Senate Bill sb2942
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Florida Senate - 2004 SB 2942
By Senator Campbell
32-1223B-04
1 A bill to be entitled
2 An act relating to pawnbrokers; amending s.
3 539.001, F.S.; requiring an applicant for a
4 state license to have a local license;
5 providing additional grounds for discipline;
6 requiring the pledgor or seller to sign the
7 required pawnbroker transaction form;
8 clarifying provisions regarding personal
9 information on the form; requiring a pawnbroker
10 to maintain such forms while the property
11 remains on the pawnshop premises; requiring
12 pawned or purchased property to be labeled with
13 a form number; revising methods of making
14 claims against a pawnbroker; providing an
15 effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Paragraph (f) of subsection (3), paragraph
20 (a) of subsection (6), and subsections (8), (9), (15), and
21 (16) of section 539.001, Florida Statutes, are amended to
22 read:
23 539.001 The Florida Pawnbroking Act.--
24 (3) LICENSE REQUIRED.--
25 (f) Any person applying for or renewing a state local
26 occupational license to engage in business as a pawnbroker
27 license must first procure a local occupational pawnbroker's
28 license, if applicable, and must supply proof of procurement
29 to the agency exhibit a current license from the agency before
30 a state the local occupational pawnbroker's license may be
31 issued or reissued.
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1 (6) SUSPENSION, REVOCATION, AND SURRENDER OF LICENSE;
2 NET WORTH REQUIREMENT.--
3 (a) The agency may, after notice and a hearing,
4 suspend or revoke any license upon a finding that:
5 1. The licensee, either knowingly or without the
6 exercise of due care, has violated this section or has aided
7 or conspired with another person to violate this section;
8 2. A condition exists that, had it existed when the
9 license was issued, would have justified the agency's refusal
10 to issue a license;
11 3. The licensee or its applicable agents or employees
12 who are subject to the eligibility requirements no longer meet
13 the eligibility requirements to hold a pawnbroker's license;
14 or
15 4. The licensee has through gross negligence or
16 willful noncompliance failed to comply with a written hold
17 order; or.
18 5. The licensee failed to obtain or renew any license
19 that is required by the local government with appropriate
20 jurisdiction.
21 (8) PAWNBROKER TRANSACTION FORM.--
22 (a) At the time the pawnbroker enters into any pawn or
23 purchase transaction, the pawnbroker shall complete and have
24 the pledgor or seller sign a pawnbroker transaction form for
25 such transaction, including an indication of whether the
26 transaction is a pawn or a purchase, unless the conveying
27 customer is a permitted vendor and the pledgor or seller shall
28 sign such completed form. The agency must approve the design
29 and format of the pawnbroker transaction form, which must be 8
30 1/2 inches x 11 inches in size and elicit the information
31 required under this section. In completing the pawnbroker
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1 transaction form, the pawnbroker shall record the following
2 information, which must be typed or written indelibly and
3 legibly in English.
4 (b) The front of the pawnbroker transaction form must
5 include:
6 1. The name and address of the pawnshop and a unique
7 transaction form number that shall also be used for inventory
8 tracking purposes.
9 2. A complete and accurate description of the pledged
10 goods or purchased goods, including the following information,
11 if applicable:
12 a. Brand name.
13 b. Model number.
14 c. Manufacturer's serial number.
15 d. Size.
16 e. Color, as apparent to the untrained eye.
17 f. Precious metal type, weight, and content, if known.
18 g. Gemstone description, including the number of
19 stones.
20 h. In the case of firearms, the type of action,
21 caliber or gauge, number of barrels, barrel length, and
22 finish.
23 i. Any other unique identifying marks, numbers, names,
24 or letters.
25
26 Notwithstanding sub-subparagraphs a.-i., in the case of
27 multiple items of a similar nature delivered together in one
28 transaction which do not bear serial or model numbers and
29 which do not include precious metal or gemstones, such as
30 musical or video recordings, books, and hand tools, the
31 description of the items is adequate if it contains the
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1 quantity of items and a description of the type of items
2 delivered.
3 3. The name, current residential address, home
4 telephone number, place of employment and business telephone
5 number, date of birth, physical description, and legible right
6 thumbprint of the pledgor or seller.
7 4. The date and time of the transaction.
8 5. The type of identification accepted from the
9 pledgor or seller, including the issuing agency and the
10 identification number.
11 6. In the case of a pawn:
12 a. The amount of money advanced, which must be
13 designated as the amount financed;
14 b. The maturity date of the pawn, which must be 30
15 days after the date of the pawn;
16 c. The default date of the pawn and the amount due on
17 the default date;
18 d. The total pawn service charge payable on the
19 maturity date, which must be designated as the finance charge;
20 e. The amount financed plus the finance charge that
21 must be paid to redeem the pledged goods on the maturity date,
22 which must be designated as the total of payments;
23 f. The annual percentage rate, computed according to
24 the regulations adopted by the Federal Reserve Board under the
25 federal Truth in Lending Act; and
26 g. The front or back of the pawnbroker transaction
27 form must include a statement that:
28 (I) Any personal property pledged to a pawnbroker
29 within this state which is not redeemed within 30 days
30 following the maturity date of the pawn, if the 30th day is
31 not a business day, then the following business day, is
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1 automatically forfeited to the pawnbroker, and absolute right,
2 title, and interest in and to the property vests in and is
3 deemed conveyed to the pawnbroker by operation of law, and no
4 further notice is necessary;
5 (II) The pledgor is not obligated to redeem the
6 pledged goods; and
7 (III) If the pawnbroker transaction form is lost,
8 destroyed, or stolen, the pledgor must immediately advise the
9 issuing pawnbroker in writing by certified or registered mail,
10 return receipt requested, or in person evidenced by a signed
11 receipt.
12 (IV) A pawn may be extended upon mutual agreement of
13 the parties.
14 7. In the case of a purchase, the amount of money paid
15 for the goods or the monetary value assigned to the goods in
16 connection with the transaction.
17 8. A statement that the pledgor or seller of the item
18 represents and warrants that it is not stolen, that it has no
19 liens or encumbrances against it, and that the pledgor or
20 seller is the rightful owner of the goods and has the right to
21 enter into the transaction.
22
23 Any person who knowingly gives false verification of ownership
24 or gives a false or altered identification and who receives
25 money from a pawnbroker for goods sold or pledged commits:
26 a. If the value of the money received is less than
27 $300, a felony of the third degree, punishable as provided in
28 s. 775.082, s. 775.083, or s. 775.084.
29 b. If the value of the money received is $300 or more,
30 a felony of the second degree, punishable as provided in s.
31 775.082, s. 775.083, or s. 775.084.
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1 (c) A pawnbroker transaction form must provide a space
2 for the imprint of the right thumbprint of the pledgor or
3 seller and a blank line for the signature of the pledgor or
4 seller.
5 (d) At the time of the pawn or purchase transaction,
6 the pawnbroker shall deliver to the pledgor or seller an exact
7 copy of the completed pawnbroker transaction form.
8 (9) RECORDKEEPING; REPORTING; HOLD PERIOD.--
9 (a) A pawnbroker must maintain a copy of each
10 completed pawnbroker transaction form on the pawnshop premises
11 for at least 1 year after the date of the transaction or until
12 the property listed on the form is removed from the premises,
13 whichever is later. On or before the end of each business day,
14 the pawnbroker must deliver to the appropriate law enforcement
15 official the original pawnbroker transaction forms for each of
16 the transactions occurring during the previous business day,
17 unless other arrangements have been agreed upon between the
18 pawnbroker and the appropriate law enforcement official. If
19 the original transaction form is lost or destroyed by the
20 appropriate law enforcement official, a copy may be used by
21 the pawnbroker as evidence in court. When an electronic image
22 of a pledgor or seller identification is accepted for a
23 transaction, the pawnbroker must maintain the electronic image
24 in order to meet the same recordkeeping requirements as for
25 the original transaction form. If a criminal investigation
26 occurs, the pawnbroker shall, upon request, provide a clear
27 and legible copy of the image to the appropriate law
28 enforcement official.
29 (b) If the appropriate law enforcement agency supplies
30 the appropriate software and the pawnbroker presently has the
31 computer ability, pawn transactions shall be electronically
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1 transferred. If a pawnbroker does not presently have the
2 computer ability, the appropriate law enforcement agency may
3 provide the pawnbroker with a computer and all necessary
4 equipment for the purpose of electronically transferring pawn
5 transactions. The appropriate law enforcement agency shall
6 retain ownership of the computer, unless otherwise agreed
7 upon. The pawnbroker shall maintain the computer in good
8 working order, ordinary wear and tear excepted. In the event
9 the pawnbroker transfers pawn transactions electronically, the
10 pawnbroker is not required to also deliver to the appropriate
11 law enforcement official the original or copies of the
12 pawnbroker transaction forms. The appropriate law enforcement
13 official may, for the purposes of a criminal investigation,
14 request that the pawnbroker produce an original of a
15 transaction form that has been electronically transferred. The
16 pawnbroker shall deliver this form to the appropriate law
17 enforcement official within 24 hours of the request.
18 (c) All goods delivered to a pawnbroker in a pawn or
19 purchase transaction must be securely stored and maintained in
20 an unaltered condition within the jurisdiction of the
21 appropriate law enforcement official for a period of 30
22 calendar days after the transaction. Those goods delivered to
23 a pawnbroker in a purchase transaction may not be sold or
24 otherwise disposed of before the expiration of such period.
25 The pawnbroker shall make all pledged and purchased goods and
26 all records relating to such goods available for inspection by
27 the appropriate law enforcement official during normal
28 business hours throughout such period. The pawnbroker must
29 store and maintain pledged goods for the period prescribed in
30 subsection (10) unless the pledged goods are redeemed earlier;
31 provided, however, that within the first 30 days after the
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1 original pawn, the pledged goods may be redeemed only by the
2 pledgor or the pledgor's attorney in fact.
3 (d) Property in a pawnshop which is pawned or
4 purchased from an individual must be labeled with the
5 transaction form number. Property that is acquired from a
6 permitted vendor must be labeled with an inventory number.
7 (15) MISAPPROPRIATED PROPERTY; PETITION FOR RETURN.--
8 (a) If a pawnbroker contests the identification or
9 ownership of the property, the person alleging ownership of
10 the property may, if a timely report of the misappropriated
11 property was made to the proper authorities, bring an action
12 for replevin in the county or circuit court by petition in
13 substantially the following form:
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15 Plaintiff (______), sues defendant (______), and alleges:
16
17 1. This is an action to recover possession of personal
18 property in __________ County, FLorida.
19
20 2. The description of the property is: (list property). To
21 the best of plaintiff's knowledge, information, and belief,
22 the value of the property is $________.
23
24 3. Plaintiff is entitled to the possession of the property
25 under a security agreement dated ________, (year), or other
26 evidence of ownership, a copy of which is attached.
27
28 4. To plaintiff's best knowledge, information, and belief,
29 the property is located at ______________.
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1 5. The property is wrongfully detained by defendant.
2 Defendant came into possession of the property by (describe
3 method of possession). To plaintiff's best knowledge,
4 information, and belief, defendant detains the property
5 because (give reasons).
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7 6. The property has not been taken under an execution or
8 attachment against plaintiff's property.
9 (b) The filing fees shall be waived by the clerk of
10 the court, and the service fees shall be waived by the
11 sheriff. The court shall award the prevailing party attorney's
12 fees and costs. If the plaintiff prevails in the replevin
13 action, the court shall order payment of filing fees to the
14 clerk and service fees to the sheriff.
15 (c) Upon receipt of the petition, the court shall set
16 a hearing to be held at the earliest possible time. Upon the
17 receipt of a petition for a writ by a pawnbroker, the
18 pawnbroker shall hold the property at issue until the court
19 determines the respective interests of the parties.
20 (d) In addition to the civil petition for return, the
21 state attorney may file a motion as part of a pending criminal
22 case related to the property. The court has jurisdiction to
23 determine ownership, to order return or other disposition of
24 the property, and to order any appropriate restitution to any
25 person. Such order shall be entered upon hearing after proper
26 notice has been given to the pawnbroker, the victim, and the
27 defendant in the criminal case.
28 (e) If a pawnbroker does not contest the
29 identification or ownership of misappropriated property and
30 the plaintiff has not signed a waiver of prosecution with the
31 appropriate law enforcement official, the pawnbroker shall
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1 return the property to the plaintiff without compensation. The
2 pawnbroker may provide the court a copy of the pawnbroker
3 transaction form and request restitution from the defendant in
4 the criminal proceeding. CLAIMS AGAINST PURCHASED GOODS OR
5 PLEDGED GOODS HELD BY PAWNBROKERS.--
6 (a) To obtain possession of purchased or pledged goods
7 held by a pawnbroker which a claimant claims to be
8 misappropriated, the claimant must notify the pawnbroker by
9 certified mail, return receipt requested, or in person
10 evidenced by signed receipt, of the claimant's claim to the
11 purchased or pledged goods. The notice must contain a complete
12 and accurate description of the purchased or pledged goods and
13 must be accompanied by a legible copy of the applicable law
14 enforcement agency's report on the misappropriation of such
15 property. If the claimant and the pawnbroker do not resolve
16 the matter within 10 days after the pawnbroker's receipt of
17 the notice, the claimant may petition the court to order the
18 return of the property, naming the pawnbroker as a defendant,
19 and must serve the pawnbroker with a copy of the petition. The
20 pawnbroker shall hold the property described in the petition
21 until the right to possession is resolved by the parties or by
22 a court of competent jurisdiction. The court shall waive any
23 filing fee for the petition to recover the property, and the
24 sheriff shall waive the service fees.
25 (b) If, after notice and a hearing, the court finds
26 that the property was misappropriated and orders the return of
27 the property to the claimant:
28 1. The claimant may recover from the pawnbroker the
29 cost of the action, including the claimant's reasonable
30 attorney's fees; and
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1 2. If the conveying customer is convicted of theft, a
2 violation of this section, or dealing in stolen property, the
3 court shall order the conveying customer to repay the
4 pawnbroker the full amount the conveying customer received
5 from the pawnbroker for the property, plus all applicable pawn
6 service charges. As used in this paragraph, the term
7 "convicted of" includes a plea of nolo contendere to the
8 charges or any agreement in which adjudication is withheld;
9 and
10 3. The conveying customer shall be responsible to pay
11 all attorney's fees and taxable costs incurred by the
12 pawnbroker in defending a replevin action or any other civil
13 matter wherein it is found that the conveying customer was in
14 violation of this paragraph.
15 (c) If the court finds that the claimant failed to
16 comply with the requirements in paragraph (a) or otherwise
17 finds against the claimant, the claimant is liable for the
18 defendants' costs, including reasonable attorney's fees.
19 (d) The sale, pledge, or delivery of tangible personal
20 property to a pawnbroker by any person in this state is
21 considered to be:
22 1. An agreement by the person who sells, pledges, or
23 delivers the tangible personal property that the person is
24 subject to the jurisdiction of the court in all civil actions
25 and proceedings arising out of the pledge or sale transaction
26 filed by either a resident or nonresident plaintiff;
27 2. An appointment of the Secretary of State by any
28 nonresident of this state as that person's lawful attorney and
29 agent upon whom may be served all process in suits pertaining
30 to the actions and proceedings arising out of the sale,
31 pledge, or delivery; and
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1 3. An agreement by any nonresident that any process in
2 any suit so served has the same legal force and validity as if
3 personally served in this state.
4 (16) HOLD ORDERS; ISSUANCE; REQUIRED INFORMATION;
5 PROCEDURES.--
6 (a) When an appropriate law enforcement official has
7 probable cause to believe that property in the possession of a
8 pawnbroker is misappropriated, the official may place a
9 written hold order on the property. The written hold order
10 shall impose a holding period not to exceed 90 days unless
11 extended by court order. The appropriate law enforcement
12 official may rescind, in writing, any hold order. An
13 appropriate law enforcement official may place only one hold
14 order on property.
15 (b) Upon the expiration of the holding period, the
16 pawnbroker shall notify, in writing, the appropriate law
17 enforcement official who placed the hold order by certified
18 mail, return receipt requested, that the holding period has
19 expired. If, on the 10th day after the written notice has
20 been received by the appropriate law enforcement official who
21 placed the hold order, the pawnbroker has not received from a
22 court an extension of the hold order on the property and the
23 property is not the subject of a proceeding under subsection
24 (15), title to the property shall vest in and be deemed
25 conveyed by operation of law to the pawnbroker, free of any
26 liability for claims but subject to any restrictions contained
27 in the pawn transaction contract and subject to the provisions
28 of this section.
29 (c) A hold order must specify:
30 1. The name and address of the pawnbroker.
31
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1 2. The name, title, and identification number of the
2 representative of the appropriate law enforcement official or
3 the court placing the hold order.
4 3. If applicable, the name and address of the
5 appropriate law enforcement official or court to which such
6 representative is attached and the number, if any, assigned to
7 the claim regarding the property.
8 4. A complete description of the property to be held,
9 including model number and serial number if applicable.
10 5. The name of the person reporting the property to be
11 misappropriated unless otherwise prohibited by law.
12 6. The mailing address of the pawnbroker where the
13 property is held.
14 7. The expiration date of the holding period.
15 (d) The pawnbroker or the pawnbroker's representative
16 must sign and date a copy of the hold order as evidence of
17 receipt of the hold order and the beginning of the 90-day
18 holding period.
19 (e)1. Except as provided in subparagraph 2., a
20 pawnbroker may not release or dispose of property subject to a
21 hold order except pursuant to a court order, a written release
22 from the appropriate law enforcement official, or the
23 expiration of the holding period of the hold order.
24 2. While a hold order is in effect, the pawnbroker
25 must upon request release the property subject to the hold
26 order to the custody of the appropriate law enforcement
27 official for use in a criminal investigation. The release of
28 the property to the custody of the appropriate law enforcement
29 official is not considered a waiver or release of the
30 pawnbroker's property rights or interest in the property. Upon
31 completion of the criminal proceeding, the property must be
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1 returned to the pawnbroker unless the court orders other
2 disposition. When such other disposition is ordered, the court
3 shall additionally order the conveying customer to pay
4 restitution to the pawnbroker in the amount received by the
5 conveying customer for the property together with reasonable
6 attorney's fees and costs.
7 Section 2. This act shall take effect July 1, 2004.
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10 SENATE SUMMARY
11 Revises provisions regulating pawnbrokers. Requires an
applicant for a state license to first have a local
12 occupational license. Requires persons who pawn or sell
merchandise to a pawnbroker to sign a transaction form;
13 revises information required on the form and requires the
pawnbroker to maintain such form for 1 year or as long as
14 the merchandise remains on the property. Requires all
merchandise to be labeled. Revises the method of making a
15 claim against a pawnbroker.
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