Senate Bill sb2430c2
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By the Committees on Appropriations; Banking and Insurance;
and Senator Crist
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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 conduct
22 investigations to determine whether a person
23 has violated ch. 559, F.S., or rules adopted by
24 the office; authorizing the office to issue
25 subpoenas and subpoenas duces tecum under
26 certain conditions; providing procedures the
27 office may use when a person does not comply
28 with a subpoena; permitting a court to grant
29 injunctive or other relief when a person does
30 not comply with a subpoena; authorizing the
31 court to award attorney's fees and costs to the
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1 office under certain circumstances; creating s.
2 559.5473, F.S.; authorizing the office to seek
3 injunctive relief under certain circumstances;
4 authorizing a court to appoint a receiver under
5 specified conditions; creating s. 559.5474,
6 F.S.; authorizing the office to issue cease and
7 desist orders; creating s. 559.5475, F.S.;
8 permitting specified documents made by a
9 financial examiner to be admitted into evidence
10 under certain conditions; creating s. 559.5476,
11 F.S.; requiring each registrant to maintain
12 business records; authorizing the commission to
13 adopt rules to designate the types of
14 information a registrant must maintain;
15 creating s. 559.5477, F.S.; providing for
16 administrative remedies; specifying the grounds
17 under which a commercial collection agency may
18 have its registration suspended or revoked;
19 permitting a commercial collection agency to
20 terminate its registration; authorizing the
21 office to impose an administrative fine up to
22 $1,000 per violation; amending s. 559.55, F.S.;
23 providing definitions; amending s. 559.552,
24 F.S., relating to the relationship of state and
25 federal laws; providing for construing
26 interpretations of the Federal Trade Commission
27 and the federal courts when applying state and
28 federal laws and rules relating to consumer
29 collection practices; amending s. 559.553,
30 F.S.; requiring an applicant to provide certain
31 information to register as a consumer
2
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1 collection agency; amending s. 559.555, F.S.;
2 revising application procedures for consumer
3 collection agencies; requiring an applicant to
4 furnish specified information; requiring a
5 surety bond; increasing the registration fee;
6 requiring an applicant to report specified
7 information on crimes and licensure discipline
8 committed by the applicant; listing the grounds
9 for denying an application for registration;
10 providing that registrations automatically
11 expire; providing procedures for a consumer
12 collection agency to renew its registration;
13 amending s. 559.565, F.S.; providing that an
14 out-of-state consumer collection agency
15 otherwise subject to this state's jurisdiction
16 is subject to sanctions for committing
17 prohibited practices; amending s. 559.72, F.S.;
18 specifying certain activities as prohibited
19 consumer collection practices; amending s.
20 559.725, F.S.; authorizing the office to
21 conduct investigations of consumer complaints;
22 providing for the examination of a registrant;
23 creating s. 559.726, F.S.; detailing the powers
24 and duties of the office with respect to
25 regulating consumer collection agencies;
26 authorizing the commission to adopt rules;
27 authorizing the office to issue subpoenas and
28 subpoenas duces tecum under certain conditions;
29 providing procedures the office may use when a
30 person does not comply with a subpoena;
31 permitting a court to grant injunctive or other
3
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1 relief when a person does not comply with a
2 subpoena; authorizing the court to award
3 attorney's fees and costs to the office under
4 certain circumstances; creating s. 559.7262,
5 F.S.; authorizing the office to seek injunctive
6 relief under certain circumstances; creating s.
7 559.7263, F.S.; authorizing the office to issue
8 cease and desist orders; creating s. 559.7264,
9 F.S.; permitting certain documents prepared by
10 a financial examiner to be admitted into
11 evidence under specified conditions; creating
12 s. 559.7265, F.S.; requiring each registrant to
13 maintain business records; authorizing the
14 commission to adopt rules to designate the
15 types of information a registrant must
16 maintain; amending s. 559.730, F.S.; providing
17 administrative remedies for violating
18 prohibited consumer collection practices;
19 specifying the prohibited practices for which a
20 consumer collection agency's registration may
21 be suspended or revoked; providing that a
22 consumer collection agency may terminate its
23 registration; authorizing the office to assess
24 an administrative fine of up to $1,000 per
25 violation; amending s. 559.77, F.S.; providing
26 for construing interpretations of the Federal
27 Trade Commission and the federal courts when
28 applying state and federal laws and rules;
29 amending s. 559.785, F.S.; specifying certain
30 activities that subject a person to a criminal
31 penalty; making an appropriation; repealing ss.
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1 559.547 and 559.563, F.S., relating to void
2 registrations; providing an effective date.
3
4 Be It Enacted by the Legislature of the State of Florida:
5
6 Section 1. Section 559.544, Florida Statutes, is
7 amended to read:
8 559.544 Registration required; exemptions.--
9 (1) A No person may not shall engage in business in
10 this state as a commercial collection agency, as defined in
11 this part, or continue to do business in this state as a
12 commercial collection agency, unless the person without first
13 registers with the office according to registering in
14 accordance with this part and thereafter maintains the
15 maintaining such registration.
16 (2) Each commercial collection agency doing business
17 in this state shall register with the office and annually
18 renew the such registration, providing the registration fee,
19 information, and surety bond required by this part.
20 (3) A No registration is not shall be valid for any
21 commercial collection agency transacting business at any place
22 other than that designated in the registration unless the
23 office is first notified in advance of any change of location.
24 A registration under this part is not transferable or
25 assignable. Any commercial collection agency desiring to
26 change its registered name, location, or agent for service of
27 process at any time other than renewal of the registration
28 must shall notify the office of the such change prior to the
29 change.
30 (4) The office may shall not accept an application for
31 any registration for any commercial collection agency as
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1 validly made and filed with the office under this section
2 unless the application registration information furnished to
3 the office by the applicant registrant is complete under
4 pursuant to s. 559.545 and facially demonstrates that the
5 applicant such registrant is qualified to engage in business
6 as a commercial collection agency, including specifically that
7 neither the applicant or registrant nor any principal of the
8 applicant registrant has not engaged in any unlawful
9 collection practices, dishonest dealings, acts of moral
10 turpitude, or other criminal acts that reflect an inability to
11 engage in the commercial collection agency business. The
12 office shall inform any person whose application for
13 registration is denied rejected by the office of the fact of
14 and basis for the denial such rejection. A prospective
15 registrant is shall be entitled to be registered when her or
16 his or its application registration information is complete on
17 its face, the applicable registration fee has been paid, and
18 the required evidence of current bond is furnished to the
19 office.
20 (5) This section does shall not apply to:
21 (a) A member of The Florida Bar, unless the such
22 person is primarily engaged in the collection of commercial
23 claims. "Primarily engaged in the collection of commercial
24 claims" means that more than one-half of the person's income
25 of such person arises from the business of soliciting
26 commercial claims for collection or collecting commercial
27 claims.
28 (b) A financial institution authorized to do business
29 in this state and any wholly owned subsidiary and affiliate
30 thereof.
31 (c) A licensed real estate broker.
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1 (d) A title insurance company authorized to do
2 business in this state.
3 (e) A collection agency that which is not primarily
4 engaged in the collection of commercial claims. "Not
5 primarily engaged in the collection of commercial claims"
6 means that less than one-half of the collection revenue of the
7 such agency arises from the collection of commercial claims.
8 (f) A consumer finance company and any wholly owned
9 subsidiary and affiliate thereof.
10 (g) A person licensed pursuant to chapter 520.
11 (h) A credit grantor.
12 (i) An out-of-state collector as defined in this part.
13 (j) An FDIC-insured institution or subsidiary or
14 affiliate thereof.
15 Section 2. Section 559.545, Florida Statutes, is
16 amended to read:
17 559.545 Registration of commercial collection
18 agencies; procedure.--A Any person who wishes to apply for
19 registration register as a commercial collection agency in
20 compliance with this part must shall do so on forms adopted by
21 the commission and furnished by the office. Any renewal of
22 registration shall be made between October 1 and December 31
23 of each year. In applying for registering or renewing a
24 registration as required by this part, each commercial
25 collection agency shall furnish to the office a registration
26 fee, information, and surety bond, as follows:
27 (1) The applicant or registrant shall pay to the
28 office a registration fee of $800 $500. All amounts collected
29 shall be deposited to the credit of the Regulatory Trust Fund
30 of the office.
31
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1 (2) The applicant or registrant must shall provide the
2 following information:
3 (a) The business name or trade name of the commercial
4 collection agency, the current mailing address of the agency,
5 and the current business location of each place from which the
6 agency operates either a main or branch office, with a
7 designation of which location constitutes its principal place
8 of business.
9 (b) The full names, current addresses, current
10 telephone numbers, and social security numbers, or federal
11 identification numbers of any corporate owner, of the
12 applicant's or registrant's owners or corporate officers and
13 directors, and of the Florida resident agent of the
14 registering agency.
15 (c) A statement as to whether the applicant or
16 registrant is a domestic or foreign corporation, together with
17 the state and date of incorporation, charter number of the
18 corporation, and, if a foreign corporation, the date the
19 corporation first registered to do business in this state.
20 (d) A statement listing each county in this state in
21 which the applicant or registrant is currently doing business
22 or plans to do business within the next calendar year,
23 indicating each county in which the applicant or registrant
24 holds an occupational license.
25 (e) A statement listing each county in this state in
26 which the applicant or registrant is operating under a
27 fictitious name or trade name other than that of the applicant
28 or registrant, indicating the date and place of registration
29 of any such fictitious name or trade name.
30 (f) A statement listing the names of any other
31 corporations, entities, or trade names through which any owner
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1 or director of the applicant or registrant was known or did
2 business as a commercial or consumer collection agency within
3 the 5 calendar years immediately preceding the year in which
4 the agency is registering.
5 (g) A statement clearly identifying and explaining any
6 occasion on which any professional license or occupational
7 license held by the applicant or registrant, any principal of
8 the applicant or registrant, or any business entity in which
9 any principal of the applicant or registrant was the owner of
10 10 percent or more of the such business was the subject of any
11 suspension, revocation, or other disciplinary action.
12 (h) A statement clearly identifying and explaining any
13 occasion of a finding of guilt of any crime involving moral
14 turpitude or dishonest conduct on the part of any principal of
15 the applicant or registrant.
16 (i) The commission or office may require each
17 applicant for a commercial collection agency registration to
18 provide any information and documentation reasonably necessary
19 to make a determination of the applicant's eligibility for
20 registration.
21 (3) The applicant or registrant shall furnish to the
22 office evidence, as provided in s. 559.546, of the applicant
23 or registrant having a current surety bond in the amount of
24 $50,000, valid for the year of registration, paid for and
25 issued for the use and benefit of any credit grantor who
26 suffers or sustains any loss or damage by reason of any
27 violation of the provisions of this part by the applicant or
28 registrant, or by any agent or employee of the applicant or
29 registrant acting within the scope of her or his employment,
30 and issued to ensure conformance with the provisions of this
31 part.
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1 (4) Upon the filing of an application for registration
2 and payment of all applicable fees, the office shall, unless
3 the application is to renew or reactivate an existing
4 registration, investigate the applicant. If the office
5 determines that registration should be granted, it shall
6 register the applicant for a period not to exceed 1 year.
7 (5) A registration that is not renewed by the end of
8 the calendar year expires automatically. A commercial
9 collection agency that has not renewed its registration by the
10 time the registration period expires may request reactivation
11 of its registration. The registrant must file its request with
12 the office on or before January 31 of the year following the
13 year of expiration. The request must contain any information
14 the office requires, together with the registration fee
15 required in subsection (1), and a late fee equal to the
16 registration fee. Any reactivation of registration granted by
17 the office during the month of January is deemed retroactive
18 to January 1 of that year. Any registrant that engages in
19 business as a commercial collection agency after its
20 registration has expired violates s. 559.548(1).
21 (6) An initial or renewal registration application is
22 deemed received for purposes of s. 120.60 upon receipt of the
23 completed application form prescribed by commission rule, the
24 application fee of $800, and any other fee prescribed by law
25 or rule.
26 Section 3. Section 559.546, Florida Statutes, is
27 amended to read:
28 559.546 Bond; evidence of current and valid
29 bond.--Pursuant to s. 559.545, the applicant or registrant
30 shall provide to the office evidence that the applicant or
31
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1 registrant has been issued a current and valid surety bond as
2 required by this part.
3 (1) In addition to each registration filed under
4 pursuant to s. 559.545 and any renewal of the such
5 registration, each applicant or registrant shall furnish to
6 the office the following:
7 (a) A copy of the surety bond, which bond shall be one
8 issued by a surety known by the applicant or registrant to be
9 acceptable to the office.
10 (b) A statement from the surety that the annual
11 premium for the bond has been paid in full by the applicant or
12 registrant.
13 (c) A statement from the surety that the bond issued
14 by the surety meets the requirements of this part.
15 (2) The liability of the surety under any bond issued
16 under pursuant to the requirements of this part may shall not
17 exceed in the aggregate the amount of the bond, regardless of
18 the number or amount of any claims filed or which might be
19 asserted against the surety on the such bond. If multiple
20 claims are filed against the surety on any such bond in excess
21 of the amount of the bond, the surety may pay the full amount
22 of the bond to the office and is shall not be further liable
23 under the bond. The office shall hold the such funds for
24 distribution to claimants and administratively determine and
25 pay to each claimant the pro rata share of each valid claim
26 made against the funds within 6 months after the date of the
27 filing of the first claim against the surety.
28 Section 4. Section 559.5471, Florida Statutes, is
29 created to read:
30 559.5471 Powers and duties of the Office of Financial
31 Regulation.--
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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 office may conduct an investigation of any
5 person, within or outside this state, which it believes is
6 necessary in order to determine whether a person has violated
7 this chapter or the rules adopted by the office.
8 (3) The commission may adopt rules under ss.
9 120.536(1) and 120.54 to implement and administer this part.
10 The commission may adopt a rule to require electronic
11 submission of any form, document, or fee required by this
12 part, provided that the rule reasonably accommodates a person
13 with a technological or financial hardship. The commission may
14 adopt a rule setting forth the criteria and procedures for
15 obtaining an exemption due to a technological or financial
16 hardship. The commission may adopt a rule to accept
17 certification of compliance with the requirements of this part
18 in lieu of requiring submission of specified documents.
19 (4) All fees, charges, and fines collected by the
20 office under this part shall be deposited to the credit of the
21 Regulatory Trust Fund of the office.
22 (5) The office, or any duly authorized representative,
23 including any financial examiner or analyst, financial
24 investigator, or attorney at law, may:
25 (a) Issue, revoke, quash, or modify and serve
26 subpoenas to compel the attendance of witnesses and subpoenas
27 duces tecum to compel the production of all books, accounts,
28 records, and other documents and materials relevant to an
29 examination or investigation. The office may exercise these
30 powers even if the subject of the investigation or examination
31 is exempt from registration.
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1 (b) Administer oaths and affirmations to any person.
2 (c) Take, or cause to be taken, testimony and
3 depositions.
4 (6)(a) If the office determines that a person is in
5 substantial noncompliance with a subpoena or subpoena duces
6 tecum that the office issued or caused to be issued, it may
7 petition a court of competent jurisdiction in the county where
8 the person subpoenaed resides or has his, her, or its
9 principal place of business, for an order requiring the person
10 to appear and testify and to produce the books, accounts,
11 records, and other documents that are specified in the
12 subpoena duces tecum.
13 (b) The court may grant injunctive relief restraining
14 the person from advertising, promoting, soliciting, entering
15 into, offering to enter into, continuing, or completing any
16 transaction involving commercial debt collection. The court
17 may grant such other relief, including, but not limited to,
18 the restraint, by injunction or appointment of a receiver, of
19 any transfer, pledge, assignment, or other disposition of the
20 person's assets or any concealment, alteration, destruction,
21 or other disposition of books, accounts, records, or other
22 documents and materials that the court deems appropriate,
23 until the person has fully complied with the subpoena duces
24 tecum and the office has completed its investigation or
25 examination. The court may order the refund of any sums
26 collected whenever books and documents substantiating the
27 transaction are not produced or cannot be produced. The office
28 is entitled to the summary procedure provided in s. 51.011,
29 and the court shall advance the cause on its calendar.
30 (c) Attorney's fees and any other costs incurred by
31 the office to obtain an order granting, in whole or part, a
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1 petition for enforcement of a subpoena or subpoena duces tecum
2 shall be taxed against the subpoenaed person, and failure to
3 comply with the order is a contempt of court.
4 (7) When it appears to the office that compliance with
5 a subpoena or subpoena duces tecum issued under subsection (4)
6 is essential and that the person or documents subpoenaed are
7 otherwise unavailable to an investigation or examination, the
8 office, in addition to the other remedies provided for in this
9 section, may petition a court of competent jurisdiction in the
10 county in which the subpoenaed person resides or has its
11 principal place of business for a writ of ne exeat. The court
12 shall direct the issuance of the writ against the subpoenaed
13 person requiring sufficient bond conditioned on compliance
14 with the subpoena or subpoena duces tecum. The court shall
15 cause to be endorsed on the writ a suitable amount of bond
16 upon the payment of which the person named in the writ shall
17 be freed, having a due regard to the nature of the case.
18 (8) The office may seek a writ of attachment from a
19 court having jurisdiction over the person who refuses to obey
20 a subpoena, to give testimony, or to produce materials
21 described in the subpoena duces tecum.
22 (9) A copy of the petition shall be served upon the
23 person by anyone authorized by law or this section to serve
24 subpoenas. The individual serving the petition shall make and
25 file with the court an affidavit showing the date, time,
26 place, and manner of service.
27 (10) At a hearing on the petition to enforce
28 compliance with a subpoena, the person subpoenaed, or any
29 person whose interest will be substantially affected by the
30 investigation, examination, or subpoena, may appear and object
31 to the subpoena and to the granting of the petition. The court
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1 may make any order that justice requires in order to protect a
2 party or other person and her or his personal and property
3 rights, including, but not limited to, protection from
4 annoyance, embarrassment, oppression, undue burden, or
5 expense.
6 (11) Failure to comply with an order granting, in
7 whole or in part, a petition to enforce a subpoena is a
8 contempt of the court.
9 (12) Witnesses are entitled to the same fees and
10 mileage to which they would be entitled by law for attending
11 as witnesses in circuit court, except that fees or mileage may
12 not be allowed for testimony of a person taken at the person's
13 principal office or residence.
14 (13) Reasonable and necessary costs incurred by the
15 office and payable to persons involved with an investigation
16 may be assessed against any debt collector on the basis of
17 actual costs incurred. Assessed expenses may include, but are
18 not limited to, expenses for interpreters; expenses for
19 communications; expenses for legal representation; expenses
20 for economic, legal, or other research; analysis and
21 testimony; and fees and expenses for witnesses. The failure to
22 reimburse the office for its reasonable and necessary costs is
23 a reason to deny a registrant's application or to revoke the
24 prior approval of an application.
25 Section 5. Section 559.5473, Florida Statutes, is
26 created to read:
27 559.5473 Injunction to restrain violations;
28 receivers.--
29 (1) The office may bring an action on behalf of the
30 state to enjoin any person who has violated, or is about to
31
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1 violate, this part or any rule or order of the office issued
2 under this part.
3 (2) In an injunctive proceeding, the court may issue a
4 subpoena requiring the attendance of any witness or a subpoena
5 duces tecum requiring the production of any book, account,
6 record, or other documents and materials relevant to the
7 pending case.
8 (3)(a) In addition to any procedure provided by law
9 for enforcing a temporary restraining order or a temporary or
10 permanent injunction, the court may, upon application of the
11 office, impound the property, assets, and business of the
12 registrant, including, but not limited to, the books, records,
13 documents, and papers of the registrant. The court may appoint
14 a receiver to administer the property. The receiver, when
15 appointed and qualified, has the powers and duties that are
16 conferred upon the receiver by the court.
17 (b) After appointing a receiver, the court may issue
18 an order staying all pending suits and enjoining any further
19 litigation affecting the receiver's custody or possession of
20 the property, assets, and business, and the court, with the
21 consent of the chief judge of the circuit, may require that
22 all suits be assigned to the circuit judge who appointed the
23 receiver.
24 Section 6. Section 559.5474, Florida Statutes, is
25 created to read:
26 559.5474 Cease and desist orders; refund orders.--
27 (1) The office may issue and serve upon a person an
28 order to cease and desist and to take corrective action
29 whenever the office has reason to believe that the commercial
30 collection agency is violating, has violated, or is about to
31 violate this part, any rule or order of the office issued
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1 under this part, or any written agreement between the
2 commercial collection agency and the office. Procedural
3 matters relating to the issuance and enforcement of a cease
4 and desist order are governed by chapter 120.
5 (2) The office may seek an order of restitution for
6 collected funds due to creditors or any sum collected from a
7 debtor without valid proof of debt.
8 Section 7. Section 559.5475, Florida Statutes, is
9 created to read:
10 559.5475 Evidence; examiner's worksheets,
11 investigative reports, other related documents.--An official
12 written report, sworn complaint, worksheet, or other related
13 paper, or a certified copy thereof, compiled, prepared,
14 drafted, or otherwise made by the financial examiner is
15 admissible into evidence if the financial examiner is
16 available for cross-examination; authenticates the worksheet;
17 and testifies that the report, worksheet, or related document
18 was prepared as a result of an examination of the books and
19 records of a registrant or other person conducted under the
20 authority of this part.
21 Section 8. Section 559.5476, Florida Statutes, is
22 created to read:
23 559.5476 Books, accounts, and records; maintenance;
24 examinations by the office.--
25 (1) Each registrant shall maintain, at its principal
26 place of business designated on its registration, all books,
27 accounts, records, and documents necessary to determine the
28 registrant's compliance with this part.
29 (2) The office may authorize maintenance of records at
30 a location other than a principal place of business. The
31 office may require books, accounts, and records to be produced
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1 and available at a reasonable and convenient location in this
2 state.
3 (3) All books, accounts, records, documents, and
4 receipts for payments to a registrant by a debtor, and
5 payments made to a creditor by a registrant, shall be
6 preserved and kept available for examination by the office for
7 3 years after the date of original entry. The commission shall
8 adopt requirements by rule for maintaining the books,
9 accounts, records, and documents retained by the registrant
10 and for destroying the records.
11 (4) The commission shall designate by rule the minimum
12 information that must be contained in the registrant's books,
13 accounts, records, and documents in order that the records
14 will enable the office to determine a registrant's compliance
15 with this part.
16 Section 9. Section 559.5477, Florida Statutes, is
17 created to read:
18 559.5477 Administrative remedies.--
19 (1) The office may revoke or suspend the registration
20 of a registrant under this part who:
21 (a) Has been found guilty of, regardless of
22 adjudication, or has entered a plea of nolo contendere or
23 guilty to, any crime involving fraud, dishonest dealing, or
24 moral turpitude;
25 (b) Has had a final judgment entered against the
26 person in a civil action upon the grounds of fraud,
27 embezzlement, misrepresentation, or deceit;
28 (c) 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 (d) Fails to maintain the surety bond required
2 pursuant to s. 559.546;
3 (e) Fails to maintain books and records as required by
4 s. 559.5476;
5 (f) Violates any order issued by the office; or
6 (g) 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
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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
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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. For a registrant who was registered prior to
5 October 1, 2004, this subsection does not apply until December
6 31, 2004.
7 (7) Upon the filing of an application for registration
8 and payment of all applicable fees, the office shall, unless
9 the application is to renew or reactivate an existing license,
10 investigate the applicant. If the office determines that
11 registration should be granted, it shall register the
12 applicant for a period not to exceed 1 year.
13 (8) A registration must be obtained for each place of
14 business subject to registration under this chapter. A
15 registration is not transferable or assignable.
16 (9) A registrant must give notice to the office within
17 10 business days of any of the following:
18 (a) Relocation of the place of the registrant's
19 business; and
20 (b) The registrant becoming subject to a voluntary or
21 involuntary bankruptcy.
22 (10) An application form is deemed to be received for
23 purposes of s. 120.60 upon receipt of a completed application,
24 as prescribed by commission rule, the nonrefundable
25 application fee, and any other fee prescribed by law or rule.
26 (11)(a)(3) Renewal of registration shall be made
27 between October 1 and December 31 of each year. There shall
28 be no proration of the fee for any registration. The office
29 shall adopt rules for the renewal of registration.
30 (b) A registration that is not renewed by the end of
31 the calendar year expires automatically. A consumer collection
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1 agency that has not renewed its registration by the time the
2 registration period expires may request reactivation of its
3 registration. The registrant must file its request with the
4 office on or before January 31 of the year following the year
5 of expiration. The request must contain any information the
6 office requires, together with the registration fee required
7 in subsection (1) and a late fee equal to the registration
8 fee. Any reactivation of registration granted by the office
9 during the month of January is deemed retroactive to January 1
10 of that year. Any registrant that engages in the business of a
11 consumer collection agency after its registration has expired,
12 violates ss. 559.553 and 559.785(1).
13 Section 14. Section 559.565, Florida Statutes, is
14 amended to read:
15 559.565 Enforcement action against out-of-state
16 consumer debt collector.--The remedies of this section are
17 cumulative to other sanctions and enforcement provisions of
18 this part for any violation by an out-of-state consumer debt
19 collector, as defined in s. 559.55(8).
20 (1) Any out-of-state consumer debt collector who
21 collects or attempts to collect consumer debts in this state
22 without first registering in accordance with this part shall
23 be subject to an administrative fine not to exceed $1,000 per
24 violation together with reasonable attorney fees and court
25 costs in any successful action by the state to collect the
26 such fines.
27 (2) Any person, whether or not exempt from
28 registration under this part, who is otherwise subject to the
29 jurisdiction of this state and violates the provisions of s.
30 559.72 shall be subject to sanctions for the such violations
31 the same as any other consumer debt collector, including
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1 imposition of an administrative fine. The registration of a
2 duly registered out-of-state consumer debt collector shall be
3 subject to revocation or suspension in the same manner as the
4 registration of any other registrant under this part.
5 (3) In order to effectuate the provisions of this
6 section and enforce the requirements of this part as it
7 relates to out-of-state consumer debt collectors, the Attorney
8 General is expressly authorized to initiate an such action on
9 behalf of the state as he or she deems appropriate in any
10 federal district court of competent jurisdiction.
11 Section 15. Section 559.72, Florida Statutes, is
12 amended to read:
13 559.72 Prohibited practices generally.--In collecting
14 consumer debts, a no person may not shall:
15 (1) Simulate in any manner a law enforcement officer
16 or a representative of any governmental agency;
17 (2) Use or threaten force, or violence, or any other
18 means to harm the physical person, property, or reputation of
19 any person;
20 (3) Tell a debtor who disputes a consumer debt that
21 she or he or any person employing her or him will disclose to
22 another, orally or in writing, directly or indirectly,
23 information affecting the debtor's reputation for credit
24 worthiness without also informing the debtor that the
25 existence of the dispute will also be disclosed as required by
26 subsection (6);
27 (4) Communicate or threaten to communicate with a
28 debtor's employer prior to obtaining final judgment against
29 the debtor, unless the debtor gives her or his permission in
30 writing to contact her or his employer or acknowledges in
31 writing the existence of the debt after the debt has been
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1 placed for collection, but this shall not prohibit a person
2 from telling the debtor that her or his employer will be
3 contacted if a final judgment is obtained;
4 (5) Disclose to a person other than the debtor or her
5 or his family information affecting the debtor's reputation,
6 whether or not for credit worthiness, with knowledge or reason
7 to know that the other person does not have a legitimate
8 business need for the information or that the information is
9 false;
10 (6) Disclose information concerning the existence of a
11 debt known to be reasonably disputed by the debtor without
12 disclosing that fact. If a disclosure is made prior to such
13 reasonable dispute having been asserted and written notice is
14 received from the debtor that any part of the debt is disputed
15 and if such dispute is reasonable, the person who made the
16 original disclosure shall reveal upon the request of the
17 debtor within 30 days the details of the dispute to each
18 person to whom disclosure of the debt without notice of the
19 dispute was made within the preceding 90 days;
20 (7) Willfully communicate with the debtor or any
21 member of her or his family with such frequency as can
22 reasonably be expected to harass the debtor or her or his
23 family, or willfully engage in other conduct which can
24 reasonably be expected to abuse or harass the debtor or any
25 member of her or his family;
26 (8) Use profane, obscene, vulgar, or willfully abusive
27 language in communicating with the debtor or any member of her
28 or his family;
29 (9) Claim, attempt, or threaten to enforce a debt when
30 such person knows that the debt is not legitimate or assert
31
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1 the existence of some other legal right when such person knows
2 that the right does not exist;
3 (10) Use a communication which simulates in any manner
4 legal or judicial process or which gives the appearance of
5 being authorized, issued or approved by a government,
6 governmental agency, or attorney at law, when it is not;
7 (11) Communicate with a debtor under the guise of an
8 attorney by using the stationery of an attorney or forms or
9 instruments which only attorneys are authorized to prepare;
10 (12) Orally communicate with a debtor in such a manner
11 as to give the false impression or appearance that such person
12 is or is associated with an attorney;
13 (13) Advertise or threaten to advertise for sale any
14 debt as a means to enforce payment except under court order or
15 when acting as an assignee for the benefit of a creditor;
16 (14) Publish or post, threaten to publish or post, or
17 cause to be published or posted before the general public
18 individual names or any list of names of debtors, commonly
19 known as a deadbeat list, for the purpose of enforcing or
20 attempting to enforce collection of consumer debts;
21 (15) Refuse to provide adequate identification of
22 herself or himself or her or his employer or other entity whom
23 she or he represents when requested to do so by a debtor from
24 whom she or he is collecting or attempting to collect a
25 consumer debt;
26 (16) Mail any communication to a debtor in an envelope
27 or postcard with words typed, written, or printed on the
28 outside of the envelope or postcard indicating that the
29 purpose of the communication is to collect a debt or is
30 otherwise calculated to embarrass the debtor. An example of
31
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1 this would be an envelope addressed to "Deadbeat, Jane Doe" or
2 "Deadbeat, John Doe";
3 (17) Communicate with the debtor between the hours of
4 9 p.m. and 8 a.m. in the debtor's time zone, at any unusual
5 time or place, or a time or place that is known or should be
6 known to be inconvenient for the debtor without the prior
7 consent of the debtor;
8 (18) Communicate with a debtor if the person knows
9 that the debtor is represented by an attorney with respect to
10 such debt and has knowledge of, or can readily ascertain, such
11 attorney's name and address, unless the debtor's attorney
12 fails to respond within a reasonable period of time to a
13 communication from the person, unless the debtor's attorney
14 consents to a direct communication with the debtor, or unless
15 the debtor initiates the communication; or
16 (19) Cause charges to be made to any debtor for
17 communications by concealment of the true purpose of the
18 communication, including collect telephone calls and telegram
19 fees.
20 Section 16. Section 559.725, Florida Statutes, is
21 amended to read:
22 559.725 Consumer complaints; administrative duties.--
23 (1) Any person having reason to believe that this part
24 has been violated may file a written complaint with the office
25 setting forth the details of the alleged violation.
26 (2) The office may conduct an investigation of any
27 person, within or outside this state, which it believes is
28 necessary in order to determine whether a person has violated
29 this part or the rules adopted by the office.
30 (3)(a) The office may conduct examinations of any
31 registrant. The office shall conduct all examinations at a
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1 location in this state convenient to the registrant unless the
2 office determines that it is more effective or cost-efficient
3 to perform the examination at the registrant's out-of-state
4 location.
5 (b) The registrant shall pay the travel expenses and
6 per diem subsistence at the rate provided by law for an
7 examination conducted at the registrant's out-of-state
8 location. The registrant shall pay for up to 30 8-hour days
9 per year for each office examiner participating in the
10 examination. However, if the examination involves or reveals
11 fraudulent misconduct by the registrant, the registrant shall
12 pay the travel expenses and per diem subsistence, without
13 limitation, for each examiner participating in the
14 examination.
15 (4) Nothing in this part may be construed to be a
16 jurisdictional prerequisite to enforcement by the office, the
17 Department of Legal Affairs, or a state attorney.
18 (1) The Division of Consumer Services of the
19 Department of Financial Services shall serve as the registry
20 for receiving and maintaining records of inquiries,
21 correspondence, and complaints from consumers concerning any
22 and all persons who collect debts, including consumer
23 collection agencies.
24 (2) The division shall classify complaints by type and
25 identify the number of written complaints against persons
26 collecting or attempting to collect debts in this state,
27 including credit grantors collecting their own debts, debt
28 collectors generally, and, specifically, consumer collection
29 agencies as distinguished from other persons who collect debts
30 such as commercial debt collection agencies regulated under
31 part V of this chapter. The division shall identify the nature
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1 and number of various kinds of written complaints, including
2 specifically those alleging violations of s. 559.72.
3 (3) The division shall inform and furnish relevant
4 information to the appropriate regulatory body of the state,
5 or The Florida Bar in the case of attorneys, when any consumer
6 debt collector exempt from registration under this part has
7 been named in five or more written consumer complaints
8 alleging violations of s. 559.72 within a 12-month period.
9 (4) The division shall furnish a form to each
10 complainant whose complaint concerns an alleged violation of
11 s. 559.72 by a consumer collection agency. Such form may be
12 filed with the office. The form shall identify the accused
13 consumer collection agency and provide for the complainant's
14 summary of the nature of the alleged violation and facts which
15 allegedly support the complaint. The form shall include a
16 provision for the complainant to state under oath before a
17 notary public that the allegations therein made are true.
18 (5) Upon receipt of such sworn complaint, the office
19 shall promptly furnish a copy of the sworn complaint to the
20 accused consumer collection agency.
21 (6) The office shall investigate sworn complaints by
22 direct written communication with the complainant and the
23 affected consumer collection agency. In addition, the office
24 shall attempt to resolve each sworn complaint and shall record
25 the resolution of such complaints.
26 (7) Periodically, the office shall identify consumer
27 collection agencies that have unresolved sworn consumer
28 complaints from five or more different consumers within a
29 12-month period under the provisions of this part.
30 (8) The office shall issue a written warning notice to
31 the accused consumer collection agency if the office is unable
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1 to resolve all such sworn complaints and fewer than five
2 unresolved complaints remain. Such notice shall include a
3 statement that the warning may constitute evidence in any
4 future investigation of similar complaints against that agency
5 and in any future administrative determination of the
6 imposition of other administrative remedies available to the
7 office under this part.
8 (9) The office may issue a written reprimand when five
9 or more such unresolved sworn complaints against a consumer
10 collection agency collectively fall short of constituting
11 apparent repeated violations that warrant more serious
12 administrative sanctions. Such reprimand shall include a
13 statement that the reprimand may constitute evidence in any
14 future investigation of similar complaints against that agency
15 and in any future administrative determination of the
16 imposition of other administrative remedies available to the
17 office.
18 (10) The office shall issue a notice of intent either
19 to revoke or suspend the registration or to impose an
20 administrative fine when the office preliminarily determines
21 that repeated violations of s. 559.72 by an accused registrant
22 have occurred which would warrant more serious administrative
23 sanctions being imposed under this part. The office shall
24 advise each registrant of the right to require an
25 administrative hearing under chapter 120, prior to the
26 agency's final action on the matter as authorized by s.
27 559.730.
28 (5)(11) Any government office or agency receiving a
29 complaint under this section The office shall advise any other
30 government office or agency with apparent jurisdiction,
31 including the office, the appropriate state attorney, or the
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1 Attorney General in the case of an out-of-state consumer debt
2 collector, of any determination by that agency the office of a
3 violation, or possible violation, of the requirements of this
4 part by any consumer collection agency, whether or which is
5 not registered or exempt from registration as required by this
6 part. The office shall furnish the state attorney or Attorney
7 General with the office's information concerning the alleged
8 violations of such requirements.
9 Section 17. Section 559.726, Florida Statutes, is
10 created to read:
11 559.726 Powers and duties of the Office of Financial
12 Regulation.--
13 (1) Compliance with this part shall be enforced by the
14 office, except to the extent that enforcement is specifically
15 committed to another agency.
16 (2) The commission may adopt rules under ss.
17 120.536(1) and 120.54 to implement and administer this part.
18 The commission may adopt a rule to require electronic
19 submission of any form, document, or fee required by this
20 part, provided that the rule reasonably accommodates a person
21 with a technological or financial hardship. The commission may
22 adopt a rule setting forth the criteria and procedures for
23 obtaining an exemption due to a technological or financial
24 hardship exemption. The commission may adopt a rule to accept
25 certification of compliance with the requirements of this part
26 in lieu of requiring submission of documents.
27 (3) All fees, charges, and fines collected by the
28 office under this part shall be deposited to the credit of the
29 Regulatory Trust Fund of the office.
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1 (4) The office, or any duly authorized representative,
2 including any financial examiner or analyst, financial
3 investigator, or attorney at law, may:
4 (a) Issue, revoke, quash, or modify and serve
5 subpoenas to compel the attendance of witnesses and subpoenas
6 duces tecum to compel the production of all books, accounts,
7 records, and other documents and materials relevant to an
8 examination or investigation. The office may exercise these
9 powers even if the subject of the investigation or examination
10 is exempt from registration;
11 (b) Administer oaths and affirmations to any person;
12 or
13 (c) Take or cause to be taken testimony and
14 depositions.
15 (5)(a) If the office determines that a person is in
16 substantial noncompliance with a subpoena or subpoena duces
17 tecum that the office issued or caused to be issued, it may
18 petition a court of competent jurisdiction in the county in
19 which the person subpoenaed resides or has its principal place
20 of business for an order requiring the subpoenaed person to
21 appear and testify and to produce the books, accounts,
22 records, and other documents that are specified in the
23 subpoena duces tecum.
24 (b) The court may grant injunctive relief restraining
25 the person from advertising, promoting, soliciting, entering
26 into, offering to enter into, continuing, or completing any
27 transaction involving consumer debt collection. The court may
28 grant such other relief, including, but not limited to, the
29 restraint, by injunction or appointment of a receiver, of any
30 transfer, pledge, assignment, or other disposition of the
31 person's assets or any concealment, alteration, destruction,
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1 or other disposition of the books, accounts, records, or other
2 documents and materials that the court deems appropriate,
3 until the person has fully complied with the subpoena duces
4 tecum and the office has completed its investigation or
5 examination. The court may order the refund of any sums
6 collected whenever books and documents substantiating the
7 transaction are not produced or cannot be produced. The office
8 is entitled to the summary procedure as provided in s. 51.011,
9 and the court shall advance such cause on its calendar.
10 (c) Attorney's fees and any other costs incurred by
11 the office to obtain an order granting, in whole or part, a
12 petition to enforce a subpoena or subpoena duces tecum shall
13 be taxed against the subpoenaed person, and failure to comply
14 with the order is a contempt of court.
15 (6) When it appears to the office that compliance with
16 a subpoena or subpoena duces tecum issued under subsection (4)
17 is essential and that the person or documents subpoenaed are
18 otherwise unavailable to an investigation or examination, the
19 office, in addition to the other remedies provided for in this
20 section, may petition a court of competent jurisdiction in the
21 county in which the subpoenaed person resides or has its
22 principal place of business for a writ of ne exeat. The court
23 shall direct the issuance of the writ against the subpoenaed
24 person requiring sufficient bond conditioned on compliance
25 with the subpoena or subpoena duces tecum. The court shall
26 cause to be endorsed on the writ a suitable amount of bond
27 upon the payment of which the person named in the writ shall
28 be freed, having a due regard to the nature of the case.
29 (7) The office may seek a writ of attachment from the
30 court having jurisdiction over the person who refuses to obey
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1 a subpoena, to give testimony, or to produce the matters
2 described in the subpoena duces tecum.
3 (8) A copy of the petition shall be served upon the
4 person by anyone authorized by law or this section to serve
5 subpoenas. The individual serving the petition shall make and
6 file with the court an affidavit showing the date, time,
7 place, and manner of service.
8 (9) At a hearing on the petition to enforce compliance
9 with a subpoena, the person subpoenaed, or any person whose
10 interest will be substantially affected by the investigation,
11 examination, or subpoena, may appear and object to the
12 subpoena and to the granting of the petition. The court may
13 make any order that justice requires in order to protect a
14 party or other person and her or his personal and property
15 rights, including, but not limited to, protection from
16 annoyance, embarrassment, oppression, undue burden, or
17 expense.
18 (10) Failure to comply with an order granting, in
19 whole or in part, a petition to enforce a subpoena is a
20 contempt of the court.
21 (11) Witnesses are entitled to the same fees and
22 mileage to which they would be entitled by law for attending
23 as witnesses in circuit court, except that fees or mileage may
24 not be allowed for testimony of a person taken at the person's
25 principal office or residence.
26 (12) Reasonable and necessary costs incurred by the
27 office and payable to persons involved with an investigation
28 may be assessed against any debt collector on the basis of
29 actual costs incurred. Assessed expenses may include, but are
30 not limited to: expenses for interpreters; expenses for
31 communications; expenses for legal representation; expenses
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1 for economic, legal, or other research, analysis and
2 testimony; and fees and expenses for witnesses. A failure to
3 reimburse the office for its reasonable and necessary costs is
4 a reason to deny a registrant's application or to revoke the
5 prior approval of an application.
6 Section 18. Section 559.7262, Florida Statutes, is
7 created to read:
8 559.7262 Injunction to restrain violations.--
9 (1) The office may bring an action on behalf of the
10 state to enjoin any person who has violated, or who is about
11 to violate, this part or any rule or order of the office
12 issued under this part.
13 (2) In an injunctive proceeding, the court may issue a
14 subpoena requiring the attendance of any witness or a subpoena
15 duces tecum requiring the production of any book, account,
16 record, or other documents and materials relevant to the
17 pending case.
18 (3)(a) In addition to any procedure provided by law to
19 enforce a temporary restraining order, temporary injunction,
20 or permanent injunction, the court may, upon application of
21 the office, impound the property, assets, and business of the
22 registrant, including, but not limited to, the books, records,
23 documents, and papers of the registrant. The receiver, when
24 appointed and qualified, has the powers and duties that are
25 conferred by the court.
26 (b) After appointing the receiver, the court may issue
27 an order staying all pending suits and enjoining any further
28 litigation affecting the receiver's custody or possession of
29 the property, assets, and business, and the court, with the
30 consent of the chief judge of the circuit, may require that
31
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1 all suits be assigned to the circuit court judge who appointed
2 the receiver.
3 Section 19. Section 559.7263, Florida Statutes, is
4 created to read:
5 559.7263 Cease and desist orders; refund orders.--
6 (1) The office may issue and serve upon a person an
7 order to cease and desist and to take corrective action
8 whenever the office has reason to believe that the person is
9 violating, has violated, or is about to violate this part, any
10 rule or order of the office issued under this part, or any
11 written agreement between the person and the office.
12 Procedural matters relating to issuance and enforcement of
13 such a cease and desist order are governed by chapter 120.
14 (2) The office has the power to seek an order of
15 restitution for collected funds due to creditors or any sum
16 collected from a debtor without valid proof of debt.
17 Section 20. Section 559.7264, Florida Statutes, is
18 created to read:
19 559.7264 Evidence; examiner's worksheets,
20 investigative reports, other related documents.--An official
21 written report, sworn complaint, worksheet, or other related
22 paper, or a duly certified copy thereof, compiled, prepared,
23 drafted, or otherwise made by the financial examiner is
24 admissible into evidence if the financial examiner is
25 available for cross-examination; authenticates the worksheet;
26 and testifies that the report, worksheet, or related document
27 was prepared as a result of an examination of the books and
28 records of a registrant or other person conducted under the
29 authority of this part.
30 Section 21. Section 559.7265, Florida Statutes, is
31 created to read:
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1 559.7265 Books, accounts, and records; maintenance;
2 examinations by the office.--
3 (1) Each registrant shall maintain, at its principal
4 place of business designated on the registration, all books,
5 accounts, records, and documents necessary to determine the
6 registrant's compliance with this part.
7 (2) The office may authorize maintenance of records at
8 a location other than a principal place of business. The
9 office may require books, accounts, and records to be produced
10 and available at a reasonable and convenient location in this
11 state.
12 (3) All books, accounts, records, documents, and
13 receipts for payments to a registrant by a debtor, and
14 payments made to a creditor by a registrant, shall be
15 preserved and kept available for examination by the department
16 for 3 years after the date of original entry. The commission
17 shall adopt requirements by rule for maintaining the books,
18 accounts, records, and documents retained by the registrant
19 and for destroying the records.
20 (4) The commission shall designate by rule the minimum
21 information that must be contained in the books, accounts,
22 records, and documents of a registrant in order that the
23 records will enable the office to determine a registrant's
24 compliance with this part.
25 Section 22. Section 559.730, Florida Statutes, is
26 amended to read:
27 559.730 Administrative remedies.--
28 (1) The office may revoke or suspend the registration
29 of any registrant under this part who:
30 (a) Has committed a violation of s. 559.72 or of the
31 federal Fair Debt Collection Practices Act;
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1 (b) Is the subject of a complaint received by a
2 governmental authority which indicates a clear pattern of
3 abuse of prohibited collection practices under s. 559.72 or
4 the federal Fair Debt Collection Practices Act;
5 (c) 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 (d) 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 (e) 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 (f) Had a business, professional, or occupational
16 license or registration suspended, revoked, or otherwise acted
17 against in any jurisdiction;
18 (g) Fails to maintain the surety bond required
19 pursuant to s. 559.555(6);
20 (h) Fails to maintain books and records as required by
21 s. 559.7265;
22 (i) Violates any order issued by the office; or
23 (j) 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 has engaged in repeated
26 violations which establish a clear pattern of abuse of
27 prohibited collection practices under s. 559.72.
28 (2) Any registration made under this part which is
29 based upon false identification or false information, or an
30 identification that is not current with respect to name,
31 address, business location, or other fact that is material to
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1 the registration, is void. A registration made and
2 subsequently found to be void under this section does not
3 create a defense to any action brought by the office to impose
4 a sanction for a violation of this part.
5 (3) A registrant may request to terminate its
6 registration by delivering written notice of its proposed
7 termination to the office. However, the delivery of the
8 termination notice does not affect any civil or criminal
9 liability of the registrant or the authority of the office to
10 enforce this part.
11 (4) The office may deny a request to terminate a
12 registration or to withdraw an application for registration if
13 the office believes that the registrant or applicant has
14 committed an act that would be grounds for denial, suspension,
15 or revocation of the registration.
16 (5) Final office action to revoke or suspend the
17 registration of any registrant is shall be subject to review
18 in accordance with chapter 120 in the same manner as
19 revocation of a license. The repeated violations of the law
20 by one employee shall not be grounds for revocation or
21 suspension of the registration of the employing consumer
22 collection agency, unless the employee is also the owner of a
23 majority interest in the collection agency.
24 (2) The registration of a registrant shall not be
25 revoked or suspended if the registrant shows by a
26 preponderance of the evidence that the violations were not
27 intentional and resulted from bona fide error notwithstanding
28 the maintenance of procedures reasonably adapted to avoid any
29 such error.
30 (3) The office shall consider the number of complaints
31 against the registrant in relation to the accused registrant's
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1 volume of business when determining whether suspension or
2 revocation is the more appropriate sanction when circumstances
3 warrant that one or the other should be imposed upon a
4 registrant.
5 (4) The office shall impose suspension rather than
6 revocation when circumstances warrant that one or the other
7 should be imposed upon a registrant and the accused registrant
8 demonstrates that the registrant has taken affirmative steps
9 which can be expected to effectively eliminate the repeated
10 violations and that the registrant's registration has never
11 previously been suspended.
12 (6)(5) The office may impose an administrative fine up
13 to $1,000 per violation against the offending registrant as an
14 administrative a sanction for repeated violations of the
15 provisions of s. 559.72 when violations do not rise to the
16 level of misconduct governed by subsection (1). Final office
17 action to impose an administrative fine is shall be subject to
18 review in accordance with ss. 120.569 and 120.57.
19 (7)(6) An Any administrative fine imposed under this
20 part shall be payable to the office. The office shall
21 maintain an appropriate record and shall deposit the such fine
22 into the Regulatory Trust Fund of the office.
23 (8)(7) An administrative action by the office to
24 impose revocation, suspension, or fine must shall be brought
25 within 2 years after the date of the last violation upon which
26 the action is founded.
27 (9)(8) Nothing in This part does not shall be
28 construed to preclude any person from pursuing remedies
29 available under the federal Fair Debt Collection Practices
30 Act, the Federal Trade Commission Act, or the Florida
31 Deceptive and Unfair Trade Practices Act for any violation of
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1 these acts such act, including specifically against any person
2 who is exempt from the registration provisions of this part.
3 (10) The remedies under this part are in addition to
4 remedies otherwise available for the same conduct under state
5 or local law.
6 Section 23. Subsection (5) of section 559.77, Florida
7 Statutes, is amended to read:
8 559.77 Civil remedies.--
9 (5) In applying and construing this section, due
10 consideration and great weight shall be given to the
11 interpretations of the Federal Trade Commission and the
12 federal courts relating to the federal Fair Debt Collection
13 Practices Act and the Federal Trade Commission Act. If there
14 is an inconsistency between this part and an interpretation of
15 the federal case law or the federal acts, the provision that
16 is more protective of the consumer or debtor shall prevail.
17 Section 24. Section 559.785, Florida Statutes, is
18 amended to read:
19 559.785 Criminal penalty.--
20 (1) It shall be a felony misdemeanor of the third
21 first degree, punishable as provided in s. 775.082, or s.
22 775.083, or s. 775.084, for any person not exempt from
23 registering as provided in this part to:
24 (a) Operate or solicit business as a consumer
25 collection agency engage in collecting consumer debts in this
26 state without first registering with the office;, or to
27 (b) Register or attempt to register by means of fraud,
28 misrepresentation, or concealment;.
29 (c) Engage in any consumer debt collection activity
30 after suspension or revocation of the registrant's
31 registration under s. 559.730(1); or
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1 (d) Engage in any consumer debt collection activity
2 while under a temporary or permanent injunction issued under
3 s. 559.78.
4 (2) Each of the following acts constitutes a
5 misdemeanor of the second degree, punishable as provided in s.
6 775.082 or s. 775.083:
7 (a) Relocating a business as a consumer collection
8 agency or operating under any name other than that designated
9 in the registration, unless written notification is given to
10 the office and to the surety or sureties on the original bond.
11 (b) Assigning or attempting to assign a registration
12 under this part.
13 (3) The court may, in addition to penalties provided
14 in this part, invalidate the registration of any registrant
15 under this part who has been found guilty of conduct
16 prohibited in subsection (1) or subsection (2).
17 (4) The office may refer evidence concerning a
18 violation of this part, or of any rule or order, to any
19 criminal prosecuting agency that may, with or without the
20 reference and in addition to any other action it might
21 commence, bring an action against any person to enjoin,
22 restrain, and prevent the commission of any prohibited act or
23 practice.
24 Section 25. For 2004-2005 fiscal year, seven positions
25 are authorized and the sum of $450,575 is appropriated from
26 the Regulatory Trust Fund to the Office of Financial
27 Regulation for the purpose of enforcing this act. The seven
28 positions consist of six examiners and one registration
29 analyst.
30 Section 26. Sections 559.547 and 559.563, Florida
31 Statutes, are repealed.
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1 Section 27. This act shall take effect October 1,
2 2004.
3
4 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
5 CS for SB 2430
6
7 The committee substitute:
8 (1) Changes the effective date of the bill from July 1, 2004
to October 1, 2004.
9
(2) Conforms commercial collection practice provisions with
10 consumer collection practice provisions by providing the
Office of Financial Regulation the authority to conduct
11 investigations.
12 (3) Extends deadline to provide proof of surety bond coverage
to December 31, 2004 for those consumer collection agencies
13 registered prior to the effective date of the bill such that
proof of coverage is reviewed concurrent with a consumer
14 collection agency's license renewal.
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