Senate Bill sb2430c1

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    Florida Senate - 2004                           CS for SB 2430

    By the Committee on Banking and Insurance; and Senator Crist





    311-2235-04

  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; increasing the registration fee;

14         prescribing when an applicant must be

15         investigated; amending s. 559.546, F.S.;

16         requiring each applicant to purchase a surety

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

18         powers and duties of the office with respect to

19         regulating commercial collection agencies;

20         authorizing the commission to adopt rules;

21         authorizing the office to issue subpoenas and

22         subpoenas duces tecum under certain conditions;

23         providing procedures the office may use when a

24         person does not comply with a subpoena;

25         permitting a court to grant injunctive or other

26         relief when a person does not comply with a

27         subpoena; authorizing the court to award

28         attorney's fees and costs to the office under

29         certain circumstances; creating s. 559.5473,

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

31         relief under certain circumstances; authorizing

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    Florida Senate - 2004                           CS for SB 2430
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 1         a court to appoint a receiver under specified

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

 3         authorizing the office to issue cease and

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

 5         permitting specified documents made by a

 6         financial examiner to be admitted into evidence

 7         under certain conditions; creating s. 559.5476,

 8         F.S.; requiring each registrant to maintain

 9         business records; authorizing the commission to

10         adopt rules to designate the types of

11         information a registrant must maintain;

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

13         administrative remedies; specifying the grounds

14         under which a commercial collection agency may

15         have its registration suspended or revoked;

16         permitting a commercial collection agency to

17         terminate its registration; authorizing the

18         office to impose an administrative fine up to

19         $1,000 per violation; amending s. 559.55, F.S.;

20         providing definitions; amending s. 559.552,

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

22         federal laws; providing for construing

23         interpretations of the Federal Trade Commission

24         and the federal courts when applying state and

25         federal laws and rules relating to consumer

26         collection practices; amending s. 559.553,

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

28         information to register as a consumer

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

30         revising application procedures for consumer

31         collection agencies; requiring an applicant to

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    Florida Senate - 2004                           CS for SB 2430
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 1         furnish specified information; requiring a

 2         surety bond; increasing the registration fee;

 3         requiring an applicant to report specified

 4         information on crimes and licensure discipline

 5         committed by the applicant; listing the grounds

 6         for denying an application for registration;

 7         providing that registrations automatically

 8         expire; providing procedures for a consumer

 9         collection agency to renew its registration;

10         amending s. 559.565, F.S.; providing that an

11         out-of-state consumer collection agency

12         otherwise subject to this state's jurisdiction

13         is subject to sanctions for committing

14         prohibited practices; amending s. 559.72, F.S.;

15         specifying certain activities as prohibited

16         consumer collection practices; amending s.

17         559.725, F.S.; authorizing the office to

18         conduct investigations of consumer complaints;

19         providing for the examination of a registrant;

20         creating s. 559.726, F.S.; detailing the powers

21         and duties of the office with respect to

22         regulating consumer collection agencies;

23         authorizing the commission to adopt rules;

24         authorizing the office to issue subpoenas and

25         subpoenas duces tecum under certain conditions;

26         providing procedures the office may use when a

27         person does not comply with a subpoena;

28         permitting a court to grant injunctive or other

29         relief when a person does not comply with a

30         subpoena; authorizing the court to award

31         attorney's fees and costs to the office under

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    Florida Senate - 2004                           CS for SB 2430
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 1         certain circumstances; creating s. 559.7262,

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

 3         relief under certain circumstances; creating s.

 4         559.7263, F.S.; authorizing the office to issue

 5         cease and desist orders; creating s. 559.7264,

 6         F.S.; permitting certain documents prepared by

 7         a financial examiner to be admitted into

 8         evidence under specified conditions; creating

 9         s. 559.7265, F.S.; requiring each registrant to

10         maintain business records; authorizing the

11         commission to adopt rules to designate the

12         types of information a registrant must

13         maintain; amending s. 559.730, F.S.; providing

14         administrative remedies for violating

15         prohibited consumer collection practices;

16         specifying the prohibited practices for which a

17         consumer collection agency's registration may

18         be suspended or revoked; providing that a

19         consumer collection agency may terminate its

20         registration; authorizing the office to assess

21         an administrative fine of up to $1,000 per

22         violation; amending s. 559.77, F.S.; providing

23         for construing interpretations of the Federal

24         Trade Commission and the federal courts when

25         applying state and federal laws and rules;

26         amending s. 559.785, F.S.; specifying certain

27         activities that subject a person to a criminal

28         penalty; making an appropriation; repealing ss.

29         559.547 and 559.563, F.S., relating to void

30         registrations; providing an effective date.

31  

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

 2  

 3         Section 1.  Section 559.544, Florida Statutes, is

 4  amended to read:

 5         559.544  Registration required; exemptions.--

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

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

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

 9  commercial collection agency, unless the person without first

10  registers with the office according to registering in

11  accordance with this part and thereafter maintains the

12  maintaining such registration.

13         (2)  Each commercial collection agency doing business

14  in this state shall register with the office and annually

15  renew the such registration, providing the registration fee,

16  information, and surety bond required by this part.

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

18  commercial collection agency transacting business at any place

19  other than that designated in the registration unless the

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

21  A registration under this part is not transferable or

22  assignable. Any commercial collection agency desiring to

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

24  process at any time other than renewal of the registration

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

26  change.

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

28  any registration for any commercial collection agency as

29  validly made and filed with the office under this section

30  unless the application registration information furnished to

31  the office by the applicant registrant is complete under

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 1  pursuant to s. 559.545 and facially demonstrates that the

 2  applicant such registrant is qualified to engage in business

 3  as a commercial collection agency, including specifically that

 4  neither the applicant or registrant nor any principal of the

 5  applicant registrant has not engaged in any unlawful

 6  collection practices, dishonest dealings, acts of moral

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

 8  engage in the commercial collection agency business. The

 9  office shall inform any person whose application for

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

11  and basis for the denial such rejection.  A prospective

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

13  his or its application registration information is complete on

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

15  the required evidence of current bond is furnished to the

16  office.

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

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

19  person is primarily engaged in the collection of commercial

20  claims. "Primarily engaged in the collection of commercial

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

22  of such person arises from the business of soliciting

23  commercial claims for collection or collecting commercial

24  claims.

25         (b)  A financial institution authorized to do business

26  in this state and any wholly owned subsidiary and affiliate

27  thereof.

28         (c)  A licensed real estate broker.

29         (d)  A title insurance company authorized to do

30  business in this state.

31  

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

 2  engaged in the collection of commercial claims.  "Not

 3  primarily engaged in the collection of commercial claims"

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

 5  such agency arises from the collection of commercial claims.

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

 7  subsidiary and affiliate thereof.

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

 9         (h)  A credit grantor.

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

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

12  affiliate thereof.

13         Section 2.  Section 559.545, Florida Statutes, is

14  amended to read:

15         559.545  Registration of commercial collection

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

17  registration register as a commercial collection agency in

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

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

20  registration shall be made between October 1 and December 31

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

22  registration as required by this part, each commercial

23  collection agency shall furnish to the office a registration

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

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

26  office a registration fee of $800 $500.  All amounts collected

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

28  of the office.

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

30  following information:

31  

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

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

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

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

 5  designation of which location constitutes its principal place

 6  of business.

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

 8  telephone numbers, and social security numbers, or federal

 9  identification numbers of any corporate owner, of the

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

11  directors, and of the Florida resident agent of the

12  registering agency.

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

14  registrant is a domestic or foreign corporation, together with

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

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

17  corporation first registered to do business in this state.

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

19  which the applicant or registrant is currently doing business

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

21  indicating each county in which the applicant or registrant

22  holds an occupational license.

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

24  which the applicant or registrant is operating under a

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

26  or registrant, indicating the date and place of registration

27  of any such fictitious name or trade name.

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

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

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

31  business as a commercial or consumer collection agency within

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 1  the 5 calendar years immediately preceding the year in which

 2  the agency is registering.

 3         (g)  A statement clearly identifying and explaining any

 4  occasion on which any professional license or occupational

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

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

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

 8  10 percent or more of the such business was the subject of any

 9  suspension, revocation, or other disciplinary action.

10         (h)  A statement clearly identifying and explaining any

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

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

13  the applicant or registrant.

14         (i)  The commission or office may require each

15  applicant for a commercial collection agency registration to

16  provide any information and documentation reasonably necessary

17  to make a determination of the applicant's eligibility for

18  registration.

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

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

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

22  $50,000, valid for the year of registration, paid for and

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

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

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

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

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

28  and issued to ensure conformance with the provisions of this

29  part.

30         (4)  Upon the filing of an application for registration

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

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 1  the application is to renew or reactivate an existing

 2  registration, investigate the applicant. If the office

 3  determines that registration should be granted, it shall

 4  register the applicant for a period not to exceed 1 year.

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

 6  the calendar year expires automatically. A commercial

 7  collection agency that has not renewed its registration by the

 8  time the registration period expires may request reactivation

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

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

11  year of expiration. The request must contain any information

12  the office requires, together with the registration fee

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

14  registration fee. Any reactivation of registration granted by

15  the office during the month of January is deemed retroactive

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

17  business as a commercial collection agency after its

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

19         (6)  An initial or renewal registration application is

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

21  completed application form prescribed by commission rule, the

22  application fee of $800, and any other fee prescribed by law

23  or rule.

24         Section 3.  Section 559.546, Florida Statutes, is

25  amended to read:

26         559.546  Bond; evidence of current and valid

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

28  shall provide to the office evidence that the applicant or

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

30  required by this part.

31  

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 1         (1)  In addition to each registration filed under

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

 3  registration, each applicant or registrant shall furnish to

 4  the office the following:

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

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

 7  acceptable to the office.

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

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

10  registrant.

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

12  by the surety meets the requirements of this part.

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

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

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

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

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

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

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

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

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

22  distribution to claimants and administratively determine and

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

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

25  filing of the first claim against the surety.

26         Section 4.  Section 559.5471, Florida Statutes, is

27  created to read:

28         559.5471  Powers and duties of the Office of Financial

29  Regulation.--

30  

31  

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

 2  office, except when enforcement is specifically committed to

 3  another agency.

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

 5  120.536(1) and 120.54 to implement and administer this part.

 6  The commission may adopt a rule to require electronic

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

 8  part, provided that the rule reasonably accommodates a person

 9  with a technological or financial hardship. The commission may

10  adopt a rule setting forth the criteria and procedures for

11  obtaining an exemption due to a technological or financial

12  hardship. The commission may adopt a rule to accept

13  certification of compliance with the requirements of this part

14  in lieu of requiring submission of specified documents.

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

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

17  Regulatory Trust Fund of the office.

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

19  including any financial examiner or analyst, financial

20  investigator, or attorney at law, may:

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

22  subpoenas to compel the attendance of witnesses and subpoenas

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

24  records, and other documents and materials relevant to an

25  examination or investigation. The office may exercise these

26  powers even if the subject of the investigation or examination

27  is exempt from registration.

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

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

30  depositions.

31  

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

 2  substantial noncompliance with a subpoena or subpoena duces

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

 4  petition a court of competent jurisdiction in the county where

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

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

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

 8  records, and other documents that are specified in the

 9  subpoena duces tecum.

10         (b)  The court may grant injunctive relief restraining

11  the person from advertising, promoting, soliciting, entering

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

13  transaction involving commercial debt collection. The court

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

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

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

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

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

19  documents and materials that the court deems appropriate,

20  until the person has fully complied with the subpoena duces

21  tecum and the office has completed its investigation or

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

23  collected whenever books and documents substantiating the

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

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

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

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

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

29  petition for enforcement of a subpoena or subpoena duces tecum

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

31  comply with the order is a contempt of court.

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

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

 3  is essential and that the person or documents subpoenaed are

 4  otherwise unavailable to an investigation or examination, the

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

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

 7  county in which the subpoenaed person resides or has its

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

 9  shall direct the issuance of the writ against the subpoenaed

10  person requiring sufficient bond conditioned on compliance

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

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

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

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

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

16  court having jurisdiction over the person who refuses to obey

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

18  described in the subpoena duces tecum.

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

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

21  subpoenas. The individual serving the petition shall make and

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

23  place, and manner of service.

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

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

26  interest will be substantially affected by the investigation,

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

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

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

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

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

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 1  annoyance, embarrassment, oppression, undue burden, or

 2  expense.

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

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

 5  contempt of the court.

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

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

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

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

10  principal office or residence.

11         (12)  Reasonable and necessary costs incurred by the

12  office and payable to persons involved with an investigation

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

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

15  not limited to, expenses for interpreters; expenses for

16  communications; expenses for legal representation; expenses

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

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

19  reimburse the office for its reasonable and necessary costs is

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

21  prior approval of an application.

22         Section 5.  Section 559.5473, Florida Statutes, is

23  created to read:

24         559.5473  Injunction to restrain violations;

25  receivers.--

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

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

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

29  under this part.

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

31  subpoena requiring the attendance of any witness or a subpoena

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

 2  record, or other documents and materials relevant to the

 3  pending case.

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

 5  for enforcing a temporary restraining order or a temporary or

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

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

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

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

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

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

12  conferred upon the receiver by the court.

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

14  an order staying all pending suits and enjoining any further

15  litigation affecting the receiver's custody or possession of

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

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

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

19  receiver.

20         Section 6.  Section 559.5474, Florida Statutes, is

21  created to read:

22         559.5474  Cease and desist orders; refund orders.--

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

24  order to cease and desist and to take corrective action

25  whenever the office has reason to believe that the commercial

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

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

28  under this part, or any written agreement between the

29  commercial collection agency and the office. Procedural

30  matters relating to the issuance and enforcement of a cease

31  and desist order are governed by chapter 120.

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

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

 3  debtor without valid proof of debt.

 4         Section 7.  Section 559.5475, Florida Statutes, is

 5  created to read:

 6         559.5475  Evidence; examiner's worksheets,

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

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

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

10  drafted, or otherwise made by the financial examiner is

11  admissible into evidence if the financial examiner is

12  available for cross-examination; authenticates the worksheet;

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

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

15  records of a registrant or other person conducted under the

16  authority of this part.

17         Section 8.  Section 559.5476, Florida Statutes, is

18  created to read:

19         559.5476  Books, accounts, and records; maintenance;

20  examinations by the office.--

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

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

23  accounts, records, and documents necessary to determine the

24  registrant's compliance with this part.

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

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

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

28  and available at a reasonable and convenient location in this

29  state.

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

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

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

 2  preserved and kept available for examination by the office for

 3  3 years after the date of original entry. The commission shall

 4  adopt requirements by rule for maintaining the books,

 5  accounts, records, and documents retained by the registrant

 6  and for destroying the records.

 7         (4)  The commission shall designate by rule the minimum

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

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

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

11  with this part.

12         Section 9.  Section 559.5477, Florida Statutes, is

13  created to read:

14         559.5477  Administrative remedies.--

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

16  of a registrant under this part who:

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

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

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

20  moral turpitude;

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

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

23  embezzlement, misrepresentation, or deceit;

24         (c)  Has pending against the person a criminal

25  prosecution or administrative enforcement action, in any

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

27  other act of moral turpitude;

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

29  occupational license or registration suspended, revoked, or

30  otherwise acted against in any jurisdiction;

31  

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 1         (e)  Fails to maintain the surety bond required

 2  pursuant to s. 559.546;

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

 4  s. 559.5476;

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

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

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

 8  registrant's financial institution.

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

10  based upon false identification or false information, or an

11  identification that is not current with respect to name,

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

13  the registration, is void. Any registration made and

14  subsequently found to be void under this section does not

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

16  a sanction for a violation of this part.

17         (3)  A registrant may request to terminate its

18  registration by delivering written notice of its proposed

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

20  termination notice does not affect any civil or criminal

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

22  enforce this part.

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

24  registration or to withdraw an application for registration if

25  the office believes that the registrant has committed an act

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

27  under this part.

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

29  the registration of a registrant is subject to review

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

31  license.

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

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

 3  administrative sanction. Final action by the office to impose

 4  an administrative fine is subject to review in accordance with

 5  ss. 120.569 and 120.57.

 6         (7)  Any administrative fine imposed under this part

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

 8  appropriate record and deposit the fine into the Regulatory

 9  Trust Fund of the office.

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

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

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

13  action is founded.

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

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

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

17         559.55  Definitions.--The following terms shall, unless

18  the context otherwise indicates, have the following meanings

19  for the purpose of this part:

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

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

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

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

24  transaction are primarily for personal, family, or household

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

26  judgment; or

27         (b)  Any unsatisfied obligation for the payment of

28  money arising out of any legal order.

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

30  person whose business activities in this state involve both

31  collecting or attempting to collect consumer debt from debtors

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 1  located in this state by means of interstate communication

 2  originating from outside this state and soliciting consumer

 3  debt accounts for collection from creditors who have a

 4  business presence in this state.  For purposes of this

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

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

 7  creditor has an office or resides in this state.

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

 9  legislation regulating unfair or deceptive practices or acts,

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

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

12  registrant" means a person who:

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

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

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

16  applicant or registrant.

17         (b)  The office determines, after notice and

18  opportunity for hearing, exercises a controlling influence,

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

20  registrant.

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

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

23  sole proprietorship; the corporate officers; the corporate

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

25  corporation organized under chapter 617; or the Florida

26  resident agent if a corporation is the applicant or

27  registrant.

28         Section 11.  Section 559.552, Florida Statutes, is

29  amended to read:

30         559.552  Relationship of state and federal law.--

31  

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

 2  Practices Act constitutes a prohibited practice under s.

 3  559.72.

 4         (2)  Nothing in This part does not shall be construed

 5  to limit or restrict the continued applicability of the

 6  federal Fair Debt Collection Practices Act to consumer

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

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

 9  construing this part, due consideration and great weight shall

10  be given to interpretations of the Federal Trade Commission

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

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

13  inconsistency between any provision of this part and any

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

15  provision that which is more protective of the consumer or

16  debtor shall prevail.

17         Section 12.  Section 559.553, Florida Statutes, is

18  amended to read:

19         559.553  Registration of consumer collection agencies

20  required; exemptions.--

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

22  engage in business in this state as a consumer collection

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

24  collection agency without first registering in accordance with

25  this part, and thereafter maintaining a valid registration.

26         (2)  Each consumer collection agency doing business in

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

28  registration annually as set forth in s. 559.555.

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

30  be registered when registration information is complete on its

31  face and the applicable registration fee has been paid;

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

 2  registration submitted by a prospective registrant if the

 3  applicant registrant or any principal or person having control

 4  of the applicant registrant previously has held any

 5  professional license or state registration that which was the

 6  subject of any suspension or revocation which has not been

 7  explained by the prospective registrant to the satisfaction of

 8  the office either in the registration information submitted

 9  initially or upon the subsequent written request of the

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

11  registration is denied rejected by the office the prospective

12  registrant shall be informed of the basis for the denial

13  rejection.

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

15         (a)  An Any original creditor.

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

17         (c)  A Any financial institution authorized to do

18  business in this state and any wholly owned subsidiary and

19  affiliate thereof.

20         (d)  A Any licensed real estate broker.

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

22  in this state.

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

24  owned subsidiary and affiliate thereof.

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

26  520.

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

28  does not solicit consumer debt accounts for collection from

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

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

31  affiliate thereof.

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

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

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

 4  accordance with this part shall be subject to an enforcement

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

 6         Section 13.  Section 559.555, Florida Statutes, is

 7  amended to read:

 8         559.555  Registration of consumer collection agencies;

 9  procedure.--

10         (1)  An application for registration under this part

11  shall be filed on a form prescribed by the commission and must

12  contain:

13         (a)  The full legal name, residential address, business

14  addresses, telephone number, and social security number or

15  federal identification number for:

16         1.  The applicant;

17         2.  Any person having control over the applicant or

18  registrant;

19         3.  Any principal of an applicant or registrant;

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

21  association; and

22         5.  Each owner, officer, director, and registered agent

23  if the applicant is a corporation.

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

25  name under which the consumer collection business is doing

26  business; the current mailing address of the consumer

27  collection agency; and the business location of each place

28  from which the consumer collection agency operates a main or

29  branch office, with a designation of which location

30  constitutes its principal place of business.

31  

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 1         (c)  A statement listing each county in this state in

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

 3  business within the next calendar year, indicating each county

 4  in which the applicant holds an occupational license.

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

 6  which the applicant is currently operating under a fictitious

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

 8  indicating the date and place of registration of any

 9  fictitious name or trade name.

10         (e)  A statement listing the names of any other

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

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

13  collection agency in the 5 years immediately before the year

14  in which the agency is registering.

15         (f)  A statement clearly identifying and explaining

16  each occasion on which a professional or occupational license

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

18  business entity in which any principal of the applicant was

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

20  subject of any suspension, revocation, or other disciplinary

21  action.

22         (g)  A statement clearly identifying and explaining

23  each occasion when a principal of the applicant was found

24  guilty of a crime involving moral turpitude or dishonest

25  conduct.

26         (h)  Any information and documentation reasonably

27  necessary to make a determination of the applicant's

28  eligibility for registration, as required by the office or

29  commission.

30  

31  

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 1         (i)  A surety bond in the amount of $50,000 issued by a

 2  surety company admitted to do business in this state and

 3  assigned to the office for the benefit of consumers.

 4         (2)  The application information must include a

 5  statement clearly identifying and explaining each occasion

 6  when a professional license or state registration held by a

 7  person with control over an applicant or by any business

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

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

10  subject of a suspension or revocation proceeding. Any person

11  required to register as a consumer collection agency shall

12  furnish to the office the registration fee and information as

13  follows:

14         (3)(1)  The applicant or registrant shall pay to the

15  office a nonrefundable registration fee in the amount of $800

16  $200.  All amounts collected shall be deposited by the office

17  to the credit of the Regulatory Trust Fund of the office.

18         (4)(2)  Each applicant or registrant shall provide to

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

20  mailing address, the current business location that which

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

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

23  registrant.  "Principal of a registrant" means the

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

25  corporate officers, corporate directors other than directors

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

27  617 and Florida resident agent if a corporate registrant.  The

28  registration information shall include a statement clearly

29  identifying and explaining any occasion on which any

30  professional license or state registration held by the

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

                                  26

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 1  business entity in which any principal of the registrant was

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

 3  subject of any suspension or revocation.

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

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

 6  or any person having control of the applicant:

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

 8  559.72;

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

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

11  practice prohibited under s. 559.72;

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

13  federal authority for violations of the Fair Debt Collection

14  Practices Act or the Federal Trade Commission Act;

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

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

17  guilty to, racketeering or any offense involving fraud or

18  dishonest dealing;

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

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

21  guilty to, any felony;

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

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

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

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

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

27  any civil or administrative action involving racketeering,

28  fraud, theft, embezzlement, fraudulent conversion, or

29  misappropriation of property or the use of any untrue,

30  deceptive, or misleading representation in an attempt to sell

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

                                  27

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

 2  there is any litigation pending against the applicant;

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

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

 5  injunction, temporary restraining order, including a

 6  stipulated judgment or order, an assurance of voluntary

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

 8  order relating to business activity as the result of any

 9  action brought by a governmental agency, including any action

10  affecting any license to do business or practice an occupation

11  or trade;

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

13  for bankruptcy, been adjudged bankrupt, or been reorganized

14  because of insolvency;

15         (i)  Falsified or willfully omitted any material

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

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

18  office;

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

20  application for registration or in response to any request or

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

22  or the state attorney; or

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

24  finding, injunction, suspension, prohibition, revocation,

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

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

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

28  occupational association involving a violation of any law,

29  rule, or regulation relating to business or professional

30  licensing.

31  

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

 2  $50,000 issued by a surety company admitted to do business in

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

 4  consumers.

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

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

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

 8  investigate the applicant. If the office determines that

 9  registration should be granted, it shall register the

10  applicant for a period not to exceed 1 year.

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

12  business subject to registration under this chapter. A

13  registration is not transferable or assignable.

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

15  10 business days of any of the following:

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

17  business; and

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

19  involuntary bankruptcy.

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

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

22  as prescribed by commission rule, the nonrefundable

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

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

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

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

27  shall adopt rules for the renewal of registration.

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

29  the calendar year expires automatically. A consumer collection

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

31  registration period expires may request reactivation of its

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 1  registration. The registrant must file its request with the

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

 3  of expiration. The request must contain any information the

 4  office requires, together with the registration fee required

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

 6  fee. Any reactivation of registration granted by the office

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

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

 9  consumer collection agency after its registration has expired,

10  violates ss. 559.553 and 559.785(1).

11         Section 14.  Section 559.565, Florida Statutes, is

12  amended to read:

13         559.565  Enforcement action against out-of-state

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

15  cumulative to other sanctions and enforcement provisions of

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

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

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

19  collects or attempts to collect consumer debts in this state

20  without first registering in accordance with this part shall

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

22  violation together with reasonable attorney fees and court

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

24  such fines.

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

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

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

28  559.72 shall be subject to sanctions for the such violations

29  the same as any other consumer debt collector, including

30  imposition of an administrative fine.  The registration of a

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

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

 2  registration of any other registrant under this part.

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

 4  section and enforce the requirements of this part as it

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

 6  General is expressly authorized to initiate an such action on

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

 8  federal district court of competent jurisdiction.

 9         Section 15.  Section 559.72, Florida Statutes, is

10  amended to read:

11         559.72  Prohibited practices generally.--In collecting

12  consumer debts, a no person may not shall:

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

14  or a representative of any governmental agency;

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

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

17  any person;

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

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

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

21  information affecting the debtor's reputation for credit

22  worthiness without also informing the debtor that the

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

24  subsection (6);

25         (4)  Communicate or threaten to communicate with a

26  debtor's employer prior to obtaining final judgment against

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

28  writing to contact her or his employer or acknowledges in

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

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

31  

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

 2  contacted if a final judgment is obtained;

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

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

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

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

 7  business need for the information or that the information is

 8  false;

 9         (6)  Disclose information concerning the existence of a

10  debt known to be reasonably disputed by the debtor without

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

12  reasonable dispute having been asserted and written notice is

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

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

15  original disclosure shall reveal upon the request of the

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

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

18  dispute was made within the preceding 90 days;

19         (7)  Willfully communicate with the debtor or any

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

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

22  family, or willfully engage in other conduct which can

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

24  member of her or his family;

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

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

27  or his family;

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

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

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

31  that the right does not exist;

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

 2  legal or judicial process or which gives the appearance of

 3  being authorized, issued or approved by a government,

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

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

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

 7  instruments which only attorneys are authorized to prepare;

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

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

10  is or is associated with an attorney;

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

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

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

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

15  cause to be published or posted before the general public

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

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

18  attempting to enforce collection of consumer debts;

19         (15)  Refuse to provide adequate identification of

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

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

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

23  consumer debt;

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

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

26  outside of the envelope or postcard indicating that the

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

28  otherwise calculated to embarrass the debtor.  An example of

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

30  "Deadbeat, John Doe";

31  

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

 2  9 p.m. and 8 a.m. in the debtor's time zone, at any unusual

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

 4  known to be inconvenient for the debtor without the prior

 5  consent of the debtor;

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

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

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

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

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

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

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

13  the debtor initiates the communication; or

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

15  communications by concealment of the true purpose of the

16  communication, including collect telephone calls and telegram

17  fees.

18         Section 16.  Section 559.725, Florida Statutes, is

19  amended to read:

20         559.725  Consumer complaints; administrative duties.--

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

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

23  setting forth the details of the alleged violation.

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

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

26  necessary in order to determine whether a person has violated

27  this part or the rules adopted by the office.

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

29  registrant. The office shall conduct all examinations at a

30  location in this state convenient to the registrant unless the

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

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

 2  location.

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

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

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

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

 7  per year for each office examiner participating in the

 8  examination. However, if the examination involves or reveals

 9  fraudulent misconduct by the registrant, the registrant shall

10  pay the travel expenses and per diem subsistence, without

11  limitation, for each examiner participating in the

12  examination.

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

14  jurisdictional prerequisite to enforcement by the office, the

15  Department of Legal Affairs, or a state attorney.

16         (1)  The Division of Consumer Services of the

17  Department of Financial Services shall serve as the registry

18  for receiving and maintaining records of inquiries,

19  correspondence, and complaints from consumers concerning any

20  and all persons who collect debts, including consumer

21  collection agencies.

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

23  identify the number of written complaints against persons

24  collecting or attempting to collect debts in this state,

25  including credit grantors collecting their own debts, debt

26  collectors generally, and, specifically, consumer collection

27  agencies as distinguished from other persons who collect debts

28  such as commercial debt collection agencies regulated under

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

30  and number of various kinds of written complaints, including

31  specifically those alleging violations of s. 559.72.

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 1         (3)  The division shall inform and furnish relevant

 2  information to the appropriate regulatory body of the state,

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

 4  debt collector exempt from registration under this part has

 5  been named in five or more written consumer complaints

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

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

 8  complainant whose complaint concerns an alleged violation of

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

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

11  consumer collection agency and provide for the complainant's

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

13  allegedly support the complaint.  The form shall include a

14  provision for the complainant to state under oath before a

15  notary public that the allegations therein made are true.

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

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

18  accused consumer collection agency.

19         (6)  The office shall investigate sworn complaints by

20  direct written communication with the complainant and the

21  affected consumer collection agency. In addition, the office

22  shall attempt to resolve each sworn complaint and shall record

23  the resolution of such complaints.

24         (7)  Periodically, the office shall identify consumer

25  collection agencies that have unresolved sworn consumer

26  complaints from five or more different consumers within a

27  12-month period under the provisions of this part.

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

29  the accused consumer collection agency if the office is unable

30  to resolve all such sworn complaints and fewer than five

31  unresolved complaints remain. Such notice shall include a

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 1  statement that the warning may constitute evidence in any

 2  future investigation of similar complaints against that agency

 3  and in any future administrative determination of the

 4  imposition of other administrative remedies available to the

 5  office under this part.

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

 7  or more such unresolved sworn complaints against a consumer

 8  collection agency collectively fall short of constituting

 9  apparent repeated violations that warrant more serious

10  administrative sanctions. Such reprimand shall include a

11  statement that the reprimand may constitute evidence in any

12  future investigation of similar complaints against that agency

13  and in any future administrative determination of the

14  imposition of other administrative remedies available to the

15  office.

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

17  to revoke or suspend the registration or to impose an

18  administrative fine when the office preliminarily determines

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

20  have occurred which would warrant more serious administrative

21  sanctions being imposed under this part.  The office shall

22  advise each registrant of the right to require an

23  administrative hearing under chapter 120, prior to the

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

25  559.730.

26         (5)(11)  Any government office or agency receiving a

27  complaint under this section The office shall advise any other

28  government office or agency with apparent jurisdiction,

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

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

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

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

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

 3  not registered or exempt from registration as required by this

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

 5  General with the office's information concerning the alleged

 6  violations of such requirements.

 7         Section 17.  Section 559.726, Florida Statutes, is

 8  created to read:

 9         559.726  Powers and duties of the Office of Financial

10  Regulation.--

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

12  office, except to the extent that enforcement is specifically

13  committed to another agency.

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

15  120.536(1) and 120.54 to implement and administer this part.

16  The commission may adopt a rule to require electronic

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

18  part, provided that the rule reasonably accommodates a person

19  with a technological or financial hardship. The commission may

20  adopt a rule setting forth the criteria and procedures for

21  obtaining an exemption due to a technological or financial

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

23  certification of compliance with the requirements of this part

24  in lieu of requiring submission of documents.

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

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

27  Regulatory Trust Fund of the office.

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

29  including any financial examiner or analyst, financial

30  investigator, or attorney at law, may:

31  

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

 2  subpoenas to compel the attendance of witnesses and subpoenas

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

 4  records, and other documents and materials relevant to an

 5  examination or investigation. The office may exercise these

 6  powers even if the subject of the investigation or examination

 7  is exempt from registration;

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

 9  or

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

11  depositions.

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

13  substantial noncompliance with a subpoena or subpoena duces

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

15  petition a court of competent jurisdiction in the county in

16  which the person subpoenaed resides or has its principal place

17  of business for an order requiring the subpoenaed person to

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

19  records, and other documents that are specified in the

20  subpoena duces tecum.

21         (b)  The court may grant injunctive relief restraining

22  the person from advertising, promoting, soliciting, entering

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

24  transaction involving consumer debt collection. The court may

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

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

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

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

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

30  documents and materials that the court deems appropriate,

31  until the person has fully complied with the subpoena duces

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 1  tecum and the office has completed its investigation or

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

 3  collected whenever books and documents substantiating the

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

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

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

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

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

 9  petition to enforce a subpoena or subpoena duces tecum shall

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

11  with the order is a contempt of court.

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

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

14  is essential and that the person or documents subpoenaed are

15  otherwise unavailable to an investigation or examination, the

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

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

18  county in which the subpoenaed person resides or has its

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

20  shall direct the issuance of the writ against the subpoenaed

21  person requiring sufficient bond conditioned on compliance

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

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

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

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

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

27  court having jurisdiction over the person who refuses to obey

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

29  described in the subpoena duces tecum.

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

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

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 1  subpoenas. The individual serving the petition shall make and

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

 3  place, and manner of service.

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

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

 6  interest will be substantially affected by the investigation,

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

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

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

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

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

12  annoyance, embarrassment, oppression, undue burden, or

13  expense.

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

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

16  contempt of the court.

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

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

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

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

21  principal office or residence.

22         (12)  Reasonable and necessary costs incurred by the

23  office and payable to persons involved with an investigation

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

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

26  not limited to: expenses for interpreters; expenses for

27  communications; expenses for legal representation; expenses

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

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

30  reimburse the office for its reasonable and necessary costs is

31  

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

 2  prior approval of an application.

 3         Section 18.  Section 559.7262, Florida Statutes, is

 4  created to read:

 5         559.7262  Injunction to restrain violations.--

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

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

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

 9  issued under this part.

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

11  subpoena requiring the attendance of any witness or a subpoena

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

13  record, or other documents and materials relevant to the

14  pending case.

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

16  enforce a temporary restraining order, temporary injunction,

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

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

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

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

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

22  conferred by the court.

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

24  an order staying all pending suits and enjoining any further

25  litigation affecting the receiver's custody or possession of

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

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

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

29  the receiver.

30         Section 19.  Section 559.7263, Florida Statutes, is

31  created to read:

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 1         559.7263  Cease and desist orders; refund orders.--

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

 3  order to cease and desist and to take corrective action

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

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

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

 7  written agreement between the person and the office.

 8  Procedural matters relating to issuance and enforcement of

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

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

11  restitution for collected funds due to creditors or any sum

12  collected from a debtor without valid proof of debt.

13         Section 20.  Section 559.7264, Florida Statutes, is

14  created to read:

15         559.7264  Evidence; examiner's worksheets,

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

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

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

19  drafted, or otherwise made by the financial examiner is

20  admissible into evidence if the financial examiner is

21  available for cross-examination; authenticates the worksheet;

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

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

24  records of a registrant or other person conducted under the

25  authority of this part.

26         Section 21.  Section 559.7265, Florida Statutes, is

27  created to read:

28         559.7265  Books, accounts, and records; maintenance;

29  examinations by the office.--

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

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

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 1  accounts, records, and documents necessary to determine the

 2  registrant's compliance with this part.

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

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

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

 6  and available at a reasonable and convenient location in this

 7  state.

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

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

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

11  preserved and kept available for examination by the department

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

13  shall adopt requirements by rule for maintaining the books,

14  accounts, records, and documents retained by the registrant

15  and for destroying the records.

16         (4)  The commission shall designate by rule the minimum

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

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

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

20  compliance with this part.

21         Section 22.  Section 559.730, Florida Statutes, is

22  amended to read:

23         559.730  Administrative remedies.--

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

25  of any registrant under this part who:

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

27  federal Fair Debt Collection Practices Act;

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

29  governmental authority which indicates a clear pattern of

30  abuse of prohibited collection practices under s. 559.72 or

31  the federal Fair Debt Collection Practices Act;

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 1         (c)  Is currently under investigation by a governmental

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

 3  Unfair Trade Practices Act, or the federal Fair Debt

 4  Collection Practices Act;

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

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

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

 8  moral turpitude;

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

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

11  misrepresentation, or deceit;

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

13  a criminal prosecution or administrative enforcement action

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

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

16  license or registration suspended, revoked, or otherwise acted

17  against in any jurisdiction;

18         (h)  Fails to maintain the surety bond required

19  pursuant to s. 559.555(6);

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

21  s. 559.7265;

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

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

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

25  registrant's financial institution; or

26         (l)  Has engaged in repeated violations that which

27  establish a clear pattern of abuse of prohibited collection

28  practices under s. 559.72.

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

30  based upon false identification or false information, or an

31  identification that is not current with respect to name,

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

 2  the registration, is void. A registration made and

 3  subsequently found to be void under this section does not

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

 5  a sanction for a violation of this part.

 6         (3)  A registrant may request to terminate its

 7  registration by delivering written notice of its proposed

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

 9  termination notice does not affect any civil or criminal

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

11  enforce this part.

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

13  registration or to withdraw an application for registration if

14  the office believes that the registrant or applicant has

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

16  or revocation of the registration.

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

18  registration of any registrant is shall be subject to review

19  in accordance with chapter 120 in the same manner as

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

21  by one employee shall not be grounds for revocation or

22  suspension of the registration of the employing consumer

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

24  majority interest in the collection agency.

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

26  revoked or suspended if the registrant shows by a

27  preponderance of the evidence that the violations were not

28  intentional and resulted from bona fide error notwithstanding

29  the maintenance of procedures reasonably adapted to avoid any

30  such error.

31  

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

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

 3  volume of business when determining whether suspension or

 4  revocation is the more appropriate sanction when circumstances

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

 6  registrant.

 7         (4)  The office shall impose suspension rather than

 8  revocation when circumstances warrant that one or the other

 9  should be imposed upon a registrant and the accused registrant

10  demonstrates that the registrant has taken affirmative steps

11  which can be expected to effectively eliminate the repeated

12  violations and that the registrant's registration has never

13  previously been suspended.

14         (6)(5)  The office may impose an administrative fine up

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

16  administrative a sanction for repeated violations of the

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

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

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

20  review in accordance with ss. 120.569 and 120.57.

21         (7)(6)  An Any administrative fine imposed under this

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

23  maintain an appropriate record and shall deposit the such fine

24  into the Regulatory Trust Fund of the office.

25         (8)(7)  An administrative action by the office to

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

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

28  the action is founded.

29         (9)(8)  Nothing in This part does not shall be

30  construed to preclude any person from pursuing remedies

31  available under the federal Fair Debt Collection Practices

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

 2  Deceptive and Unfair Trade Practices Act for any violation of

 3  these acts such act, including specifically against any person

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

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

 6  remedies otherwise available for the same conduct under state

 7  or local law.

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

 9  Statutes, is amended to read:

10         559.77  Civil remedies.--

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

12  consideration and great weight shall be given to the

13  interpretations of the Federal Trade Commission and the

14  federal courts relating to the federal Fair Debt Collection

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

16  is an inconsistency between this part and an interpretation of

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

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

19         Section 24.  Section 559.785, Florida Statutes, is

20  amended to read:

21         559.785  Criminal penalty.--

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

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

24  775.083, or s. 775.084, for any person not exempt from

25  registering as provided in this part to:

26         (a)  Operate or solicit business as a consumer

27  collection agency engage in collecting consumer debts in this

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

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

30  misrepresentation, or concealment;.

31  

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 1         (c)  Engage in any consumer debt collection activity

 2  after suspension or revocation of the registrant's

 3  registration under s. 559.730(1); or

 4         (d)  Engage in any consumer debt collection activity

 5  while under a temporary or permanent injunction issued under

 6  s. 559.78.

 7         (2)  Each of the following acts constitutes a

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

 9  775.082 or s. 775.083:

10         (a)  Relocating a business as a consumer collection

11  agency or operating under any name other than that designated

12  in the registration, unless written notification is given to

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

14         (b)  Assigning or attempting to assign a registration

15  under this part.

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

17  in this part, invalidate the registration of any registrant

18  under this part who has been found guilty of conduct

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

20         (4)  The office may refer evidence concerning a

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

22  criminal prosecuting agency that may, with or without the

23  reference and in addition to any other action it might

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

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

26  practice.

27         Section 25.  For 2004-2005 fiscal year, seven positions

28  are authorized and the sum of $450,575 is appropriated from

29  the Regulatory Trust Fund to the Office of Financial

30  Regulation for the purpose of enforcing this act. The seven

31  

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 1  positions consist of six examiners and one registration

 2  analyst.

 3         Section 26.  Sections 559.547 and 559.563, Florida

 4  Statutes, are repealed.

 5         Section 27.  This act shall take effect July 1, 2004.

 6  

 7          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 8                         Senate Bill 2430

 9                                 

10  Requires an applicant for a commercial collection agency
    registration to provide information reasonably necessary for
11  the Office of Financial Regulation and the Financial Services
    Commission to determine the applicant's eligibility.
12  
    Requires the Office of Financial Regulation to investigate
13  applicants for commercial collection agency registrations upon
    the filing of the application and fee.
14  
    Requires consumer collection agency applicants to have a
15  $50,000 surety bond.

16  Increases application, renewal, and late fees for commercial
    collection agency applicants and registrants from $500 to $800
17  and increases similar fees for consumer collection agency
    applicants and registrants from $200 to $800.
18  
    Provides for an appropriation of $450,575 for fiscal year
19  2004-05, and authorizes seven FTE positions for the Office of
    Financial Regulation from the Regulatory Trust Fund.
20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  50

CODING: Words stricken are deletions; words underlined are additions.