HB 0807

1
A bill to be entitled
2An act relating to consumer services; amending s.
3493.6101, F.S.; expanding the definition of the term
4"repossession" for purposes of the regulation of
5repossession services; amending s. 493.6110, F.S.;
6revising insurance requirements for licensure under ch.
7493, F.S.; providing insurance requirements with respect
8to Class "B" security agencies; amending s. 493.6118,
9F.S.; revising the grounds for disciplinary action against
10a person or entity that is licensed as, or an applicant
11for licensure as, a recovery agency, recovery agent, or
12recovery agent intern; amending s. 493.6403, F.S.;
13revising licensure requirements for recovery agent
14managers and recovery agents, to conform; amending s.
15493.6404, F.S.; revising provisions relating to inventory
16of certain personal effects or property contained in or on
17repossessed property, to conform; amending s. 493.6405,
18F.S.; providing a penalty for the unauthorized sale of
19repossessed aircraft, personal watercraft, all-terrain
20vehicles, farm equipment, or industrial equipment by a
21recovery agent or recovery agent intern and for failure to
22remit the net proceeds from the sale of such repossessed
23property to the owner or lienholder; providing an
24effective date.
25
26Be It Enacted by the Legislature of the State of Florida:
27
28     Section 1.  Subsection (22) of section 493.6101, Florida
29Statutes, is amended to read:
30     493.6101  Definitions.--
31     (22)  "Repossession" means the recovery of a motor vehicle
32as defined under s. 320.01(1), a or mobile home as defined in s.
33320.01(2), a or motorboat as defined under s. 327.02, an
34aircraft as defined in s. 330.27(1), a personal watercraft as
35defined in s. 327.02, an all-terrain vehicle as defined in s.
36316.2074, farm equipment as defined under s. 686.402, or
37industrial equipment, by an individual who is authorized by the
38legal owner, lienholder, or lessor to recover, or to collect
39money payment in lieu of recovery of, that which has been sold
40or leased under a security agreement that contains a
41repossession clause. As used in this subsection, the term
42"industrial equipment" includes, but is not limited to,
43tractors, road rollers, cranes, fork lifts, backhoes, and
44bulldozers. The term "industrial equipment" also includes other
45vehicles that are propelled by power other than muscular power
46and that are used in the manufacture of goods or used in the
47provision of services. A repossession is complete when a
48licensed recovery agent is in control, custody, and possession
49of such repossessed property motor vehicle, mobile home, or
50motorboat.
51     Section 2.  Section 493.6110, Florida Statutes, is amended
52to read:
53     493.6110  Licensee's insurance.--A Class "B" No agency
54license may not shall be issued unless the applicant first files
55with the department a certification of insurance evidencing
56commercial general liability coverage as delineated below. The
57coverage shall provide the department as an additional insured
58for the purpose of receiving all notices of modification or
59cancellation of such insurance. Coverage shall be written by an
60insurance company which is lawfully engaged to provide insurance
61coverage in Florida. Coverage shall provide for a combined
62single-limit policy in the amount of at least $300,000, which
63policy shall include comprehensive general liability coverage
64for death, bodily injury, property damage, and personal injury
65coverage including false arrest, detention or imprisonment,
66malicious prosecution, libel, slander, defamation of character,
67and violation of the right of privacy. Coverage shall insure for
68the liability of all employees licensed by the department while
69acting in the course of their employment.
70     (1)  The licensed agency shall notify the department of any
71claim against such insurance.
72     (2)  The licensed agency shall notify the department
73immediately upon cancellation of the insurance policy, whether
74such cancellation was initiated by the insurance company or the
75insured agency.
76     (3)  The agency license shall be automatically suspended
77upon the date of cancellation unless evidence of insurance is
78provided to the department prior to the effective date of
79cancellation.
80     Section 3.  Section 493.6118, Florida Statutes, is amended
81to read:
82     493.6118  Grounds for disciplinary action.--
83     (1)  The following constitute grounds for which
84disciplinary action specified in subsection (2) may be taken by
85the department against any licensee, agency, or applicant
86regulated by this chapter, or any unlicensed person engaged in
87activities regulated under this chapter.
88     (a)  Fraud or willful misrepresentation in applying for or
89obtaining a license.
90     (b)  Use of any fictitious or assumed name by an agency
91unless the agency has department approval and qualifies under s.
92865.09.
93     (c)  Being found guilty of or entering a plea of guilty or
94nolo contendere to, regardless of adjudication, or being
95convicted of a crime that directly relates to the business for
96which the license is held or sought.  A plea of nolo contendere
97shall create a rebuttable presumption of guilt to the underlying
98criminal charges, and the department shall allow the individual
99being disciplined or denied an application for a license to
100present any mitigating circumstances surrounding his or her
101plea.
102     (d)  A false statement by the licensee that any individual
103is or has been in his or her employ.
104     (e)  A finding that the licensee or any employee is guilty
105of willful betrayal of a professional secret or any unauthorized
106release of information acquired as a result of activities
107regulated under this chapter.
108     (f)  Proof that the applicant or licensee is guilty of
109fraud or deceit, or of negligence, incompetency, or misconduct,
110in the practice of the activities regulated under this chapter.
111     (g)  Conducting activities regulated under this chapter
112without a license or with a revoked or suspended license.
113     (h)  Failure of the licensee to maintain in full force and
114effect the commercial general liability insurance coverage
115required by s. 493.6110.
116     (i)  Impersonating, or permitting or aiding and abetting an
117employee to impersonate, a law enforcement officer or an
118employee of the state, the United States, or any political
119subdivision thereof by identifying himself or herself as a
120federal, state, county, or municipal law enforcement officer or
121official representative, by wearing a uniform or presenting or
122displaying a badge or credentials that would cause a reasonable
123person to believe that he or she is a law enforcement officer or
124that he or she has official authority, by displaying any
125flashing or warning vehicular lights other than amber colored,
126or by committing any act that is intended to falsely convey
127official status.
128     (j)  Commission of an act of violence or the use of force
129on any person except in the lawful protection of one's self or
130another from physical harm.
131     (k)  Knowingly violating, advising, encouraging, or
132assisting the violation of any statute, court order, capias,
133warrant, injunction, or cease and desist order, in the course of
134business regulated under this chapter.
135     (l)  Soliciting business for an attorney in return for
136compensation.
137     (m)  Transferring or attempting to transfer a license
138issued pursuant to this chapter.
139     (n)  Employing or contracting with any unlicensed or
140improperly licensed person or agency to conduct activities
141regulated under this chapter, or performing any act that
142assists, aids, or abets a person or business entity in engaging
143in unlicensed activity, when the licensure status was known or
144could have been ascertained by reasonable inquiry.
145     (o)  Failure or refusal to cooperate with or refusal of
146access to an authorized representative of the department engaged
147in an official investigation pursuant to this chapter.
148     (p)  Failure of any partner, principal corporate officer,
149or licensee to have his or her identification card in his or her
150possession while on duty.
151     (q)  Failure of any licensee to have his or her license in
152his or her possession while on duty, as specified in s.
153493.6111(1).
154     (r)  Failure or refusal by a sponsor to certify a biannual
155written report on an intern or to certify completion or
156termination of an internship to the department within 15 working
157days.
158     (s)  Failure to report to the department any person whom
159the licensee knows to be in violation of this chapter or the
160rules of the department.
161     (t)  Violating any provision of this chapter.
162     (u)  In addition to the grounds for disciplinary action
163prescribed in paragraphs (a)-(t), Class "R" recovery agencies,
164Class "E" recovery agents, and Class "EE" recovery agent interns
165are prohibited from committing the following acts:
166     1.  Recovering a motor vehicle, mobile home, or motorboat,
167aircraft, personal watercraft, all-terrain vehicle, farm
168equipment, or industrial equipment that has been sold under a
169conditional sales agreement or under the terms of a chattel
170mortgage before authorization has been received from the legal
171owner or mortgagee.
172     2.  Charging for expenses not actually incurred in
173connection with the recovery, transportation, storage, or
174disposal of repossessed property a motor vehicle, mobile home,
175motorboat, or personal property obtained in a repossession.
176     3.  Using any motor vehicle, mobile home, or motorboat that
177has been repossessed property, or using personal property
178obtained in a repossession, for the personal benefit of a
179licensee or an officer, director, partner, manager, or employee
180of a licensee.
181     4.  Selling property a motor vehicle, mobile home, or
182motorboat recovered under the provisions of this chapter, except
183with written authorization from the legal owner or the mortgagee
184thereof.
185     5.  Failing to notify the police or sheriff's department of
186the jurisdiction in which the repossessed property is recovered
187within 2 hours after recovery.
188     6.  Failing to remit moneys, collected in lieu of recovery
189of a motor vehicle, mobile home, or motorboat, aircraft,
190personal watercraft, all-terrain vehicle, farm equipment, or
191industrial equipment to the client within 10 working days.
192     7.  Failing to deliver to the client a negotiable
193instrument that is payable to the client, within 10 working days
194after receipt of such instrument.
195     8.  Falsifying, altering, or failing to maintain any
196required inventory or records regarding disposal of personal
197property contained in or on repossessed property a recovered
198motor vehicle, mobile home, or motorboat pursuant to s.
199493.6404(1).
200     9.  Carrying any weapon or firearm when he or she is on
201private property and performing duties under his or her license
202whether or not he or she is licensed pursuant to s. 790.06.
203     10.  Soliciting from the legal owner the recovery of
204property subject to repossession after such property has been
205seen or located on public or private property if the amount
206charged or requested for such recovery is more than the amount
207normally charged for such a recovery.
208     11.  Wearing, presenting, or displaying a badge in the
209course of performing a repossession regulated by this chapter
210repossessing a motor vehicle, mobile home, or motorboat.
211     (2)  When the department finds any violation of subsection
212(1), it may do one or more of the following:
213     (a)  Deny an application for the issuance or renewal of a
214license.
215     (b)  Issue a reprimand.
216     (c)  Impose an administrative fine not to exceed $1,000 for
217every count or separate offense.
218     (d)  Place the licensee on probation for a period of time
219and subject to such conditions as the department may specify.
220     (e)  Suspend or revoke a license.
221     (3)  The department may deny an application for licensure
222citing lack of good moral character only if the finding by the
223department of lack of good moral character is supported by clear
224and convincing evidence.  In such cases, the department shall
225furnish the applicant a statement containing the findings of the
226department, a complete record of the evidence upon which the
227determination was based, and a notice of the rights of the
228applicant to an administrative hearing and subsequent appeal.
229     (4)  Notwithstanding the provisions of paragraph (1)(c) and
230subsection (2):
231     (a)  If the applicant or licensee has been convicted of a
232felony, the department shall deny the application or revoke the
233license unless and until civil rights have been restored by the
234State of Florida or by a state acceptable to Florida and a
235period of 10 years has expired since final release from
236supervision.
237     (b)  A Class "G" applicant who has been convicted of a
238felony shall also have had the specific right to possess, carry,
239or use a firearm restored by the State of Florida.
240     (c)  If the applicant or licensee has been found guilty of,
241entered a plea of guilty to, or entered a plea of nolo
242contendere to a felony and adjudication of guilt is withheld,
243the department shall deny the application or revoke the license
244until a period of 3 years has expired since final release from
245supervision.
246     (d)  A plea of nolo contendere shall create a rebuttable
247presumption of guilt to the underlying criminal charges, and the
248department shall allow the person being disciplined or denied an
249application for a license to present any mitigating
250circumstances surrounding his or her plea.
251     (e)  The grounds for discipline or denial cited in this
252subsection shall be applied to any disqualifying criminal
253history regardless of the date of commission of the underlying
254criminal charge.  Such provisions shall be applied retroactively
255and prospectively.
256     (5)  Upon revocation or suspension of a license, the
257licensee shall forthwith return the license which was suspended
258or revoked.
259     (6)  The agency license and the approval or license of each
260officer, partner, or owner of the agency are automatically
261suspended upon entry of a final order imposing an administrative
262fine against the agency, until the fine is paid, if 30 calendar
263days have elapsed since the entry of the final order. All owners
264and corporate or agency officers or partners are jointly and
265severally liable for agency fines. Neither the agency license or
266the approval or license of any officer, partner, or owner of the
267agency may be renewed, nor may an application be approved if the
268owner, licensee, or applicant is liable for an outstanding
269administrative fine imposed under this chapter. An individual's
270approval or license becomes automatically suspended if a fine
271imposed against the individual or his or her agency is not paid
272within 30 days after the date of the final order, and remains
273suspended until the fine is paid. Notwithstanding the provisions
274of this subsection, an individual's approval or license may not
275be suspended nor may an application be denied when the licensee
276or the applicant has an appeal from a final order pending in any
277appellate court.
278     (7)  An applicant or licensee shall be ineligible to
279reapply for the same class of license for a period of 1 year
280following final agency action resulting in the denial or
281revocation of a license applied for or issued under this
282chapter. This time restriction shall not apply to administrative
283denials wherein the basis for denial was:
284     (a)  An inadvertent error or omission on the application;
285     (b)  The experience documented by the department was
286insufficient at the time of application;
287     (c)  The department was unable to complete the criminal
288background investigation due to insufficient information from
289the Department of Law Enforcement, the Federal Bureau of
290Investigation, or any other applicable law enforcement agency;
291or
292     (d)  Failure to submit required fees.
293     Section 4.  Paragraphs (b) and (c) of subsection (1) of
294section 493.6403, Florida Statutes, are amended to read:
295     493.6403  License requirements.--
296     (1)  In addition to the license requirements set forth in
297this chapter, each individual or agency shall comply with the
298following additional requirements:
299     (b)  An applicant for Class "MR" license shall have at
300least 1 year of lawfully gained, verifiable, full-time
301experience as a Class "E" licensee performing repossessions of
302motor vehicles, mobile homes, or motorboats, aircraft, personal
303watercraft, all-terrain vehicles, farm equipment, or industrial
304equipment.
305     (c)  An applicant for a Class "E" license shall have at
306least 1 year of lawfully gained, verifiable, full-time
307experience in one, or a combination of more than one, of the
308following:
309     1.  Repossession of motor vehicles as defined in s.
310320.01(1), mobile homes as defined in s. 320.01(2), or
311motorboats as defined in s. 327.02, aircraft as defined in s.
312330.27(1), personal watercraft as defined in s. 327.02, all-
313terrain vehicles as defined in s. 316.2074, farm equipment as
314defined under s. 686.402, or industrial equipment as defined in
315493.6101(22).
316     2.  Work as a Class "EE" licensed intern.
317     Section 5.  Subsection (1) of section 493.6404, Florida
318Statutes, is amended to read:
319     493.6404  Property inventory; vehicle license
320identification numbers.--
321     (1)  If personal effects or other property not covered by a
322security agreement are contained in or on a recovered vehicle,
323mobile home, or motorboat, aircraft, personal watercraft, all-
324terrain vehicle, farm equipment, or industrial equipment at the
325time it is recovered, a complete and accurate inventory shall be
326made of such personal effects or property. The date and time the
327inventory is made shall be indicated, and it shall be signed by
328the Class "E" or Class "EE" licensee who obtained the personal
329property. The inventory of the personal property and the records
330regarding any disposal of personal property shall be maintained
331for a period of 2 years in the permanent records of the licensed
332agency and shall be made available, upon demand, to an
333authorized representative of the department engaged in an
334official investigation.
335     Section 6.  Section 493.6405, Florida Statutes, is amended
336to read:
337     493.6405  Sale of motor vehicle, mobile home, or motorboat,
338aircraft, personal watercraft, all-terrain vehicle, farm
339equipment, or industrial equipment by a licensee; penalty.--
340     (1)  A Class "E" or Class "EE" licensee shall obtain, prior
341to sale, written authorization and a negotiable title from the
342owner or lienholder to sell any repossessed motor vehicle,
343mobile home, or motorboat, aircraft, personal watercraft, all-
344terrain vehicle, farm equipment, or industrial equipment.
345     (2)  A Class "E" or Class "EE" licensee shall send the net
346proceeds from the sale of such repossessed motor vehicle, mobile
347home, or motorboat, aircraft, personal watercraft, all-terrain
348vehicle, farm equipment, or industrial equipment to the owner or
349lienholder, within 20 working days after the licensee executes
350the documents which permit the transfer of legal ownership to
351the purchaser.
352     (3)  A person who violates a provision of this section
353commits a felony of the third degree, punishable as provided in
354s. 775.082, s. 775.083, or s. 775.084.
355     Section 7.  This act shall take effect October 1, 2005.


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