Senate Bill sb1984

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    Florida Senate - 2005                                  SB 1984

    By Senator Crist





    12-874-05

  1                      A bill to be entitled

  2         An act relating to collection practices;

  3         amending s. 559.544, F.S., relating to

  4         commercial collection agencies; revising

  5         registration requirements under part V of ch.

  6         559, F.S.; clarifying the application of

  7         certain exemptions; amending s. 559.545, F.S.;

  8         providing requirements for registration as a

  9         commercial collection agency; requiring the

10         Financial Services Commission to adopt rules

11         governing the electronic submission of fees and

12         documents; revising application fees; requiring

13         an applicant to provide information concerning

14         partners, officers, and persons directly or

15         indirectly controlling the applicant; requiring

16         that the Office of Financial Regulation of the

17         commission investigate the applicant; providing

18         a registration period; providing for renewal of

19         a registration; prohibiting the transfer of a

20         registration; authorizing the office to deny

21         registration under specified circumstances;

22         amending s. 559.546, F.S.; revising

23         requirements for a corporate surety bond;

24         providing requirements for cancellation of the

25         bond; creating s. 559.5471, F.S.; specifying

26         the powers and duties of the Office of

27         Financial Regulation with respect to the

28         regulation of a commercial collection agency;

29         authorizing the office to adopt rules;

30         requiring fees, charges, and fines to be

31         deposited into the Regulatory Trust Fund of the

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 1         office; authorizing the office to issue

 2         subpoenas and exercise other powers with

 3         respect to enforcing compliance with part V of

 4         ch. 559, F.S.; authorizing witness fees and

 5         costs; authorizing the office to assess a

 6         registrant the costs of an investigation;

 7         creating s. 559.5473, F.S.; authorizing the

 8         office to bring an action to enjoin a violation

 9         of part V of ch. 559, F.S., or of any rule of

10         the commission; authorizing the court to issue

11         injunctions, impound property, appoint a

12         receiver, or issue additional orders; creating

13         s. 559.5474, F.S.; authorizing the Office of

14         Financial Regulation to issue cease and desist

15         orders and orders of restitution; creating s.

16         559.5475, F.S.; providing for certain

17         worksheets, reports, or other related documents

18         to be admitted into evidence; creating s.

19         559.5476, F.S.; requiring that a registrant

20         maintain certain books, accounts, and records;

21         requiring that the commission specify the

22         required records by rule; creating s. 559.5477,

23         F.S.; providing administrative remedies that

24         may be invoked by the office against a

25         registrant; specifying grounds for the

26         revocation or suspension of a registration;

27         providing for administrative fines; creating s.

28         559.5479, F.S.; providing guidelines for the

29         office in imposing administrative remedies or

30         penalties; amending s. 559.55, F.S., relating

31         to consumer collection agencies; revising

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 1         definitions and providing additional

 2         definitions; amending s. 559.552, F.S.;

 3         specifying that a violation of the federal Fair

 4         Debt Collection Practices Act constitutes a

 5         prohibited practice under part VI of ch. 559,

 6         F.S.; amending s. 559.553, F.S.; revising

 7         registration requirements under part VI of ch.

 8         559, F.S.; clarifying the application of

 9         certain exemptions; amending s. 559.555, F.S.;

10         providing requirements for registration as a

11         consumer collection agency; requiring the

12         Financial Services Commission to adopt rules

13         governing the electronic submission of fees and

14         documents; revising application fees; requiring

15         an applicant to provide information concerning

16         partners, officers, and persons directly or

17         indirectly controlling the applicant; requiring

18         that the Office of Financial Regulation of the

19         commission investigate the applicant; providing

20         a registration period; providing for renewal of

21         a registration; prohibiting the transfer of a

22         registration; authorizing the office to deny

23         registration under specified circumstances;

24         creating s. 559.556, F.S.; requiring that a

25         registrant obtain a corporate surety bond;

26         providing requirements for cancellation of the

27         bond; amending s. 559.72, F.S.; revising

28         standards of conduct with respect to the

29         practice of collecting consumer debts;

30         prohibiting certain communications with a

31         consumer; prohibiting false, deceptive, or

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 1         misleading representations; prohibiting the use

 2         of unfair or unconscionable means to collect or

 3         attempt to collect any debt; specifying

 4         procedures for communicating with a consumer in

 5         connection with the collection of a debt;

 6         providing that the failure of a consumer to

 7         dispute the validity of a debt is not an

 8         admission of liability; providing requirements

 9         with respect to any legal action by a debt

10         collector; amending s. 559.725, F.S.; revising

11         requirements for consumer complaints filed with

12         the Division of Consumer Services of the

13         Department of Financial Services; creating s.

14         559.726, F.S.; specifying the powers and duties

15         of the Office of Financial Regulation with

16         respect to the regulation of a consumer

17         collection agency; authorizing the office to

18         adopt rules; requiring fees, charges, and fines

19         to be deposited into the Regulatory Trust Fund

20         of the office; authorizing the office to issue

21         subpoenas and exercise other powers with

22         respect to enforcing compliance with part VI of

23         ch. 559, F.S.; authorizing witness fees and

24         costs; authorizing the office to assess a

25         registrant the costs of an investigation;

26         creating s. 559.7262, F.S.; authorizing the

27         office to bring an action to enjoin a violation

28         of part VI of ch. 559, F.S., or any rule of the

29         commission; authorizing the court to issue

30         injunctions, impound property, appoint a

31         receiver, or issue additional orders; creating

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 1         s. 559.7263, F.S.; authorizing the Office of

 2         Financial Regulation to issue cease and desist

 3         orders and orders of restitution; creating s.

 4         559.7264, F.S.; providing for certain

 5         worksheets, reports, or other related documents

 6         to be admitted into evidence; creating s.

 7         559.7265, F.S.; requiring that a registrant

 8         maintain certain books, accounts, and records;

 9         requiring that the commission specify the

10         required records by rule; amending s. 559.730,

11         F.S.; revising provisions governing the

12         administrative remedies that may be invoked by

13         the office against a registrant; specifying

14         grounds for the revocation or suspension of a

15         registration; providing for administrative

16         fines; creating s. 559.735, F.S.; providing

17         guidelines for the office in imposing

18         administrative remedies or penalties; amending

19         s. 559.77, F.S., relating to civil remedies;

20         conforming provisions to changes made by the

21         act; requiring that a conflict of law be

22         interpreted so that the consumer or debtor is

23         given the most protection; amending s. 559.785,

24         F.S.; increasing the penalties imposed for

25         operating or soliciting business as a consumer

26         collection agency without registering;

27         specifying additional acts that constitute a

28         violation of law; repealing ss. 559.547,

29         559.563, and 559.565, F.S., relating to

30         registration and enforcement actions against

31         out-of-state consumer debt collectors;

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 1         requiring that the Office of Financial

 2         Regulation of the Financial Services Commission

 3         submit a biennial report to the Legislature

 4         concerning the consumer and commercial

 5         collection practice acts; providing an

 6         appropriation and authorizing additional

 7         positions; providing an effective date.

 8  

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

10  

11         Section 1.  Section 559.544, Florida Statutes, is

12  amended to read:

13         559.544  Registration required; Exemptions.--

14         (1)  No person shall engage in business in this state

15  as a commercial collection agency, as defined in this part, or

16  continue to do business in this state as a commercial

17  collection agency, without first registering in accordance

18  with this part and thereafter maintaining such registration.

19         (2)  Each commercial collection agency doing business

20  in this state shall register with the office and annually

21  renew such registration, providing the registration fee,

22  information, and surety bond required by this part.

23         (3)  No registration shall be valid for any commercial

24  collection agency transacting business at any place other than

25  that designated in the registration unless the office is first

26  notified in advance of any change of location.  A registration

27  under this part is not transferable or assignable. Any

28  commercial collection agency desiring to change its registered

29  name, location, or agent for service of process at any time

30  other than renewal of registration shall notify the office of

31  such change prior to the change.

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 1         (4)  The office shall not accept any registration for

 2  any commercial collection agency as validly made and filed

 3  with the office under this section unless the registration

 4  information furnished to the office by the registrant is

 5  complete pursuant to s. 559.545 and facially demonstrates that

 6  such registrant is qualified to engage in business as a

 7  commercial collection agency, including specifically that

 8  neither the registrant nor any principal of the registrant has

 9  engaged in any unlawful collection practices, dishonest

10  dealings, acts of moral turpitude, or other criminal acts that

11  reflect an inability to engage in the commercial collection

12  agency business. The office shall inform any person whose

13  registration is rejected by the office of the fact of and

14  basis for such rejection.  A prospective registrant shall be

15  entitled to be registered when her or his or its registration

16  information is complete on its face, the applicable

17  registration fee has been paid, and the required evidence of

18  current bond is furnished to the office.

19         (5)  The registration requirements of s. 559.545 do

20  This section shall not apply to:

21         (1)(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         (2)(b)  A financial institution authorized to do

29  business in this state or a and any wholly owned subsidiary or

30  an and affiliate thereof.

31         (3)(c)  A licensed real estate broker.

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 1         (4)(d)  A title insurance company authorized to do

 2  business in this state.

 3         (5)(e)  A licensed consumer collection agency that

 4  which is not primarily engaged in the collection of commercial

 5  claims.  "Not primarily engaged in the collection of

 6  commercial claims" means that less than one-half of the

 7  collection revenue of the such agency arises from the

 8  collection of commercial claims.

 9         (6)(f)  A consumer finance company or and any wholly

10  owned subsidiary or and affiliate thereof.

11         (7)(g)  A person licensed pursuant to chapter 520.

12         (8)(h)  A credit grantor.

13         (9)(i)  An out-of-state collector as defined in this

14  part.

15         (10)(j)  An FDIC-insured institution or subsidiary or

16  affiliate thereof.

17         Section 2.  Section 559.545, Florida Statutes, is

18  amended to read:

19         559.545  Registration of commercial collection

20  agencies; procedure.--

21         (1)  A person may not engage in business in this state

22  as a commercial collection agency as defined in this part, or

23  continue to do business in this state as a commercial

24  collection agency, unless the person is registered with the

25  office according to this part and thereafter maintains the

26  registration.

27         (2)  A registration is not valid for any commercial

28  collection agency transacting business at any place other than

29  that designated in the registration unless the office is first

30  notified in advance of any change of location.

31  

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 1         (3)  A Any person who applies for registration wishes

 2  to register as a commercial collection agency in compliance

 3  with this part must shall do so on forms adopted by the

 4  commission and furnished by the office. The commission may

 5  establish by rule procedures for depositing fees and filing

 6  documents by electronic means if such procedures provide the

 7  office with the information required by this section. The

 8  commission or office may require each applicant for

 9  registration as a commercial collection agency to provide Any

10  renewal of registration shall be made between October 1 and

11  December 31 of each year.  In registering or renewing a

12  registration as required by this part, each commercial

13  collection agency shall furnish to the office a registration

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

15         (a)(1)  A nonrefundable application fee in the amount

16  of $900 The registrant shall pay to the office a registration

17  fee of $500.  All amounts collected shall be deposited to the

18  credit of the Regulatory Trust Fund of the office.

19         (b)  The name of the applicant, any other names under

20  which the applicant conducts business, and the address of the

21  applicant's principal place of business and each office in

22  this state.

23         (c)  The applicant's form and place of organization. If

24  the applicant is a corporation, a copy of the articles of

25  incorporation and amendments thereto; if the applicant is a

26  partnership, a copy of the partnership agreement; or if the

27  applicant is a limited liability company, a copy of the

28  articles of organization.

29         (d)  Documents demonstrating that the bonding

30  requirements specified in s. 559.546 have been satisfied.

31  

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 1         (e)  Information and documentation necessary for the

 2  office to make a determination of the applicant's eligibility

 3  for registration.

 4         (4)  The applicant must also provide information that

 5  the office requires concerning any partner, officer, or

 6  director of the applicant; any person having the same or

 7  substantially similar status or performing substantially

 8  similar functions; or any person directly or indirectly

 9  controlling the applicant. As used in this section, the term

10  "person directly or indirectly controlling the applicant"

11  means possession of the power to direct or to cause the

12  direction of the management or policies of the company,

13  whether through ownership of stock or securities, by contract,

14  or otherwise. Any individual or company that directly or

15  indirectly has the right to vote 25 percent or more of the

16  voting stock or securities of a company or that is entitled to

17  25 percent or more of its profits is presumed to control that

18  company. The office may require information about any such

19  applicant or person including:

20         (a)  His or her full name, current address, current

21  telephone number, date of birth, social security number, or

22  federal identification number.

23         (b)  His or her previous 10-year educational or

24  employment history.

25         (c)  Any adverse decision, finding, injunction,

26  suspension, prohibition, revocation, denial, or judgment by

27  any court of competent jurisdiction or an administrative order

28  by an administrative law judge, any state or federal agency,

29  or any business, professional, or occupational association

30  involving a violation of any law, rule, or regulation relating

31  to any business or professional licensing.

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 1         (d)  His or her commission of any acts that would be

 2  grounds for denial of an application under subsection (10).

 3         (5)  An initial application is deemed received for

 4  purposes of s. 120.60 upon receipt of the completed

 5  application form prescribed by commission rule, the

 6  nonrefundable application fee of $900, and any other fee

 7  prescribed by law.

 8         (6)  Upon the filing of an application for registration

 9  and payment of all applicable fees, the office shall

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         (7)  The registration of each commercial collection

14  agency expires on December 31 of the year in which it became

15  effective unless the registrant renews its registration on or

16  before that date. Registration may be renewed as the

17  commission requires by rule, together with payment of the $450

18  nonrefundable renewal fee and the payment of any amount

19  lawfully due and owing to the office pursuant to any order of

20  the office or pursuant to any agreement with the office. A

21  commercial collection agency that has not renewed its

22  registration by the time the registration period expires may

23  request reactivation of its registration. The registrant must

24  file its request with the office on or before January 31 of

25  the year following the year of expiration. The request must

26  contain any information the office requires, together with the

27  registration fee required in this section, and a nonrefundable

28  reactivation fee in the amount of $250. Any reactivation of

29  registration granted by the office during the month of January

30  is deemed effective retroactive to January 1 of that year. Any

31  registrant that engages in business as a commercial collection

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 1  agency after its registration has expired violates subsection

 2  (1), which is punishable under ss. 559.548(1) and 559.5477(6).

 3         (8)  If the information contained in any application or

 4  any amendment to an application has changed, the registrant

 5  must file an amendment on the forms prescribed by the

 6  commission correcting such information within 30 days after

 7  the change.

 8         (9)  A registration under this part is not transferable

 9  or assignable unless accomplished pursuant to this subsection.

10         (a)  Changes in registration occasioned by changes in

11  personnel of a partnership or in the principals, copartners,

12  officers, or directors of any registrant or by changes of any

13  material fact must be reported by written amendment in such

14  form and at such time as the commission specifies by rule. In

15  any case in which a person or a group of persons, directly or

16  indirectly, or acting by or through one or more persons,

17  proposes to purchase or acquire a controlling interest in a

18  registrant, such person or group must submit an initial

19  application for registration as a commercial collection agency

20  before such purchase or acquisition and at the time and in the

21  form as the commission prescribes by rule.

22         (b)  The commission shall adopt rules providing for

23  waiver of the application required by this subsection if

24  control of a registrant is to be acquired by another

25  registrant under this chapter or if the application is

26  otherwise unnecessary in the public interest.

27         (10)  The office may deny registration if the

28  applicant, any principal of the applicant, or any person

29  having control of the applicant:

30         (a)  Has committed a violation of s. 559.72;

31  

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 1         (b)  Is the subject of a pending criminal prosecution

 2  or governmental enforcement action, in any jurisdiction, until

 3  the conclusion of such criminal prosecution or enforcement

 4  action;

 5         (c)  Is currently subject to a pending enforcement

 6  action by any federal authority for violations of the Fair

 7  Debt Collection Practices Act or the Federal Trade Commission

 8  Act;

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

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

11  guilty to, any offense involving fraud, dishonest dealing, or

12  moral turpitude;

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

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

15  guilty to, any felony;

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

17  business for which he or she was directly or indirectly a

18  controlling person in the business or controlled the business,

19  an injunction, a temporary restraining order, or a final

20  judgment or order, including a stipulated judgment or order,

21  an assurance of voluntary compliance, or any similar document

22  in any civil or administrative action involving racketeering,

23  fraud, theft, embezzlement, fraudulent conversion, or

24  misappropriation of property; involving the use of any untrue,

25  deceptive, or misleading representation in an attempt to sell

26  or dispose of real or personal property; or involving the use

27  of any unfair, unlawful, or deceptive trade practice, whether

28  or not there is any litigation pending against the applicant;

29         (g)  Is subject to or was directly or indirectly a

30  controlling person in the business, or controlled the

31  business, with any company that is, or ever has been, subject

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 1  to any injunction, temporary restraining order, including a

 2  stipulated judgment or order, an assurance of voluntary

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

 4  order relating to business activity as the result of any

 5  action brought by a governmental agency, including any action

 6  affecting any license to do business or practice an occupation

 7  or trade;

 8         (h)  Has falsified or willfully omitted any material

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

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

11  commission;

12         (i)  Has made a material false statement of fact in an

13  application for registration or in response to any request or

14  investigation by the office; or

15         (j)  Has been the subject of any adverse decision,

16  finding, injunction, suspension, prohibition, revocation,

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

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

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

20  occupational association involving a violation of any law,

21  rule, or regulation relating to business or professional

22  licensing.

23         (2)  The registrant shall provide the following

24  information:

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

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

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

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

29  designation of which location constitutes its principal place

30  of business.

31  

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

 2  telephone numbers, and social security numbers, or federal

 3  identification numbers of any corporate owner, of the

 4  registrant's owners or corporate officers and directors, and

 5  of the Florida resident agent of the registering agency.

 6         (c)  A statement as to whether the registrant is a

 7  domestic or foreign corporation, together with the state and

 8  date of incorporation, charter number of the corporation, and,

 9  if a foreign corporation, the date the corporation first

10  registered to do business in this state.

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

12  which the registrant is currently doing business or plans to

13  do business within the next calendar year, indicating each

14  county in which the registrant holds an occupational license.

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

16  which the registrant is operating under a fictitious name or

17  trade name other than that of the registrant, indicating the

18  date and place of registration of any such fictitious name or

19  trade name.

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

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

22  or director of the registrant was known or did business as a

23  commercial or consumer collection agency within the 5 calendar

24  years immediately preceding the year in which the agency is

25  registering.

26         (g)  A statement clearly identifying and explaining any

27  occasion on which any professional license or occupational

28  license held by the registrant, any principal of the

29  registrant, or any business entity in which any principal of

30  the registrant was the owner of 10 percent or more of such

31  

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 1  business was the subject of any suspension, revocation, or

 2  other disciplinary action.

 3         (h)  A statement clearly identifying and explaining any

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

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

 6  the registrant.

 7         (3)  The registrant shall furnish to the office

 8  evidence, as provided in s. 559.546, of the registrant having

 9  a current surety bond in the amount of $50,000, valid for the

10  year of registration, paid for and issued for the use and

11  benefit of any credit grantor who suffers or sustains any loss

12  or damage by reason of any violation of the provisions of this

13  part by the registrant, or by any agent or employee of the

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

15  and issued to ensure conformance with the provisions of this

16  part.

17         Section 3.  Section 559.546, Florida Statutes, is

18  amended to read:

19         (Substantial rewording of section. See

20         s. 559.546, F.S., for present text.)

21         559.546  Surety bond.--Before the office may issue a

22  registration, the applicant must provide to the office a

23  corporate surety bond, issued by a bonding company or

24  insurance company authorized to do business in this state.

25         (1)  The corporate surety bond shall be in the amount

26  of $50,000, paid for and issued for the benefit of any credit

27  grantor against the registrant to secure the faithful

28  performance of the obligations of the registrant with respect

29  to the receipt, handling, and payment of funds collected by

30  the registrant.

31  

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 1         (2)  If multiple claims are filed against the surety on

 2  any bond in excess of the amount of the bond, the surety may

 3  pay the full amount of the bond to the office and is not

 4  further liable under the bond. The office shall hold the funds

 5  for distribution to claimants and pay to each claimant the pro

 6  rata share of each valid claim made against the funds within 6

 7  months after the date of the filing of the first claim against

 8  the surety.

 9         (3)  A corporate surety bond filed with the office for

10  purposes of compliance with this section may not be cancelled

11  by the registrant or the corporate surety except upon written

12  notice to the office by registered or certified mail, return

13  receipt requested. A cancellation does not take effect less

14  than 30 days after receipt by the office of such written

15  notice.

16         (4)  The corporate surety must, within 10 days after it

17  pays any claim to any claimant, give written notice to the

18  office by registered or certified mail of such payment, along

19  with details sufficient to identify the claimant and the claim

20  or judgment paid.

21         (5)  Whenever the principal sum of such bond is reduced

22  by one or more recoveries or payments, the registrant must

23  furnish a new or additional bond so that the total or

24  aggregate principal sum of such bonds equals the sum required

25  by this section. Alternatively, a registrant may furnish an

26  endorsement executed by the corporate surety reinstating the

27  bond to the required principal sum of the bond.

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 or

 5  examination of any person, within or outside this state, which

 6  it believes is necessary in order to determine whether a

 7  person has violated this chapter or the rules adopted by the

 8  commission. The office shall provide at least 15 days' advance

 9  notice of any examination or investigation of a commercial

10  collection agency. However, if the office suspects that the

11  commercial collection agency has violated any provision of

12  this part or any criminal laws of this state or of the United

13  States or is engaging in an unsafe and unsound practice, the

14  office may, at any time without advance notice, conduct an

15  examination or investigation of all affairs, activities,

16  transactions, accounts, business records, and assets of any

17  commercial collection agency for the protection of the public.

18         (3)  The commission may adopt rules under ss.

19  120.536(1) and 120.54 to administer this part.

20         (4)  The commission may adopt a rule to require

21  electronic submission of any form, document, or fee required

22  by this part if the rule reasonably accommodates a person

23  having a technological or financial hardship. The commission

24  may adopt a rule setting forth the criteria and procedures for

25  obtaining an exemption due to a technological or financial

26  hardship. The commission may adopt a rule to accept

27  certification of compliance with the requirements of this part

28  in lieu of requiring submission of specified documents.

29         (5)  All fees, charges, and fines collected by the

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

31  Regulatory Trust Fund of the office.

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 1         (6)  The office may:

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

 3  subpoenas to compel the attendance of witnesses and subpoenas

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

 5  records, and other documents and materials relevant to an

 6  examination or investigation. The office may exercise these

 7  powers even if the subject of the investigation or examination

 8  is exempt from registration.

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

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

11  depositions.

12         (7)(a)  In the event of noncompliance with a subpoena

13  or subpoena duces tecum that the office has issued or caused

14  to be issued, the office may petition a court of competent

15  jurisdiction in the county where the person subpoenaed resides

16  or has her, his, or its principal place of business for an

17  order requiring the person to appear and testify and to

18  produce the books, accounts, records, and other documents that

19  are specified in the subpoena duces tecum.

20         (b)  A copy of the petition shall be served upon the

21  person subpoenaed by any person authorized by this section to

22  serve subpoenas, who shall make and file with the court an

23  affidavit showing the time, place, and date of service.

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

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

26  interest will be substantially affected by the investigation,

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

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

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

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

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

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 1  annoyance, embarrassment, oppression, undue burden, or

 2  expense.

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

 4  or in part, a petition to enforce a subpoena is a contempt of

 5  the court.

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

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

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

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

10  principal office or residence.

11         (9)  Reasonable and necessary costs incurred by the

12  office during an investigation may be assessed against any

13  debt collector on the basis of actual costs incurred. Assessed

14  expenses may include, but are not limited to, expenses for

15  interpreters; expenses for communications; expenses for legal

16  representation; expenses for economic, legal, or other

17  research or analysis and testimony; and fees and expenses for

18  witnesses. The failure to reimburse the office for its

19  reasonable and necessary costs is a reason to deny a

20  registrant's application or to revoke the prior approval of an

21  application.

22         Section 5.  Section 559.5473, Florida Statutes, is

23  created to read:

24         559.5473  Injunction to restrain violations;

25  receivers.--

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

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

28  violate, this part or any rule of the commission or order of

29  the office issued under this part.

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

31  subpoena requiring the attendance of any witness or a subpoena

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

 2  record, or other documents and materials relevant to the

 3  pending case.

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

 5  for enforcing a permanent injunction, the court may, upon

 6  application of the office, impound the property, assets, and

 7  business of the registrant, including, but not limited to, the

 8  books, records, documents, and papers of the registrant. The

 9  court may appoint a receiver to administer the property. The

10  receiver, when appointed and qualified, has the powers and

11  duties that are conferred upon the receiver by the court.

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

13  an order staying all pending suits and enjoining any further

14  litigation affecting the receiver's custody or possession of

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

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

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

18  receiver.

19         Section 6.  Section 559.5474, Florida Statutes, is

20  created to read:

21         559.5474  Cease and desist orders; refund orders.--

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

23  order to cease and desist and to take corrective action

24  whenever the office has reason to believe that a person is

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

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

27  written agreement between the commercial collection agency and

28  the office. Procedural matters relating to the issuance and

29  enforcement of a cease and desist order are governed by

30  chapter 120.

31  

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

 2  court of competent jurisdiction for collected funds due to

 3  creditors or any sum collected from a debtor without valid

 4  proof of debt.

 5         Section 7.  Section 559.5475, Florida Statutes, is

 6  created to read:

 7         559.5475  Evidence; examiner's worksheets,

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

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

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

11  drafted, or otherwise made by the financial examiner is

12  admissible into evidence if the financial examiner is

13  available for cross-examination; authenticates the worksheet;

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

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

16  records of a registrant or other person conducted under the

17  authority of this part.

18         Section 8.  Section 559.5476, Florida Statutes, is

19  created to read:

20         559.5476  Books, accounts, and records; maintenance;

21  examinations by the office.--

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

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

24  accounts, records, and documents necessary to determine the

25  registrant's compliance with this part.

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

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

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

29  and available at a reasonable and convenient location in this

30  state.

31  

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

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

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

 4  preserved and kept available for examination by the office for

 5  3 years after the date of original entry. The commission shall

 6  adopt requirements by rule for maintaining the books,

 7  accounts, records, and documents retained by the registrant

 8  and for destroying the records.

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

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

11  accounts, records, and documents to enable the office to

12  determine a registrant's compliance with this part.

13         Section 9.  Section 559.5477, Florida Statutes, is

14  created to read:

15         559.5477  Administrative remedies.--

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

17  of a registrant under this part who:

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

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

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

21  moral turpitude;

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

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

24  embezzlement, misrepresentation, or deceit;

25         (c)  Has had any business, professional, or

26  occupational license or registration suspended, revoked, or

27  otherwise acted against in any jurisdiction;

28         (d)  Fails to maintain the surety bond required

29  pursuant to s. 559.546;

30         (e)  Fails to maintain books and records as required by

31  s. 559.5476;

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 1         (f)  Violates any provision of this part, any rule or

 2  order adopted pursuant to this part, or any written agreement

 3  entered into with the office;

 4         (g)  Paid for a registration with a check or electronic

 5  transmission of funds which failed to clear the registrant's

 6  financial institution;

 7         (h)  Falsified or willfully omitted any material

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

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

10  commission;

11         (i)  Made a material false statement of fact in an

12  application for registration or in response to any request or

13  investigation by the office; or

14         (j)  Has a person who directly or indirectly controls

15  the applicant, as defined in s. 559.545(4), who is subject to

16  an action, or commits an act, contemplated by paragraph (a),

17  paragraph (b), paragraph (c), paragraph (f), paragraph (h), or

18  paragraph (i).

19         (2)  A registrant may request termination of its

20  registration by delivering written notice of its proposed

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

22  termination notice does not affect any civil or criminal

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

24  enforce this part.

25         (3)  The office may deny a request to terminate a

26  registration or to withdraw an application for registration if

27  the office believes that the registrant has committed an act

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

29  under this part.

30         (4)  Final action by the office to revoke or suspend

31  the registration of a registrant is subject to review

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

 2  license.

 3         (5)  The office may impose an administrative fine of up

 4  to $1,000 per violation of this section, s. 559.545, s.

 5  559.546, or s. 559.5476. Final action by the office to impose

 6  an administrative fine is subject to review in accordance with

 7  ss. 120.569 and 120.57.

 8         (6)  Notwithstanding any other provision of this

 9  section, the office may impose a fine not to exceed $1,000 per

10  day for each day that a person violates this part by engaging

11  in the business of a commercial collection agency without

12  being registered.

13         (7)  Any administrative fine imposed under this part

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

15  appropriate record and deposit the fine into the Regulatory

16  Trust Fund of the office.

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

18  revocation, suspension, or a fine must be brought within 5

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

20  action is founded.

21         (9)  The remedies under this part are in addition to

22  remedies otherwise available for the same conduct under state

23  or local law.

24         Section 10.  Section 559.5479, Florida Statutes, is

25  created to read:

26         559.5479  Administrative guidelines.--In imposing any

27  administrative remedy or penalty provided for in this part,

28  the office shall take into account the appropriateness of the

29  penalty with respect to the size of the financial resources

30  and good faith of the person charged, the gravity of the

31  

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 1  violation, the history of previous violations, and such other

 2  matters as justice requires.

 3         Section 11.  Subsections (1) and (8) of section 559.55,

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

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

 6         559.55  Definitions.--The following terms shall, unless

 7  the context otherwise indicates, have the following meanings

 8  for the purpose of this part:

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

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

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

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

13  transaction are primarily for personal, family, or household

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

15  judgment; or.

16         (b)  Any unsatisfied obligation for the payment of

17  money arising out of a legal order for child support.

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

19  person whose business activities in this state involve both

20  collecting or attempting to collect consumer debt from debtors

21  located in this state by means of interstate communication

22  originating from outside this state and soliciting consumer

23  debt accounts for collection from creditors who have a

24  business presence in this state. For purposes of this

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

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

27  creditor has an office in this state.

28         (10)  "Credit grantor" means any person who offers or

29  extends credit creating a debt or to whom a debt is owed, but

30  such term does not include any person to the extent that the

31  person receives an assignment or transfer of a debt in default

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 1  solely for the purpose of facilitating collection of such debt

 2  for another.

 3         (11)  "Federal Trade Commission Act" means the federal

 4  legislation regulating unfair or deceptive practices or acts,

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

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

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

 8  sole proprietorship; the corporate officers; the corporate

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

10  corporation organized under chapter 617; or the Florida

11  resident agent if a corporation is the applicant or

12  registrant.

13         Section 12.  Section 559.552, Florida Statutes, is

14  amended to read:

15         559.552  Relationship of state and federal law.--

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

17  Practices Act constitutes a prohibited practice under s.

18  559.72.

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

20  to limit or restrict the continued applicability of the

21  federal Fair Debt Collection Practices Act to consumer

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

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

24  construing this part, due consideration and great weight shall

25  be given to interpretations of the Federal Trade Commission

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

27  Trade Commission. In the event of any inconsistency between

28  any provision of this part and any provision of the federal

29  act, the provision that which is more protective of the

30  consumer or debtor shall prevail.

31  

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 1         Section 13.  Section 559.553, Florida Statutes, is

 2  amended to read:

 3         559.553  Registration of consumer collection agencies

 4  required; Exemptions.--

 5         (1)  After January 1, 1994, no person shall engage in

 6  business in this state as a consumer collection agency or

 7  continue to do business in this state as a consumer collection

 8  agency without first registering in accordance with this part,

 9  and thereafter maintaining a valid registration.

10         (2)  Each consumer collection agency doing business in

11  this state shall register with the office and renew such

12  registration annually as set forth in s. 559.555.

13         (3)  A prospective registrant shall be entitled to be

14  registered when registration information is complete on its

15  face and the applicable registration fee has been paid;

16  however, the office may reject a registration submitted by a

17  prospective registrant if the registrant or any principal of

18  the registrant previously has held any professional license or

19  state registration which was the subject of any suspension or

20  revocation which has not been explained by the prospective

21  registrant to the satisfaction of the office either in the

22  registration information submitted initially or upon the

23  subsequent written request of the office. In the event that an

24  attempted registration is rejected by the office the

25  prospective registrant shall be informed of the basis for

26  rejection.

27         (4)  The registration requirements of s. 559.555 do

28  This section shall not apply to:

29         (1)(a)  Any credit grantor original creditor.

30         (2)(b)  Any member of The Florida Bar unless the person

31  is primarily engaged in the collection of consumer debts. The

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 1  term "primarily engaged in the collection of consumer debts"

 2  means that more than one-half of the person's income arises

 3  from the business of soliciting consumer claims for collection

 4  or collecting consumer claims.

 5         (3)(c)  Any financial institution authorized to do

 6  business in this state or and any wholly owned subsidiary or

 7  and affiliate thereof.

 8         (4)(d)  Any licensed real estate broker.

 9         (5)(e)  Any insurance company authorized to do business

10  in this state.

11         (6)(f)  Any consumer finance company or and any wholly

12  owned subsidiary or and affiliate thereof.

13         (7)(g)  Any person licensed pursuant to chapter 520.

14         (8)(h)  Any out-of-state consumer debt collector who

15  does not solicit consumer debt accounts for collection from

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

17         (9)(i)  Any FDIC-insured institution or subsidiary or

18  affiliate thereof.

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

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

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

22  accordance with this part shall be subject to an enforcement

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

24         Section 14.  Section 559.555, Florida Statutes, is

25  amended to read:

26         (Substantial rewording of section. See

27         s. 559.555, F.S., for present text.)

28         Registration of consumer collection agencies;

29  procedure.--

30         (1)  A person may not engage in business in this state

31  as a consumer collection agency, as defined in this part, or

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 1  continue to do business in this state as a consumer collection

 2  agency, unless the person is registered with the office

 3  according to this part and thereafter maintains the

 4  registration.

 5         (2)  A registration is not valid for any consumer

 6  collection agency transacting business at any place other than

 7  that designated in the registration unless the office is

 8  notified in advance of any change of location.

 9         (3)  A person who applies for registration as a

10  consumer collection agency in compliance with this part must

11  do so on forms adopted by the commission and furnished by the

12  office. The commission may establish by rule procedures for

13  depositing fees and filing documents by electronic means

14  provided such procedures provide the office with the

15  information required by this section. The commission or office

16  may require each applicant for a consumer collection agency

17  registration to provide:

18         (a)  A nonrefundable application fee in the amount of

19  $900. All amounts collected shall be deposited to the credit

20  of the Regulatory Trust Fund of the office;

21         (b)  The name of the applicant, any other names under

22  which the applicant conducts business, and the address of the

23  applicant's principal place of business and each office in

24  this state;

25         (c)  The applicant's form and place of organization. If

26  the applicant is a corporation, a copy of the articles of

27  incorporation and amendments thereto; if the applicant is a

28  partnership, a copy of the partnership agreement; or if the

29  applicant is a limited liability company, a copy of the

30  articles of organization;

31  

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 1         (d)  Documents demonstrating that the bonding

 2  requirements specified in s. 559.556 have been satisfied; and

 3         (e)  Information and documentation necessary for the

 4  office to make a determination of the applicant's eligibility

 5  for registration.

 6         (4)  The applicant must also provide information as the

 7  office may require about any partner, officer, or director of

 8  the applicant, or any person having the same or substantially

 9  similar status or performing substantially similar functions,

10  or any person directly or indirectly controlling the

11  applicant. As used in this subsection, the term "person

12  directly or indirectly controlling the applicant" means

13  possession of the power to direct or to cause the direction of

14  the management or policies of a company, whether through

15  ownership of stock or securities, by contract, or otherwise.

16  Any individual or company that directly or indirectly has the

17  right to vote 25 percent or more of the voting stock or

18  securities of a company or is entitled to 25 percent or more

19  of its profits is presumed to control that company. The office

20  may require information concerning any such applicant or

21  person including:

22         (a)  His or her full name, current address, current

23  telephone number, date of birth, social security number, or

24  federal identification number.

25         (b)  His or her previous 10-year educational or

26  employment history.

27         (c)  Any adverse decision, finding, injunction,

28  suspension, prohibition, revocation, denial, or judgment by

29  any court of competent jurisdiction or an administrative order

30  of an administrative law judge, by any state or federal

31  agency, or any business, professional, or occupational

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 1  association involving a violation of any law, rule, or

 2  regulation relating to business or professional licensing.

 3         (d)  His or her commission of any acts that would be

 4  grounds for denial of an application under this subsection

 5  (10).

 6         (5)  An initial application is deemed received for

 7  purposes of s. 120.60 upon receipt of the completed

 8  application form prescribed by commission rule, the

 9  nonrefundable application fee of $900, and any other fee

10  prescribed by law.

11         (6)  Upon the filing of an application for registration

12  and payment of all applicable fees, the office shall

13  investigate the applicant. If the office determines that

14  registration should be granted, it shall register the

15  applicant for a period not to exceed 1 year.

16         (7)  The registration of each consumer collection

17  agency expires on December 31 of the year in which it became

18  effective unless the registrant has renewed its registration

19  on or before that date. Registration may be renewed as the

20  commission may require by rule, together with payment of the

21  $450 nonrefundable renewal fee and the payment of any amount

22  lawfully due and owing to the office pursuant to any order of

23  the office or pursuant to any agreement with the office. A

24  consumer collection agency that has not renewed its

25  registration by the time the registration period expires may

26  request reactivation of its registration. The registrant must

27  file its request with the office on or before January 31 of

28  the year following the year of expiration. The request must

29  contain any information the office requires, together with the

30  registration fee required in this section and a nonrefundable

31  reactivation fee in the amount of $250. Any reactivation of

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 1  registration granted by the office during the month of January

 2  is deemed effective retroactive to January 1 of that year. Any

 3  registrant that engages in business as a consumer collection

 4  agency after its registration has expired violates subsection

 5  (1), which is punishable as provided in ss. 559.785(1) and

 6  559.730(6).

 7         (8)  If the information contained in any application or

 8  any amendment to the application has changed, the registrant

 9  must file an amendment on the forms prescribed by the

10  commission correcting such information within 30 days after

11  the change.

12         (9)  A registration under this part is not transferable

13  or assignable unless accomplished pursuant to this subsection.

14         (a)  Changes in registration occasioned by changes in

15  personnel of a partnership or in the principals, copartners,

16  officers, or directors of any registrant or by changes of any

17  material fact shall be reported by written amendment in such

18  form and at such time as the commission may specify by rule.

19  In any case in which a person or a group of persons, directly

20  or indirectly, or acting by or through one or more persons,

21  proposes to purchase or acquire a controlling interest in a

22  registrant, such person or group shall submit an initial

23  application for registration as a consumer collection agency

24  before such purchase or acquisition at the time and in the

25  form that the commission prescribes by rule.

26         (b)  The commission shall adopt rules providing for

27  waiver of the application required by this subsection if

28  control of a registrant is to be acquired by another

29  registrant under this chapter or if the application is

30  otherwise unnecessary in the public interest.

31  

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 1         (10)  The office may deny registration if the

 2  applicant, any principal of the applicant, or any person

 3  having control of the applicant:

 4         (a)  Has committed any violation of s. 559.72;

 5         (b)  Is the subject of a pending criminal prosecution

 6  or governmental enforcement action, in any jurisdiction, until

 7  the conclusion of such criminal prosecution or enforcement

 8  action;

 9         (c)  Is currently subject to a pending enforcement

10  action by any federal authority for violations of the Fair

11  Debt Collection Practices Act or the Federal Trade Commission

12  Act;

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

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

15  guilty to, any offense involving fraud, dishonest dealing, or

16  moral turpitude;

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

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

19  guilty to, any felony;

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

21  business for which he or she was directly or indirectly a

22  controlling person in the business or controlled the business,

23  an injunction, a temporary restraining order, or a final

24  judgment or order, including a stipulated judgment or order,

25  an assurance of voluntary compliance, or any similar document

26  in any civil or administrative action involving racketeering,

27  fraud, theft, embezzlement, fraudulent conversion, or

28  misappropriation of property; involving the use of any untrue,

29  deceptive, or misleading representation in an attempt to sell

30  or dispose of real or personal property; or involving the use

31  

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 1  of any unfair, unlawful, or deceptive trade practice, whether

 2  or not there is any litigation pending against the applicant;

 3         (g)  Is subject to or was directly or indirectly a

 4  controlling person in the business, or controlled the

 5  business, with any company that is, or ever has been, subject

 6  to any injunction, temporary restraining order, including a

 7  stipulated judgment or order, an assurance of voluntary

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

 9  order relating to business activity as the result of any

10  action brought by a governmental agency, including any action

11  affecting any license to do business or practice an occupation

12  or trade;

13         (h)  Has falsified or willfully omitted any material

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

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

16  commission;

17         (i)  Has made a material false statement of fact in an

18  application for registration or in response to any request or

19  investigation by the office; or

20         (j)  Has been the subject of any adverse decision,

21  finding, injunction, suspension, prohibition, revocation,

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

23  an administrative order of an administrative law judge, or by

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

25  occupational association involving a violation of any law,

26  rule, or regulation relating to business or professional

27  licensing.

28         Section 15.  Section 559.556, Florida Statutes, is

29  created to read:

30         559.556  Surety bond.--Before the office may issue a

31  registration, the applicant must provide to the office a

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 1  corporate surety bond, issued by a bonding company or

 2  insurance company authorized to do business in this state.

 3         (1)  The corporate surety bond shall be in the amount

 4  of $25,000, paid for and issued for the benefit of any credit

 5  grantor against the registrant to secure the faithful

 6  performance of the obligations of the registrant with respect

 7  to the receipt, handling, and payment of funds collected by

 8  the registrant.

 9         (2)  If multiple claims are filed against the surety on

10  any bond in excess of the amount of the bond, the surety may

11  pay the full amount of the bond to the office and is not

12  further liable under the bond. The office shall hold the funds

13  for distribution to claimants and pay to each claimant the pro

14  rata share of each valid claim made against the funds within 6

15  months after the date of the filing of the first claim against

16  the surety.

17         (3)  A corporate surety bond filed with the office for

18  purposes of compliance with this section may not be cancelled

19  by the registrant or the corporate surety except upon written

20  notice to the office by registered or certified mail, return

21  receipt requested. A cancellation does not take effect less

22  than 30 days after receipt by the office of such written

23  notice.

24         (4)  The corporate surety must, within 10 days after it

25  pays any claim to any claimant, give written notice to the

26  office by registered or certified mail of such payment, along

27  with details sufficient to identify the claimant and the claim

28  or judgment paid.

29         (5)  Whenever the principal sum of such bond is reduced

30  by one or more recoveries or payments, the registrant must

31  furnish a new or additional bond so that the total or

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 1  aggregate principal sum of such bonds equals the sum required

 2  by this section. Alternatively, a registrant may furnish an

 3  endorsement executed by the corporate surety reinstating the

 4  bond to the required principal sum of the bond.

 5         Section 16.  Section 559.72, Florida Statutes, is

 6  amended to read:

 7         559.72  Standards of conduct Prohibited practices

 8  generally.--

 9         (1)  In collecting consumer debts, a no person may not

10  shall:

11         (a)(1)  Simulate in any manner a law enforcement

12  officer or a representative of any governmental agency;

13         (b)(2)  Use or threaten force, or violence, or any

14  other means to harm the physical person, property, or

15  reputation of any person;

16         (c)(3)  Tell a debtor who disputes a consumer debt that

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

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

19  information affecting the debtor's reputation for credit

20  worthiness without also informing the debtor that the

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

22  paragraph (f) subsection (6);

23         (d)(4)  Communicate or threaten to communicate with a

24  debtor's employer prior to obtaining final judgment against

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

26  writing to contact her or his employer or acknowledges in

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

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

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

30  contacted if a final judgment is obtained;

31  

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 1         (e)(5)  Disclose to a person other than the debtor or

 2  her or his family information affecting the debtor's

 3  reputation, whether or not for credit worthiness, with

 4  knowledge or reason to know that the other person does not

 5  have a legitimate business need for the information or that

 6  the information is false;

 7         (f)(6)  Disclose information concerning the existence

 8  of a debt known to be reasonably disputed by the debtor

 9  without disclosing that fact.  If a disclosure is made prior

10  to such reasonable dispute having been asserted and written

11  notice is received from the debtor that any part of the debt

12  is disputed and if such dispute is reasonable, the person who

13  made the original disclosure shall reveal upon the request of

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

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

16  dispute was made within the preceding 90 days;

17         (g)(7)  Willfully communicate with the debtor or any

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

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

20  family, or willfully engage in other conduct which can

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

22  member of her or his family;

23         (h)(8)  Use profane, obscene, vulgar, or willfully

24  abusive language in communicating with the debtor or any

25  member of her or his family;

26         (i)(9)  Claim, attempt, or threaten to enforce a debt

27  when such person knows that the debt is not legitimate or

28  assert the existence of some other legal right when such

29  person knows that the right does not exist;

30         (j)(10)  Use a communication which simulates in any

31  manner legal or judicial process or which gives the appearance

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 1  of being authorized, issued or approved by a government,

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

 3         (k)(11)  Communicate with a debtor under the guise of

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

 5  instruments which only attorneys are authorized to prepare;

 6         (l)(12)  Orally communicate with a debtor in such a

 7  manner as to give the false impression or appearance that such

 8  person is or is associated with an attorney;

 9         (m)(13)  Advertise or threaten to advertise for sale

10  any debt as a means to enforce payment except under court

11  order or when acting as an assignee for the benefit of a

12  creditor;

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

14  or cause to be published or posted before the general public

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

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

17  attempting to enforce collection of consumer debts;

18         (o)(15)  Refuse to provide adequate identification of

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

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

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

22  consumer debt;

23         (p)(16)  Mail any communication to a debtor in an

24  envelope or postcard with words typed, written, or printed on

25  the outside of the envelope or postcard indicating that the

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

27  otherwise calculated to embarrass the debtor.  An example of

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

29  "Deadbeat, John Doe";

30         (q)(17)  Communicate with the debtor between the hours

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

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

 2  known to be inconvenient for the debtor without the prior

 3  consent of the debtor;

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

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

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

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

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

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

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

11  the debtor initiates the communication; or

12         (s)(19)  Cause charges to be made to any debtor for

13  communications by concealment of the true purpose of the

14  communication, including collect telephone calls and telegram

15  fees.

16         (2)  Any debt collector communicating with any person

17  other than the consumer for the purpose of acquiring location

18  information about the consumer must:

19         (a)  Identify himself or herself, state that he or she

20  is confirming or correcting location information concerning

21  the consumer, and, only if expressly requested, identify his

22  or her employer;

23         (b)  Not state that such consumer owes a debt;

24         (c)  Not communicate with any such person more than

25  once unless requested to do so by such person or unless the

26  debt collector reasonably believes that the earlier response

27  of such person is erroneous or incomplete and that such person

28  now has correct or complete location information; and

29         (d)  Not communicate by postcard.

30         (3)  Without prior consent of the consumer given

31  directly to the debt collector or express permission of a

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 1  court of competent jurisdiction, a debt collector may not

 2  communicate with a consumer in connection with the collection

 3  of any debt at the consumer's place of employment if the debt

 4  collector knows or has reason to know that the consumer's

 5  employer prohibits the consumer from receiving such

 6  communication.

 7         (4)  Except as provided in subsection (2), without the

 8  prior consent of the consumer given directly to the debt

 9  collector, the express permission of a court of competent

10  jurisdiction, or as reasonably necessary to effectuate a

11  postjudgment remedy, a debt collector may not communicate, in

12  connection with the collection of any debt, with any person

13  other than a consumer, his or her attorney, a consumer

14  reporting agency if otherwise permitted by law, the creditor,

15  the attorney of the creditor, or the attorney of the debt

16  collector.

17         (5)  If a consumer notifies a debt collector in writing

18  that the consumer refuses to pay a debt or that the consumer

19  wishes the debt collector to cease further communication with

20  the consumer, the debt collector may not communicate further

21  with the consumer with respect to such debt, except:

22         (a)  To advise the consumer that the debt collector's

23  further efforts are being terminated;

24         (b)  To notify the consumer that the debt collector or

25  creditor may invoke specified remedies that are ordinarily

26  invoked by such debt collector or creditor; or

27         (c)  Where applicable, to notify the consumer that the

28  debt collector or creditor intends to invoke a specified

29  remedy.

30  

31  

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 1  If such notice from the consumer is made by mail, notification

 2  is complete upon receipt.

 3         (6)  As used in subsection (5), the term "consumer"

 4  includes the consumer's spouse, parent of a consumer who is a

 5  minor, guardian, executor, or administrator.

 6         (7)  A debt collector may not use any false, deceptive,

 7  or misleading representation or means in connection with the

 8  collection of any debt. Without limiting the general

 9  application of subsection (5), the following conduct is a

10  violation of this section:

11         (a)  The false representation of:

12         1.  The character, amount, or legal status of any debt;

13  or

14         2.  Any services rendered or compensation that may be

15  lawfully received by any debt collector for the collection of

16  a debt.

17         (b)  The representation or implication that nonpayment

18  of any debt will result in the arrest or imprisonment of any

19  person or the seizure, garnishment, attachment, or sale of any

20  property or wages of any person, unless such action is lawful

21  and the debt collector or creditor intends to take such

22  action.

23         (c)  The false representation or implication that a

24  sale, referral, or other transfer of any interest in a debt

25  shall cause the consumer to:

26         1.  Lose any claim or defense to payment of the debt;

27  or

28         2.  Become subject to any practice prohibited by this

29  section.

30  

31  

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 1         (d)  The false representation or implication that the

 2  consumer committed any crime or other conduct in order to

 3  disgrace the consumer.

 4         (e)  The use of any false representation or deceptive

 5  means to collect or attempt to collect any debt or to obtain

 6  information concerning a consumer.

 7         (f)  The failure to disclose in the initial

 8  communication that the debt collector is attempting to collect

 9  a debt and that any information obtained will be used for that

10  purpose, and the failure to disclose in subsequent

11  communications that the communication is from a debt

12  collector, except that this paragraph does not apply to a

13  formal pleading made in connection with a legal action.

14         (g)  The false representation or implication that

15  accounts have been turned over to innocent purchasers for

16  value.

17         (h)  The use of any business, company, or organization

18  name other than the true name of the debt collector's

19  business, company, or organization.

20         (i)  The false representation or implication that

21  documents are not legal process forms or do not require action

22  by the consumer.

23         (j)  The false representation or implication that a

24  debt collector operates or is employed by a consumer reporting

25  agency.

26         (8)  A debt collector may not use unfair or

27  unconscionable means to collect or attempt to collect any

28  debt. Without limiting the general application of this

29  subsection, the following conduct is a violation of this

30  section:

31  

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 1         (a)  The collection of any amount, including any

 2  interest, fee, charge, or expense incidental to the principal

 3  obligation, unless such amount is expressly authorized by the

 4  agreement creating the debt or permitted by law.

 5         (b)  The acceptance by a debt collector from any person

 6  of a check or other payment instrument postdated by more than

 7  5 days unless such person is notified in writing of the debt

 8  collector's intent to deposit such check or instrument not

 9  more than 10 or less than 3 business days before such deposit.

10         (c)  The solicitation by a debt collector of any

11  postdated check or postdated payment instrument for the

12  purpose of threatening or instituting criminal prosecution.

13         (d)  Depositing or threatening to deposit any postdated

14  check or other postdated payment instrument before the date on

15  such check or instrument.

16         (e)  Taking or threatening to take any nonjudicial

17  action to effect dispossession or disablement of property if:

18         1.  There is no present right to possession of the

19  property claimed as collateral through an enforceable security

20  interest;

21         2.  There is no present intention to take possession of

22  the property; or

23         3.  The property is exempt by law from such

24  dispossession or disablement.

25         (f)  Communicating with a consumer regarding a debt by

26  postcard.

27         (9)  Within 5 days after the initial communication with

28  a consumer in connection with the collection of any debt, a

29  debt collector shall, unless the following information is

30  contained in the initial communication or the consumer has

31  paid the debt, send the consumer a written notice containing:

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 1         (a)  The amount of the debt;

 2         (b)  The name of the creditor to whom the debt is owed;

 3         (c)  A statement that unless the consumer, within 30

 4  days after receipt of the notice, disputes the validity of the

 5  debt, or any portion thereof, the debt will be assumed to be

 6  valid by the debt collector;

 7         (d)  A statement that if the consumer notifies the debt

 8  collector in writing within the 30-day period that the debt,

 9  or any portion thereof, is disputed, the debt collector will

10  obtain verification of the debt or a copy of the judgment

11  against the consumer and a copy of such verification or

12  judgment will be mailed to the consumer by the debt collector;

13  and

14         (e)  A statement that, upon the consumer's written

15  request within the 30-day period, the debt collector will

16  provide the consumer with the name and address of the original

17  creditor, if different from the current creditor.

18         (10)  If the consumer notifies the debt collector in

19  writing within the 30-day period described in paragraph (9)(c)

20  that the debt, or any portion thereof, is disputed, or that

21  the consumer requests the name and address of the original

22  creditor, the debt collector shall cease collection of the

23  debt, or any disputed portion thereof, until the debt

24  collector obtains verification of the debt or any copy of a

25  judgment, or the name and address of the original creditor,

26  and a copy of such verification or judgment, or name and

27  address of the original creditor, is mailed to the consumer by

28  the debt collector.

29         (11)  The failure of a consumer to dispute the validity

30  of a debt under this section may not be construed by any court

31  as an admission of liability by the consumer.

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 1         (12)  If any consumer owes multiple debts and makes any

 2  single payment to any debt collector with respect to such

 3  debts, such debt collector may not apply such payment to any

 4  debt that is disputed by the consumer and, if applicable,

 5  shall apply such payment in accordance with the consumer's

 6  directions.

 7         (13)  Any debt collector who brings any legal action on

 8  a debt against any consumer shall:

 9         (a)  In the case of an action to enforce an interest in

10  real property securing the consumer's obligation, bring such

11  action only in a judicial district or similar legal entity in

12  which the real property is located; or

13         (b)  In the case of an action not described in

14  paragraph (a), bring such action only in the judicial district

15  or similar legal entity:

16         1.  In which such consumer signed the contract sued

17  upon; or

18         2.  In which such consumer resides at the commencement

19  of the action.

20  

21  This subsection does not authorize the bringing of legal

22  actions by debt collectors.

23         (14)  A person may not design, compile, and furnish any

24  form knowing that such form would be used to create the false

25  belief in a consumer that a person other than the creditor of

26  such consumer is participating in the collection of, or in an

27  attempt to collect, a debt such consumer allegedly owes such

28  creditor, when in fact such person is not so participating.

29         Section 17.  Section 559.725, Florida Statutes, is

30  amended to read:

31         559.725  Consumer complaints; administrative duties.--

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

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

 3  or the Division of Consumer Services of the Department of

 4  Financial Services setting forth the details of the alleged

 5  violation shall serve as the registry for receiving and

 6  maintaining records of inquiries, correspondence, and

 7  complaints from consumers concerning any and all persons who

 8  collect debts, including consumer collection agencies.

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

10  identify the number of written complaints against persons

11  collecting or attempting to collect debts in this state,

12  including credit grantors collecting their own debts, debt

13  collectors generally, and, specifically, consumer collection

14  agencies as distinguished from other persons who collect debts

15  such as commercial debt collection agencies regulated under

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

17  and number of various kinds of written complaints, including

18  specifically those alleging violations of s. 559.72.

19         (3)  The division shall inform and furnish relevant

20  information to the appropriate regulatory body of the state,

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

22  debt collector exempt from registration under this part has

23  been named in five or more written consumer complaints

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

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

26  complainant whose complaint concerns an alleged violation of

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

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

29  consumer collection agency and provide for the complainant's

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

31  allegedly support the complaint.  The form shall include a

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 1  provision for the complainant to state under oath before a

 2  notary public that the allegations therein made are true.

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

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

 5  accused consumer collection agency.

 6         (6)  The office shall investigate sworn complaints by

 7  direct written communication with the complainant and the

 8  affected consumer collection agency. In addition, the office

 9  shall attempt to resolve each sworn complaint and shall record

10  the resolution of such complaints.

11         (7)  Periodically, the office shall identify consumer

12  collection agencies that have unresolved sworn consumer

13  complaints from five or more different consumers within a

14  12-month period under the provisions of this part.

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

16  the accused consumer collection agency if the office is unable

17  to resolve all such sworn complaints and fewer than five

18  unresolved complaints remain. Such notice shall include a

19  statement that the warning may constitute evidence in any

20  future investigation of similar complaints against that agency

21  and in any future administrative determination of the

22  imposition of other administrative remedies available to the

23  office under this part.

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

25  or more such unresolved sworn complaints against a consumer

26  collection agency collectively fall short of constituting

27  apparent repeated violations that warrant more serious

28  administrative sanctions. Such reprimand shall include a

29  statement that the reprimand may constitute evidence in any

30  future investigation of similar complaints against that agency

31  and in any future administrative determination of the

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 1  imposition of other administrative remedies available to the

 2  office.

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

 4  to revoke or suspend the registration or to impose an

 5  administrative fine when the office preliminarily determines

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

 7  have occurred which would warrant more serious administrative

 8  sanctions being imposed under this part.  The office shall

 9  advise each registrant of the right to require an

10  administrative hearing under chapter 120, prior to the

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

12  559.730.

13         (2)(11)  Any governmental office or agency receiving a

14  complaint under this section The office shall advise any other

15  governmental office or agency having apparent jurisdiction,

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

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

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

19  violation of the requirements of this part by any consumer

20  collection agency, whether or which is not registered or

21  exempt from registration as required by this part. The office

22  shall furnish the state attorney or Attorney General with the

23  office's information concerning the alleged violations of such

24  requirements.

25         Section 18.  Section 559.726, Florida Statutes, is

26  created to read:

27         559.726  Powers and duties of the Office of Financial

28  Regulation.--

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

30  office, except when enforcement is specifically committed to

31  another agency.

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 1         (2)  The office may conduct an investigation or

 2  examination of any person, within or outside this state, which

 3  it believes is necessary in order to determine whether a

 4  person has violated this chapter or the rules adopted by the

 5  commission. The office shall provide at least 15 days' advance

 6  notice of any examination or investigation of a consumer

 7  collection agency. However, if the office suspects that the

 8  consumer collection agency has violated any provision of this

 9  part or any criminal laws of this state or of the United

10  States or is engaging in an unsafe and unsound practice, the

11  office may, at any time without advance notice, conduct an

12  examination or investigation of all affairs, activities,

13  transactions, accounts, business records, and assets of any

14  consumer collection agency for the protection of the public.

15         (3)  The commission may adopt rules under ss.

16  120.536(1) and 120.54 to administer this part.

17         (4)  The commission may adopt a rule to require

18  electronic submission of any form, document, or fee required

19  by this part if the rule reasonably accommodates a person

20  having a technological or financial hardship. The commission

21  may adopt a rule setting forth the criteria and procedures for

22  obtaining an exemption due to a technological or financial

23  hardship. The commission may adopt a rule to accept

24  certification of compliance with the requirements of this part

25  in lieu of requiring submission of specified documents.

26         (5)  All fees, charges, and fines collected by the

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

28  Regulatory Trust Fund of the office.

29         (6)  The office may:

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

31  subpoenas to compel the attendance of witnesses and subpoenas

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

 2  records, and other documents and materials relevant to an

 3  examination or investigation. The office may exercise these

 4  powers even if the subject of the investigation or examination

 5  is exempt from registration.

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

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

 8  depositions.

 9         (7)(a)  In the event of noncompliance with a subpoena

10  or subpoena duces tecum that the office has issued or caused

11  to be issued, the office may petition a court of competent

12  jurisdiction in the county where the person subpoenaed resides

13  or has her, his, or its principal place of business for an

14  order requiring the person to appear and testify and to

15  produce the books, accounts, records, and other documents that

16  are specified in the subpoena duces tecum.

17         (b)  A copy of the petition shall be served upon the

18  person subpoenaed by any person authorized by this section to

19  serve subpoenas, who shall make and file with the court an

20  affidavit showing the time, place, and date of service.

21         (c)  At a hearing on the petition to enforce compliance

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

23  interest will be substantially affected by the investigation,

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

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

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

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

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

29  annoyance, embarrassment, oppression, undue burden, or

30  expense.

31  

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 1         (d)  Failure to comply with an order granting, in whole

 2  or in part, a petition to enforce a subpoena is a contempt of

 3  court.

 4         (8)  Witnesses are entitled to the same fees and

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

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

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

 8  principal office or residence.

 9         (9)  Reasonable and necessary costs incurred by the

10  office during an investigation may be assessed against any

11  debt collector on the basis of actual costs incurred. Assessed

12  expenses may include, but are not limited to, expenses for

13  interpreters; expenses for communications; expenses for legal

14  representation; expenses for economic, legal, or other

15  research or analysis and testimony; and fees and expenses for

16  witnesses. The failure to reimburse the office for its

17  reasonable and necessary costs is a reason to deny a

18  registrant's application or to revoke the prior approval of an

19  application.

20         Section 19.  Section 559.7262, Florida Statutes, is

21  created to read:

22         559.7262  Injunction to restrain violations;

23  receivers.--

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

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

26  violate, this part or any rule of the commission or order of

27  the office issued under this part.

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

29  subpoena requiring the attendance of any witness or a subpoena

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

31  

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 1  record, or other documents and materials relevant to the

 2  pending case.

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

 4  for enforcing a temporary restraining order or a temporary or

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

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

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

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

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

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

11  conferred upon the receiver by the court.

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

13  an order staying all pending suits and enjoining any further

14  litigation affecting the receiver's custody or possession of

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

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

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

18  receiver.

19         Section 20.  Section 559.7263, Florida Statutes, is

20  created to read:

21         559.7263  Cease and desist orders; refund orders.--

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

23  order to cease and desist and to take corrective action

24  whenever the office has reason to believe that a person is

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

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

27  written agreement between the person and the office.

28  Procedural matters relating to the issuance and enforcement of

29  a cease and desist order are governed by chapter 120.

30         (2)  The office may seek an order of restitution from a

31  court of competent jurisdiction for collected funds due to

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 1  creditors or any sum collected from a debtor without valid

 2  proof of debt.

 3         Section 21.  Section 559.7264, Florida Statutes, is

 4  created to read:

 5         559.7264  Evidence; examiner's worksheets,

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

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

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

 9  drafted, or otherwise made by the financial examiner is

10  admissible into evidence if the financial examiner is

11  available for cross-examination; authenticates the worksheet;

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

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

14  records of a registrant or other person conducted under the

15  authority of this part.

16         Section 22.  Section 559.7265, Florida Statutes, is

17  created to read:

18         559.7265  Books, accounts, and records; maintenance;

19  examinations by the office.--

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

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

22  accounts, records, and documents necessary to determine the

23  registrant's compliance with this part.

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

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

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

27  and available at a reasonable and convenient location in this

28  state.

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

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

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

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 1  preserved and kept available for examination by the office for

 2  3 years after the date of original entry. The commission shall

 3  adopt requirements by rule for maintaining the books,

 4  accounts, records, and documents retained by the registrant

 5  and for destroying the records.

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

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

 8  accounts, records, and documents to enable the office to

 9  determine a registrant's compliance with this part.

10         Section 23.  Section 559.730, Florida Statutes, is

11  amended to read:

12         (Substantial rewording of section. See

13         s. 559.730, F.S., for present text.)

14         559.730  Administrative remedies.--

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

16  of a registrant under this part who:

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

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

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

20  moral turpitude;

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

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

23  embezzlement, misrepresentation, or deceit;

24         (c)  Has had any business, professional, or

25  occupational license or registration suspended, revoked, or

26  otherwise acted against in any jurisdiction;

27         (d)  Fails to maintain the surety bond required

28  pursuant to s. 559.556;

29         (e)  Fails to maintain books and records as required by

30  s. 559.7265;

31  

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 1         (f)  Violates any provision of this part, any rule or

 2  order adopted pursuant to this part, or any written agreement

 3  entered into with the office;

 4         (g)  Has paid for a registration with a check or

 5  electronic transmission of funds which failed to clear the

 6  registrant's financial institution;

 7         (h)  Has falsified or willfully omitted any material

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

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

10  commission;

11         (i)  Has made a material false statement of fact in an

12  application for registration or in response to any request or

13  investigation by the office; or

14         (j)  Has a person who directly or indirectly controls

15  the applicant, as defined in s. 559.555(4), who is subject to

16  an action, or commits an act, contemplated by paragraph (a),

17  paragraph (b), paragraph (c), paragraph (f), paragraph (h), or

18  paragraph (i).

19         (2)  A registrant may request termination of its

20  registration by delivering written notice of its proposed

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

22  termination notice does not affect any civil or criminal

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

24  enforce this part.

25         (3)  The office may deny a request to terminate a

26  registration or to withdraw an application for registration if

27  the office believes that the registrant has committed an act

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

29  under this part.

30         (4)  Final action by the office to revoke or suspend

31  the registration of a registrant is subject to review

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

 2  license.

 3         (5)  The office may impose an administrative fine of up

 4  to $1,000 per violation of this section, s. 559.555, s.

 5  559.556, s. 559.72, or s. 559.7265. Final action by the office

 6  to impose an administrative fine is subject to review in

 7  accordance with ss. 120.569 and 120.57.

 8         (6)  Notwithstanding any other provision of this

 9  section, the office may impose a fine not to exceed $1,000 per

10  day for each day that a person violates this part by engaging

11  in the business of a consumer collection agency without being

12  registered.

13         (7)  Any administrative fine imposed under this part

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

15  appropriate record and deposit the fine into the Regulatory

16  Trust Fund of the office.

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

18  revocation, suspension, or a fine must be brought within 5

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

20  action is founded.

21         (9)  The remedies under this part are in addition to

22  remedies otherwise available for the same conduct under state

23  or local law.

24         Section 24.  Section 559.735, Florida Statutes, is

25  created to read:

26         559.735  Administrative guidelines.--In imposing any

27  administrative remedy or penalty provided for in this part,

28  the office shall take into account the appropriateness of the

29  penalty with respect to the size of the financial resources

30  and the good faith of the person charged, the gravity of the

31  

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 1  violation, the history of previous violations, and such other

 2  matters as justice requires.

 3         Section 25.  Subsections (1) and (5) of section 559.77,

 4  Florida Statutes, are amended to read:

 5         559.77  Civil remedies.--

 6         (1)  A debtor may bring a civil action against a person

 7  violating the provisions of s. 559.72(1) s. 559.72 in a court

 8  of competent jurisdiction of the county in which the alleged

 9  violator resides or has his or her principal place of business

10  or in the county wherein the alleged violation occurred.

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

12  consideration and great weight shall be given to the

13  interpretations of the Federal Trade Commission and the

14  federal courts relating to the federal Fair Debt Collection

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

16  is an inconsistency between this part and an interpretation of

17  the federal acts, the provision that is more protective of the

18  consumer or debtor shall prevail.

19         Section 26.  Section 559.785, Florida Statutes, is

20  amended to read:

21         559.785  Criminal penalty.--

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

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

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

25  registering as provided in this part to:

26         (a)  Operate or solicit business as a consumer

27  collection agency engage in collecting consumer debts in this

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

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

30  misrepresentation, or concealment;.

31  

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 1         (c)  Engage in any consumer debt collection activity

 2  after suspension or revocation of the registrant's

 3  registration under s. 559.730(1); or

 4         (d)  Engage in any consumer debt collection activity

 5  while under a temporary or permanent injunction issued under

 6  s. 559.78.

 7         (2)  Each of the following acts constitutes a

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

 9  775.082 or s. 775.083:

10         (a)  Relocating a business as a consumer collection

11  agency or operating under any name other than that designated

12  in the registration, unless written notification is given to

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

14         (b)  Assigning or attempting to assign a registration

15  under this part.

16         (3)  The office may refer evidence concerning a

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

18  criminal prosecuting agency that may, with or without the

19  reference and in addition to any other action it might

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

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

22  practice.

23         Section 27.  Sections 559.547, 559.563, and 559.565,

24  Florida Statutes, are repealed.

25         Section 28.  Annual report.--The Office of Financial

26  Regulation of the Financial Services Commission shall submit a

27  report on January 1, 2006, and biennially thereafter, to the

28  President of the Senate and the Speaker of the House of

29  Representatives containing findings and conclusions concerning

30  the effectiveness of the consumer and commercial collection

31  practices acts in preventing fraud, abuse, and other unlawful

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 1  activity associated with the collection of commercial and

 2  consumer debts. The report must include a summary of the type

 3  and number of complaints received by the Office of Financial

 4  Regulation or the Division of Consumer Services of the

 5  Department of Financial Services. The summary must identify

 6  the nature and number of the various kinds of complaints

 7  received. The report may also contain legislative

 8  recommendations concerning the efficacy of the consumer and

 9  commercial practice acts.

10         Section 29.  For the 2004-2005 fiscal year, six

11  positions are authorized and the sum of $428,588 is

12  appropriated from the Regulatory Trust Fund to the Office of

13  Financial Regulation for the purpose of enforcing this act.

14  The six positions consist of five examiners and one

15  registration analyst.

16         Section 30.  This act shall take effect July 1, 2005.

17  

18            *****************************************

19                          SENATE SUMMARY

20    Revises parts V and VI of ch. 559, F.S., the Florida
      Commercial Collection Practices Act and the Florida
21    Consumer Collection Practices Act. Requires that the
      Financial Services Commission adopt rules for the
22    electronic submission of fees and documents. Revises bond
      requirements. Provides additional regulatory authority to
23    the Office of Financial Regulation. Provides additional
      requirements for registrants in maintaining books and
24    other records. Provides for additional administrative
      remedies. Increases the penalties imposed for violations
25    of law governing collection practices. Requires that the
      Office of Financial Regulation submit a biennial report
26    to the Legislature. (See bill for details.)

27  

28  

29  

30  

31  

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