  claims. "Primarily engaged in the collection of commercial

17  claims" means that more than one-half of the person's income

18  of such person arises from the business of soliciting

19  commercial claims for collection or collecting commercial

20  claims.

21         (b)  A financial institution authorized to do business

22  in this state and any wholly owned subsidiary and affiliate

23  thereof.

24         (c)  A licensed real estate broker.

25         (d)  A title insurance company authorized to do

26  business in this state.

27         (e)  A collection agency that which is not primarily

28  engaged in the collection of commercial claims.  "Not

29  primarily engaged in the collection of commercial claims"

30  means that less than one-half of the collection revenue of the

31  such agency arises from the collection of commercial claims.

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 1         (f)  A consumer finance company and any wholly owned

 2  subsidiary and affiliate thereof.

 3         (g)  A person licensed pursuant to chapter 520.

 4         (h)  A credit grantor.

 5         (i)  An out-of-state collector as defined in this part.

 6         (j)  An FDIC-insured institution or subsidiary or

 7  affiliate thereof.

 8         Section 2.  Section 559.545, Florida Statutes, is

 9  amended to read:

10         559.545  Registration of commercial collection

11  agencies; procedure.--A Any person who wishes to apply for

12  registration register as a commercial collection agency in

13  compliance with this part must shall do so on forms adopted by

14  the commission and furnished by the office. Any renewal of

15  registration shall be made between October 1 and December 31

16  of each year.  In applying for registering or renewing a

17  registration as required by this part, each commercial

18  collection agency shall furnish to the office a registration

19  fee, information, and surety bond, as follows:

20         (1)  The applicant or registrant shall pay to the

21  office a registration fee of $500.  All amounts collected

22  shall be deposited to the credit of the Regulatory Trust Fund

23  of the office.

24         (2)  The applicant or registrant must shall provide the

25  following information:

26         (a)  The business name or trade name of the commercial

27  collection agency, the current mailing address of the agency,

28  and the current business location of each place from which the

29  agency operates either a main or branch office, with a

30  designation of which location constitutes its principal place

31  of business.

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 1         (b)  The full names, current addresses, current

 2  telephone numbers, and social security numbers, or federal

 3  identification numbers of any corporate owner, of the

 4  applicant's or registrant's owners or corporate officers and

 5  directors, and of the Florida resident agent of the

 6  registering agency.

 7         (c)  A statement as to whether the applicant or

 8  registrant is a domestic or foreign corporation, together with

 9  the state and date of incorporation, charter number of the

10  corporation, and, if a foreign corporation, the date the

11  corporation first registered to do business in this state.

12         (d)  A statement listing each county in this state in

13  which the applicant or registrant is currently doing business

14  or plans to do business within the next calendar year,

15  indicating each county in which the applicant or registrant

16  holds an occupational license.

17         (e)  A statement listing each county in this state in

18  which the applicant or registrant is operating under a

19  fictitious name or trade name other than that of the applicant

20  or registrant, indicating the date and place of registration

21  of any such fictitious name or trade name.

22         (f)  A statement listing the names of any other

23  corporations, entities, or trade names through which any owner

24  or director of the applicant or registrant was known or did

25  business as a commercial or consumer collection agency within

26  the 5 calendar years immediately preceding the year in which

27  the agency is registering.

28         (g)  A statement clearly identifying and explaining any

29  occasion on which any professional license or occupational

30  license held by the applicant or registrant, any principal of

31  the applicant or registrant, or any business entity in which

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 1  any principal of the applicant or registrant was the owner of

 2  10 percent or more of the such business was the subject of any

 3  suspension, revocation, or other disciplinary action.

 4         (h)  A statement clearly identifying and explaining any

 5  occasion of a finding of guilt of any crime involving moral

 6  turpitude or dishonest conduct on the part of any principal of

 7  the applicant or registrant.

 8         (3)  The applicant or registrant shall furnish to the

 9  office evidence, as provided in s. 559.546, of the applicant

10  or registrant having a current surety bond in the amount of

11  $50,000, valid for the year of registration, paid for and

12  issued for the use and benefit of any credit grantor who

13  suffers or sustains any loss or damage by reason of any

14  violation of the provisions of this part by the applicant or

15  registrant, or by any agent or employee of the applicant or

16  registrant acting within the scope of her or his employment,

17  and issued to ensure conformance with the provisions of this

18  part.

19         (4)  A registration that is not renewed by the end of

20  the calendar year expires automatically. A commercial

21  collection agency that has not renewed its registration by the

22  time the registration period expires may request reactivation

23  of its registration. The registrant must file its request with

24  the office on or before January 31 of the year following the

25  year of expiration. The request must contain any information

26  the office requires, together with the registration fee

27  required in subsection (1), and a late fee equal to the

28  registration fee. Any reactivation of registration granted by

29  the office during the month of January is deemed retroactive

30  to January 1 of that year. Any registrant that engages in

31  

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 1  business as a commercial collection agency after its

 2  registration has expired violates s. 559.548(1).

 3         (5)  An initial or renewal registration application is

 4  deemed received for purposes of s. 120.60 upon receipt of the

 5  completed application form prescribed by commission rule, the

 6  application fee of $500, and any other fee prescribed by law

 7  or rule.

 8         Section 3.  Section 559.546, Florida Statutes, is

 9  amended to read:

10         559.546  Bond; evidence of current and valid

11  bond.--Pursuant to s. 559.545, the applicant or registrant

12  shall provide to the office evidence that the applicant or

13  registrant has been issued a current and valid surety bond as

14  required by this part.

15         (1)  In addition to each registration filed under

16  pursuant to s. 559.545 and any renewal of the such

17  registration, each applicant or registrant shall furnish to

18  the office the following:

19         (a)  A copy of the surety bond, which bond shall be one

20  issued by a surety known by the applicant or registrant to be

21  acceptable to the office.

22         (b)  A statement from the surety that the annual

23  premium for the bond has been paid in full by the applicant or

24  registrant.

25         (c)  A statement from the surety that the bond issued

26  by the surety meets the requirements of this part.

27         (2)  The liability of the surety under any bond issued

28  under pursuant to the requirements of this part may shall not

29  exceed in the aggregate the amount of the bond, regardless of

30  the number or amount of any claims filed or which might be

31  asserted against the surety on the such bond.  If multiple

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 1  claims are filed against the surety on any such bond in excess

 2  of the amount of the bond, the surety may pay the full amount

 3  of the bond to the office and is shall not be further liable

 4  under the bond.  The office shall hold the such funds for

 5  distribution to claimants and administratively determine and

 6  pay to each claimant the pro rata share of each valid claim

 7  made against the funds within 6 months after the date of the

 8  filing of the first claim against the surety.

 9         Section 4.  Section 559.5471, Florida Statutes, is

10  created to read:

11         559.5471  Powers and duties of the Office of Financial

12  Regulation.--

13         (1)  Compliance with this part shall be enforced by the

14  office, except when enforcement is specifically committed to

15  another agency.

16         (2)  The commission may adopt rules under ss.

17  120.536(1) and 120.54 to implement and administer this part.

18  The commission may adopt a rule to require electronic

19  submission of any form, document, or fee required by this

20  part, provided that the rule reasonably accommodates a person

21  with a technological or financial hardship. The commission may

22  adopt a rule setting forth the criteria and procedures for

23  obtaining an exemption due to a technological or financial

24  hardship. The commission may adopt a rule to accept

25  certification of compliance with the requirements of this part

26  in lieu of requiring submission of specified documents.

27         (3)  All fees, charges, and fines collected by the

28  office under this part shall be deposited to the credit of the

29  Regulatory Trust Fund of the office.

30  

31  

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 1         (4)  The office, or any duly authorized representative,

 2  including any financial examiner or analyst, financial

 3  investigator, or attorney at law, may:

 4         (a)  Issue, revoke, quash, or modify and serve

 5  subpoenas to compel the attendance of witnesses and subpoenas

 6  duces tecum to compel the production of all books, accounts,

 7  records, and other documents and materials relevant to an

 8  examination or investigation. The office may exercise these

 9  powers even if the subject of the investigation or examination

10  is exempt from registration.

11         (b)  Administer oaths and affirmations to any person.

12         (c)  Take, or cause to be taken, testimony and

13  depositions.

14         (5)(a)  If the office determines that a person is in

15  substantial noncompliance with a subpoena or subpoena duces

16  tecum that the office issued or caused to be issued, it may

17  petition a court of competent jurisdiction in the county where

18  the person subpoenaed resides or has his, her, or its

19  principal place of business, for an order requiring the person

20  to appear and testify and to produce the books, accounts,

21  records, and other documents that are specified in the

22  subpoena duces tecum.

23         (b)  The court may grant injunctive relief restraining

24  the person from advertising, promoting, soliciting, entering

25  into, offering to enter into, continuing, or completing any

26  transaction involving commercial debt collection. The court

27  may grant such other relief, including, but not limited to,

28  the restraint, by injunction or appointment of a receiver, of

29  any transfer, pledge, assignment, or other disposition of the

30  person's assets or any concealment, alteration, destruction,

31  or other disposition of books, accounts, records, or other

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 1  documents and materials that the court deems appropriate,

 2  until the person has fully complied with the subpoena duces

 3  tecum and the office has completed its investigation or

 4  examination. The court may order the refund of any sums

 5  collected whenever books and documents substantiating the

 6  transaction are not produced or cannot be produced. The office

 7  is entitled to the summary procedure provided in s. 51.011,

 8  and the court shall advance the cause on its calendar.

 9         (c)  Attorney's fees and any other costs incurred by

10  the office to obtain an order granting, in whole or part, a

11  petition for enforcement of a subpoena or subpoena duces tecum

12  shall be taxed against the subpoenaed person, and failure to

13  comply with the order is a contempt of court.

14         (6)  When it appears to the office that compliance with

15  a subpoena or subpoena duces tecum issued under subsection (4)

16  is essential and that the person or documents subpoenaed are

17  otherwise unavailable to an investigation or examination, the

18  office, in addition to the other remedies provided for in this

19  section, may petition a court of competent jurisdiction in the

20  county in which the subpoenaed person resides or has its

21  principal place of business for a writ of ne exeat. The court

22  shall direct the issuance of the writ against the subpoenaed

23  person requiring sufficient bond conditioned on compliance

24  with the subpoena or subpoena duces tecum. The court shall

25  cause to be endorsed on the writ a suitable amount of bond

26  upon the payment of which the person named in the writ shall

27  be freed, having a due regard to the nature of the case.

28         (7)  The office may seek a writ of attachment from a

29  court having jurisdiction over the person who refuses to obey

30  a subpoena, to give testimony, or to produce materials

31  described in the subpoena duces tecum.

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 1         (8)  A copy of the petition shall be served upon the

 2  person by anyone authorized by law or this section to serve

 3  subpoenas. The individual serving the petition shall make and

 4  file with the court an affidavit showing the date, time,

 5  place, and manner of service.

 6         (9)  At a hearing on the petition to enforce compliance

 7  with a subpoena, the person subpoenaed, or any person whose

 8  interest will be substantially affected by the investigation,

 9  examination, or subpoena, may appear and object to the

10  subpoena and to the granting of the petition. The court may

11  make any order that justice requires in order to protect a

12  party or other person and her or his personal and property

13  rights, including, but not limited to, protection from

14  annoyance, embarrassment, oppression, undue burden, or

15  expense.

16         (10)  Failure to comply with an order granting, in

17  whole or in part, a petition to enforce a subpoena is a

18  contempt of the court.

19         (11)  Witnesses are entitled to the same fees and

20  mileage to which they would be entitled by law for attending

21  as witnesses in circuit court, except that fees or mileage may

22  not be allowed for testimony of a person taken at the person's

23  principal office or residence.

24         (12)  Reasonable and necessary costs incurred by the

25  office and payable to persons involved with an investigation

26  may be assessed against any debt collector on the basis of

27  actual costs incurred. Assessed expenses may include, but are

28  not limited to, expenses for interpreters; expenses for

29  communications; expenses for legal representation; expenses

30  for economic, legal, or other research; analysis and

31  testimony; and fees and expenses for witnesses. The failure to

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 1  reimburse the office for its reasonable and necessary costs is

 2  a reason to deny a registrant's application or to revoke the

 3  prior approval of an application.

 4         Section 5.  Section 559.5473, Florida Statutes, is

 5  created to read:

 6         559.5473  Injunction to restrain violations;

 7  receivers.--

 8         (1)  The office may bring an action on behalf of the

 9  state to enjoin any person who has violated, or is about to

10  violate, this part or any rule or order of the office issued

11  under this part.

12         (2)  In an injunctive proceeding, the court may issue a

13  subpoena requiring the attendance of any witness or a subpoena

14  duces tecum requiring the production of any book, account,

15  record, or other documents and materials relevant to the

16  pending case.

17         (3)(a)  In addition to any procedure provided by law

18  for enforcing a temporary restraining order or a temporary or

19  permanent injunction, the court may, upon application of the

20  office, impound the property, assets, and business of the

21  registrant, including, but not limited to, the books, records,

22  documents, and papers of the registrant. The court may appoint

23  a receiver to administer the property. The receiver, when

24  appointed and qualified, has the powers and duties that are

25  conferred upon the receiver by the court.

26         (b)  After appointing a receiver, the court may issue

27  an order staying all pending suits and enjoining any further

28  litigation affecting the receiver's custody or possession of

29  the property, assets, and business, and the court, with the

30  consent of the chief judge of the circuit, may require that

31  

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 1  all suits be assigned to the circuit judge who appointed the

 2  receiver.

 3         Section 6.  Section 559.5474, Florida Statutes, is

 4  created to read:

 5         559.5474  Cease and desist orders; refund orders.--

 6         (1)  The office may issue and serve upon a person an

 7  order to cease and desist and to take corrective action

 8  whenever the office has reason to believe that the commercial

 9  collection agency is violating, has violated, or is about to

10  violate this part, any rule or order of the office issued

11  under this part, or any written agreement between the

12  commercial collection agency and the office. Procedural

13  matters relating to the issuance and enforcement of a cease

14  and desist order are governed by chapter 120.

15         (2)  The office may seek an order of restitution for

16  collected funds due to creditors or any sum collected from a

17  debtor without valid proof of debt.

18         Section 7.  Section 559.5475, Florida Statutes, is

19  created to read:

20         559.5475  Evidence; examiner's worksheets,

21  investigative reports, other related documents.--An official

22  written report, sworn complaint, worksheet, or other related

23  paper, or a certified copy thereof, compiled, prepared,

24  drafted, or otherwise made by the financial examiner is

25  admissible into evidence if the financial examiner is

26  available for cross-examination; authenticates the worksheet;

27  and testifies that the report, worksheet, or related document

28  was prepared as a result of an examination of the books and

29  records of a registrant or other person conducted under the

30  authority of this part.

31  

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 1         Section 8.  Section 559.5476, Florida Statutes, is

 2  created to read:

 3         559.5476  Books, accounts, and records; maintenance;

 4  examinations by the office.--

 5         (1)  Each registrant shall maintain, at its principal

 6  place of business designated on its registration, all books,

 7  accounts, records, and documents necessary to determine the

 8  registrant's compliance with this part.

 9         (2)  The office may authorize maintenance of records at

10  a location other than a principal place of business. The

11  office may require books, accounts, and records to be produced

12  and available at a reasonable and convenient location in this

13  state.

14         (3)  All books, accounts, records, documents, and

15  receipts for payments to a registrant by a debtor, and

16  payments made to a creditor by a registrant, shall be

17  preserved and kept available for examination by the office for

18  3 years after the date of original entry. The office shall

19  adopt requirements by rule for maintaining the books,

20  accounts, records, and documents retained by the registrant

21  and for destroying the records.

22         (4)  The office shall designate by rule the minimum

23  information that must be contained in the registrant's books,

24  accounts, records, and documents in order that the records

25  will enable the office to determine a registrant's compliance

26  with this part.

27         Section 9.  Section 559.5477, Florida Statutes, is

28  created to read:

29         559.5477  Administrative remedies.--

30         (1)  The office may revoke or suspend the registration

31  of a registrant under this part who:

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 1         (a)  Has been found guilty of, regardless of

 2  adjudication, or has entered a plea of nolo contendere or

 3  guilty to, any crime involving fraud, dishonest dealing, or

 4  moral turpitude;

 5         (b)  Has had a final judgment entered against the

 6  person in a civil action upon the grounds of fraud,

 7  embezzlement, misrepresentation, or deceit;

 8         (c)  Has pending against the person a criminal

 9  prosecution or administrative enforcement action, in any

10  jurisdiction, which involves fraud, dishonest dealing, or any

11  other act of moral turpitude;

12         (d)  Has had any business, professional, or

13  occupational license or registration suspended, revoked, or

14  otherwise acted against in any jurisdiction;

15         (e)  Fails to maintain the surety bond required

16  pursuant to s. 559.546;

17         (f)  Fails to maintain books and records as required by

18  s. 559.5476;

19         (g)  Violates any order issued by the office; or

20         (h)  Paid for a registration with a check or electronic

21  transmission of funds which failed to clear the applicant's or

22  registrant's financial institution.

23         (2)  Any registration made under this part which is

24  based upon false identification or false information, or an

25  identification that is not current with respect to name,

26  address, business location, or other fact that is material to

27  the registration, is void. Any registration made and

28  subsequently found to be void under this section does not

29  create a defense to any action brought by the office to impose

30  a sanction for a violation of this part.

31  

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 1         (3)  A registrant may request to terminate its

 2  registration by delivering written notice of its proposed

 3  termination to the office. However, the delivery of the

 4  termination notice does not affect any civil or criminal

 5  liability of the registrant or the authority of the office to

 6  enforce this part.

 7         (4)  The office may deny a request to terminate a

 8  registration or to withdraw an application for registration if

 9  the office believes that the registrant has committed an act

10  that would be grounds for denial, suspension, or revocation

11  under this part.

12         (5)  Final action by the office to revoke or suspend

13  the registration of a registrant is subject to review

14  according to chapter 120 in the same manner as revocation of a

15  license.

16         (6)  The office may impose an administrative fine of up

17  to $1,000 per violation against an offending registrant as an

18  administrative sanction. Final action by the office to impose

19  an administrative fine is subject to review in accordance with

20  ss. 120.569 and 120.57.

21         (7)  Any administrative fine imposed under this part

22  shall be payable to the office. The office shall maintain an

23  appropriate record and deposit the fine into the Regulatory

24  Trust Fund of the office.

25         (8)  An administrative action by the office to impose

26  revocation, suspension, or a fine must be brought within 2

27  years after the date of the last violation upon which the

28  action is founded.

29         Section 10.  Subsections (1) and (8) of section 559.55,

30  Florida Statutes, are amended, and subsections (10), (11), and

31  (12) are added to that section, to read:

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 1         559.55  Definitions.--The following terms shall, unless

 2  the context otherwise indicates, have the following meanings

 3  for the purpose of this part:

 4         (1)  "Debt" or "consumer debt" means:

 5         (a)  Any obligation or alleged obligation of a consumer

 6  to pay money arising out of a transaction in which the money,

 7  property, insurance, or services which are the subject of the

 8  transaction are primarily for personal, family, or household

 9  purposes, whether or not such obligation has been reduced to

10  judgment; or

11         (b)  Any unsatisfied obligation for the payment of

12  money arising out of any legal order.

13         (8)  "Out-of-state consumer debt collector" means any

14  person whose business activities in this state involve both

15  collecting or attempting to collect consumer debt from debtors

16  located in this state by means of interstate communication

17  originating from outside this state and soliciting consumer

18  debt accounts for collection from creditors who have a

19  business presence in this state.  For purposes of this

20  subsection, a creditor has a business presence in this state

21  if either the creditor or an affiliate or subsidiary of the

22  creditor has an office or resides in this state.

23         (10)  "Federal Trade Commission Act" means the federal

24  legislation regulating unfair or deceptive practices or acts,

25  as set forth in 15 U.S.C. ss. 41 et seq.

26         (11)  "A person who has control over an applicant or

27  registrant" means a person who:

28         (a)  Directly, indirectly, or acting through one or

29  more other persons owns, controls, or has the power to vote 25

30  percent or more or any class of voting securities of an

31  applicant or registrant.

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 1         (b)  The office determines, after notice and

 2  opportunity for hearing, exercises a controlling influence,

 3  directly or indirectly, over the activities of an applicant or

 4  registrant.

 5         (12)  "Principal of a registrant or applicant" means

 6  the applicant's or registrant's owners if a partnership or

 7  sole proprietorship; the corporate officers; the corporate

 8  directors, other than directors of a not-for-profit

 9  corporation organized under chapter 617; or the Florida

10  resident agent if a corporation is the applicant or

11  registrant.

12         Section 11.  Section 559.552, Florida Statutes, is

13  amended to read:

14         559.552  Relationship of state and federal law.--

15         (1)  Any violation of the federal Fair Debt Collection

16  Practices Act constitutes a prohibited practice under s.

17  559.72.

18         (2)  Any violation of this part also constitutes a

19  violation of the Florida Deceptive and Unfair Trade Practices

20  Act.

21         (3)  Nothing in This part does not shall be construed

22  to limit or restrict the continued applicability of the

23  federal Fair Debt Collection Practices Act to consumer

24  collection practices in this state.  This part is in addition

25  to the requirements and regulations of the federal act. In

26  construing this part, due consideration and great weight shall

27  be given to interpretations of the Federal Trade Commission

28  Act and the Fair Debt Collection Practices Act by the Federal

29  Trade Commission and the federal courts. In the event of any

30  inconsistency between any provision of this part and any

31  provision of the federal act, including federal case law, the

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 1  provision that which is more protective of the consumer or

 2  debtor shall prevail.

 3         Section 12.  Section 559.553, Florida Statutes, is

 4  amended to read:

 5         559.553  Registration of consumer collection agencies

 6  required; exemptions.--

 7         (1)  After January 1, 1994, a no person may not shall

 8  engage in business in this state as a consumer collection

 9  agency or continue to do business in this state as a consumer

10  collection agency without first registering in accordance with

11  this part, and thereafter maintaining a valid registration.

12         (2)  Each consumer collection agency doing business in

13  this state shall register with the office and renew its such

14  registration annually as set forth in s. 559.555.

15         (3)  A prospective registrant is shall be entitled to

16  be registered when registration information is complete on its

17  face and the applicable registration fee has been paid;

18  however, the office may deny an application for reject a

19  registration submitted by a prospective registrant if the

20  applicant registrant or any principal or person having control

21  of the applicant registrant previously has held any

22  professional license or state registration that which was the

23  subject of any suspension or revocation which has not been

24  explained by the prospective registrant to the satisfaction of

25  the office either in the registration information submitted

26  initially or upon the subsequent written request of the

27  office. If In the event that an application for attempted

28  registration is denied rejected by the office the prospective

29  registrant shall be informed of the basis for the denial

30  rejection.

31         (4)  This section does shall not apply to:

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 1         (a)  An Any original creditor.

 2         (b)  A Any member of The Florida Bar.

 3         (c)  A Any financial institution authorized to do

 4  business in this state and any wholly owned subsidiary and

 5  affiliate thereof.

 6         (d)  A Any licensed real estate broker.

 7         (e)  An Any insurance company authorized to do business

 8  in this state.

 9         (f)  A Any consumer finance company and a any wholly

10  owned subsidiary and affiliate thereof.

11         (g)  A Any person licensed under pursuant to chapter

12  520.

13         (h)  An Any out-of-state consumer debt collector who

14  does not solicit consumer debt accounts for collection from

15  credit grantors who have a business presence in this state.

16         (i)  A Any FDIC-insured institution or subsidiary or

17  affiliate thereof.

18         (5)  An Any out-of-state consumer debt collector as

19  defined in s. 559.55(8) who is not exempt from registration by

20  application of subsection (4) and who fails to register in

21  accordance with this part shall be subject to an enforcement

22  action by the state as specified in s. 559.565.

23         Section 13.  Section 559.555, Florida Statutes, is

24  amended to read:

25         559.555  Registration of consumer collection agencies;

26  procedure.--

27         (1)  An application for registration under this part

28  shall be filed on a form prescribed by the office and must

29  contain:

30         (a)  The name, residence, and business addresses of:

31         1.  The applicant;

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 1         2.  Any person having control over the applicant or

 2  registrant;

 3         3.  Any principal of an applicant or registrant;

 4         4.  Each member if the applicant is a partnership or

 5  association; and

 6         5.  Each officer, director, and registered agent if the

 7  applicant is a corporation.

 8         (b)  The business name, trade name, fictitious name, or

 9  name under which the consumer collection business is doing

10  business; the current mailing address of the consumer

11  collection agency; and the business location of each place

12  from which the consumer collection agency operates a main or

13  branch office, with a designation of which location

14  constitutes its principal place of business.

15         (c)  If the applicant is a commercial collection

16  agency, the full name, address, telephone number, and social

17  security number or federal identification number of each

18  corporate owner, the applicant's owners or corporate officers

19  and directors, and the Florida resident agent of the

20  registering agency.

21         (d)  A statement listing each county in this state in

22  which the applicant is currently doing business or plans to do

23  business within the next calendar year, indicating each county

24  in which the applicant holds an occupational license.

25         (e)  A statement listing each county in this state in

26  which the applicant is currently operating under a fictitious

27  name or trade name other than that of the applicant,

28  indicating the date and place of registration of any

29  fictitious name or trade name.

30         (f)  A statement listing the names of any other

31  corporations, entities, or trade names by which any owner or

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 1  director of the applicant was known or did business as a

 2  collection agency in the 5 years immediately before the year

 3  in which the agency is registering.

 4         (g)  A statement clearly identifying and explaining

 5  each occasion on which a professional or occupational license

 6  held by the applicant, any principal of the applicant, or any

 7  business entity in which any principal of the applicant was

 8  the owner of 10 percent or more of the business was the

 9  subject of any suspension, revocation, or other disciplinary

10  action.

11         (h)  A statement clearly identifying and explaining

12  each occasion when a principal of the applicant was found

13  guilty of a crime involving moral turpitude or dishonest

14  conduct.

15         (i)  Any additional relevant information that the

16  office requires.

17         (2)  The application information must include a

18  statement clearly identifying and explaining each occasion

19  when a professional license or state registration held by a

20  person with control over an applicant or by any business

21  entity in which any person with control over an applicant was

22  the owner of 10 percent or more of the business was the

23  subject of a suspension or revocation proceeding. Any person

24  required to register as a consumer collection agency shall

25  furnish to the office the registration fee and information as

26  follows:

27         (3)(1)  The applicant or registrant shall pay to the

28  office a nonrefundable registration fee in the amount of $200.

29  All amounts collected shall be deposited by the office to the

30  credit of the Regulatory Trust Fund of the office.

31  

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 1         (4)(2)  Each applicant or registrant shall provide to

 2  the office the business name or trade name, the current

 3  mailing address, the current business location that which

 4  constitutes its principal place of business, and the full name

 5  of each individual who is a principal of the applicant or

 6  registrant.  "Principal of a registrant" means the

 7  registrant's owners if a partnership or sole proprietorship,

 8  corporate officers, corporate directors other than directors

 9  of a not-for-profit corporation organized pursuant to chapter

10  617 and Florida resident agent if a corporate registrant.  The

11  registration information shall include a statement clearly

12  identifying and explaining any occasion on which any

13  professional license or state registration held by the

14  registrant, by any principal of the registrant, or by any

15  business entity in which any principal of the registrant was

16  the owner of 10 percent or more of such business, was the

17  subject of any suspension or revocation.

18         (5)  Notwithstanding s. 559.553(3), the office may deny

19  registration if the applicant, any principal of the applicant,

20  or any person having control of the applicant:

21         (a)  Has committed any practice prohibited under s.

22  559.72;

23         (b)  Is under investigation by the office, any state

24  attorney, or the Department of Legal Affairs for committing a

25  practice prohibited under s. 559.72;

26         (c)  Is currently subject to pending enforcement by any

27  federal authority for violations of the Fair Debt Collection

28  Practices Act or the Federal Trade Commission Act;

29         (d)  Has been found guilty of, regardless of

30  adjudication, or has entered a plea of nolo contendere or

31  

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 1  guilty to, racketeering or any offense involving fraud or

 2  dishonest dealing;

 3         (e)  Has been found guilty of, regardless of

 4  adjudication, or has entered a plea of nolo contendere or

 5  guilty to, any felony;

 6         (f)  Has had entered against him or her, or any

 7  business for which he or she has worked or been affiliated, an

 8  injunction, a temporary restraining order, or a final judgment

 9  or order, including a stipulated judgment or order, an

10  assurance of voluntary compliance, or any similar document, in

11  any civil or administrative action involving racketeering,

12  fraud, theft, embezzlement, fraudulent conversion, or

13  misappropriation of property or the use of any untrue,

14  deceptive, or misleading representation in an attempt to sell

15  or dispose of real or personal property or the use of any

16  unfair, unlawful, or deceptive trade practice, whether or not

17  there is any litigation pending against the applicant;

18         (g)  Is subject to or has worked or been affiliated

19  with any company that is, or ever has been, subject to any

20  injunction, temporary restraining order, including a

21  stipulated judgment or order, an assurance of voluntary

22  compliance, or any similar document, or any restrictive court

23  order relating to business activity as the result of any

24  action brought by a governmental agency, including any action

25  affecting any license to do business or practice an occupation

26  or trade;

27         (h)  Has at any time during the previous 7 years filed

28  for bankruptcy, been adjudged bankrupt, or been reorganized

29  because of insolvency;

30         (i)  Falsified or willfully omitted any material

31  information asked for in any application, document, or record

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 1  required to be submitted under this part or the rules of the

 2  office;

 3         (j)  Made a material false statement of fact in an

 4  application for registration or in response to any request or

 5  investigation by the office, the Department of Legal Affairs,

 6  or the state attorney; or

 7         (k)  Has been the subject of any adverse decision,

 8  finding, injunction, suspension, prohibition, revocation,

 9  denial, or judgment by any court of competent jurisdiction or

10  an administrative order by an administrative law judge, or by

11  any state or federal agency or any business, professional, or

12  occupational association involving a violation of any law,

13  rule, or regulation relating to business or professional

14  licensing.

15         (6)  A registrant shall maintain a surety bond of

16  $50,000 issued by a surety company admitted to do business in

17  this state and assigned to the office for the benefit of

18  consumers.

19         (7)  Upon the filing of an application for registration

20  and payment of all applicable fees, the office shall, unless

21  the application is to renew or reactivate an existing license,

22  investigate the applicant. If the office determines that

23  registration should be granted, it shall register the

24  applicant for a period not to exceed 1 year.

25         (8)  A registration must be obtained for each place of

26  business subject to registration under this chapter. A

27  registration is not transferable or assignable.

28         (9)  A registrant must give notice to the office within

29  10 business days of any of the following:

30         (a)  Relocation of the place of the registrant's

31  business; and

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 1         (b)  The registrant becoming subject to a voluntary or

 2  involuntary bankruptcy.

 3         (10)  An application form is deemed to be received for

 4  purposes of s. 120.60 upon receipt of a completed application,

 5  as prescribed by commission rule, the nonrefundable

 6  application fee, and any other fee prescribed by law or rule.

 7         (11)(a)(3)  Renewal of registration shall be made

 8  between October 1 and December 31 of each year.  There shall

 9  be no proration of the fee for any registration. The office

10  shall adopt rules for the renewal of registration.

11         (b)  A registration that is not renewed by the end of

12  the calendar year expires automatically. A consumer collection

13  agency that has not renewed its registration by the time the

14  registration period expires may request reactivation of its

15  registration. The registrant must file its request with the

16  office on or before January 31 of the year following the year

17  of expiration. The request must contain any information the

18  office requires, together with the registration fee required

19  in subsection (1) and a late fee equal to the registration

20  fee. Any reactivation of registration granted by the office

21  during the month of January is deemed retroactive to January 1

22  of that year. Any registrant that engages in the business of a

23  consumer collection agency after its registration has expired,

24  violates ss. 559.553 and 559.785(1).

25         Section 14.  Section 559.565, Florida Statutes, is

26  amended to read:

27         559.565  Enforcement action against out-of-state

28  consumer debt collector.--The remedies of this section are

29  cumulative to other sanctions and enforcement provisions of

30  this part for any violation by an out-of-state consumer debt

31  collector, as defined in s. 559.55(8).

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 1         (1)  Any out-of-state consumer debt collector who

 2  collects or attempts to collect consumer debts in this state

 3  without first registering in accordance with this part shall

 4  be subject to an administrative fine not to exceed $1,000 per

 5  violation together with reasonable attorney fees and court

 6  costs in any successful action by the state to collect the

 7  such fines.

 8         (2)  Any person, whether or not exempt from

 9  registration under this part, who is otherwise subject to the

10  jurisdiction of this state and violates the provisions of s.

11  559.72 shall be subject to sanctions for the such violations

12  the same as any other consumer debt collector, including

13  imposition of an administrative fine.  The registration of a

14  duly registered out-of-state consumer debt collector shall be

15  subject to revocation or suspension in the same manner as the

16  registration of any other registrant under this part.

17         (3)  In order to effectuate the provisions of this

18  section and enforce the requirements of this part as it

19  relates to out-of-state consumer debt collectors, the Attorney

20  General is expressly authorized to initiate an such action on

21  behalf of the state as he or she deems appropriate in any

22  federal district court of competent jurisdiction.

23         Section 15.  Section 559.72, Florida Statutes, is

24  amended to read:

25         559.72  Prohibited practices generally.--In collecting

26  consumer debts, a no person may not shall:

27         (1)  Simulate in any manner a law enforcement officer

28  or a representative of any governmental agency;

29         (2)  Use or threaten force, or violence, or any other

30  means to harm the physical person, property, or reputation of

31  any person;

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 1         (3)  Tell a debtor who disputes a consumer debt that

 2  she or he or any person employing her or him will disclose to

 3  another, orally or in writing, directly or indirectly,

 4  information affecting the debtor's reputation for credit

 5  worthiness without also informing the debtor that the

 6  existence of the dispute will also be disclosed as required by

 7  subsection (6);

 8         (4)  Communicate or threaten to communicate with a

 9  debtor's employer prior to obtaining final judgment against

10  the debtor, unless the debtor gives her or his permission in

11  writing to contact her or his employer or acknowledges in

12  writing the existence of the debt after the debt has been

13  placed for collection, but this shall not prohibit a person

14  from telling the debtor that her or his employer will be

15  contacted if a final judgment is obtained;

16         (5)  Disclose to a person other than the debtor or her

17  or his family information affecting the debtor's reputation,

18  whether or not for credit worthiness, with knowledge or reason

19  to know that the other person does not have a legitimate

20  business need for the information or that the information is

21  false;

22         (6)  Disclose information concerning the existence of a

23  debt known to be reasonably disputed by the debtor without

24  disclosing that fact.  If a disclosure is made prior to such

25  reasonable dispute having been asserted and written notice is

26  received from the debtor that any part of the debt is disputed

27  and if such dispute is reasonable, the person who made the

28  original disclosure shall reveal upon the request of the

29  debtor within 30 days the details of the dispute to each

30  person to whom disclosure of the debt without notice of the

31  dispute was made within the preceding 90 days;

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 1         (7)  Willfully communicate with the debtor or any

 2  member of her or his family with such frequency as can

 3  reasonably be expected to harass the debtor or her or his

 4  family, or willfully engage in other conduct which can

 5  reasonably be expected to abuse or harass the debtor or any

 6  member of her or his family;

 7         (8)  Use profane, obscene, vulgar, or willfully abusive

 8  language in communicating with the debtor or any member of her

 9  or his family;

10         (9)  Claim, attempt, or threaten to enforce a debt when

11  such person knows that the debt is not legitimate or assert

12  the existence of some other legal right when such person knows

13  that the right does not exist;

14         (10)  Use a communication which simulates in any manner

15  legal or judicial process or which gives the appearance of

16  being authorized, issued or approved by a government,

17  governmental agency, or attorney at law, when it is not;

18         (11)  Communicate with a debtor under the guise of an

19  attorney by using the stationery of an attorney or forms or

20  instruments which only attorneys are authorized to prepare;

21         (12)  Orally communicate with a debtor in such a manner

22  as to give the false impression or appearance that such person

23  is or is associated with an attorney;

24         (13)  Advertise or threaten to advertise for sale any

25  debt as a means to enforce payment except under court order or

26  when acting as an assignee for the benefit of a creditor;

27         (14)  Publish or post, threaten to publish or post, or

28  cause to be published or posted before the general public

29  individual names or any list of names of debtors, commonly

30  known as a deadbeat list, for the purpose of enforcing or

31  attempting to enforce collection of consumer debts;

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 1         (15)  Refuse to provide adequate identification of

 2  herself or himself or her or his employer or other entity whom

 3  she or he represents when requested to do so by a debtor from

 4  whom she or he is collecting or attempting to collect a

 5  consumer debt;

 6         (16)  Mail any communication to a debtor in an envelope

 7  or postcard with words typed, written, or printed on the

 8  outside of the envelope or postcard indicating that the

 9  purpose of the communication is to collect a debt or is

10  otherwise calculated to embarrass the debtor.  An example of

11  this would be an envelope addressed to "Deadbeat, Jane Doe" or

12  "Deadbeat, John Doe";

13         (17)  Communicate with the debtor between the hours of

14  9 p.m. and 8 a.m. in the debtor's time zone, at any unusual

15  time or place, or a time or place that is known or should be

16  known to be inconvenient for the debtor without the prior

17  consent of the debtor;

18         (18)  Communicate with a debtor if the person knows

19  that the debtor is represented by an attorney with respect to

20  such debt and has knowledge of, or can readily ascertain, such

21  attorney's name and address, unless the debtor's attorney

22  fails to respond within a reasonable period of time to a

23  communication from the person, unless the debtor's attorney

24  consents to a direct communication with the debtor, or unless

25  the debtor initiates the communication; or

26         (19)  Cause charges to be made to any debtor for

27  communications by concealment of the true purpose of the

28  communication, including collect telephone calls and telegram

29  fees.

30         Section 16.  Section 559.725, Florida Statutes, is

31  amended to read:

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 1         559.725  Consumer complaints; administrative duties.--

 2         (1)  Any person having reason to believe that this part

 3  has been violated may file a written complaint with the office

 4  setting forth the details of the alleged violation.

 5         (2)  The office may conduct an investigation of any

 6  person, within or outside this state, which it believes is

 7  necessary in order to determine whether a person has violated

 8  this part or the rules adopted by the office.

 9         (3)(a)  The office may conduct examinations of any

10  registrant. The office shall conduct all examinations at a

11  location in this state convenient to the registrant unless the

12  office determines that it is more effective or cost-efficient

13  to perform the examination at the registrant's out-of-state

14  location.

15         (b)  The registrant shall pay the travel expenses and

16  per diem subsistence at the rate provided by law for an

17  examination conducted at the registrant's out-of-state

18  location. The registrant shall pay for up to 30 8-hour days

19  per year for each office examiner participating in the

20  examination. However, if the examination involves or reveals

21  fraudulent misconduct by the registrant, the registrant shall

22  pay the travel expenses and per diem subsistence, without

23  limitation, for each examiner participating in the

24  examination.

25         (4)  Nothing in this part may be construed to be a

26  jurisdictional prerequisite to enforcement by the office, the

27  Department of Legal Affairs, or a state attorney.

28         (1)  The Division of Consumer Services of the

29  Department of Financial Services shall serve as the registry

30  for receiving and maintaining records of inquiries,

31  correspondence, and complaints from consumers concerning any

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 1  and all persons who collect debts, including consumer

 2  collection agencies.

 3         (2)  The division shall classify complaints by type and

 4  identify the number of written complaints against persons

 5  collecting or attempting to collect debts in this state,

 6  including credit grantors collecting their own debts, debt

 7  collectors generally, and, specifically, consumer collection

 8  agencies as distinguished from other persons who collect debts

 9  such as commercial debt collection agencies regulated under

10  part V of this chapter. The division shall identify the nature

11  and number of various kinds of written complaints, including

12  specifically those alleging violations of s. 559.72.

13         (3)  The division shall inform and furnish relevant

14  information to the appropriate regulatory body of the state,

15  or The Florida Bar in the case of attorneys, when any consumer

16  debt collector exempt from registration under this part has

17  been named in five or more written consumer complaints

18  alleging violations of s. 559.72 within a 12-month period.

19         (4)  The division shall furnish a form to each

20  complainant whose complaint concerns an alleged violation of

21  s. 559.72 by a consumer collection agency.  Such form may be

22  filed with the office.  The form shall identify the accused

23  consumer collection agency and provide for the complainant's

24  summary of the nature of the alleged violation and facts which

25  allegedly support the complaint.  The form shall include a

26  provision for the complainant to state under oath before a

27  notary public that the allegations therein made are true.

28         (5)  Upon receipt of such sworn complaint, the office

29  shall promptly furnish a copy of the sworn complaint to the

30  accused consumer collection agency.

31  

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 1         (6)  The office shall investigate sworn complaints by

 2  direct written communication with the complainant and the

 3  affected consumer collection agency. In addition, the office

 4  shall attempt to resolve each sworn complaint and shall record

 5  the resolution of such complaints.

 6         (7)  Periodically, the office shall identify consumer

 7  collection agencies that have unresolved sworn consumer

 8  complaints from five or more different consumers within a

 9  12-month period under the provisions of this part.

10         (8)  The office shall issue a written warning notice to

11  the accused consumer collection agency if the office is unable

12  to resolve all such sworn complaints and fewer than five

13  unresolved complaints remain. Such notice shall include a

14  statement that the warning may constitute evidence in any

15  future investigation of similar complaints against that agency

16  and in any future administrative determination of the

17  imposition of other administrative remedies available to the

18  office under this part.

19         (9)  The office may issue a written reprimand when five

20  or more such unresolved sworn complaints against a consumer

21  collection agency collectively fall short of constituting

22  apparent repeated violations that warrant more serious

23  administrative sanctions. Such reprimand shall include a

24  statement that the reprimand may constitute evidence in any

25  future investigation of similar complaints against that agency

26  and in any future administrative determination of the

27  imposition of other administrative remedies available to the

28  office.

29         (10)  The office shall issue a notice of intent either

30  to revoke or suspend the registration or to impose an

31  administrative fine when the office preliminarily determines

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 1  that repeated violations of s. 559.72 by an accused registrant

 2  have occurred which would warrant more serious administrative

 3  sanctions being imposed under this part.  The office shall

 4  advise each registrant of the right to require an

 5  administrative hearing under chapter 120, prior to the

 6  agency's final action on the matter as authorized by s.

 7  559.730.

 8         (5)(11)  Any government office or agency receiving a

 9  complaint under this section The office shall advise any other

10  government office or agency with apparent jurisdiction,

11  including the office, the appropriate state attorney, or the

12  Attorney General in the case of an out-of-state consumer debt

13  collector, of any determination by that agency the office of a

14  violation, or possible violation, of the requirements of this

15  part by any consumer collection agency, whether or which is

16  not registered or exempt from registration as required by this

17  part. The office shall furnish the state attorney or Attorney

18  General with the office's information concerning the alleged

19  violations of such requirements.

20         Section 17.  Section 559.726, Florida Statutes, is

21  created to read:

22         559.726  Powers and duties of the Office of Financial

23  Regulation.--

24         (1)  Compliance with this part shall be enforced by the

25  office, except to the extent that enforcement is specifically

26  committed to another agency.

27         (2)  The commission may adopt rules under ss.

28  120.536(1) and 120.54 to implement and administer this part.

29  The commission may adopt a rule to require electronic

30  submission of any form, document, or fee required by this

31  part, provided that the rule reasonably accommodates a person

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 1  with a technological or financial hardship. The commission may

 2  adopt a rule setting forth the criteria and procedures for

 3  obtaining an exemption due to a technological or financial

 4  hardship exemption. The commission may adopt a rule to accept

 5  certification of compliance with the requirements of this part

 6  in lieu of requiring submission of documents.

 7         (3)  All fees, charges, and fines collected by the

 8  office under this part shall be deposited to the credit of the

 9  Regulatory Trust Fund of the office.

10         (4)  The office, or any duly authorized representative,

11  including any financial examiner or analyst, financial

12  investigator, or attorney at law, may:

13         (a)  Issue, revoke, quash, or modify and serve

14  subpoenas to compel the attendance of witnesses and subpoenas

15  duces tecum to compel the production of all books, accounts,

16  records, and other documents and materials relevant to an

17  examination or investigation. The office may exercise these

18  powers even if the subject of the investigation or examination

19  is exempt from registration;

20         (b)  Administer oaths and affirmations to any person;

21  or

22         (c)  Take or cause to be taken testimony and

23  depositions.

24         (5)(a)  If the office determines that a person is in

25  substantial noncompliance with a subpoena or subpoena duces

26  tecum that the office issued or caused to be issued, it may

27  petition a court of competent jurisdiction in the county in

28  which the person subpoenaed resides or has its principal place

29  of business for an order requiring the subpoenaed person to

30  appear and testify and to produce the books, accounts,

31  

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 1  records, and other documents that are specified in the

 2  subpoena duces tecum.

 3         (b)  The court may grant injunctive relief restraining

 4  the person from advertising, promoting, soliciting, entering

 5  into, offering to enter into, continuing, or completing any

 6  transaction involving consumer debt collection. The court may

 7  grant such other relief, including, but not limited to, the

 8  restraint, by injunction or appointment of a receiver, of any

 9  transfer, pledge, assignment, or other disposition of the

10  person's assets or any concealment, alteration, destruction,

11  or other disposition of the books, accounts, records, or other

12  documents and materials that the court deems appropriate,

13  until the person has fully complied with the subpoena duces

14  tecum and the office has completed its investigation or

15  examination. The court may order the refund of any sums

16  collected whenever books and documents substantiating the

17  transaction are not produced or cannot be produced. The office

18  is entitled to the summary procedure as provided in s. 51.011,

19  and the court shall advance such cause on its calendar.

20         (c)  Attorney's fees and any other costs incurred by

21  the office to obtain an order granting, in whole or part, a

22  petition to enforce a subpoena or subpoena duces tecum shall

23  be taxed against the subpoenaed person, and failure to comply

24  with the order is a contempt of court.

25         (6)  When it appears to the office that compliance with

26  a subpoena or subpoena duces tecum issued under subsection (4)

27  is essential and that the person or documents subpoenaed are

28  otherwise unavailable to an investigation or examination, the

29  office, in addition to the other remedies provided for in this

30  section, may petition a court of competent jurisdiction in the

31  county in which the subpoenaed person resides or has its

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 1  principal place of business for a writ of ne exeat. The court

 2  shall direct the issuance of the writ against the subpoenaed

 3  person requiring sufficient bond conditioned on compliance

 4  with the subpoena or subpoena duces tecum. The court shall

 5  cause to be endorsed on the writ a suitable amount of bond

 6  upon the payment of which the person named in the writ shall

 7  be freed, having a due regard to the nature of the case.

 8         (7)  The office may seek a writ of attachment from the

 9  court having jurisdiction over the person who refuses to obey

10  a subpoena, to give testimony, or to produce the matters

11  described in the subpoena duces tecum.

12         (8)  A copy of the petition shall be served upon the

13  person by anyone authorized by law or this section to serve

14  subpoenas. The individual serving the petition shall make and

15  file with the court an affidavit showing the date, time,

16  place, and manner of service.

17         (9)  At a hearing on the petition to enforce compliance

18  with a subpoena, the person subpoenaed, or any person whose

19  interest will be substantially affected by the investigation,

20  examination, or subpoena, may appear and object to the

21  subpoena and to the granting of the petition. The court may

22  make any order that justice requires in order to protect a

23  party or other person and her or his personal and property

24  rights, including, but not limited to, protection from

25  annoyance, embarrassment, oppression, undue burden, or

26  expense.

27         (10)  Failure to comply with an order granting, in

28  whole or in part, a petition to enforce a subpoena is a

29  contempt of the court.

30         (11)  Witnesses are entitled to the same fees and

31  mileage to which they would be entitled by law for attending

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 1  as witnesses in circuit court, except that fees or mileage may

 2  not be allowed for testimony of a person taken at the person's

 3  principal office or residence.

 4         (12)  Reasonable and necessary costs incurred by the

 5  office and payable to persons involved with an investigation

 6  may be assessed against any debt collector on the basis of

 7  actual costs incurred.  Assessed expenses may include, but are

 8  not limited to: expenses for interpreters; expenses for

 9  communications; expenses for legal representation; expenses

10  for economic, legal, or other research, analysis and

11  testimony; and fees and expenses for witnesses. A failure to

12  reimburse the office for its reasonable and necessary costs is

13  a reason to deny a registrant's application or to revoke the

14  prior approval of an application.

15         Section 18.  Section 559.7262, Florida Statutes, is

16  created to read:

17         559.7262  Injunction to restrain violations.--

18         (1)  The office may bring an action on behalf of the

19  state to enjoin any person who has violated, or who is about

20  to violate, this part or any rule or order of the office

21  issued under this part.

22         (2)  In an injunctive proceeding, the court may issue a

23  subpoena requiring the attendance of any witness or a subpoena

24  duces tecum requiring the production of any book, account,

25  record, or other documents and materials relevant to the

26  pending case.

27         (3)(a)  In addition to any procedure provided by law to

28  enforce a temporary restraining order, temporary injunction,

29  or permanent injunction, the court may, upon application of

30  the office, impound the property, assets, and business of the

31  registrant, including, but not limited to, the books, records,

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 1  documents, and papers of the registrant. The receiver, when

 2  appointed and qualified, has the powers and duties that are

 3  conferred by the court.

 4         (b)  After appointing the receiver, the court may issue

 5  an order staying all pending suits and enjoining any further

 6  litigation affecting the receiver's custody or possession of

 7  the property, assets, and business, and the court, with the

 8  consent of the chief judge of the circuit, may require that

 9  all suits be assigned to the circuit court judge who appointed

10  the receiver.

11         Section 19.  Section 559.7263, Florida Statutes, is

12  created to read:

13         559.7263  Cease and desist orders; refund orders.--

14         (1)  The office may issue and serve upon a person an

15  order to cease and desist and to take corrective action

16  whenever the office has reason to believe that the person is

17  violating, has violated, or is about to violate this part, any

18  rule or order of the office issued under this part, or any

19  written agreement between the person and the office.

20  Procedural matters relating to issuance and enforcement of

21  such a cease and desist order are governed by chapter 120.

22         (2)  The office has the power to seek an order of

23  restitution for collected funds due to creditors or any sum

24  collected from a debtor without valid proof of debt.

25         Section 20.  Section 559.7264, Florida Statutes, is

26  created to read:

27         559.7264  Evidence; examiner's worksheets,

28  investigative reports, other related documents.--An official

29  written report, sworn complaint, worksheet, or other related

30  paper, or a duly certified copy thereof, compiled, prepared,

31  drafted, or otherwise made by the financial examiner is

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 1  admissible into evidence if the financial examiner is

 2  available for cross-examination; authenticates the worksheet;

 3  and testifies that the report, worksheet, or related document

 4  was prepared as a result of an examination of the books and

 5  records of a registrant or other person conducted under the

 6  authority of this part.

 7         Section 21.  Section 559.7265, Florida Statutes, is

 8  created to read:

 9         559.7265  Books, accounts, and records; maintenance;

10  examinations by the office.--

11         (1)  Each registrant shall maintain, at its principal

12  place of business designated on the registration, all books,

13  accounts, records, and documents necessary to determine the

14  registrant's compliance with this part.

15         (2)  The office may authorize maintenance of records at

16  a location other than a principal place of business. The

17  office may require books, accounts, and records to be produced

18  and available at a reasonable and convenient location in this

19  state.

20         (3)  All books, accounts, records, documents, and

21  receipts for payments to a registrant by a debtor, and

22  payments made to a creditor by a registrant, shall be

23  preserved and kept available for examination by the department

24  for 3 years after the date of original entry. The commission

25  shall adopt requirements by rule for maintaining the books,

26  accounts, records, and documents retained by the registrant

27  and for destroying the records.

28         (4)  The office shall designate by rule the minimum

29  information that must be contained in the books, accounts,

30  records, and documents of a registrant in order that the

31  

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 1  records will enable the office to determine a registrant's

 2  compliance with this part.

 3         Section 22.  section 559.730, Florida Statutes, is

 4  amended to read:

 5         559.730  Administrative remedies.--

 6         (1)  The office may revoke or suspend the registration

 7  of any registrant under this part who:

 8         (a)  Has committed a violation of s. 559.72 or of the

 9  federal Fair Debt Collection Practices Act;

10         (b)  Is the subject of a complaint received by a

11  governmental authority which indicates a clear pattern of

12  abuse of prohibited collection practices under s. 559.72 or

13  the federal Fair Debt Collection Practices Act;

14         (c)  Is currently under investigation by a governmental

15  authority for violating s. 559.72, the Florida Deceptive and

16  Unfair Trade Practices Act, or the federal Fair Debt

17  Collection Practices Act;

18         (d)  Has been found guilty of, regardless of

19  adjudication, or has entered a plea of nolo contendere or

20  guilty to, any crime involving fraud, dishonest dealing, or

21  moral turpitude;

22         (e)  Had a final judgment entered against her or him in

23  a civil action upon the grounds of fraud, embezzlement,

24  misrepresentation, or deceit;

25         (f)  Has pending against him or her in any jurisdiction

26  a criminal prosecution or administrative enforcement action

27  that involves fraud, dishonest dealing, or moral turpitude;

28         (g)  Had a business, professional, or occupational

29  license or registration suspended, revoked, or otherwise acted

30  against in any jurisdiction;

31  

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 1         (h)  Fails to maintain the surety bond required

 2  pursuant to s. 559.555(6);

 3         (i)  Fails to maintain books and records as required by

 4  s. 559.7265;

 5         (j)  Violates any order issued by the office;

 6         (k)  Paid for a registration with a check or electronic

 7  funds transfer that failed to clear the applicant's or

 8  registrant's financial institution; or

 9         (l)  Has engaged in repeated violations that which

10  establish a clear pattern of abuse of prohibited collection

11  practices under s. 559.72.

12         (2)  Any registration made under this part which is

13  based upon false identification or false information, or an

14  identification that is not current with respect to name,

15  address, business location, or other fact that is material to

16  the registration, is void. A registration made and

17  subsequently found to be void under this section does not

18  create a defense to any action brought by the office to impose

19  a sanction for a violation of this part.

20         (3)  A registrant may request to terminate its

21  registration by delivering written notice of its proposed

22  termination to the office. However, the delivery of the

23  termination notice does not affect any civil or criminal

24  liability of the registrant or the authority of the office to

25  enforce this part.

26         (4)  The office may deny a request to terminate a

27  registration or to withdraw an application for registration if

28  the office believes that the registrant or applicant has

29  committed an act that would be grounds for denial, suspension,

30  or revocation of the registration.

31  

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 1         (5)  Final office action to revoke or suspend the

 2  registration of any registrant is shall be subject to review

 3  in accordance with chapter 120 in the same manner as

 4  revocation of a license.  The repeated violations of the law

 5  by one employee shall not be grounds for revocation or

 6  suspension of the registration of the employing consumer

 7  collection agency, unless the employee is also the owner of a

 8  majority interest in the collection agency.

 9         (2)  The registration of a registrant shall not be

10  revoked or suspended if the registrant shows by a

11  preponderance of the evidence that the violations were not

12  intentional and resulted from bona fide error notwithstanding

13  the maintenance of procedures reasonably adapted to avoid any

14  such error.

15         (3)  The office shall consider the number of complaints

16  against the registrant in relation to the accused registrant's

17  volume of business when determining whether suspension or

18  revocation is the more appropriate sanction when circumstances

19  warrant that one or the other should be imposed upon a

20  registrant.

21         (4)  The office shall impose suspension rather than

22  revocation when circumstances warrant that one or the other

23  should be imposed upon a registrant and the accused registrant

24  demonstrates that the registrant has taken affirmative steps

25  which can be expected to effectively eliminate the repeated

26  violations and that the registrant's registration has never

27  previously been suspended.

28         (6)(5)  The office may impose an administrative fine up

29  to $1,000 per violation against the offending registrant as an

30  administrative a sanction for repeated violations of the

31  provisions of s. 559.72 when violations do not rise to the

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 1  level of misconduct governed by subsection (1). Final office

 2  action to impose an administrative fine is shall be subject to

 3  review in accordance with ss. 120.569 and 120.57.

 4         (7)(6)  An Any administrative fine imposed under this

 5  part shall be payable to the office.  The office shall

 6  maintain an appropriate record and shall deposit the such fine

 7  into the Regulatory Trust Fund of the office.

 8         (8)(7)  An administrative action by the office to

 9  impose revocation, suspension, or fine must shall be brought

10  within 2 years after the date of the last violation upon which

11  the action is founded.

12         (9)(8)  Nothing in This part does not shall be

13  construed to preclude any person from pursuing remedies

14  available under the federal Fair Debt Collection Practices

15  Act, the Federal Trade Commission Act, or the Florida

16  Deceptive and Unfair Trade Practices Act for any violation of

17  these acts such act, including specifically against any person

18  who is exempt from the registration provisions of this part.

19         (10)  The remedies under this part are in addition to

20  remedies otherwise available for the same conduct under state

21  or local law.

22         Section 23.  Subsection (5) of section 559.77, Florida

23  Statutes, is amended to read:

24         559.77  Civil remedies.--

25         (5)  In applying and construing this section, due

26  consideration and great weight shall be given to the

27  interpretations of the Federal Trade Commission and the

28  federal courts relating to the federal Fair Debt Collection

29  Practices Act and the Federal Trade Commission Act. If there

30  is an inconsistency between this part and an interpretation of

31  

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 1  the federal case law or the federal acts, the provision that

 2  is more protective of the consumer or debtor shall prevail.

 3         Section 24.  Section 559.785, Florida Statutes, is

 4  amended to read:

 5         559.785  Criminal penalty.--

 6         (1)  It shall be a felony misdemeanor of the third

 7  first degree, punishable as provided in s. 775.082, or s.

 8  775.083, or s. 775.084, for any person not exempt from

 9  registering as provided in this part to:

10         (a)  Operate or solicit business as a consumer

11  collection agency engage in collecting consumer debts in this

12  state without first registering with the office;, or to

13         (b)  Register or attempt to register by means of fraud,

14  misrepresentation, or concealment;.

15         (c)  Engage in any consumer debt collection activity

16  after suspension or revocation of the registrant's

17  registration under s. 559.730(1); or

18         (d)  Engage in any consumer debt collection activity

19  while under a temporary or permanent injunction issued under

20  s. 559.78.

21         (2)  Each of the following acts constitutes a

22  misdemeanor of the second degree, punishable as provided in s.

23  775.082 or s. 775.083:

24         (a)  Relocating a business as a consumer collection

25  agency or operating under any name other than that designated

26  in the registration, unless written notification is given to

27  the office and to the surety or sureties on the original bond.

28         (b)  Assigning or attempting to assign a registration

29  under this part.

30         (3)  The court may, in addition to penalties provided

31  in this part, invalidate the registration of any registrant

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 1  under this part who has been found guilty of conduct

 2  prohibited in subsection (1) or subsection (2).

 3         (4)  The office may refer evidence concerning a

 4  violation of this part, or of any rule or order, to any

 5  criminal prosecuting agency that may, with or without the

 6  reference and in addition to any other action it might

 7  commence, bring an action against any person to enjoin,

 8  restrain, and prevent the commission of any prohibited act or

 9  practice.

10         Section 25.  Sections 559.547 and 559.563, Florida

11  Statutes, are repealed.

12         Section 26.  This act shall take effect July 1, 2004.

13  

14            *****************************************

15                          SENATE SUMMARY

16    Revises various provisions of the Florida Commercial
      Collection Practices Act and the Florida Consumer
17    Collection Practices Act. Requires a commercial
      collection agency to register with the Office of
18    Financial Regulation. Requires each applicant to purchase
      a surety bond. Describes the powers and duties of the
19    office when regulating commercial collection agencies.
      Authorizes the office to issue subpoenas and subpoenas
20    duces tecum and issue cease and desist orders. Authorizes
      the office to impose an administrative fine up to $1,000
21    per violation. Revises the application procedure and
      registration requirements for consumer collection
22    agencies. Provides that an out-of-state consumer
      collection agency otherwise subject to this state's
23    jurisdiction is subject to sanctions for committing
      prohibited practices. Authorizes the office to conduct
24    investigations of consumer complaints. Authorizes the
      office to issue subpoenas and subpoenas duces tecum under
25    certain conditions. Provides administrative remedies for
      violating prohibited consumer collection practices.
26    Authorizes the office to assess an administrative fine of
      up to $1,000 per violation. (See bill for details.)
27  

28  

29  

30  

31  

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