Senate Bill sb1984c1

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    Florida Senate - 2005                           CS for SB 1984

    By the Committee on Banking and Insurance; and Senator Crist





    597-2156-05

  1                      A bill to be entitled

  2         An act relating to commercial and consumer

  3         collection practices; amending s. 559.543,

  4         F.S.; providing a definition; amending s.

  5         559.544, F.S.; deleting provisions requiring

  6         registration as a commercial collection agency;

  7         specifying nonapplication of certain

  8         registration requirements to certain persons or

  9         entities; amending s. 559.545, F.S.; revising

10         requirements and procedures for application for

11         registration as a commercial collection agency;

12         authorizing the Financial Services Commission

13         to adopt rules; providing for fees; providing

14         for amendments to and changes in registrations;

15         authorizing the Office of Financial Regulation

16         to deny registrations under certain

17         circumstances; amending s. 559.546, F.S.;

18         providing requirements and procedures for

19         issuance of a corporate surety bond; creating

20         ss. 559.5471, 559.5473, 559.5474, 559.5475,

21         559.5476, 559.5477, and 559.5479, F.S.;

22         specifying powers and duties of the Office of

23         Financial Regulation; providing procedures;

24         providing for disposition of fees; authorizing

25         the office to adopt rules; authorizing the

26         office to issue subpoenas; providing

27         requirements, procedures, and limitations;

28         authorizing the office to assess certain

29         investigation costs and expenses; authorizing

30         the office to bring certain actions for

31         injunctions to restrain certain violations;

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 1         providing requirements and procedures;

 2         authorizing the office to issue certain cease

 3         and desist orders and take certain corrective

 4         actions for certain violations; authorizing the

 5         office to seek orders of restitution of certain

 6         funds; providing for admissibility of certain

 7         documents and materials of the office as

 8         evidence; requiring registrants to maintain

 9         certain records; providing requirements and

10         procedures for maintaining such records;

11         authorizing the office to adopt rules;

12         authorizing the office to revoke or suspend

13         registrations for certain activities by a

14         registrant; providing requirements and

15         procedures for termination of a registration;

16         authorizing the office to impose administrative

17         fines; providing requirements and limitations;

18         providing guidelines for imposing

19         administrative remedies or penalties; providing

20         administrative guidelines for administrative

21         penalties and remedies; amending s. 559.55,

22         F.S.; revising definitions; providing

23         additional definitions; amending s. 559.552,

24         F.S.; revising provisions specifying the

25         relationship of state and federal laws;

26         providing construction; amending s. 559.553,

27         F.S.; deleting provisions requiring

28         registration as a consumer collection agency;

29         specifying nonapplication of certain

30         registration requirements to certain persons or

31         entities; providing a definition; amending s.

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 1         559.555, F.S.; revising requirements and

 2         procedures for application for registration as

 3         a consumer collection agency; authorizing the

 4         Financial Services Commission to adopt rules;

 5         providing for fees; providing for amendments to

 6         and changes in registrations; authorizing the

 7         Office of Financial Regulation to deny

 8         registrations under certain circumstances;

 9         creating s. 559.556, F.S.; providing

10         requirements and procedures for issuance of a

11         corporate surety bond; amending s. 559.72,

12         F.S.; specifying prohibited activities in

13         collecting consumer debts; providing

14         requirements for debt collectors communicating

15         with certain persons; providing prohibitions

16         and limitations; providing notification

17         requirements; prohibiting false, deceptive or

18         misleading representations by a debt collector;

19         prohibiting unfair or unconscionable means of

20         collecting debts; requiring debt collectors to

21         provide certain notice to consumers in

22         connection with collecting a debt; specifying

23         required information; providing procedures and

24         requirements for disputing a debt; providing

25         procedures and requirements for payments on

26         multiple debts; providing requirements for debt

27         collectors bringing legal actions on a debt;

28         prohibiting designing, compiling, and

29         furnishing certain misleading forms; providing

30         for liability for certain violations; amending

31         s. 559.725, F.S.; revising provisions providing

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 1         requirements and procedures for consumer

 2         complaints; creating ss. 559.726, 559.7262,

 3         559.7263, 559.7264, and 559.7265, F.S.;

 4         specifying powers and duties of the Office of

 5         Financial Regulation; providing procedures;

 6         providing for disposition of fees; authorizing

 7         the office to adopt rules; authorizing the

 8         office to issue subpoenas; providing

 9         requirements, procedures, and limitations;

10         authorizing the office to assess certain

11         investigation costs and expenses; authorizing

12         the office to bring certain actions for

13         injunctions to restrain certain violations;

14         providing requirements and procedures;

15         authorizing the office to issue certain cease

16         and desist orders and take certain corrective

17         actions for certain violations; authorizing the

18         office to seek orders of restitution of certain

19         funds; providing for admissibility of certain

20         documents and materials of the office as

21         evidence; requiring registrants to maintain

22         certain records; providing requirements and

23         procedures for maintaining such records;

24         authorizing the office to adopt rules; amending

25         s. 559.730, F.S.; authorizing the office to

26         revoke or suspend registrations for certain

27         activities by a registrant; providing

28         requirements and procedures for termination of

29         a registration; authorizing the office to

30         impose administrative fines; providing

31         requirements and limitations; creating s.

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 1         559.735, F.S.; providing guidelines for

 2         imposing administrative remedies or penalties;

 3         amending s. 559.77, F.S.; specifying

 4         application of certain provisions of law;

 5         providing for priority of application; amending

 6         s. 559.785, F.S.; increasing criminal penalties

 7         for certain activities; specifying a criminal

 8         penalty for certain activities; authorizing the

 9         office to refer certain evidence to certain

10         agencies for certain purposes; creating s.

11         559.786, F.S.; requiring the office to submit

12         an annual report; specifying contents;

13         repealing ss. 559.547 and 559.563, F.S.,

14         relating to void registrations; repealing s.

15         559.565, F.S., relating to enforcement actions

16         against out-of-state consumer debt collectors;

17         providing an appropriation; providing an

18         effective date.

19  

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

21  

22         Section 1.  Subsection (7) is added to section 559.543,

23  Florida Statutes, to read:

24         559.543  Definitions.--As used in this part:

25         (7)  "Debtor" or "consumer" means any natural person

26  obligated or allegedly obligated to pay any debt.

27         Section 2.  Section 559.544, Florida Statutes, is

28  amended to read:

29         559.544  Registration required; Exemptions.--

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

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

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 1  continue to do business in this state as a commercial

 2  collection agency, without first registering in accordance

 3  with this part and thereafter maintaining such registration.

 4         (2)  Each commercial collection agency doing business

 5  in this state shall register with the office and annually

 6  renew such registration, providing the registration fee,

 7  information, and surety bond required by this part.

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

 9  collection agency transacting business at any place other than

10  that designated in the registration unless the office is first

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

12  under this part is not transferable or assignable. Any

13  commercial collection agency desiring to change its registered

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

15  other than renewal of registration shall notify the office of

16  such change prior to the change.

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

18  any commercial collection agency as validly made and filed

19  with the office under this section unless the registration

20  information furnished to the office by the registrant is

21  complete pursuant to s. 559.545 and facially demonstrates that

22  such registrant is qualified to engage in business as a

23  commercial collection agency, including specifically that

24  neither the registrant nor any principal of the registrant has

25  engaged in any unlawful collection practices, dishonest

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

27  reflect an inability to engage in the commercial collection

28  agency business. The office shall inform any person whose

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

30  basis for such rejection. A prospective registrant shall be

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

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 1  information is complete on its face, the applicable

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

 3  current bond is furnished to the office.

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

 5  This section shall not apply to:

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

 7  person is primarily engaged in the collection of commercial

 8  claims. "Primarily engaged in the collection of commercial

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

10  of such person arises from the business of soliciting

11  commercial claims for collection or collecting commercial

12  claims.

13         (2)(b)  A financial institution authorized to do

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

15  an and affiliate thereof.

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

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

18  business in this state.

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

20  which is not primarily engaged in the collection of commercial

21  claims. "Not primarily engaged in the collection of commercial

22  claims" means that less than one-half of the collection

23  revenue of the such agency arises from the collection of

24  commercial claims.

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

26  owned subsidiary or an and affiliate thereof.

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

28         (8)(h)  A credit grantor.

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

30  part.

31  

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

 2  affiliate thereof.

 3         Section 3.  Section 559.545, Florida Statutes, is

 4  amended to read:

 5         (Substantial rewording of section. See

 6         s. 559.545, Florida Statutes, for current text.)

 7         559.545  Registration of commercial collection

 8  agencies; procedure.--

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

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

11  continue to do business in this state as a commercial

12  collection agency, unless the person is registered with the

13  office according to this part and thereafter maintains the

14  registration.

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

16  collection agency transacting business at any place other than

17  the place designated in the registration unless the office is

18  first notified in advance of any change of location.

19         (3)  Any person who applies for registration as a

20  commercial collection agency in compliance with this part

21  shall do so on forms adopted by the commission and furnished

22  by the office. The commission may establish by rule procedures

23  for depositing fees and filing documents by electronic means

24  provided such procedures provide the office with the

25  information required by this section. The commission or office

26  may require each applicant for a commercial collection agency

27  registration to provide:

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

29  $650. All amounts collected shall be deposited to the credit

30  of the Regulatory Trust Fund of the office.

31  

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

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

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

 4  this state.

 5         (c)  The applicant's form and place of organization

 6  and, if the applicant is a corporation, a copy of the articles

 7  of incorporation and amendments to such articles, if a

 8  partnership, a copy of the partnership agreement or, if

 9  limited liability company, a copy of the articles of

10  organization.

11         (d)  Documents demonstrating that the bonding

12  requirements specified in s. 559.546 have been satisfied.

13         (e)  Information and documentation necessary to make a

14  determination of the applicant's eligibility for registration.

15         (4)  The applicant shall also provide information as

16  the office may require about any partner, officer, or director

17  of the applicant, any person having the same or substantially

18  similar status or performing substantially similar functions,

19  or any person directly or indirectly controlling the

20  applicant. For purposes of this section, the term "directly or

21  indirectly controlling the applicant" means possessing the

22  power to direct or to cause the direction of the management or

23  policies of a company, whether through ownership of stock or

24  securities, by contract, or otherwise. Any individual or

25  company that directly or indirectly has the right to vote 25

26  percent or more of the voting stock or securities of a company

27  or is entitled to 25 percent or more of its profits is

28  presumed to control that company. The office may require

29  information about any such applicant or person, including:

30  

31  

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

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

 3  the federal identification number of any corporate owner.

 4         (b)  His or her previous 10 year educational or

 5  employment history.

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

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

 8  any court of competent jurisdiction or an administrative order

 9  by an administrative law judge, or by any state or federal

10  agency or any business, professional, or occupational

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

12  regulation relating to any business or professional licensing.

13         (d)  Whether he or she committed any acts which would

14  be grounds for denial of an application under s. 559.545(10).

15         (5)  An initial application is deemed received for

16  purposes of s. 120.60 upon receipt of the completed

17  application form prescribed by commission rule, the

18  nonrefundable application fee of $650, and any other fee

19  prescribed by law.

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

21  and payment of all applicable fees, the office shall

22  investigate the applicant. If the office determines that

23  registration should be granted, the office shall register the

24  applicant for a period not to exceed 1 year.

25         (7)  The registration of each commercial collection

26  agency expires on December 31 of the year in which the

27  registration became effective unless the registrant has

28  renewed its registration on or before that date. Registration

29  may be renewed as the commission may require by rule, together

30  with payment of the $500 nonrefundable renewal fee and the

31  payment of any amount lawfully due and owing to the office

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 1  pursuant to any order of the office or pursuant to any

 2  agreement with the office. A commercial collection agency that

 3  has not renewed its registration by the time the registration

 4  period expires may request reactivation of its registration.

 5  The registrant shall file its request with the office on or

 6  before January 31 of the year following the year of

 7  expiration. The request must contain any information the

 8  office requires, together with the registration fee required

 9  in this section, and a nonrefundable reactivation fee in the

10  amount of $250. Any reactivation of registration granted by

11  the office during the month of January is deemed effective

12  retroactive to January 1 of that year. Any registrant that

13  engages in business as a commercial collection agency after

14  its registration has expired violates subsection (1),

15  punishable as provided by ss. 559.548(1) and 559.5477(6).

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

17  any amendment to such application has changed, the registrant

18  shall file an amendment on the forms prescribed by the

19  commission correcting such information within 30 days after

20  the change.

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

22  or assignable unless accomplished pursuant to this subsection.

23         (a)  Changes in registration occasioned by changes in

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

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

26  material fact shall be reported by written amendment in such

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

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

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

30  proposes to purchase or acquire a controlling interest in a

31  registrant, such person or group shall submit an initial

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 1  application for registration as a commercial collection agency

 2  prior to such purchase or acquisition at such time and in such

 3  form as the commission may prescribe by rule.

 4         (b)  The commission shall adopt rules providing for

 5  waiver of the application required by this subsection when

 6  control of a registrant is to be acquired by another

 7  registrant under this chapter or when the application is

 8  otherwise unnecessary in the public interest.

 9         (10)  The office may deny registration if the

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

11  having control of the applicant:

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

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

14  or governmental enforcement action, in any jurisdiction, until

15  the conclusion of such criminal prosecution or enforcement

16  action;

17         (c)  Is currently subject to a pending enforcement

18  action by any federal authority for violations of the federal

19  Fair Debt Collection Practices Act or the Federal Trade

20  Commission Act;

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

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

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

24  moral turpitude;

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

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

27  guilty to, any felony;

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

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

30  controlling person in the business or controlled the business,

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

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 1  judgment or order, including a stipulated judgment or order,

 2  an assurance of voluntary compliance, or any similar document,

 3  in any civil or administrative action involving racketeering,

 4  fraud, theft, embezzlement, fraudulent conversion, or

 5  misappropriation of property or the use of any untrue,

 6  deceptive, or misleading representation in an attempt to sell

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

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

 9  there is any litigation pending against the applicant;

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

11  controlling person in the business, or controlled the

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

13  to any injunction; temporary restraining order, including a

14  stipulated judgment or order, an assurance of voluntary

15  compliance, or any similar document; or any restrictive court

16  order relating to business activity as the result of any

17  action brought by a governmental agency, including any action

18  affecting any license to do business or practice an occupation

19  or trade;

20         (h)  Falsified or willfully omitted any material

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

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

23  commission;

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

25  application for registration or in response to any request or

26  investigation by the office; or

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

28  finding, injunction, suspension, prohibition, revocation,

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

30  an administrative order by an administrative law judge, any

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

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 1  occupational association involving a violation of any law,

 2  rule, or regulation relating to business or professional

 3  licensing.

 4         Section 4.  Section 559.546, Florida Statutes, is

 5  amended to read:

 6         (Substantial rewording of section. See

 7         s. 559.546, Florida Statutes, for current text.)

 8         559.546  Surety bond; evidence of current and valid

 9  bond.--Pursuant to s. 559.545, the registrant shall provide to

10  the office evidence that the registrant has been issued a

11  current and valid surety bond as required by this part.

12         (1)  Before the office may issue a registration, the

13  applicant must provide to the office a corporate surety bond

14  issued by a bonding company or insurance company authorized to

15  do business in this state.

16         (2)  The corporate surety bond shall be in the amount

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

18  grantor against the registrant to secure the faithful

19  performance of the obligations of the registrant with respect

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

21  the registrant.

22         (3)  If multiple claims are filed against the surety on

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

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

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

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

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

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

29  the surety.

30         (4)  A corporate surety bond filed with the office for

31  purposes of compliance with this section may not be canceled

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 1  by the registrant or the corporate surety except upon written

 2  notice to the office by registered or certified mail with

 3  return receipt requested. A cancellation shall not take effect

 4  fewer than 30 days after receipt by the office of such written

 5  notice.

 6         (5)  The corporate surety must, within 10 days after

 7  the surety pays any claim to any claimant, give written notice

 8  to the office by registered or certified mail of such payment

 9  with details sufficient to identify the claimant and the claim

10  or judgment so paid.

11         (6)  Whenever the principal sum of such bond is reduced

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

13  furnish a new or additional bond so the total or aggregate

14  principal sum of such bonds equals the sum required by this

15  section. Alternatively, a registrant may furnish an

16  endorsement executed by the corporate surety reinstating the

17  bond to the required principal sum.

18         Section 5.  Sections 559.5471, 559.5473, 559.5474,

19  559.5475, 559.5476, 559.5477, and 559.5479, Florida Statutes,

20  are created to read:

21         559.5471  Powers and duties of the Office of Financial

22  Regulation.--

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

24  office, except when enforcement is specifically committed to

25  another agency.

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

27  person, within or outside this state, which the office

28  believes is necessary in order to determine whether a person

29  has violated this chapter or the rules adopted by the

30  commission. The office may commence any such investigation

31  when the office receives information from a complaint, the

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 1  public media, an informant, or any other source that informs

 2  the office that a violation of this chapter has occurred or

 3  may occur.

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

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

 6         (4)  The commission may adopt a rule to:

 7         (a)  Require electronic submission of any form,

 8  document, or fee required by this part, provided the rule

 9  reasonably accommodates a person with a technological or

10  financial hardship.

11         (b)  Set forth the criteria and procedures for

12  obtaining an exemption due to a technological or financial

13  hardship.

14         (c)  Accept certification of compliance with the

15  requirements of this part in lieu of requiring submission of

16  specified documents.

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

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

19  Regulatory Trust Fund of the office.

20         (6)  The office may:

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

22  subpoenas to compel the attendance of witnesses and subpoenas

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

24  records, and other documents and materials relevant to an

25  investigation. The office may exercise these powers even if

26  the subject of the investigation is exempt from registration.

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

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

29  depositions.

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

31  or subpoena duces tecum the office issued or caused to be

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 1  issued, the office may petition a court of competent

 2  jurisdiction in the county in which the person subpoenaed

 3  resides or has her, his, or its principal place of business

 4  for an order requiring the person to appear and testify and to

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

 6  are specified in the subpoena duces tecum.

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

 8  person subpoenaed by any person authorized by this section to

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

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

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

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

13  interest will be substantially affected by the investigation

14  or subpoena, may appear and object to the subpoena and the

15  granting of the petition. The court may make any order that

16  justice requires in order to protect a party or other person

17  and her or his personal and property rights, including, but

18  not limited to, protection from annoyance, embarrassment,

19  oppression, undue burden, or expense.

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

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

22  the court.

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

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

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

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

27  principal office or residence.

28         (9)  Reasonable and necessary costs incurred by the

29  office during an investigation may be assessed against any

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

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

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 1  interpreters; expenses for communications; expenses for legal

 2  representation; expenses for economic, legal, or other

 3  research, analysis, and testimony; and fees and expenses for

 4  witnesses. The failure to reimburse the office for its

 5  reasonable and necessary costs is a reason to deny a

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

 7  application.

 8         559.5473  Injunction to restrain violations;

 9  receivers.--

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

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

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

13  of the office issued under this part.

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

15  subpoena requiring the attendance of any witness or a subpoena

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

17  record, or other documents and materials relevant to the

18  pending case.

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

20  for enforcing a temporary restraining order or a temporary or

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

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

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

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

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

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

27  conferred upon the receiver by the court.

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

29  an order staying all pending suits and enjoining any further

30  litigation affecting the receiver's custody or possession of

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

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

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

 3  receiver.

 4         559.5474  Cease and desist orders; refund orders.--

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

 6  order to cease and desist and to take corrective action

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

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

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

10  written agreement between the commercial collection agency and

11  the office. Procedural matters relating to the issuance and

12  enforcement of a cease and desist order are governed by

13  chapter 120.

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

15  court of competent jurisdiction for collected funds due to

16  creditors or any sum collected from a debtor without valid

17  proof of debt.

18         559.5475  Evidence; examiner or investigator

19  worksheets, investigative reports, other related

20  documents.--An official written report, sworn complaint,

21  worksheet, or other related paper, or a certified copy

22  thereof, compiled, prepared, drafted, or otherwise made by the

23  financial examiner or investigator is admissible into evidence

24  if the financial examiner or investigator is available for

25  cross examination, authenticates the worksheet, and testifies

26  that the report, worksheet, or related document was prepared

27  as a result of an investigation of the books and records of a

28  registrant or other person conducted under the authority of

29  this part.

30         559.5476  Books, accounts, and records; maintenance;

31  investigations by the office.--

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

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

 3  accounts, records, and documents necessary to determine the

 4  registrant's compliance with this part.

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

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

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

 8  and available at a reasonable and convenient location in this

 9  state.

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

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

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

13  preserved and kept available for investigation by the office

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

15  shall adopt requirements by rule for maintaining the books,

16  accounts, records, and documents retained by the registrant

17  and for destroying the records.

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

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

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

21  determine a registrant's compliance with this part.

22         559.5477  Administrative remedies.--

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

24  of a registrant under this part who:

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

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

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

28  moral turpitude;

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

30  person a civil action upon the grounds of fraud, embezzlement,

31  misrepresentation, or deceit;

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

 2  occupational license or registration suspended, revoked, or

 3  otherwise acted against in any jurisdiction;

 4         (d)  Fails to maintain the surety bond required

 5  pursuant to s. 559.546;

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

 7  s. 559.5476;

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

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

10  entered into with the office;

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

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

13  financial institution;

14         (h)  Falsified or willfully omitted any material

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

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

17  commission;

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

19  application for registration or in response to any request or

20  investigation by the office; or

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

22  the applicant as defined in s. 559.545(4) that is subject to

23  an action, or commits an act, specified by paragraph (a),

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

25  paragraph (i).

26         (2)  A registrant may request termination of its

27  registration by delivering written notice of its proposed

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

29  termination notice does not affect any civil or criminal

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

31  enforce this part.

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

 2  registration or to withdraw an application for registration if

 3  the office believes that the registrant has committed an act

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

 5  under this part.

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

 7  the registration of a registrant is subject to review

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

 9  license.

10         (5)  The office may impose an administrative fine for a

11  violation of this section or s. 559.545, s. 559.546, or s.

12  559.5476 against an offending registrant as an administrative

13  sanction as follows:

14         (a)  For any nonwillful violation, the office may

15  impose a fine of up to $1,000 per violation. In no event shall

16  such fine exceed the aggregate amount of $10,000 for all

17  nonwillful violations arising out of the same action; or

18         (b)  For any willful violation, the office may impose a

19  fine of up to $2,500 per violation. In no event shall such

20  fine exceed the aggregate amount of $100,000 for all willful

21  violations arising out the same action.

22  

23  Final action by the office to impose an administrative fine is

24  subject to review in accordance with ss. 120.569 and 120.57.

25         (6)  Notwithstanding any other provision of this

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

27  day for each day that a person violates the code by engaging

28  in the business of a commercial collection agency without

29  being registered.

30         (7)  Any administrative fine imposed under this part is

31  payable to the office. The office shall maintain an

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 1  appropriate record and deposit the fine into the Regulatory

 2  Trust Fund of the office.

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

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

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

 6  action is founded.

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

 8  remedies otherwise available for the same conduct under state

 9  or local law.

10         559.5479  Administrative guidelines.--In imposing any

11  administrative remedy or penalty provided for in the code, the

12  office shall take into account the appropriateness of the

13  penalty with respect to the size of the financial resources

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

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

16  matters as justice may require.

17         Section 6.  Subsections (1), (7), and (8) of section

18  559.55, Florida Statutes, are amended, and subsections (10),

19  (11), and (12) are added to that section, to read:

20         559.55  Definitions.--The following terms shall, unless

21  the context otherwise indicates, have the following meanings

22  for the purpose of this part:

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

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

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

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

27  transaction are primarily for personal, family, or household

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

29  judgment; or

30         (b)  Any unsatisfied obligation for the payment of

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

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 1         (7)  "Consumer collection agency" means any debt

 2  collector or business entity engaged in the business of

 3  soliciting, purchasing, or collecting consumer debts in

 4  default for collection or of collecting consumer debts, which

 5  debt collector or business is not expressly exempted as set

 6  forth in s. 559.553(1)(4).

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

 8  person whose business activities in this state involve both

 9  collecting or attempting to collect consumer debt from debtors

10  located in this state by means of interstate communication

11  originating from outside this state. The term "out-of-state

12  consumer debt collector" does not include a person who

13  solicits and soliciting consumer debt accounts for collection

14  from creditors who have a business presence in this state. For

15  purposes of this subsection, a creditor has a business

16  presence in this state if either the creditor or an affiliate

17  or subsidiary of the creditor has an office in this state.

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

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

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

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

22  solely for the purpose of facilitating collection of such debt

23  for another.

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

25  legislation regulating unfair or deceptive practices or acts,

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

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

28  any owner of the applicant or registrant if a partnership or

29  sole proprietorship, the corporate officers, the corporate

30  directors other than directors of a not-for-profit corporation

31  

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 1  organized under chapter 617, or the Florida resident agent if

 2  a corporation is the applicant or registrant.

 3         Section 7.  Section 559.552, Florida Statutes, is

 4  amended to read:

 5         559.552  Relationship of state and federal law.--

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

 7  Practices Act constitutes a prohibited practice under s.

 8  559.72. This subsection shall not be construed to create any

 9  additional civil cause of action as provided under s.

10  559.77(2).

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

12  to limit or restrict the continued applicability of the

13  federal Fair Debt Collection Practices Act to consumer

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

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

16  construing this part, due consideration and great weight shall

17  be given to interpretations of the Federal Trade Commission

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

19  Trade Commission. In the event of any inconsistency between

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

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

22  consumer or debtor shall prevail unless the more protective

23  interpretation conflicts with the case law opinions of the

24  state and federal courts of this state or the opinions of the

25  Eleventh Circuit Court of Appeals.

26         Section 8.  Section 559.553, Florida Statutes, is

27  amended to read:

28         559.553  Registration of consumer collection agencies

29  required; Exemptions.--The registration requirements of s.

30  559.555

31  

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

 2  business in this state as a consumer collection agency or

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

 4  agency without first registering in accordance with this part,

 5  and thereafter maintaining a valid registration.

 6         (2)  Each consumer collection agency doing business in

 7  this state shall register with the office and renew such

 8  registration annually as set forth in s. 559.555.

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

10  registered when registration information is complete on its

11  face and the applicable registration fee has been paid;

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

13  prospective registrant if the registrant or any principal of

14  the registrant previously has held any professional license or

15  state registration which was the subject of any suspension or

16  revocation which has not been explained by the prospective

17  registrant to the satisfaction of the office either in the

18  registration information submitted initially or upon the

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

20  attempted registration is rejected by the office the

21  prospective registrant shall be informed of the basis for

22  rejection.

23         (4)  This section shall not apply to:

24         (1)(a)  A Any credit grantor original creditor.

25         (2)(b)  A Any member of The Florida Bar, unless the

26  person is primarily engaged in the collection of consumer

27  debts. "Primarily engaged in the collection of consumer debts"

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

29  from the business of soliciting consumer claims for collection

30  or collecting consumer claims.

31  

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 1         (3)(c)  A Any financial institution authorized to do

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

 3  an and affiliate thereof.

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

 5         (5)(e)  An Any insurance company authorized to do

 6  business in this state.

 7         (6)(f)  A Any consumer finance company or and any

 8  wholly owned subsidiary or an and affiliate thereof.

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

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

11  does not solicit consumer debt accounts for collection from

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

13         (9)(i)  An Any FDIC-insured institution or subsidiary

14  or affiliate thereof.

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

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

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

18  accordance with this part shall be subject to an enforcement

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

20         Section 9.  Section 559.555, Florida Statutes, is

21  amended to read:

22         (Substantial rewording of section. See

23         s. 559.555, Florida Statutes, for current text.)

24         559.555  Registration of consumer collection agencies;

25  procedure.--

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

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

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

29  agency unless the person is registered with the office

30  according to this part and thereafter maintains the

31  registration.

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

 2  collection agency transacting business at any place other than

 3  that designated in the registration unless the office is first

 4  notified in advance of any change of location.

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

 6  consumer collection agency in compliance with this part must

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

 8  office. The commission may establish by rule procedures for

 9  depositing fees and filing documents by electronic means

10  provided such procedures provide the office with the

11  information required by this section. The commission or office

12  may require each applicant for a consumer collection agency

13  registration to provide:

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

15  $650. All amounts collected shall be deposited to the credit

16  of the Regulatory Trust Fund of the office.

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

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

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

20  this state.

21         (c)  The applicant's form and place of organization

22  and, if the applicant is a corporation, a copy of the articles

23  of incorporation and amendments to such articles, if a

24  partnership, a copy of the partnership agreement, or, if

25  limited liability company, a copy of the articles of

26  organization.

27         (d)  Documents demonstrating that the bonding

28  requirements specified in s. 559.556 have been satisfied.

29         (e)  Information and documentation necessary to make a

30  determination of the applicant's eligibility for registration.

31  

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 1         (4)  The applicant shall also provide information as

 2  the office may require about any partner, officer, or director

 3  of the applicant, any person having the same or substantially

 4  similar status or performing substantially similar functions,

 5  or any person directly or indirectly controlling the

 6  applicant. For purposes of this subsection, the term "directly

 7  or indirectly controlling the applicant" means possessing the

 8  power to direct or to cause the direction of the management or

 9  policies of a company, whether through ownership of stock or

10  securities, by contract, or otherwise. Any individual or

11  company that directly or indirectly has the right to vote 25

12  percent or more of the voting stock or securities of a company

13  or is entitled to 25 percent or more of its profits is

14  presumed to control that company. The office may require

15  information about any such applicant or person, including:

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

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

18  federal identification number of any corporate owner.

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

20  employment history.

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

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

23  any court of competent jurisdiction or an administrative order

24  by an administrative law judge, by any state of federal

25  agency, or by any business, professional, or occupational

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

27  regulation relating to business or professional licensing.

28         (d)  His or her commission of any acts which would be

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

30         (5)  An initial application is deemed received for

31  purposes of s. 120.60 upon receipt of the completed

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 1  application form prescribed by commission rule, the

 2  nonrefundable application fee of $650, and any other fee

 3  prescribed by law.

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

 5  and payment of all applicable fees, the office shall

 6  investigate the applicant. If the office determines that

 7  registration should be granted, it shall register the

 8  applicant for a period not to exceed 1 year.

 9         (7)  The registration of each consumer collection

10  agency shall expire on December 31 of the year in which the

11  registration became effective unless the registrant has

12  renewed its registration on or before that date. A

13  registration may be renewed as the commission may require by

14  rule, together with payment of the $275 nonrefundable renewal

15  fee and the payment of any amount lawfully due and owing to

16  the office pursuant to any order of the office or pursuant to

17  any agreement with the office. A consumer collection agency

18  that has not renewed its registration by the time the

19  registration period expires may request reactivation of its

20  registration. The registrant must file its request with the

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

22  of expiration. The request must contain any information the

23  office requires, together with the registration fee required

24  in this section and a nonrefundable reactivation fee in the

25  amount of $250. Any reactivation of registration granted by

26  the office during the month of January is deemed effective

27  retroactive to January 1 of that year. Any registrant that

28  engages in business as a consumer collection agency after its

29  registration has expired violates subsection (1), punishable

30  as provided by ss. 559.785(1) and 559.730(6).

31  

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

 2  any amendment to the application has changed, the registrant

 3  shall file an amendment on the forms prescribed by the

 4  commission correcting such information within 30 days after

 5  the change.

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

 7  or assignable unless accomplished pursuant to this subsection.

 8         (a)  Changes in registration occasioned by changes in

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

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

11  material fact shall be reported by written amendment in such

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

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

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

15  proposes to purchase or acquire a controlling interest in a

16  registrant, such person or group shall submit an initial

17  application for registration as a consumer collection agency

18  prior to such purchase or acquisition at such time and in such

19  form as the commission may prescribe by rule.

20         (b)  The commission shall adopt rules providing for

21  waiver of the application required by this subsection where

22  control of a registrant is to be acquired by another

23  registrant under this chapter or where the application is

24  otherwise unnecessary in the public interest.

25         (10)  The office may deny registration if the

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

27  having control of the applicant:

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

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

30  or governmental enforcement action, in any jurisdiction, until

31  

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 1  the conclusion of such criminal prosecution or enforcement

 2  action;

 3         (c)  Is currently subject to a pending enforcement

 4  action by any federal authority for violations of the Fair

 5  Debt Collection Practices Act or the Federal Trade Commission

 6  Act;

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

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

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

10  moral turpitude;

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

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

13  guilty to, any felony;

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

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

16  controlling person in the business or controlled the business,

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

18  judgment or order, including a stipulated judgment or order,

19  an assurance of voluntary compliance, or any similar document,

20  in any civil or administrative action involving racketeering,

21  fraud, theft, embezzlement, fraudulent conversion, or

22  misappropriation of property or the use of any untrue,

23  deceptive, or misleading representation in an attempt to sell

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

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

26  there is any litigation pending against the applicant;

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

28  controlling person in the business, or controlled the

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

30  to any injunction, temporary restraining order, including a

31  stipulated judgment or order, an assurance of voluntary

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 1  compliance or any similar document, or any restrictive court

 2  order relating to business activity as the result of any

 3  action brought by a governmental agency, including any action

 4  affecting any license to do business or practice an occupation

 5  or trade;

 6         (h)  Falsified or willfully omitted any material

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

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

 9  commission;

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

11  application for registration or in response to any request or

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

13  or the state attorney; or

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

15  finding, injunction, suspension, prohibition, revocation,

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

17  an administrative order by an administrative law judge, by any

18  state or federal agency, or by any business, professional, or

19  occupational association involving a violation of any law,

20  rule, or regulation relating to business or professional

21  licensing.

22         Section 10.  Section 559.556, Florida Statutes, is

23  created to read:

24         559.556  Surety bond.--

25         (1)  Before the office may issue a registration, the

26  applicant must provide to the office a corporate surety bond

27  issued by a bonding company or insurance company authorized to

28  do business in this state.

29         (2)  The corporate surety bond shall be in the amount

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

31  grantor against the registrant to secure the faithful

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 1  performance of the obligations of the registrant with respect

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

 3  the registrant.

 4         (3)  If multiple claims are filed against the surety on

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

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

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

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

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

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

11  the surety.

12         (4)  A corporate surety bond filed with the office for

13  purposes of compliance with this section may not be canceled

14  by the registrant or the corporate surety except upon written

15  notice to the office by registered or certified mail with

16  return receipt requested. A cancellation shall not take effect

17  less than 30 days after receipt by the office of such written

18  notice.

19         (5)  The corporate surety shall, within 10 days after

20  the surety pays any claim to a claimant, give written notice

21  to the office by registered or certified mail of such payment

22  with details sufficient to identify the claimant and the claim

23  or judgment so paid.

24         (6)  Whenever the principal sum of such bond is reduced

25  by one or more recoveries or payments, the registrant shall

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

27  aggregate principal sum of such bonds equals the sum required

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

29  endorsement executed by the corporate surety reinstating the

30  bond to the required principal sum.

31  

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 1         Section 11.  Section 559.72, Florida Statutes, is

 2  amended to read:

 3         559.72  Prohibited practices generally.--

 4         (1)  In collecting consumer debts, a consumer

 5  collection agency may not no person shall:

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

 7  officer or a representative of any governmental agency;

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

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

10  reputation of any person;

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

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

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

14  information affecting the debtor's reputation for credit

15  worthiness without also informing the debtor that the

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

17  paragraph (f) subsection (6);

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

19  debtor's employer prior to obtaining final judgment against

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

21  writing to contact her or his employer or acknowledges in

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

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

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

25  contacted if a final judgment is obtained;

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

27  her or his family information affecting the debtor's

28  reputation, whether or not for credit worthiness, with

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

30  have a legitimate business need for the information or that

31  the information is false;

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

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

 3  without disclosing that fact. If a disclosure is made prior to

 4  such reasonable dispute having been asserted and written

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

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

 7  made the original disclosure shall reveal upon the request of

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

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

10  dispute was made within the preceding 90 days;

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

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

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

14  family, or willfully engage in other conduct which can

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

16  member of her or his family;

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

18  abusive language in communicating with the debtor or any

19  member of her or his family;

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

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

22  assert the existence of some other legal right when such

23  person knows that the right does not exist;

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

25  manner legal or judicial process or which gives the appearance

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

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

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

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

30  instruments which only attorneys are authorized to prepare;

31  

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

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

 3  person is or is associated with an attorney;

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

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

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

 7  creditor;

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

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

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

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

12  attempting to enforce collection of consumer debts;

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

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

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

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

17  consumer debt;

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

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

20  the outside of the envelope or postcard indicating that the

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

22  otherwise calculated to embarrass the debtor. An example of

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

24  "Deadbeat, John Doe";

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

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

27  time or place, or at a time or place that is known or should

28  be known to be inconvenient for the debtor without the prior

29  consent of the debtor;

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

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

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

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

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

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

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

 6  the debtor initiates the communication; or

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

 8  communications by concealment of the true purpose of the

 9  communication, including collect telephone calls and telegram

10  fees.

11         (2)  Any debt collector communicating with any person

12  other than the consumer for the purpose of acquiring location

13  information about the consumer:

14         (a)  Shall identify himself or herself, state that he

15  or she is confirming or correcting location information

16  concerning the consumer, and, only if expressly requested,

17  identify his or her employer.

18         (b)  May not:

19         1.  State that such consumer owes a debt;

20         2.  Communicate with any such person more than once

21  unless requested to do so by such person or unless the debt

22  collector reasonably believes that the earlier response of

23  such person is erroneous or incomplete and that such person

24  now has correct or complete location information; or

25         3.  Communicate by postcard.

26         (3)  Without prior consent of the consumer given

27  directly to the debt collector or express permission of a

28  court of competent jurisdiction, a debt collector may not

29  communicate with a consumer in connection with the collection

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

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

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 1  employer prohibits the consumer from receiving such

 2  communication.

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

 4  prior consent of the consumer given directly to the debt

 5  collector, the express permission of a court of competent

 6  jurisdiction, or as reasonably necessary to effectuate a

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

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

 9  other than a consumer, the consumer's attorney, a consumer

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

11  the creditor's attorney, or the debt collector's attorney.

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

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

14  wishes the debt collector to cease further communication with

15  the consumer, the debt collector shall not communicate further

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

17         (a)  Advise the consumer that the debt collector's

18  further efforts are being terminated;

19         (b)  Notify the consumer that the debt collector or

20  creditor may invoke specified remedies which are ordinarily

21  invoked by such debt collector or creditor; or

22         (c)  Where applicable, notify the consumer that the

23  debt collector or creditor intends to invoke a specified

24  remedy.

25  

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

27  shall be complete upon receipt. For the purpose of this

28  subsection, the term "consumer" includes the consumer's

29  spouse, parent if the consumer is a minor, guardian, executor,

30  or administrator.

31  

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

 2  or misleading representation or means in connection with the

 3  collection of any debt. Without limiting the general

 4  application of such prohibition, the following conduct is a

 5  violation of this subsection:

 6         (a)  The false representation of:

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

 8  or

 9         2.  Any services rendered or compensation which may be

10  lawfully received by any debt collector for the collection of

11  a debt.

12         (b)  The representation or implication that nonpayment

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

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

15  property or wages of any person unless such action is lawful

16  and the debt collector or creditor intends to take such

17  action.

18         (c)  The false representation or implication that a

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

20  shall cause the consumer to:

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

22  or

23         2.  Become subject to any practice prohibited by this

24  subsection.

25         (d)  The false representation or implication that the

26  consumer committed any crime or other conduct in order to

27  disgrace the consumer.

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

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

30  information concerning a consumer.

31  

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 1         (f)  The failure to disclose in the initial

 2  communication that the debt collector is attempting to collect

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

 4  purpose, and the failure to disclose in subsequent

 5  communications that the communication is from a debt

 6  collector, except this paragraph does not apply to a formal

 7  pleading made in connection with a legal action.

 8         (g)  The false representation or implication that

 9  accounts have been turned over to innocent purchasers for

10  value.

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

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

13  business, company, or organization.

14         (i)  The false representation or implication that

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

16  by the consumer.

17         (j)  The false representation or implication that a

18  debt collector operates or is employed by a consumer reporting

19  agency.

20         (7)  A debt collector may not use unfair or

21  unconscionable means to collect or attempt to collect any

22  debt. Without limiting the general application of such

23  prohibition, the following conduct is a violation of this

24  section:

25         (a)  Collecting any amount, including any interest,

26  fee, charge, or expense incidental to the principal

27  obligation, unless such amount is expressly authorized by the

28  agreement creating the debt or permitted by law.

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

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

31  5 days unless such person is notified in writing of the debt

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

 2  more than 10 nor less than 3 business days prior to such

 3  deposit.

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

 5  postdated check or postdated payment instrument for the

 6  purpose of threatening or instituting criminal prosecution.

 7         (d)  Depositing or threatening to deposit any postdated

 8  check or other postdated payment instrument prior to the date

 9  on such check or instrument.

10         (e)  Taking or threatening to take any nonjudicial

11  action to effect dispossession or disablement of property if:

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

13  property claimed as collateral through an enforceable security

14  interest;

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

16  the property; or

17         3.  The property is exempt by law from such

18  dispossession or disablement.

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

20  post card.

21         (8)  Within 5 days after the initial communication with

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

23  debt collector shall, unless the following information is

24  contained in the initial communication or the consumer has

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

26         (a)  The amount of the debt.

27         (b)  The name of the creditor to whom the debt is owed.

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

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

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

31  valid by the debt collector.

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

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

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

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

 5  against the consumer and a copy of such verification or

 6  judgment will be mailed to the consumer by the debt collector.

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

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

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

10  creditor, if different from the current creditor.

11         (9)  If the consumer notifies the debt collector in

12  writing within the 30-day period described in subsection (9)

13  that the debt, or any portion of the debt, is disputed, or

14  that the consumer requests the name and address of the

15  original creditor, the debt collector shall cease collection

16  of the debt, or any disputed portion thereof, until the debt

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

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

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

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

21  the debt collector.

22         (10)  The failure of a consumer to dispute the validity

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

24  as an admission of liability by the consumer.

25         (11)  If any consumer owes multiple debts and makes any

26  single payment to any debt collector with respect to such

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

28  debt which is disputed by the consumer and, where applicable,

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

30  directions.

31  

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 1         (12)  Any debt collector who brings any legal action on

 2  a debt against any consumer shall:

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

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

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

 6  which such real property is located; or

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

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

 9  or similar legal entity:

10         1.  In which such consumer signed the contract sued

11  upon; or

12         2.  In which such consumer resides at the commencement

13  of the action.

14         (c)  Nothing in this subsection shall be construed to

15  authorize the bringing of legal actions by debt collectors.

16         (13)  It is unlawful to design, compile, and furnish

17  any form knowing such form would be used to create the false

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

19  such consumer is participating in the collection of or in an

20  attempt to collect a debt such consumer allegedly owes such

21  creditor, when in fact such person is not participating.

22         (14)  Nothing in this section shall be construed to

23  create a new civil cause of action under subsections (2)-(13).

24         Section 12.  Section 559.725, Florida Statutes, is

25  amended to read:

26         (Substantial rewording of section. See

27         s. 559.725, Florida Statutes, for current text.)

28         559.725  Consumer complaints.--

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

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

31  or the Division of Consumer Services of the Department of

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 1  Financial Services setting forth the details of the alleged

 2  violation.

 3         (2)  Any government office or agency receiving a

 4  complaint under this section shall advise any other government

 5  office or agency with apparent jurisdiction, including the

 6  office, the appropriate state attorney, or the Attorney

 7  General in the case of an out-of-state consumer debt

 8  collector, of any determination by that agency of a violation,

 9  or possible violation, of the requirements of this part by any

10  consumer collection agency, whether or not registered or

11  exempt from registration as required by this part.

12         Section 13.  Sections 559.726, 559.7262, 559.7263,

13  559.7264, and 559.7265, Florida Statutes, are created to read:

14         559.726  Powers and duties of the Office of Financial

15  Regulation.--

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

17  office, except when enforcement is specifically assigned to

18  another agency.

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

20  person, within or outside this state, which the office

21  believes is necessary in order to determine whether a person

22  has violated this chapter or the rules adopted by the

23  commission. The office may commence any such investigation

24  when the office receives information from a complaint, the

25  public media, an informant, or other source that informs the

26  office that a violation of this chapter has occurred or may

27  occur.

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

29  120.536(1) and 120.54 to implement and administer this part.

30         (4)  The commission may adopt a rule to:

31  

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 1         (a)  Require electronic submission of any form,

 2  document, or fee required by this part, provided the rule

 3  reasonably accommodates a person with a technological or

 4  financial hardship.

 5         (b)  Set forth the criteria and procedures for

 6  obtaining an exemption due to a technological or financial

 7  hardship.

 8         (c)  Accept certification of compliance with the

 9  requirements of this part in lieu of requiring submission of

10  specified documents.

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

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

13  Regulatory Trust Fund of the office.

14         (6)  The office may:

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

16  subpoenas to compel the attendance of witnesses and subpoenas

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

18  records, and other documents and materials relevant to an

19  investigation. The office may exercise these powers even if

20  the subject of the investigation is exempt from registration.

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

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

23  depositions.

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

25  or subpoena duces tecum the office issued or caused to be

26  issued, the office may petition a court of competent

27  jurisdiction in the county in which the person subpoenaed

28  resides or has her, his, or its principal place of business

29  for an order requiring the person to appear and testify and to

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

31  are specified in the subpoena duces tecum.

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

 2  person subpoenaed by any person authorized by this section to

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

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

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

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

 7  interest will be substantially affected by the investigation

 8  or subpoena, may appear and object to the subpoena and to the

 9  granting of the petition. The court may make any order that

10  justice requires in order to protect a party or other person

11  and her or his personal and property rights, including, but

12  not limited to, protection from annoyance, embarrassment,

13  oppression, undue burden, or expense.

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

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

16  the court.

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

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

19  as witnesses in circuit court, except fees or mileage may not

20  be allowed for testimony of a person taken at the person's

21  principal office or residence.

22         (9)  Reasonable and necessary costs incurred by the

23  office during an investigation may be assessed against any

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

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

26  interpreters; expenses for communications; expenses for legal

27  representation; expenses for economic, legal, or other

28  research; expenses for analysis and testimony; and fees and

29  expenses for witnesses. The failure to reimburse the office

30  for its reasonable and necessary costs is a reason to deny a

31  

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

 2  application.

 3         559.7262  Injunction to restrain violations;

 4  receivers.--

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

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

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

 8  issued under this part.

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

10  subpoena requiring the attendance of any witness or a subpoena

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

12  record, or other documents and materials relevant to the

13  pending case.

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

15  for enforcing a temporary restraining order or a temporary or

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

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

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

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

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

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

22  conferred by the court.

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

24  an order staying all pending suits and enjoining any further

25  litigation affecting the receiver's custody or possession of

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

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

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

29  the receiver.

30         559.7263  Cease and desist orders; refund orders.--

31  

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

 2  order to cease and desist and to take corrective action

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

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

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

 6  written agreement between the person and the office.

 7  Procedural matters relating to issuance and enforcement of

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

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

10  court of competent jurisdiction for collected funds due to

11  creditors or any sum collected from a debtor without valid

12  proof of debt.

13         559.7264  Evidence; examiner or investigator

14  worksheets, investigative reports, other related

15  documents.--An official written report, sworn complaint,

16  worksheet, or other related paper, or a duly certified copy

17  thereof, compiled, prepared, drafted, or otherwise made by the

18  financial examiner or investigator is admissible into evidence

19  if the financial examiner or investigator is available for

20  cross examination, authenticates the worksheet, and testifies

21  that the report, worksheet, or related document was prepared

22  as a result of an investigation of the books and records of a

23  registrant or other person conducted under the authority of

24  this part.

25         559.7265  Books, accounts, and records; maintenance;

26  examinations by the office.--

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

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

29  accounts, records, and documents necessary to determine the

30  registrant's compliance with this part.

31  

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

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

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

 4  and available at a reasonable and convenient location in this

 5  state.

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

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

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

 9  preserved and kept available for investigation by the

10  department for 3 years after the date of original entry. The

11  commission shall adopt requirements by rule for maintaining

12  the books, accounts, records, and documents retained by the

13  registrant and for destroying the records.

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

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

16  accounts, records, and documents of a registrant to enable the

17  office to determine a registrant's compliance with this part.

18         Section 14.  Section 559.730, Florida Statutes, is

19  amended to read:

20         (Substantial rewording of section. See

21         s. 559.730, Florida Statutes, for current text.)

22         559.730  Administrative remedies.--

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

24  of any registrant under this part who:

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

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

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

28  moral turpitude;

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

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

31  embezzlement, misrepresentation, or deceit;

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

 2  occupational license or registration suspended, revoked, or

 3  otherwise acted against in any jurisdiction;

 4         (d)  Fails to maintain the surety bond required

 5  pursuant to s. 559.556;

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

 7  s. 559.7265;

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

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

10  entered into with the office;

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

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

13  financial institution;

14         (h)  Falsified or willfully omitted any material

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

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

17  commission;

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

19  application for registration or in response to any request or

20  investigation by the office; or

21         (j)  Employs a person, who directly or indirectly

22  controls the applicant as defined in s. 559.555(4), who is

23  subject to an action, or commits an act, contemplated by

24  paragraph (a), paragraph (b), paragraph (c), paragraph (f),

25  paragraph (h), or paragraph (i).

26         (2)  A registrant may request termination of its

27  registration by delivering written notice of its proposed

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

29  termination notice does not affect any civil or criminal

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

31  enforce this part.

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

 2  registration or to withdraw an application for registration if

 3  the office believes that the registrant has committed an act

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

 5  under this part.

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

 7  the registration of a registrant is subject to review

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

 9  license.

10         (5)  The office may impose an administrative fine for a

11  violation of this section or s. 559.555, s. 559.556, 559.72,

12  or s. 559.7265 against an offending registrant or person as an

13  administrative sanction as follows:

14         (a)  If the nonwillful violation constitutes a bona

15  fide error pursuant to s. 559.77(3), the office may issue a

16  written reprimand to the offending registrant and may require

17  the registrant implement additional policies and procedures to

18  avoid any future violations. For purposes of this section

19  only, the bona fide error defense shall only apply to a

20  violation of 559.72(1)(e),(f),(p,)(q), or (r), (3), (4), (5),

21  (7)(f), (8)(b), or (9). This subsection shall not apply if the

22  same nonwillful violation subject to the written reprimand

23  recurs within 2 years after the issuance of the written

24  reprimand.

25         (b)  If the nonwillful violation does not constitute a

26  bona fide error pursuant to s 559.77(3), the office may impose

27  a fine of up to $1,000 per violation. In no event shall such

28  fine exceed the aggregate amount of $10,000 for all nonwillful

29  violations arising out of the same action; or

30         (c)  For any willful violation, the office may impose a

31  fine of up to $2,500 per violation. In no event shall such

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 1  fine exceed the aggregate amount of $100,000 for all willful

 2  violations arising out the same action.

 3  

 4  Final action by the office to impose an administrative fine is

 5  subject to review in accordance with ss. 120.569 and 120.57.

 6         (6)  Notwithstanding any other provision of this

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

 8  day for each day that a person violates the code by engaging

 9  in the business of a consumer collection agency without being

10  registered.

11         (7)  Any administrative fine imposed under this part

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

13  appropriate record and deposit the fine into the Regulatory

14  Trust Fund of the office.

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

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

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

18  action is founded.

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

20  remedies otherwise available for the same conduct under state

21  or local law.

22         Section 15.  Section 559.735, Florida Statutes, is

23  created to read:

24         559.735  Administrative guidelines.--In imposing any

25  administrative remedy or penalty provided for in the code, the

26  office shall take into account the appropriateness of the

27  penalty with respect to the amount of financial resources and

28  good faith of the person charged, the gravity of the

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

30  matters as justice may require.

31  

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 1         Section 16.  Subsections (1), (2), and (5) of section

 2  559.77, Florida Statutes, are amended to read:

 3         559.77  Civil remedies.--

 4         (1)  A debtor may bring a civil action against a

 5  consumer collection agency person violating the provisions of

 6  s. 559.72(1) in a court of competent jurisdiction of the

 7  county in which the alleged violator resides or has his or her

 8  principal place of business or in the county wherein the

 9  alleged violation occurred.

10         (2)  Upon adverse adjudication, the defendant shall be

11  liable for actual damages and for additional statutory damages

12  of up to $1,000, together with court costs and reasonable

13  attorney's fees incurred by the plaintiff. In determining the

14  defendant's liability for any additional statutory damages,

15  the court shall consider the nature of the defendant's

16  noncompliance with s. 559.72(1), the frequency and persistence

17  of such noncompliance, and the extent to which such

18  noncompliance was intentional. In any class action lawsuit

19  brought under this section, the court may award additional

20  statutory damages of up to $1,000 for each named plaintiff and

21  an aggregate award of additional statutory damages not to

22  exceed the lesser of $500,000 or 1 percent of the defendant's

23  net worth for all remaining class members, but in no event may

24  this aggregate award provide an individual class member with

25  additional statutory damages in excess of $1,000. The court

26  may, in its discretion, award punitive damages and may provide

27  such equitable relief as it deems necessary or proper,

28  including enjoining the defendant from further violations of

29  this part. If the court finds that the suit fails to raise a

30  justiciable issue of law or fact, the plaintiff shall be

31  liable for court costs and reasonable attorney's fees incurred

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 1  by the defendant. Nothing in this section prohibits the

 2  defendant or plaintiff from using the procedures under s.

 3  768.79 or Rule 1.442 of the Florida Rules of Civil Procedure.

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

 5  consideration and great weight shall be given to the

 6  interpretations of the Federal Trade Commission and the

 7  federal courts relating to the federal Fair Debt Collection

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

 9  is an inconsistency between this part and an interpretation of

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

11  consumer or debtor shall prevail unless the more protective

12  interpretation conflicts with the case law opinions of the

13  state and federal courts of this state or the opinions of the

14  Eleventh Circuit Court of Appeals.

15         Section 17.  Section 559.785, Florida Statutes, is

16  amended to read:

17         559.785  Criminal penalty.--

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

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

20  775.083, or s. 775.084, for any person not exempt from

21  registering as provided in this part to:

22         (a)  Operate or solicit business as a consumer

23  collection agency engage in collecting consumer debts in this

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

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

26  misrepresentation, or concealment;

27         (c)  Engage in any consumer debt collection activity

28  after suspension or revocation of the registrant's

29  registration under s. 559.730(1); or

30  

31  

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 1         (d)  Engage in any consumer debt collection activity

 2  while under a temporary or permanent injunction issued under

 3  s. 559.78.

 4         (2)  Each of the following acts constitutes a

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

 6  775.082 or s. 775.083:

 7         (a)  Relocating a business as a consumer collection

 8  agency or operating under any name other than that designated

 9  in the registration, unless written notification is given to

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

11         (b)  Assigning or attempting to assign a registration

12  under this part.

13         (3)  The office may refer evidence concerning a

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

15  criminal prosecutorial agency that may, with or without the

16  reference and in addition to any other action it might

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

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

19  practice.

20         Section 18.  Section 559.786, Florida Statutes, is

21  created to read:

22         559.786  Annual report.--The Office of Financial

23  Regulation shall submit a report on January 1, 2006, and

24  biannually thereafter, to the President of the Senate and the

25  Speaker of the House of Representatives containing findings

26  and conclusions concerning the effectiveness of the consumer

27  and commercial collection practices acts in preventing fraud,

28  abuse, and other unlawful activity associated with the

29  collection of commercial and consumer debts. The report shall

30  include a summary of the type and number of complaints

31  received by the office or the Division of Consumer Services of

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 1  the Department of Financial Services. The summary shall

 2  identify the nature and number of the various kinds of

 3  complaints received. The report may further contain

 4  legislative recommendations concerning the efficacy of the

 5  consumer and commercial practices act.

 6         Section 19.  Sections 559.547, 559.563, and 559.565,

 7  Florida Statutes, are repealed.

 8         Section 20.  For the 2005-2006 fiscal year, five

 9  positions are authorized and the sum of $366,614 is

10  appropriated from the Regulatory Trust Fund to the Office of

11  Financial Regulation for the purpose of enforcing this act.

12  The five positions shall consist of four examiners and one

13  registration analyst.

14         Section 21.  This act shall take effect July 1, 2005.

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1984

 3                                 

 4  The committee substitute provides the following changes:  

 5  o    Sets application fees for both commercial and consumer
         collection agencies at $650. Sets renewal fees at $275
 6       for consumer collection agencies. Restores renewal fees
         to $500 for commercial collection agencies. Reduces
 7       additional positions authorized from 6 to 5 and makes a
         corresponding reduction in appropriations.
 8  
    o    Provides for a tiered administrative fine structure for
 9       willful vs. non-willful violations.

10       *    Non-willful violation:  maximum $1,000 fine up to
              $10,000
11  
         *    Willful violation:  maximum $2,500 fine up to
12            $100,000.

13  o    Clarifies that the proposed incorporation of violations
         in Florida law of violations that mirror the Federal Fair
14       Debt Collection Practices Act do not create any new civil
         causes of action.
15  
    o    Provides that nothing shall prohibit a plaintiff or a
16       defendant from utilizing the offer of judgment
         mechanisms.
17  
    o    Clarifies that precedence will be given to the 11th
18       Circuit Court of Appeals in the event of a conflict in
         federal case law.
19  
    o    Adds definitions of "debtor" and "consumer" to the
20       commercial collection agency act in conformity with the
         consumer act definitions.
21  
    o    Removes references to examinations and removes 15 day
22       notice requirement for certain investigations.

23  o    Clarifies that an examiner's or investigator's work
         papers are admissible into evidence under certain
24       circumstances.

25  o    Incorporates debt purchasers into the definition of
         "consumer collection agency."
26  
    o    Changes "person" to "consumer collection agency" in s.
27       559.72, F.S., (regarding prohibited practices).

28  

29  

30  

31  

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