1 | A bill to be entitled |
2 | An act relating to financial entities and transactions; |
3 | amending s. 494.001, F.S.; defining the term "control |
4 | person"; amending s. 494.0011, F.S.; authorizing the |
5 | Financial Services Commission to require electronic |
6 | submission of forms, documents, or fees; providing a |
7 | limitation; authorizing the commission to adopt rules |
8 | accommodating a technological or financial hardship; |
9 | requiring that a grant or denial of a license be in |
10 | accordance with ch. 120, F.S.; amending s. 494.0016, F.S.; |
11 | authorizing the commission to prescribe requirements for |
12 | destroying books, accounts, records, and documents; |
13 | amending s. 494.0029, F.S.; requiring that certain |
14 | entities who offer or conduct mortgage business training |
15 | obtain a permit; providing requirements and procedures for |
16 | obtaining a permit; specifying that permits are not |
17 | transferable or assignable; providing for expiration and |
18 | recertification of permits; authorizing permit fees; |
19 | requiring that curriculum, training, and training |
20 | materials be available for inspection; requiring |
21 | electronic notification to the office of persons who have |
22 | successfully completed certain education requirements; |
23 | requiring the commission to adopt rules; amending s. |
24 | 494.00295, F.S.; revising professional education |
25 | provisions to apply to continuing education; providing |
26 | requirements; waiving such requirements for license |
27 | renewals for certain persons under certain circumstances; |
28 | amending s. 494.003, F.S.; revising the list of entities |
29 | exempt from certain mortgage broker licensure |
30 | requirements; amending s. 494.0031, F.S.; requiring |
31 | licensure of mortgage brokerage businesses; revising |
32 | requirements and procedures for issuing licenses; |
33 | providing duties and authority of the commission and |
34 | office; providing duties of the Department of Law |
35 | Enforcement; specifying that certain licenses are not |
36 | transferable or assignable; revising the grounds on which |
37 | a license may be denied; deleting certain provisions |
38 | relating to cancellation and reinstatement of licenses; |
39 | amending s. 494.0032, F.S.; requiring renewal of branch |
40 | office licenses with renewal of mortgage brokerage |
41 | business licenses; amending s. 494.0033, F.S.; revising |
42 | mortgage broker licensure requirements and procedures; |
43 | authorizing the commission to prescribe additional testing |
44 | fees; authorizing the commission to waive certain |
45 | examination requirements under specified circumstances; |
46 | providing duties and authority of the commission and |
47 | office; providing duties of the Department of Law |
48 | Enforcement; deleting provisions relating to cancellation |
49 | and reinstatement of licenses; amending s. 494.0036, F.S.; |
50 | revising mortgage brokerage business branch office |
51 | licensure requirements and procedures; deleting a |
52 | requirement for displaying licenses; amending s. 494.0039, |
53 | F.S.; deleting mortgage brokerage business change of |
54 | address reporting and license display requirements; |
55 | amending s. 494.004, F.S.; revising mortgage broker |
56 | licensee requirements; providing requirements for |
57 | acquiring a controlling interest in a licensee; providing |
58 | a definition; providing duties and authority of the |
59 | commission; authorizing the office to bring an |
60 | administrative action under certain circumstances; |
61 | amending s. 494.0041, F.S.; specifying additional grounds |
62 | for taking disciplinary action; amending s. 494.006, F.S.; |
63 | revising the list of entities exempt from mortgage lender |
64 | licensure requirements; amending s. 494.0061, F.S.; |
65 | requiring the licensure of mortgage lenders; revising |
66 | mortgage lender license requirements and procedures; |
67 | providing duties and authority of the commission and |
68 | office; providing duties of the Department of Law |
69 | Enforcement; providing for commission rules; revising |
70 | provisions governing grounds for imposing discipline; |
71 | deleting certain provisions relating to cancellation and |
72 | reinstatement of licenses; authorizing the commission to |
73 | prescribe additional testing fees; revising provisions |
74 | governing principal representatives; amending s. 494.0062, |
75 | F.S.; requiring licensure of correspondent mortgage |
76 | lenders; revising correspondent mortgage lender license |
77 | requirements and procedures; providing duties and |
78 | authority of the commission and office; providing duties |
79 | of the Department of Law Enforcement; providing |
80 | educational requirements for principal representatives; |
81 | revising grounds for disciplinary action; deleting certain |
82 | provisions relating to cancellation and reinstatement of |
83 | licenses; authorizing the commission to prescribe |
84 | additional testing fees; providing for commission rules; |
85 | amending s. 494.0064, F.S.; revising mortgage lender |
86 | branch office licensee professional continuing education |
87 | requirements; amending s. 494.0065, F.S.; revising saving |
88 | clause requirements and procedures; revising the duties |
89 | and authority of the office and commission; providing |
90 | duties of the Department of Law Enforcement; providing for |
91 | commission rules; providing requirements for education and |
92 | testing for certain principal representatives and for |
93 | transfer applications; authorizing the commission to |
94 | prescribe additional testing fees; revising provisions |
95 | governing the denial of transfers; providing personal |
96 | representative designation requirements; amending s. |
97 | 494.0066, F.S.; revising branch office licensure |
98 | requirements; providing for commission rules; amending s. |
99 | 494.0067, F.S.; deleting a license display requirement; |
100 | providing information reporting requirements; providing |
101 | requirements for acquiring a controlling interest in a |
102 | licensee; providing a definition; providing duties and |
103 | authority of the commission; authorizing the office to |
104 | bring an administrative action under certain |
105 | circumstances; revising professional continuing education |
106 | requirements; amending s. 494.0072, F.S.; providing |
107 | additional grounds for taking disciplinary action; |
108 | amending s. 494.00721, F.S.; conforming cross-references; |
109 | amending s. 501.137, F.S.; providing mortgage lender |
110 | liability for attorney's fees and costs for certain |
111 | violations; amending s. 516.01, F.S.; defining the term |
112 | "control person"; amending s. 516.03, F.S.; revising |
113 | requirements and procedures for issuing consumer finance |
114 | loan licenses; specifying certain fees as nonrefundable; |
115 | authorizing the commission to adopt rules; revising |
116 | certain fee requirements; providing for technological or |
117 | financial hardship exemptions under certain circumstances; |
118 | amending s. 516.031, F.S.; increasing a reimbursement |
119 | charge for certain investigation costs; amending s. |
120 | 516.05, F.S.; revising investigation procedures; deleting |
121 | provisions relating to certain fees for licenses that have |
122 | been denied; providing licensee information reporting |
123 | requirements; providing requirements for acquiring a |
124 | controlling interest in a licensee; providing a |
125 | definition; providing duties and authority of the |
126 | commission and office; providing for commission rules; |
127 | authorizing the office to bring an administrative action |
128 | under certain circumstances; deleting provisions |
129 | authorizing the office to grant temporary licenses; |
130 | amending s. 516.07, F.S.; providing an additional ground |
131 | for taking disciplinary action; repealing s. 516.08, F.S., |
132 | relating to requirements for posting a license; amending |
133 | s. 516.12, F.S.; authorizing the commission to adopt rules |
134 | specifying the minimum information to be shown in a |
135 | licensee's books, accounts, records, and documents and the |
136 | requirements for destroying a licensee's books, accounts, |
137 | records, and documents; amending s. 516.19, F.S.; |
138 | correcting cross-references; amending s. 517.021, F.S.; |
139 | redefining the term "branch office"; authorizing the |
140 | commission to adopt rules; amending s. 517.051, F.S.; |
141 | revising required accounting principles; amending s. |
142 | 517.061, F.S.; revising a provision governing exempt |
143 | transactions; amending s. 517.081, F.S.; revising required |
144 | accounting principles; amending s. 517.12, F.S.; revising |
145 | requirements and procedures for registration of dealers, |
146 | associated persons, investment advisers, and branch |
147 | offices; revising duties and authority of the commission |
148 | and office; providing for commission rules; providing |
149 | duties of the Department of Law Enforcement; revising |
150 | requirements, procedures, and exemptions relating to |
151 | activities of Canadian dealers and associated persons; |
152 | providing for certain fees; providing that certain fees |
153 | are nonrefundable; providing for the collection of fees; |
154 | amending s. 517.131, F.S.; revising criteria under which |
155 | recovery can be made from the Securities Guaranty Fund; |
156 | authorizing the commission to adopt rules; amending s. |
157 | 517.141, F.S.; revising requirements for claimant |
158 | reimbursements to the fund; authorizing the commission to |
159 | adopt rules; amending s. 517.161, F.S.; revising a ground |
160 | for a registration adverse action; providing an additional |
161 | ground; amending ss. 520.02, 520.31, and 520.61, F.S.; |
162 | defining the term "control person"; amending ss. 520.03, |
163 | 520.32, 520.52, and 520.63, F.S.; revising requirements |
164 | and procedures for licensing motor vehicle retail |
165 | installment sellers, retail installment transaction retail |
166 | sellers, sales finance companies, and home improvement |
167 | finance sellers; revising duties and authority of the |
168 | commission and office; specifying certain fees as |
169 | nonrefundable; amending s. 520.994, F.S.; revising |
170 | commission authority to adopt rules to include electronic |
171 | submissions; providing for accommodating a technological |
172 | or financial hardship; amending s. 520.995, F.S.; |
173 | providing an additional ground for taking disciplinary |
174 | action; revising a provision applying disciplinary actions |
175 | to certain persons; amending s. 520.997, F.S.; revising |
176 | commission authority to adopt rules relating to a |
177 | licensee's books, accounts, records, and documents; |
178 | creating s. 520.999, F.S.; providing additional |
179 | requirements of licensees in sales and finance; |
180 | authorizing the office to bring an administrative action |
181 | under certain circumstances; authorizing the commission to |
182 | adopt rules; amending s. 537.009, F.S., relating to the |
183 | Florida Title Loan Act; revising provisions relating to a |
184 | licensee's books, accounts, records, and documents; |
185 | amending s. 559.9232, F.S.; correcting cross-references; |
186 | amending s. 560.105, F.S., relating to the Money |
187 | Transmitters' Code; authorizing the commission to adopt |
188 | rules for electronic submission of money transmitter |
189 | licensee forms, documents, or fees; providing for |
190 | exemptions due to technological or financial hardship; |
191 | amending s. 560.114, F.S.; providing an additional ground |
192 | for taking disciplinary action; amending s. 560.121, F.S.; |
193 | authorizing the commission to adopt rules relating to a |
194 | licensee's books, accounts, records, and documents; |
195 | amending s. 560.126, F.S.; revising information reporting |
196 | requirements; providing requirements for acquiring a |
197 | controlling interest; authorizing the office to bring an |
198 | administrative action under certain circumstances; |
199 | authorizing the commission to adopt rules; amending s. |
200 | 560.127, F.S.; revising criteria for determining control |
201 | over a money transmitter; deleting provisions regulating |
202 | the acquisition or purchase of a money transmitter; |
203 | amending s. 560.205, F.S.; revising requirements and |
204 | procedures for registering money transmitters; revising |
205 | duties of the commission and office; providing duties of |
206 | the Department of Law Enforcement; amending s. 560.207, |
207 | F.S.; revising requirements and procedures for renewing a |
208 | registration; authorizing the commission to adopt rules; |
209 | providing that specified fees are nonrefundable; providing |
210 | conditions for reinstating a registration; providing an |
211 | additional fee; providing for expiration of registration; |
212 | amending s. 560.210, F.S.; revising required accounting |
213 | principles; amending s. 560.211, F.S.; revising certain |
214 | recordkeeping requirements; amending s. 560.305, F.S., |
215 | relating to the Check Cashing and Foreign Currency |
216 | Exchange Act; revising requirements and procedures for |
217 | registration; amending s. 560.306, F.S.; revising |
218 | fingerprinting requirements and procedures; providing |
219 | duties of the office and Department of Law Enforcement; |
220 | amending s. 560.308, F.S.; revising requirements for |
221 | renewal of registration; providing for expiration of |
222 | registration; providing that specified fees are |
223 | nonrefundable; providing conditions for reinstatement of a |
224 | registration; amending s. 560.310, F.S.; revising certain |
225 | recordkeeping requirements; amending s. 560.403, F.S.; |
226 | revising requirements for registration renewal notices of |
227 | intent; providing that specified fees are nonrefundable; |
228 | providing conditions for reinstatement of a notice of |
229 | intent; amending s. 655.935, F.S.; authorizing the search |
230 | of a safe-deposit box co-leased by a decedent; providing |
231 | construction; amending s. 655.936, F.S.; providing for the |
232 | delivery of a safe-deposit box to a court-appointed |
233 | personal representative; amending s. 655.937, F.S.; |
234 | revising provisions for access to safe-deposit boxes; |
235 | providing a penalty; amending s. 679.705, F.S.; extending |
236 | the effective date of a financing statement filed under |
237 | previous law; amending s. 733.6065, F.S.; revising |
238 | provisions relating to the initial opening of certain |
239 | safe-deposit boxes; providing an appropriation; providing |
240 | effective dates. |
241 |
|
242 | Be It Enacted by the Legislature of the State of Florida: |
243 |
|
244 | Section 1. Present subsections (9) through (30) of section |
245 | 494.001, Florida Statutes, are redesignated as subsections (10) |
246 | through (31), respectively, and a new subsection (9) is added to |
247 | that section to read: |
248 | 494.001 Definitions.--As used in ss. 494.001-494.0077, the |
249 | term: |
250 | (9) "Control person" means an individual, partnership, |
251 | corporation, trust, or other organization that possesses the |
252 | power, directly or indirectly, to direct the management or |
253 | policies of a company, whether through ownership of securities, |
254 | by contract, or otherwise. A person is presumed to control a |
255 | company if, with respect to a particular company, that person: |
256 | (a) Is a director, general partner, or officer exercising |
257 | executive responsibility or having similar status or functions; |
258 | (b) Directly or indirectly may vote 10 percent or more of |
259 | a class of voting securities or sell or direct the sale of 10 |
260 | percent or more of a class of voting securities; or |
261 | (c) In the case of a partnership, may receive upon |
262 | dissolution or has contributed 10 percent or more of the |
263 | capital. |
264 | Section 2. Subsection (2) of section 494.0011, Florida |
265 | Statutes, is amended, and subsection (6) is added to that |
266 | section, to read: |
267 | 494.0011 Powers and duties of the commission and office.-- |
268 | (2) The commission may has authority to adopt rules |
269 | pursuant to ss. 120.536(1) and 120.54 to implement ss. 494.001- |
270 | 494.0077. The commission may adopt rules requiring to allow |
271 | electronic submission of any forms, documents, or fees required |
272 | by this act if such rules reasonably accommodate technological |
273 | or financial hardship. The commission may prescribe by rule |
274 | requirements and procedures for obtaining an exemption due to a |
275 | technological or financial hardship. The commission may also |
276 | adopt rules to accept certification of compliance with |
277 | requirements of this act in lieu of requiring submission of |
278 | documents. |
279 | (6) The grant or denial of any license under this chapter |
280 | must be in accordance with s. 120.60. |
281 | Section 3. Subsection (4) of section 494.0016, Florida |
282 | Statutes, is amended to read: |
283 | 494.0016 Books, accounts, and records; maintenance; |
284 | examinations by the office.-- |
285 | (4) The commission may prescribe by rule the minimum |
286 | information to be shown in the books, accounts, records, and |
287 | documents of licensees so that such records will enable the |
288 | office to determine the licensee's compliance with ss. 494.001- |
289 | 494.0077. In addition, the commission may prescribe by rule |
290 | requirements for the destruction of books, accounts, records, |
291 | and documents retained by the licensee after completion of the |
292 | time period specified in subsection (3). |
293 | Section 4. Section 494.0029, Florida Statutes, is amended |
294 | to read: |
295 | 494.0029 Mortgage business schools.-- |
296 | (1)(a) Each person, school, or institution, except |
297 | accredited colleges, universities, community colleges, and |
298 | career centers in this state, which offers or conducts mortgage |
299 | business training for the purpose of meeting professional |
300 | continuing education requirements or as a condition precedent to |
301 | licensure as a mortgage broker, mortgage or lender, or a |
302 | correspondent mortgage lender must shall obtain a permit from |
303 | the office to operate as a mortgage business school before |
304 | offering or conducting mortgage business training and must abide |
305 | by the regulations imposed upon such person, school, or |
306 | institution by this chapter and rules adopted pursuant to this |
307 | chapter. The commission may require by rule that each applicant |
308 | for a mortgage business school permit provide any information |
309 | reasonably necessary to determine the applicant's eligibility. |
310 | Each person, school, or institution that applies for a permit |
311 | under this section must do so on forms adopted by the commission |
312 | by rule The commission shall, by rule, recertify the permits |
313 | annually with initial and renewal permit fees that do not exceed |
314 | $500 plus the cost of accreditation. |
315 | (b) An application is considered received for purposes of |
316 | s. 120.60 upon receipt of a completed application form as |
317 | prescribed by commission rule, a nonrefundable application fee |
318 | of $500, the cost of accreditation as defined by commission |
319 | rule, and any other fee prescribed by law. |
320 | (c) A permit issued under this section is not transferable |
321 | or assignable. |
322 | (d) Each permitted mortgage business school shall report, |
323 | on a form prescribed by the commission, any change in the |
324 | information contained in the initial application form or any |
325 | amendment to such form not later than 30 days after the change |
326 | is effective. |
327 | (e) A permit issued under this section expires on |
328 | September 30th of each year. The office shall recertify a permit |
329 | annually upon submission of information the commission requires |
330 | by rule, together with a nonrefundable permit fee of $500, and |
331 | the cost of accreditation as defined by commission rule, which |
332 | shall be for the annual period beginning October 1 of each year. |
333 | (2) All such schools shall maintain curriculum and |
334 | training materials necessary to determine the school's |
335 | compliance with this chapter and rules adopted pursuant to this |
336 | chapter. Any school that offers or conducts mortgage business |
337 | training shall at all times maintain an operation of training, |
338 | materials, and curriculum which is open to review by the office |
339 | to determine compliance and competency as a mortgage business |
340 | school. |
341 | (2)(3)(a) It is unlawful for any such person, school, or |
342 | institution to offer or conduct mortgage business courses, |
343 | regardless of the number of pupils, without first procuring a |
344 | permit or to guarantee that the pupils will pass any mortgage |
345 | business examination given on behalf of the office or to |
346 | represent that the issuance of a permit is any recommendation or |
347 | endorsement of the person, school, or institution to which it is |
348 | issued or of any course of instruction given thereunder. Any |
349 | person who violates this paragraph commits a misdemeanor of the |
350 | second degree, punishable as provided in s. 775.082 or s. |
351 | 775.083. |
352 | (b) The location of classes and the frequency of class |
353 | meetings shall be in the discretion of the school offering the |
354 | courses, if such courses conform to this chapter and related |
355 | rules adopted by the commission. |
356 | (c) A mortgage business school may not use advertising of |
357 | any nature which is false, inaccurate, misleading, or |
358 | exaggerated. Publicity and advertising of a mortgage business |
359 | school, or of its representative, shall be based upon relevant |
360 | facts and supported by evidence establishing their truth. |
361 | (d) A representative of a mortgage business school subject |
362 | to the provisions of this chapter may not promise or guarantee |
363 | employment or placement of any pupil or prospective pupil, using |
364 | information, training, or skill purported to be provided or |
365 | otherwise enhanced by a course or school as inducement to enroll |
366 | in the school, unless such person offers the pupil or |
367 | prospective pupil a bona fide contract of employment. |
368 | (e) A school shall advertise only as a school and under |
369 | the permitted name of such school as recognized by the office. |
370 | (f) Reference may not be made in any publication or |
371 | communication medium as to a pass/fail ratio on mortgage |
372 | business examinations by any school permitted by the office. |
373 | (3) Each person, school, or institution that is required |
374 | to be permitted as a mortgage business school under this section |
375 | shall maintain and make available for the office's review, |
376 | inspection, and observation any training, curriculum, and |
377 | training materials necessary for the office to determine |
378 | compliance with this chapter and the rules adopted under this |
379 | chapter. All documents prescribed by commission rule must be |
380 | submitted with the initial application or recertification. |
381 | (4) Each person, school, or institution that is required |
382 | to be permitted as a mortgage business school under this section |
383 | must provide electronic notification to the office, in a manner |
384 | prescribed by commission rule, of any pupils who have |
385 | successfully completed the 24-hour prelicensure classroom |
386 | instruction for mortgage brokers and principal representatives |
387 | and any pupils who have completed the 14-hour professional |
388 | continuing education for mortgage brokers. |
389 | Section 5. Section 494.00295, Florida Statutes, is amended |
390 | to read: |
391 | 494.00295 Professional continuing education.-- |
392 | (1) Mortgage brokers, and the principal representatives |
393 | and loan originators of a mortgage lender, correspondent |
394 | mortgage lender, or mortgage lender pursuant to s. 494.0065, |
395 | must successfully complete at least 14 hours of professional |
396 | continuing education covering primary and subordinate mortgage |
397 | financing transactions and the provisions of this chapter during |
398 | the 2-year period immediately preceding the renewal deadline for |
399 | a mortgage broker, mortgage lender, correspondent mortgage |
400 | lender, or mortgage lender pursuant to s. 494.0065. At the time |
401 | of license renewal, a licensee must certify to the office that |
402 | the professional continuing education requirements of this |
403 | section have been met. Licensees shall maintain records |
404 | documenting compliance with this subsection for a period of 4 |
405 | years. The requirements for professional continuing education |
406 | are waived for the license renewal of a mortgage broker for the |
407 | biennial license period immediately following the period in |
408 | which the person became licensed as a mortgage broker. The |
409 | requirements for professional continuing education for a |
410 | principal representative are waived for the license renewal of a |
411 | mortgage lender, correspondent mortgage lender, or mortgage |
412 | lender pursuant to s. 494.0065 for the biennial license period |
413 | immediately following the period in which the principal |
414 | representative completed the 24 hours of classroom education and |
415 | passed a written test in order to qualify to be a principal |
416 | representative Each mortgage broker, mortgage lender, and |
417 | correspondent mortgage lender must certify to the office at the |
418 | time of renewal that during the 2 years prior to an application |
419 | for license renewal, all mortgage brokers and the principal |
420 | representative, loan originators, and associates of a mortgage |
421 | lender or correspondent mortgage lender have successfully |
422 | completed at least 14 hours of professional education programs |
423 | covering primary and subordinate mortgage financing transactions |
424 | and the provisions of this chapter. Licensees shall maintain |
425 | records documenting compliance with this subsection for a period |
426 | of 4 years. |
427 | (2) Professional continuing education programs must |
428 | contribute directly to the professional competency of the |
429 | participants, may only be offered by permitted mortgage business |
430 | schools or entities specifically exempted from permitting as |
431 | mortgage business schools, and may include electronically |
432 | transmitted or distance education courses. |
433 | (3) The commission shall adopt rules necessary to |
434 | administer this section, including rules governing qualifying |
435 | hours for professional continuing education programs and |
436 | standards for electronically transmitted or distance education |
437 | courses, including course completion requirements. |
438 | Section 6. Paragraphs (b) and (c) of subsection (1) and |
439 | paragraph (e) of subsection (2) of section 494.003, Florida |
440 | Statutes, are amended to read: |
441 | 494.003 Exemptions.-- |
442 | (1) None of the following persons is subject to the |
443 | requirements of ss. 494.003-494.0043: |
444 | (b) A state or federal chartered bank, bank holding |
445 | company, trust company, savings and loan association, savings |
446 | bank or, credit union, bank holding company regulated under the |
447 | laws of any state or the United States, or consumer finance |
448 | company licensed pursuant to chapter 516. |
449 | (c) A wholly owned bank holding company subsidiary or a |
450 | wholly owned savings and loan association holding company |
451 | subsidiary formed and regulated under the laws of any state or |
452 | the United States that is approved or certified by the |
453 | Department of Housing and Urban Development, the Veterans |
454 | Administration, the Government National Mortgage Association, |
455 | the Federal National Mortgage Association, or the Federal Home |
456 | Loan Mortgage Corporation. |
457 | (2) None of the following persons is required to be |
458 | licensed under ss. 494.003-494.0043: |
459 | (e) A wholly owned subsidiary of a state or federal |
460 | chartered bank or savings and loan association the sole activity |
461 | of which is to distribute the lending programs of such state or |
462 | federal chartered bank or savings and loan association to |
463 | persons who arrange loans for, or make loans to, borrowers. |
464 | Section 7. Section 494.0031, Florida Statutes, is amended |
465 | to read: |
466 | 494.0031 Licensure as a mortgage brokerage business.-- |
467 | (1) Each person who acts as a mortgage brokerage business |
468 | must be licensed under this section unless otherwise exempt from |
469 | licensure. |
470 | (2)(1) Each initial application for a mortgage brokerage |
471 | business license must be in the form prescribed by rule of the |
472 | commission. The commission may require each applicant to provide |
473 | any information reasonably necessary to determine the |
474 | applicant's eligibility for licensure. The office shall issue a |
475 | mortgage brokerage business license to each person who: |
476 | (a) Has submitted a completed application form and a |
477 | nonrefundable application fee of $425. An application is |
478 | considered received for purposes of s. 120.60 upon receipt of a |
479 | completed application form as prescribed by commission rule, a |
480 | nonrefundable application fee of $425, and any other fee |
481 | prescribed by law.; and |
482 | (b) Has a qualified principal broker pursuant to s. |
483 | 494.0035. |
484 | (c)(2) Has provided a complete set of fingerprints as the |
485 | commission may require by rule for that each officer, director, |
486 | control person, member, partner, or joint venturer of the |
487 | applicant and each ultimate equitable owner of a 10-percent or |
488 | greater interest in the mortgage brokerage business. A |
489 | fingerprint card submitted to the office must be submit a |
490 | complete set of fingerprints taken by an authorized law |
491 | enforcement agency officer. The office shall submit the |
492 | fingerprints to the Department of Law Enforcement for state |
493 | processing and the Department of Law Enforcement shall forward |
494 | the fingerprints to the Federal Bureau of Investigation for |
495 | federal processing. The cost of the fingerprint processing may |
496 | be borne by the office, the employer, or the person subject to |
497 | the background check. The Department of Law Enforcement shall |
498 | submit an invoice to the office for the fingerprints received |
499 | each month. The office shall screen the background results to |
500 | determine if the applicant meets licensure requirements. |
501 | (d) Has provided information that the commission requires |
502 | by rule concerning any designated principal mortgage broker; any |
503 | officer, director, control person, member, partner, or joint |
504 | venturer of the applicant; or any individual who is the ultimate |
505 | equitable owner of a 10-percent or greater interest in the |
506 | mortgage brokerage business. The commission may require |
507 | information about any such applicant or person, including, but |
508 | not limited to, his or her full name or other names by which he |
509 | or she may have been known, age, social security number, |
510 | qualifications, educational and business history, and |
511 | disciplinary and criminal history. |
512 | (3) Notwithstanding the provisions of subsection (2) (1), |
513 | it is a ground for denial of licensure if the applicant; |
514 | designated principal mortgage broker; any officer, director, |
515 | control person, member, partner, or joint venturer of the |
516 | applicant; any natural person owning a 10-percent or greater |
517 | interest in the mortgage brokerage business; or any individual |
518 | natural person who is the ultimate equitable owner of a 10- |
519 | percent or greater interest in the mortgage brokerage business |
520 | has committed any violation specified in ss. 494.001-494.0077 or |
521 | has pending against him or her in any jurisdiction any criminal |
522 | prosecution or administrative enforcement action that, in any |
523 | jurisdiction, which involves fraud, dishonest dealing, or any |
524 | other act of moral turpitude. |
525 | (4) A mortgage brokerage business or branch office license |
526 | may be canceled if it was issued through mistake or inadvertence |
527 | of the office. A notice of cancellation must be issued by the |
528 | office within 90 days after the issuance of the license. A |
529 | notice of cancellation is shall be effective upon receipt. The |
530 | notice of cancellation must shall provide the applicant with |
531 | notification of the right to request a hearing within 21 days |
532 | after the applicant's receipt of the notice of cancellation. A |
533 | license must shall be reinstated if the applicant can |
534 | demonstrate that the requirements for obtaining the license |
535 | under pursuant to this chapter have been satisfied. |
536 | (5) If an initial mortgage brokerage business or branch |
537 | office license has been issued but the check upon which the |
538 | license is based is returned due to insufficient funds, the |
539 | license shall be deemed canceled. A license deemed canceled |
540 | pursuant to this subsection shall be reinstated if the office |
541 | receives a certified check for the appropriate amount within 30 |
542 | days after the date the check was returned due to insufficient |
543 | funds. |
544 | Section 8. Subsection (1) of section 494.0032, Florida |
545 | Statutes, is amended to read: |
546 | 494.0032 Renewal of mortgage brokerage business license or |
547 | branch office license.-- |
548 | (1) The office shall renew a mortgage brokerage business |
549 | license upon receipt of a completed renewal form and payment of |
550 | a nonrefundable renewal fee of $375. Each licensee shall pay at |
551 | the time of renewal a nonrefundable renewal fee of $225 for the |
552 | renewal of each branch office license. The license for a branch |
553 | office must be renewed in conjunction with the renewal of the |
554 | mortgage brokerage business license. |
555 | Section 9. Subsections (1), (2), and (7) of section |
556 | 494.0033, Florida Statutes, are amended to read: |
557 | 494.0033 Mortgage broker's license.-- |
558 | (1) Each natural person who acts as a mortgage broker for |
559 | a mortgage brokerage business or acts as an associate for a |
560 | mortgage lender or correspondent mortgage lender must be |
561 | licensed under pursuant to this section. To act as a mortgage |
562 | broker, an individual must be an associate of a mortgage |
563 | brokerage business, a mortgage lender, or a correspondent |
564 | mortgage lender. A mortgage broker may not be is prohibited from |
565 | being an associate of more than one mortgage brokerage business, |
566 | mortgage lender, or correspondent mortgage lender. |
567 | (2) Each initial application for a mortgage broker's |
568 | license must be in the form prescribed by rule of the |
569 | commission. The commission may require each applicant to provide |
570 | any information reasonably necessary to make a determination of |
571 | the applicant's eligibility for licensure. The office shall |
572 | issue an initial license to any natural person who: |
573 | (a) Is at least 18 years of age.; |
574 | (b) Has passed a written test adopted and administered by |
575 | the office, or has passed an electronic test adopted and |
576 | administered by the office or a third party approved by the |
577 | office, which is designed to determine competency in primary and |
578 | subordinate mortgage financing transactions as well as to test |
579 | knowledge of ss. 494.001-494.0077 and the rules adopted pursuant |
580 | thereto. The commission may prescribe by rule an additional fee |
581 | that may not exceed $100 for the electronic version of the |
582 | mortgage broker test. The commission may waive by rule the |
583 | examination requirement for any person who has passed a test |
584 | approved by the Conference of State Bank Supervisors, the |
585 | American Association of Residential Mortgage Regulators, or the |
586 | United States Department of Housing and Urban Development if the |
587 | test covers primary and subordinate mortgage financing |
588 | transactions.; |
589 | (c) Has submitted a completed application and a |
590 | nonrefundable application fee of $200. An application is |
591 | considered received for purposes of s. 120.60 upon receipt of a |
592 | completed application form as prescribed by commission rule, a |
593 | nonrefundable application fee of $200, and any other fee |
594 | prescribed by law. The commission may set by rule an additional |
595 | fee for a retake of the examination; and |
596 | (d) Has filed a complete set of fingerprints, taken by an |
597 | authorized law enforcement officer, for submission by the office |
598 | to the Department of Law Enforcement or the Federal Bureau of |
599 | Investigation for processing. A fingerprint card submitted to |
600 | the office must be taken by an authorized law enforcement |
601 | agency. The office shall submit the fingerprints to the |
602 | Department of Law Enforcement for state processing and the |
603 | Department of Law Enforcement shall forward the fingerprints to |
604 | the Federal Bureau of Investigation for federal processing. The |
605 | cost of the fingerprint processing may be borne by the office, |
606 | the employer, or the person subject to the background check. The |
607 | Department of Law Enforcement shall submit an invoice to the |
608 | office for the fingerprints received each month. The office |
609 | shall screen the background results to determine if the |
610 | applicant meets licensure requirements. |
611 |
|
612 | The commission may require by rule information concerning any |
613 | such applicant or person, including, but not limited to, his or |
614 | her full name and any other names by which he or she may have |
615 | been known, age, social security number, qualifications and |
616 | educational and business history, and disciplinary and criminal |
617 | history. |
618 | (7) If an initial mortgage broker license has been issued |
619 | but the check upon which the license is based is returned due to |
620 | insufficient funds, the license shall be deemed canceled. A |
621 | license deemed canceled pursuant to this subsection shall be |
622 | reinstated if the office receives a certified check for the |
623 | appropriate amount within 30 days after the date the check was |
624 | returned due to insufficient funds. |
625 | Section 10. Subsections (2) and (3) of section 494.0036, |
626 | Florida Statutes, are amended to read: |
627 | 494.0036 Mortgage brokerage business branch offices.-- |
628 | (2) The office shall issue a mortgage brokerage business |
629 | branch office license to a mortgage brokerage business licensee |
630 | after the office determines that the licensee has submitted upon |
631 | receipt of a completed application for a branch office in a form |
632 | as prescribed by commission rule and payment of an initial |
633 | nonrefundable branch office license fee of $225. Branch office |
634 | licenses must be renewed in conjunction with the renewal of the |
635 | mortgage brokerage business license. The branch office license |
636 | shall be issued in the name of the mortgage brokerage business |
637 | that maintains the branch office. An application is considered |
638 | received for purposes of s. 120.60 upon receipt of a completed |
639 | application form as prescribed by commission rule, a |
640 | nonrefundable application fee of $225, and any other fee |
641 | prescribed by law. |
642 | (3) Each branch office must prominently display the |
643 | license issued for such branch office. Each person licensed as a |
644 | mortgage broker must prominently display his or her license in |
645 | the office where such person acts as a mortgage broker. |
646 | Section 11. Section 494.0039, Florida Statutes, is amended |
647 | to read: |
648 | 494.0039 Principal place of business requirements.-- |
649 | (1) Each mortgage brokerage business licensee shall |
650 | maintain and transact business from a principal place of |
651 | business. |
652 | (2) A licensee under ss. 494.003-494.0043 shall report any |
653 | change of address of the principal place of business or any |
654 | branch office within 15 days after the change. |
655 | (3) Each mortgage brokerage business must prominently |
656 | display its license at the principal place of business. Each |
657 | licensed mortgage broker must prominently display his or her |
658 | license in the office where such person acts as a mortgage |
659 | broker. |
660 | Section 12. Section 494.004, Florida Statutes, is amended |
661 | to read: |
662 | 494.004 Requirements of licensees.-- |
663 | (1) Each licensee under ss. 494.003-494.0043 shall report, |
664 | in writing, any conviction of, or plea of nolo contendere to, |
665 | regardless of adjudication, any crime or administrative |
666 | violation that involves fraud, dishonest dealing, or any other |
667 | act of moral turpitude, in any jurisdiction, by the licensee or |
668 | any natural person named in s. 494.0031(2)(d)(3), not later than |
669 | 30 days after the date of conviction, entry of a plea of nolo |
670 | contendere, or final administrative action. |
671 | (2) Each licensee under ss. 494.003-494.0043 shall report, |
672 | in a form prescribed by rule of the commission, any conviction |
673 | of, or plea of nolo contendere to, regardless of whether |
674 | adjudication is withheld, any felony committed by the licensee |
675 | or any natural person named in s. 494.0031(2)(d)(3), not later |
676 | than 30 days after the date of conviction or the date the plea |
677 | of nolo contendere is entered. |
678 | (3) Each licensee under ss. 494.003-494.0043 shall report |
679 | any action in bankruptcy, voluntary or involuntary, to the |
680 | office not later than 7 business days after the action is |
681 | instituted. |
682 | (4) Each licensee under ss. 494.003-494.0043 shall report |
683 | on a form prescribed by rule of the commission any change to the |
684 | information contained in any initial application form or any |
685 | amendment to the application any change in the form of business |
686 | organization or any change of a person named, pursuant to s. |
687 | 494.0031(3), to the office in writing not later than 30 days |
688 | after the change is effective. |
689 | (5) A license issued under ss. 494.003-494.0043 is not |
690 | transferable or assignable. |
691 | (6) Each licensee under ss. 494.003-494.0043 shall report |
692 | any change in the principal broker, partners, officers, members, |
693 | joint venturers, directors, control persons of any licensee, or |
694 | any individual who is the ultimate equitable owner of a 10- |
695 | percent or greater interest in the licensee, or any change in |
696 | the form of business organization, by written amendment in the |
697 | form and at the time the commission specifies by rule. |
698 | (a) In any case in which a person or a group of persons, |
699 | directly or indirectly or acting by or through one or more |
700 | persons, proposes to purchase or acquire a controlling interest |
701 | in a licensee, such person or group shall submit an initial |
702 | application for licensure as a mortgage brokerage business |
703 | before such purchase or acquisition and at the time and in the |
704 | form the commission prescribes by rule. |
705 | (b) As used in this subsection, the term "controlling |
706 | interest" means possession of the power to direct or cause the |
707 | direction of the management or policies of a company whether |
708 | through ownership of securities, by contract, or otherwise. Any |
709 | person who directly or indirectly has the right to vote 25 |
710 | percent or more of the voting securities of a company or is |
711 | entitled to 25 percent or more of the company's profits is |
712 | presumed to possess a controlling interest. |
713 | (c) Any addition of a partner, officer, member, joint |
714 | venturer, director, control person, or ultimate equitable owner |
715 | of the applicant who does not have a controlling interest and |
716 | who has not previously complied with the provisions of s. |
717 | 494.0031(2)(c) and (d) is subject to such provisions unless |
718 | required to file an initial application in accordance with |
719 | paragraph (a). If the office finds that the licensee does not |
720 | continue to meet licensure requirements, the office may bring an |
721 | administrative action in accordance with s. 494.0041 to enforce |
722 | the provisions of this chapter. |
723 | (d) The commission shall adopt rules pursuant to ss. |
724 | 120.536(1) and 120.54 providing for the waiver of the |
725 | application required by this subsection if the person or group |
726 | of persons proposing to purchase or acquire a controlling |
727 | interest in a licensee has previously complied with the |
728 | provisions of s. 494.0031(2)(c) and (d) with respect to the same |
729 | legal entity or is currently licensed by the office under this |
730 | chapter. |
731 | (7)(6) On or before April 30, 2000, each mortgage |
732 | brokerage business shall file an initial report stating the |
733 | name, social security number, date of birth, mortgage broker |
734 | license number, date of hire and, if applicable, date of |
735 | termination for each person who was an associate of the mortgage |
736 | brokerage business during the immediate preceding quarter. |
737 | Thereafter, a mortgage brokerage business shall file a quarterly |
738 | report only if a person became an associate or ceased to be an |
739 | associate of the mortgage brokerage business during the |
740 | immediate preceding quarter. Such report shall be filed within |
741 | 30 days after the last day of each calendar quarter and shall |
742 | contain the name, social security number, date of birth, |
743 | mortgage broker license number, date of hire and, if applicable, |
744 | the date of termination of each person who became or ceased to |
745 | be an associate of the mortgage brokerage business during the |
746 | immediate preceding quarter. The commission shall prescribe, by |
747 | rule, the procedures for filing reports required by this |
748 | subsection. |
749 | Section 13. Paragraphs (s), (t), and (u) are added to |
750 | subsection (2) of section 494.0041, Florida Statutes, and |
751 | subsection (3) of that section is amended, to read: |
752 | 494.0041 Administrative penalties and fines; license |
753 | violations.-- |
754 | (2) Each of the following acts constitutes a ground for |
755 | which the disciplinary actions specified in subsection (1) may |
756 | be taken: |
757 | (s) Payment to the office for a license or permit with a |
758 | check or electronic transmission of funds that is dishonored by |
759 | the applicant's or licensee's financial institution. |
760 | (t) Having a final judgment entered against the applicant |
761 | or licensee in a civil action upon grounds of fraud, |
762 | embezzlement, misrepresentation, or deceit. |
763 | (u)1. Having been the subject of any decision, finding, |
764 | injunction, suspension, prohibition, revocation, denial, |
765 | judgment, or administrative order by any court of competent |
766 | jurisdiction, administrative law judge, state or federal agency, |
767 | national securities exchange, national commodities exchange, |
768 | national option exchange, national securities association, |
769 | national commodities association, or national option association |
770 | involving a violation of any federal or state securities or |
771 | commodities law or rule or regulation adopted under such law or |
772 | involving a violation of any rule or regulation of any national |
773 | securities, commodities, or options exchange or association. |
774 | 2. Having been the subject of any injunction or adverse |
775 | administrative order by a state or federal agency regulating |
776 | banking, insurance, finance or small loan companies, real |
777 | estate, mortgage brokers or lenders, money transmitters, or |
778 | other related or similar industries. |
779 | (3) A mortgage brokerage business is subject to the |
780 | disciplinary actions specified in subsection (1) for a violation |
781 | of subsection (2) by any officer, member, director, control |
782 | person, joint venturer, partner, ultimate equitable owner of a |
783 | 10-percent or greater interest in the mortgage brokerage |
784 | business, or associate mortgage broker of the licensee. |
785 | Section 14. Paragraphs (a) and (c) of subsection (1) and |
786 | paragraph (a) of subsection (2) of section 494.006, Florida |
787 | Statutes, are amended to read: |
788 | 494.006 Exemptions.-- |
789 | (1) None of the following persons are subject to the |
790 | requirements of ss. 494.006-494.0077 in order to act as a |
791 | mortgage lender or correspondent mortgage lender: |
792 | (a) A state or federal chartered bank, bank holding |
793 | company, trust company, savings and loan association, savings |
794 | bank or, credit union, bank holding company regulated under the |
795 | laws of any state or the United States, or insurance company if |
796 | the insurance company is duly licensed in this state. |
797 | (c) A wholly owned bank holding company subsidiary or a |
798 | wholly owned savings and loan association holding company |
799 | subsidiary that is formed and regulated under the laws of any |
800 | state or the United States and that is approved or certified by |
801 | the Department of Housing and Urban Development, the Veterans |
802 | Administration, the Government National Mortgage Association, |
803 | the Federal National Mortgage Association, or the Federal Home |
804 | Loan Mortgage Corporation. |
805 | (2)(a) A natural person employed by a mortgage lender or |
806 | correspondent mortgage lender licensed under ss. 494.001- |
807 | 494.0077 is exempt from the licensure requirements of ss. |
808 | 494.001-494.0077 when acting within the scope of employment with |
809 | the licensee. |
810 | Section 15. Section 494.0061, Florida Statutes, is amended |
811 | to read: |
812 | 494.0061 Mortgage lender's license requirements.-- |
813 | (1) Each person who acts as a mortgage lender must be |
814 | licensed under this section unless otherwise exempt from |
815 | licensure. |
816 | (2)(1) Each initial application for a mortgage lender |
817 | license must be in the form prescribed by rule of the |
818 | commission. The commission or office may require each applicant |
819 | for a mortgage lender license to provide any information |
820 | reasonably necessary to make a determination of the applicant's |
821 | eligibility for licensure. The office shall issue an initial |
822 | mortgage lender license to any person that submits: |
823 | (a) A completed application form.; |
824 | (b) A nonrefundable application fee of $575. An |
825 | application is considered received for purposes of s. 120.60 |
826 | upon receipt of a completed application form as prescribed by |
827 | commission rule, a nonrefundable application fee of $575, and |
828 | any other fee prescribed by law.; |
829 | (c) Audited financial statements, which documents disclose |
830 | that the applicant has a bona fide and verifiable net worth, |
831 | pursuant to United States generally accepted accounting |
832 | principles, of at least $250,000, which must be continuously |
833 | maintained as a condition of licensure.; |
834 | (d) A surety bond in the amount of $10,000, payable to the |
835 | state and conditioned upon compliance with ss. 494.001-494.0077, |
836 | which inures to the office and which must be continuously |
837 | maintained thereafter in full force.; |
838 | (e) Documentation that the applicant is duly incorporated, |
839 | registered, or otherwise formed as a general partnership, |
840 | limited partnership, limited liability company, or other lawful |
841 | entity under the laws of this state or another state of the |
842 | United States.; and |
843 | (f) For applications submitted after October 1, 2001, |
844 | Proof that the applicant's principal representative has |
845 | completed 24 hours of classroom instruction in primary and |
846 | subordinate financing transactions and in the provisions of this |
847 | chapter and rules adopted under this chapter. This requirement |
848 | is satisfied if the principal representative has continuously |
849 | served in the capacity of a principal representative for a |
850 | licensed entity under this chapter for at least 1 year and has |
851 | not had a lapse in designation as a principal representative of |
852 | more than 2 years before the date of the submission of the |
853 | application or amendment in the case of a change in the |
854 | principal representative. This requirement is also satisfied if |
855 | the principal representative currently holds an active license |
856 | as a mortgage broker in this state. |
857 | (g) A complete set of fingerprints as the commission |
858 | requires by rule for the designated principal representative and |
859 | each officer, director, control person, member, partner, or |
860 | joint venturer of the applicant and ultimate equitable owner of |
861 | a 10-percent or greater interest in the applicant. A fingerprint |
862 | card submitted to the office must be taken by an authorized law |
863 | enforcement agency. The office shall submit the fingerprints to |
864 | the Department of Law Enforcement for state processing and the |
865 | Department of Law Enforcement shall forward the fingerprints to |
866 | the Federal Bureau of Investigation for federal processing. The |
867 | cost for the fingerprint processing may be borne by the office, |
868 | the employer, or the person subject to the background check. The |
869 | Department of Law Enforcement shall submit an invoice to the |
870 | office for the fingerprints received each month. The office |
871 | shall screen the background results to determine if the |
872 | applicant meets licensure requirements. |
873 | (h) Information the commission requires by rule concerning |
874 | any designated principal representative; any officer, director, |
875 | control person, member, partner, or joint venturer of the |
876 | applicant or any person having the same or substantially similar |
877 | status or performing substantially similar functions; or any |
878 | natural person who is the ultimate equitable owner of a 10- |
879 | percent or greater interest in the mortgage lender. The |
880 | commission may require information concerning any such applicant |
881 | or person, including, but not limited to, his or her full name |
882 | and any other names by which he or she may have been known, |
883 | social security number, age, qualifications and educational and |
884 | business history, and disciplinary and criminal history. |
885 | (3)(2) Notwithstanding the provisions of subsection (2) |
886 | (1), it is a ground for denial of licensure if the applicant; |
887 | designated principal representative;, any principal officer, or |
888 | director, control person, member, partner, or joint venturer of |
889 | the applicant;, or any natural person owning a 10-percent or |
890 | greater interest in the applicant;, or any natural person who is |
891 | the ultimate equitable owner of a 10-percent or greater interest |
892 | in the applicant has committed any violation specified in s. |
893 | 494.0072, or has pending against her or him any criminal |
894 | prosecution or administrative enforcement action, in any |
895 | jurisdiction, which involves fraud, dishonest dealing, or any |
896 | act of moral turpitude. |
897 | (3) Each initial application for a mortgage lender's |
898 | license must be in a form prescribed by the commission. The |
899 | commission or office may require each applicant to provide any |
900 | information reasonably necessary to make a determination of the |
901 | applicant's eligibility for licensure. The commission or office |
902 | may require that each officer, director, and ultimate equitable |
903 | owner of a 10-percent or greater interest in the applicant |
904 | submit a complete set of fingerprints taken by an authorized law |
905 | enforcement officer. |
906 | (4) A person required to be licensed under ss. 494.006- |
907 | 494.0077, or an agent or employee thereof, is deemed to have |
908 | consented to the venue of courts of competent jurisdiction in |
909 | this state regarding any matter within the authority of ss. |
910 | 494.001-494.0077 regardless of where an act or violation was |
911 | committed. |
912 | (5) A license issued in accordance with ss. 494.006- |
913 | 494.0077 is not transferable or assignable. |
914 | (6) A mortgage lender or branch office license may be |
915 | canceled if it was issued through mistake or inadvertence of the |
916 | office. A notice of cancellation must be issued by the office |
917 | within 90 days after the issuance of the license. A notice of |
918 | cancellation shall be effective upon receipt. The notice of |
919 | cancellation shall provide the applicant with notification of |
920 | the right to request a hearing within 21 days after the |
921 | applicant's receipt of the notice of cancellation. A license |
922 | shall be reinstated if the applicant can demonstrate that the |
923 | requirements for obtaining the license under pursuant to this |
924 | chapter have been satisfied. |
925 | (7) If an initial mortgage lender or branch office license |
926 | has been issued but the check upon which the license is based is |
927 | returned due to insufficient funds, the license shall be deemed |
928 | canceled. A license deemed canceled pursuant to this subsection |
929 | shall be reinstated if the office receives a certified check for |
930 | the appropriate amount within 30 days after the date the check |
931 | was returned due to insufficient funds. |
932 | (7)(8) Each lender, regardless of the number of branches |
933 | it operates, shall designate a principal representative who |
934 | exercises control of the licensee's business and shall maintain |
935 | a form prescribed by the commission designating the principal |
936 | representative. If the form is not accurately maintained, the |
937 | business is considered to be operated by each officer, director, |
938 | or equitable owner of a 10-percent or greater interest in the |
939 | business. |
940 | (8)(9) After October 1, 2001, An applicant's principal |
941 | representative must pass a written test prescribed by the |
942 | commission and administered by the office, or must pass an |
943 | electronic test prescribed by the commission and administered by |
944 | the office or a third party approved by the office, which covers |
945 | primary and subordinate mortgage financing transactions and the |
946 | provisions of this chapter and rules adopted under this chapter. |
947 | The commission may set a fee by rule, which may not exceed $100, |
948 | for the electronic version of the mortgage broker test. The |
949 | commission may waive by rule the examination requirement for any |
950 | person who has passed a test approved by the Conference of State |
951 | Bank Supervisors, the American Association of Residential |
952 | Mortgage Regulators, or the United States Department of Housing |
953 | and Urban Development if the test covers primary and subordinate |
954 | mortgage financing transactions. This requirement is satisfied |
955 | if the principal representative has continuously served in the |
956 | capacity of a principal representative for a licensed entity |
957 | under this chapter for at least 1 year and has not had a lapse |
958 | in designation as a principal representative of more than 2 |
959 | years before the date of the submission of the application or |
960 | amendment in the case of a change in the principal |
961 | representative. This requirement is also satisfied if the |
962 | principal representative holds an active license as a mortgage |
963 | broker in this state. |
964 | (9)(10) A lender shall notify the office of any change in |
965 | the designation of its principal representative within 30 days |
966 | after the change is effective. A new principal representative |
967 | shall satisfy the name and address of any new principal |
968 | representative and shall document that the person has completed |
969 | the educational and testing requirements of this section within |
970 | 90 days after being designated as upon the designation of a new |
971 | principal representative. This requirement is satisfied if the |
972 | principal representative has continuously served in the capacity |
973 | of a principal representative for a licensed entity under this |
974 | chapter for at least 1 year and has not had a lapse in |
975 | designation as a principal representative of more than 2 years |
976 | before the date of the submission of the application or |
977 | amendment in the case of a change in the principal |
978 | representative. This requirement is also satisfied if the |
979 | principal representative holds an active license as a mortgage |
980 | broker in this state. |
981 | Section 16. Section 494.0062, Florida Statutes, is amended |
982 | to read: |
983 | 494.0062 Correspondent mortgage lender's license |
984 | requirements.-- |
985 | (1) Each person who acts as a correspondent mortgage |
986 | lender must be licensed under this section unless otherwise |
987 | exempt from licensure. |
988 | (2)(1) Each initial application for a correspondent |
989 | mortgage lender's license must be in the form prescribed by rule |
990 | of the commission. The office may require each applicant to |
991 | provide any information reasonably necessary to determine the |
992 | applicant's eligibility for licensure. The office shall issue an |
993 | initial correspondent mortgage lender license to any person who |
994 | submits: |
995 | (a) A completed application form.; |
996 | (b) A nonrefundable application fee of $500. An |
997 | application is considered received for purposes of s. 120.60 |
998 | upon receipt of a completed application form as prescribed by |
999 | commission rule, a nonrefundable application fee of $500, and |
1000 | any other fee prescribed by law.; |
1001 | (c) Audited financial statements that, which document that |
1002 | the applicant application has a bona fide and verifiable net |
1003 | worth pursuant to United States generally accepted accounting |
1004 | principles of $25,000 or more, which must be continuously |
1005 | maintained as a condition of licensure.; |
1006 | (d) A surety bond in the amount of $10,000, payable to the |
1007 | State of Florida and conditioned upon compliance with ss. |
1008 | 494.001-494.0077, which inures to the office and which must be |
1009 | continuously maintained, thereafter, in full force.; |
1010 | (e) Documentation that the applicant is duly incorporated, |
1011 | registered, or otherwise formed as a general partnership, |
1012 | limited partnership, limited liability company, or other lawful |
1013 | entity under the laws of this state or another state of the |
1014 | United States.; and |
1015 | (f) For applications filed after October 1, 2001, Proof |
1016 | that the applicant's principal representative has completed 24 |
1017 | hours of classroom instruction in primary and subordinate |
1018 | financing transactions and in the provisions of this chapter and |
1019 | rules enacted under this chapter. This requirement is satisfied |
1020 | if the principal representative has continuously served in the |
1021 | capacity of a principal representative for a licensed entity |
1022 | under this chapter for at least 1 year and has not had a lapse |
1023 | in designation as a principal representative of more than 2 |
1024 | years before the date of the submission of the application or |
1025 | amendment in the case of a change in the principal |
1026 | representative. This requirement is also satisfied if the |
1027 | principal representative holds an active license as a mortgage |
1028 | broker in this state. |
1029 | (g) A complete set of fingerprints as the commission |
1030 | requires by rule for the designated principal representative and |
1031 | each officer, director, control person, member, partner, or |
1032 | joint venturer of the applicant and ultimate equitable owner of |
1033 | a 10-percent or greater interest in the applicant. A fingerprint |
1034 | card submitted to the office must be taken by an authorized law |
1035 | enforcement agency. The office shall submit the fingerprints to |
1036 | the Department of Law Enforcement for state processing and the |
1037 | Department of Law Enforcement shall forward the fingerprints to |
1038 | the Federal Bureau of Investigation for federal processing. The |
1039 | cost of the fingerprint processing may be borne by the office, |
1040 | the employer, or the person subject to the background check. The |
1041 | Department of Law Enforcement shall submit an invoice to the |
1042 | office for the fingerprints received each month. The office |
1043 | shall screen the background results to determine if the |
1044 | applicant meets licensure requirements. |
1045 | (h) Information the commission requires by rule concerning |
1046 | any designated principal representative; any officer, director, |
1047 | control person, member, partner, or joint venturer of the |
1048 | applicant or any person having the same or substantially similar |
1049 | status or performing substantially similar functions; or any |
1050 | natural person who is the ultimate equitable owner of a 10- |
1051 | percent or greater interest in the correspondent mortgage |
1052 | lender. The office may require information concerning any such |
1053 | applicant or person, including, but not limited to, his or her |
1054 | full name and any other names by which he or she may have been |
1055 | known, age, social security number, qualifications and |
1056 | educational and business history, and disciplinary and criminal |
1057 | history. |
1058 | (3)(2) Notwithstanding the provisions of subsection (2) |
1059 | (1), it is a ground for denial of licensure if the applicant; |
1060 | any designated principal representative;, any principal officer, |
1061 | or director, control person, member, partner, or joint venturer |
1062 | of the applicant;, or any natural person who is the ultimate |
1063 | equitable owner of a 10-percent or greater interest in the |
1064 | applicant has committed any violation specified in s. 494.0072, |
1065 | or has pending against her or him any criminal prosecution or |
1066 | administrative enforcement action, in any jurisdiction, which |
1067 | involves fraud, dishonest dealing, or any act of moral |
1068 | turpitude. |
1069 | (3) Each initial application for a correspondent mortgage |
1070 | lender's license must be in a form prescribed by the commission. |
1071 | The commission or office may require each applicant to provide |
1072 | any information reasonably necessary to make a determination of |
1073 | the applicant's eligibility for licensure. The commission or |
1074 | office may require that each officer, director, and ultimate |
1075 | equitable owner of a 10-percent or greater interest submit a |
1076 | complete set of fingerprints taken by an authorized law |
1077 | enforcement officer. |
1078 | (4) Each license is valid for the remainder of the |
1079 | biennium in which the license is issued. |
1080 | (5) A person licensed as a correspondent mortgage lender |
1081 | may make mortgage loans, but may not service a mortgage loan for |
1082 | more than 4 months after the date the mortgage loan was made or |
1083 | acquired by the correspondent mortgage lender. |
1084 | (6) A licensee under ss. 494.006-494.0077, or an agent or |
1085 | employee thereof, is deemed to have consented to the venue of |
1086 | courts of competent jurisdiction in this state regarding any |
1087 | matter within the authority of ss. 494.001-494.0077 regardless |
1088 | of where an act or violation was committed. |
1089 | (7) A correspondent mortgage lender is subject to the same |
1090 | requirements and restrictions as a licensed mortgage lender |
1091 | unless otherwise provided in this section. |
1092 | (8) A license issued under this section is not |
1093 | transferable or assignable. |
1094 | (9) A correspondent mortgage lender or branch office |
1095 | license may be canceled if it was issued through mistake or |
1096 | inadvertence of the office. A notice of cancellation must be |
1097 | issued by the office within 90 days after the issuance of the |
1098 | license. A notice of cancellation shall be effective upon |
1099 | receipt. The notice of cancellation shall provide the applicant |
1100 | with notification of the right to request a hearing within 21 |
1101 | days after the applicant's receipt of the notice of |
1102 | cancellation. A license shall be reinstated if the applicant can |
1103 | demonstrate that the requirements for obtaining the license |
1104 | pursuant to this chapter have been satisfied. |
1105 | (10) If an initial correspondent mortgage lender or branch |
1106 | office license has been issued but the check upon which the |
1107 | license is based is returned due to insufficient funds, the |
1108 | license shall be deemed canceled. A license deemed canceled |
1109 | pursuant to this subsection shall be reinstated if the office |
1110 | receives a certified check for the appropriate amount within 30 |
1111 | days after the date the check was returned due to insufficient |
1112 | funds. |
1113 | (10)(11) Each correspondent lender shall designate a |
1114 | principal representative who exercises control over the business |
1115 | and shall maintain a form prescribed by the commission |
1116 | designating the principal representative. If the form is not |
1117 | accurately maintained, the business is considered to be operated |
1118 | by each officer, director, or equitable owner of a 10-percent or |
1119 | greater interest in the business. |
1120 | (11)(12) After October 1, 2001, An applicant's principal |
1121 | representative must pass a written test prescribed by the |
1122 | commission and administered by the office, or must pass an |
1123 | electronic test prescribed by the commission and administered by |
1124 | the office or a third party approved by the office, which covers |
1125 | primary and subordinate mortgage financing transactions and the |
1126 | provisions of this chapter and rules adopted under this chapter. |
1127 | The commission may waive by rule the examination requirement for |
1128 | any person who has passed a test approved by the Conference of |
1129 | State Bank Supervisors, the American Association of Residential |
1130 | Mortgage Regulators, or the United States Department of Housing |
1131 | and Urban Development if the test covers primary and subordinate |
1132 | mortgage financing transactions. The commission may set by rule |
1133 | a fee not to exceed $100 for taking the examination. This |
1134 | requirement is satisfied if the principal representative has |
1135 | continuously served in the capacity of a principal |
1136 | representative for a licensed entity under this chapter for at |
1137 | least 1 year and has not had a lapse in designation as a |
1138 | principal representative of more than 2 years before the date of |
1139 | the submission of the application or amendment in the case of a |
1140 | change in the principal representative. This requirement is also |
1141 | satisfied if the principal representative holds an active |
1142 | license as a mortgage broker in this state. |
1143 | (12)(13) A correspondent lender shall notify the office of |
1144 | any change in the designation of its principal representative |
1145 | within 30 days after the change is effective. A new principal |
1146 | representative shall satisfy the name and address of any new |
1147 | principal representative and shall document that such person has |
1148 | completed the educational and testing requirements of this |
1149 | section within 90 days after being designated as upon the |
1150 | lender's designation of a new principal representative. This |
1151 | requirement is satisfied if the principal representative has |
1152 | continuously served in the capacity of a principal |
1153 | representative for a licensed entity under this chapter for at |
1154 | least 1 year and has not had a lapse in designation as a |
1155 | principal representative of more than 2 years before the date of |
1156 | the submission of the application or amendment in the case of a |
1157 | change in the principal representative. This requirement is also |
1158 | satisfied if the principal representative holds an active |
1159 | license as a mortgage broker in this state. |
1160 | Section 17. Paragraph (b) of subsection (1) and subsection |
1161 | (2) of section 494.0064, Florida Statutes, are amended to read: |
1162 | 494.0064 Renewal of mortgage lender's license; branch |
1163 | office license renewal.-- |
1164 | (1) |
1165 | (b) A licensee shall also submit, as part of the renewal |
1166 | form, certification that during the preceding 2 years the |
1167 | licensee's principal representative and, loan originators, and |
1168 | associates have completed the professional continuing education |
1169 | requirements of s. 494.00295. |
1170 | (2) The commission shall adopt rules establishing a |
1171 | procedure for the biennial renewal of mortgage lender's |
1172 | licenses, correspondent lender's licenses, and branch office |
1173 | licenses permits. The commission may prescribe the form for |
1174 | renewal and may require an update of all information provided in |
1175 | the licensee's initial application. |
1176 | Section 18. Section 494.0065, Florida Statutes, is amended |
1177 | to read: |
1178 | 494.0065 Saving clause.-- |
1179 | (1)(a) Any person in good standing who holds an active |
1180 | registration pursuant to former s. 494.039 or license pursuant |
1181 | to former s. 521.205, or any person who acted solely as a |
1182 | mortgage servicer on September 30, 1991, is eligible to apply to |
1183 | the office for a mortgage lender's license and is eligible for |
1184 | licensure if the applicant: |
1185 | 1. For at least 12 months during the period of October 1, |
1186 | 1989, through September 30, 1991, has engaged in the business of |
1187 | either acting as a seller or assignor of mortgage loans or as a |
1188 | servicer of mortgage loans, or both; |
1189 | 2. Has documented a minimum net worth of $25,000 in |
1190 | audited financial statements; and |
1191 | 3. Has applied for licensure pursuant to this section by |
1192 | January 1, 1992, and paid an application fee of $100. |
1193 | (b) A licensee pursuant to paragraph (a) may operate a |
1194 | wholly owned subsidiary or affiliate for the purpose of |
1195 | servicing accounts if the subsidiary or affiliate is operational |
1196 | as of September 30, 1991. Such subsidiary or affiliate is not |
1197 | required to obtain a separate license, but is subject to all the |
1198 | requirements of a licensee under ss. 494.006-494.0077. |
1199 | (2) A licensee issued a license pursuant to subsection (1) |
1200 | may renew its mortgage lending license if it documents a minimum |
1201 | net worth of $25,000, according to United States generally |
1202 | accepted accounting principles, which must be continuously |
1203 | maintained as a condition to licensure. The office shall require |
1204 | an audited financial statement which documents such net worth. |
1205 | (3) The commission may prescribe by rule forms and |
1206 | procedures for application for licensure, and amendment and |
1207 | withdrawal of application for licensure, or transfer, including |
1208 | any existing branch offices, in accordance with subsections (4) |
1209 | and (5), and for renewal of licensure of licensees under this |
1210 | section. The office may require each applicant to provide any |
1211 | information reasonably necessary to determine the applicant's |
1212 | eligibility for licensure. An application is considered received |
1213 | for purposes of s. 120.60 upon receipt of a completed |
1214 | application form as prescribed by commission rule, a |
1215 | nonrefundable application fee of $500, and any other fee |
1216 | prescribed by law. |
1217 | (4)(a) Notwithstanding ss. 494.0061(5) and 494.0067(2)(3), |
1218 | the ultimate equitable owner, as of the effective date of this |
1219 | act, of a mortgage lender licensed under this section may |
1220 | transfer, one time, at least 50 percent of the ownership, |
1221 | control, or power to vote any class of equity securities of such |
1222 | mortgage lender, except as provided in paragraph (b). For |
1223 | purposes of this subsection, satisfaction of the amount of the |
1224 | ownership transferred may be met in multiple transactions or in |
1225 | a single transaction. |
1226 | (b) A person who is an ultimate equitable owner on the |
1227 | effective date of this act may transfer, at any time, at least |
1228 | 50 percent of the ownership, control, or power to vote any class |
1229 | of equity securities of such person to the person's spouse or |
1230 | child, and any such transferee may transfer, at any time, such |
1231 | ownership, control, or power to vote to a spouse or child of |
1232 | such transferee, in perpetuity. |
1233 | (c) For any transfer application filed on or after October |
1234 | 1, 2006: |
1235 | 1. An applicant must provide proof that the applicant's |
1236 | principal representative has completed 24 hours of instruction |
1237 | in primary and subordinate financing transactions and in the |
1238 | provisions of this chapter and rules adopted under this chapter. |
1239 | This requirement is satisfied if the principal representative |
1240 | has continuously served in the capacity of a principal |
1241 | representative for a licensed entity under this chapter for at |
1242 | least 1 year and has not had a lapse in designation as a |
1243 | principal representative of more than 2 years before the date of |
1244 | the submission of the application or amendment in the case of a |
1245 | change in the principal representative. This requirement is also |
1246 | satisfied if the principal representative holds an active |
1247 | license as a mortgage broker in this state. |
1248 | 2. An applicant's principal representative must pass a |
1249 | written test prescribed by the commission and administered by |
1250 | the office, or must pass an electronic test prescribed by the |
1251 | commission and administered by the office or a third party |
1252 | approved by the office, which covers primary and subordinate |
1253 | mortgage financing transactions and the provisions of this |
1254 | chapter and rules adopted under this chapter. The commission may |
1255 | set by rule a fee not to exceed $100 for the electronic version |
1256 | of the mortgage broker test. The commission may waive by rule |
1257 | the examination requirement for any person who has passed a test |
1258 | approved by the Conference of State Bank Supervisors, the |
1259 | American Association of Residential Mortgage Regulators, or the |
1260 | United States Department of Housing and Urban Development if the |
1261 | test covers primary and subordinate mortgage financing |
1262 | transactions. This requirement is satisfied if the principal |
1263 | representative has continuously served in the capacity of a |
1264 | principal representative for a licensed entity under this |
1265 | chapter for at least 1 year and has not had a lapse in |
1266 | designation as a principal representative of more than 2 years |
1267 | before the date of the submission of the application or |
1268 | amendment in the case of a change in the principal |
1269 | representative. This requirement is also satisfied if the |
1270 | principal representative holds an active license as a mortgage |
1271 | broker in this state. |
1272 | (5) Each initial application for a transfer must be in the |
1273 | form prescribed by rule of the commission. The commission or |
1274 | office may require each applicant for any transfer to provide |
1275 | any information reasonably necessary to make a determination of |
1276 | the applicant's eligibility for licensure. The office shall |
1277 | issue the transfer of licensure to any person who submits the |
1278 | following documentation at least 90 days prior to the |
1279 | anticipated transfer: |
1280 | (a) A completed application form. |
1281 | (b) A nonrefundable fee set by rule of the commission in |
1282 | the amount of $500. An application is considered received for |
1283 | purposes of s. 120.60 upon receipt of a completed application |
1284 | form as prescribed by commission rule, a nonrefundable |
1285 | application fee of $500, and any other fee prescribed by law. |
1286 | (c) Audited financial statements that substantiate that |
1287 | the applicant has a bona fide and verifiable net worth, |
1288 | according to United States generally accepted accounting |
1289 | principles, of at least $25,000, which must be continuously |
1290 | maintained as a condition of licensure. |
1291 | (d) Documentation that the applicant is incorporated, |
1292 | registered, or otherwise formed as a general partnership, |
1293 | limited partnership, limited liability company, or other lawful |
1294 | entity under the laws of this state or another state of the |
1295 | United States. |
1296 | (e) A complete set of fingerprints as the commission |
1297 | requires by rule for or office may require that each designated |
1298 | principal representative, officer, director, control person, |
1299 | member, partner, or joint venturer of the applicant and the |
1300 | ultimate equitable owner of a 10-percent or greater interest in |
1301 | the applicant. A fingerprint card submitted to the office must |
1302 | be submit a complete set of fingerprints taken by an authorized |
1303 | law enforcement agency officer. The office shall submit the |
1304 | fingerprints to the Department of Law Enforcement for state |
1305 | processing and the Department of Law Enforcement shall forward |
1306 | the fingerprints to the Federal Bureau of Investigation for |
1307 | federal processing. The cost of the fingerprint processing may |
1308 | be borne by the office, the employer, or the person subject to |
1309 | the background check. The Department of Law Enforcement shall |
1310 | submit an invoice to the office for the fingerprints received |
1311 | each month. The office shall screen the background results to |
1312 | determine if the applicant meets licensure requirements. |
1313 | (f) Information that the commission requires by rule |
1314 | concerning any designated principal representative; any officer, |
1315 | director, control person, member, partner, or joint venturer of |
1316 | the applicant or any person having the same or substantially |
1317 | similar status or performing substantially similar functions; or |
1318 | any individual who is the ultimate equitable owner of a 10- |
1319 | percent or greater interest in the mortgage lender. The |
1320 | commission may require information concerning such applicant or |
1321 | person, including, but not limited to, his or her full name and |
1322 | any other names by which he or she may have been known, age, |
1323 | social security number, qualifications and educational and |
1324 | business history, and disciplinary and criminal history. |
1325 | (6) Notwithstanding subsection (5), a transfer under |
1326 | subsection (4) may be denied if the applicant; designated |
1327 | principal representative;, any principal officer, or director, |
1328 | control person, member, partner, or joint venturer of the |
1329 | applicant;, or any natural person owning a 10-percent or greater |
1330 | interest in the applicant has committed any violation specified |
1331 | in s. 494.0072, or has entered a plea of nolo contendere, |
1332 | regardless of adjudication, or has an action pending against the |
1333 | applicant in any criminal prosecution or administrative |
1334 | enforcement action, in any jurisdiction, which involves fraud, |
1335 | dishonest dealing, or any act of moral turpitude. |
1336 | (7) A license issued in accordance with this section is |
1337 | not transferable or assignable except as provided in subsection |
1338 | (4). |
1339 | (8) Each person applying for a transfer of any branch |
1340 | office pursuant to subsection (4) must comply with the |
1341 | requirements of s. 494.0066. |
1342 | (9) Each mortgage lender shall designate a principal |
1343 | representative who exercises control over the business and shall |
1344 | keep the designation current on a form prescribed by commission |
1345 | rule designating the principal representative. If the |
1346 | information on the form is not kept current, the business is |
1347 | considered to be operated by each officer, director, or |
1348 | equitable owner of a 10-percent or greater interest in the |
1349 | business. |
1350 | (10) A lender shall notify the office of any change in the |
1351 | designation of its principal representative within 30 days after |
1352 | the change is effective. A new principal representative must |
1353 | satisfy the educational and testing requirements of this section |
1354 | within 90 days after being designated as the new principal |
1355 | representative. This requirement is satisfied if the principal |
1356 | representative has continuously served in the capacity of a |
1357 | principal representative for a licensed entity under this |
1358 | chapter for at least 1 year and has not had a lapse in |
1359 | designation as a principal representative of more than 2 years |
1360 | before the date of the submission of the application or |
1361 | amendment in the case of a change in the principal |
1362 | representative. This requirement is also satisfied if the |
1363 | principal representative currently holds an active license as a |
1364 | mortgage broker in this state. |
1365 | Section 19. Subsection (2) of section 494.0066, Florida |
1366 | Statutes, is amended to read: |
1367 | 494.0066 Branch offices.-- |
1368 | (2) The office shall issue a branch office license to a |
1369 | licensee licensed under ss. 494.006-494.0077 after the office |
1370 | determines that the licensee has submitted upon receipt of a |
1371 | completed branch office application form as prescribed by rule |
1372 | by the commission and an initial nonrefundable branch office |
1373 | license fee of $325. The branch office application must include |
1374 | the name and license number of the licensee under ss. 494.006- |
1375 | 494.0077, the name of the licensee's employee in charge of the |
1376 | branch office, and the address of the branch office. The branch |
1377 | office license shall be issued in the name of the licensee under |
1378 | ss. 494.006-494.0077 and must be renewed in conjunction with the |
1379 | license renewal. |
1380 | Section 20. Section 494.0067, Florida Statutes, is amended |
1381 | to read: |
1382 | 494.0067 Requirements of licensees under ss. 494.006- |
1383 | 494.0077.-- |
1384 | (1) Each license of a mortgage lender, correspondent |
1385 | mortgage lender, or branch office shall be prominently displayed |
1386 | in the office for which it is issued. |
1387 | (1)(2) Each licensee under ss. 494.006-494.0077 which |
1388 | makes mortgage loans on real estate in this state shall transact |
1389 | business from a principal place of business. Each principal |
1390 | place of business and each branch office shall be operated under |
1391 | the full charge, control, and supervision of the licensee under |
1392 | ss. 494.006-494.0077. |
1393 | (2)(3) A license issued under ss. 494.006-494.0077 is not |
1394 | transferable or assignable. |
1395 | (3) Each licensee under ss. 494.006-494.0077 shall report, |
1396 | on a form prescribed by rule of the commission, any change in |
1397 | the information contained in any initial application form, or |
1398 | any amendment thereto, not later than 30 days after the change |
1399 | is effective. |
1400 | (4) Each licensee under ss. 494.006-494.0077 shall report |
1401 | any changes in the partners, officers, members, joint venturers, |
1402 | directors, or control persons of any licensee or changes in the |
1403 | form of business organization by written amendment in such form |
1404 | and at such time that the commission specifies by rule. |
1405 | (a) In any case in which a person or a group of persons, |
1406 | directly or indirectly or acting by or through one or more |
1407 | persons, proposes to purchase or acquire a controlling interest |
1408 | in a licensee, such person or group must submit an initial |
1409 | application for licensure as a mortgage lender or correspondent |
1410 | mortgage lender before such purchase or acquisition and at the |
1411 | time and in the form prescribed by the commission by rule. |
1412 | (b) As used in this subsection, the term "controlling |
1413 | interest" means possession of the power to direct or cause the |
1414 | direction of the management or policies of a company whether |
1415 | through ownership of securities, by contract, or otherwise. Any |
1416 | person who directly or indirectly has the right to vote 25 |
1417 | percent or more of the voting securities of a company or who is |
1418 | entitled to 25 percent or more of the company's profits is |
1419 | presumed to possess a controlling interest. |
1420 | (c) Any addition of a designated principal representative, |
1421 | partner, officer, member, joint venturer, director, or control |
1422 | person of the applicant who does not have a controlling interest |
1423 | and who has not previously complied with the provisions of s. |
1424 | 494.0061(2)(g) and (h), s. 494.0062(2)(g) and (h), or s. |
1425 | 494.0065(5)(e) and (f) shall be subject to such provisions |
1426 | unless required to file an initial application in accordance |
1427 | with paragraph (a). If the office determines that the licensee |
1428 | does not continue to meet licensure requirements, the office may |
1429 | bring administrative action in accordance with s. 494.0072 to |
1430 | enforce the provisions of this section. |
1431 | (d) The commission shall adopt rules pursuant to ss. |
1432 | 120.536(1) and 120.54 providing for the waiver of the |
1433 | application required by this subsection if the person or group |
1434 | of persons proposing to purchase or acquire a controlling |
1435 | interest in a licensee has previously complied with the |
1436 | provisions of s. 494.0061(2)(g) and (h), s. 494.0062(2)(g) and |
1437 | (h), or s. 494.0065(5)(e) and (f) with the same legal entity or |
1438 | is currently licensed with the office under this chapter. |
1439 | (4) The commission or office may require each licensee |
1440 | under ss. 494.006-494.0077 to report any change of address of |
1441 | the principal place of business, change of address of any branch |
1442 | office, or change of principal officer, director, or ultimate |
1443 | equitable owner of 10 percent or more of the licensed |
1444 | corporation to the office in a form prescribed by rule of the |
1445 | commission not later than 30 business days after the change is |
1446 | effective. |
1447 | (5) Each licensee under ss. 494.006-494.0077 shall report |
1448 | in a form prescribed by rule by the commission any indictment, |
1449 | information, charge, conviction, plea of nolo contendere, or |
1450 | plea of guilty to any crime or administrative violation that |
1451 | involves fraud, dishonest dealing, or any other act of moral |
1452 | turpitude, in any jurisdiction, by the licensee under ss. |
1453 | 494.006-494.0077 or any principal officer, director, or ultimate |
1454 | equitable owner of 10 percent or more of the licensed |
1455 | corporation, not later than 30 business days after the |
1456 | indictment, information, charge, conviction, or final |
1457 | administrative action. |
1458 | (6) Each licensee under ss. 494.006-494.0077 shall report |
1459 | any action in bankruptcy, voluntary or involuntary, to the |
1460 | office, not later than 7 business days after the action is |
1461 | instituted. |
1462 | (7) Each licensee under ss. 494.006-494.0077 shall |
1463 | designate a registered agent in this state for service of |
1464 | process. |
1465 | (8) Each licensee under ss. 494.006-494.0077 shall provide |
1466 | an applicant for a mortgage loan a good faith estimate of the |
1467 | costs the applicant can reasonably expect to pay in obtaining a |
1468 | mortgage loan. The good faith estimate of costs shall be mailed |
1469 | or delivered to the applicant within a reasonable time after the |
1470 | licensee receives a written loan application from the applicant. |
1471 | The estimate of costs may be provided to the applicant by a |
1472 | person other than the licensee making the loan. The commission |
1473 | may adopt rules that set forth the disclosure requirements of |
1474 | this section. |
1475 | (9) On or before April 30, 2000, each mortgage lender or |
1476 | correspondent mortgage lender shall file an initial report |
1477 | stating the full legal name, residential address, social |
1478 | security number, date of birth, mortgage broker license number, |
1479 | date of hire, and, if applicable, date of termination for each |
1480 | person who acted as a loan originator or an associate of the |
1481 | mortgage lender or correspondent mortgage lender during the |
1482 | immediate preceding quarter. Thereafter, a mortgage lender or |
1483 | correspondent mortgage lender shall file a report only if a |
1484 | person became or ceased to be a loan originator or an associate |
1485 | of the mortgage lender or correspondent mortgage lender during |
1486 | the immediate preceding quarter. Such report shall be filed |
1487 | within 30 days after the last day of each calendar quarter and |
1488 | shall contain the full legal name, residential address, social |
1489 | security number, date of birth, date of hire and, if applicable, |
1490 | the mortgage broker license number and date of termination of |
1491 | each person who became or ceased to be a loan originator or an |
1492 | associate of the mortgage lender or correspondent mortgage |
1493 | lender during the immediate preceding quarter. The commission |
1494 | shall prescribe, by rule, the procedures for filing reports |
1495 | required by this subsection. |
1496 | (10)(a) Each licensee shall require the principal |
1497 | representative and all loan originators or associates who |
1498 | perform services for the licensee to complete 14 hours of |
1499 | professional continuing education during each biennial license |
1500 | period. The education shall cover primary and subordinate |
1501 | mortgage financing transactions and the provisions of this |
1502 | chapter and the rules adopted under this chapter. |
1503 | (b) The licensee shall maintain records of such training |
1504 | for a period of 4 years, including records of the content of and |
1505 | hours designated for each program and the date and location of |
1506 | the program. |
1507 | (c) Evidence of completion of such programs shall be |
1508 | included with the licensee's renewal application. |
1509 | Section 21. Paragraphs (s), (t), and (u) are added to |
1510 | subsection (2) of section 494.0072, Florida Statutes, and |
1511 | subsection (3) of that section is amended, to read: |
1512 | 494.0072 Administrative penalties and fines; license |
1513 | violations.-- |
1514 | (2) Each of the following acts constitutes a ground for |
1515 | which the disciplinary actions specified in subsection (1) may |
1516 | be taken: |
1517 | (s) Payment to the office for a license or permit with a |
1518 | check or electronic transmission of funds that is dishonored by |
1519 | the applicant's or licensee's financial institution. |
1520 | (t) Having a final judgment entered against the applicant |
1521 | or licensee in a civil action upon grounds of fraud, |
1522 | embezzlement, misrepresentation, or deceit. |
1523 | (u)1. Having been the subject of any decision, finding, |
1524 | injunction, suspension, prohibition, revocation, denial, |
1525 | judgment, or administrative order by any court of competent |
1526 | jurisdiction, administrative law judge, state or federal agency, |
1527 | national securities exchange, national commodities exchange, |
1528 | national option exchange, national securities association, |
1529 | national commodities association, or national option association |
1530 | involving a violation of any federal or state securities or |
1531 | commodities law, or any rule or regulation adopted under such |
1532 | law, or involving a violation of any rule or regulation of any |
1533 | national securities, commodities, or options exchange or |
1534 | association. |
1535 | 2. Having been the subject of any injunction or adverse |
1536 | administrative order by a state or federal agency regulating |
1537 | banking, insurance, finance or small loan companies, real |
1538 | estate, mortgage brokers or lenders, money transmitters, or |
1539 | other related or similar industries. |
1540 | (3) A mortgage lender or correspondent mortgage lender is |
1541 | subject to the disciplinary actions specified in subsection (1) |
1542 | if any officer, member, director, control person, joint |
1543 | venturer, or ultimate equitable owner of a 10-percent or greater |
1544 | interest in the mortgage lender or correspondent mortgage |
1545 | lender, associate, or employee of the mortgage lender or |
1546 | correspondent mortgage lender violates any provision of |
1547 | subsection (2). |
1548 | Section 22. Subsection (2) of section 494.00721, Florida |
1549 | Statutes, is amended to read: |
1550 | 494.00721 Net worth.-- |
1551 | (2) If a mortgage lender or correspondent mortgage lender |
1552 | fails to satisfy the net worth requirements, the mortgage lender |
1553 | or correspondent mortgage lender shall immediately cease taking |
1554 | any new mortgage loan applications. Thereafter, the mortgage |
1555 | lender or correspondent mortgage lender shall have up to 60 days |
1556 | within which to satisfy the net worth requirements. If the |
1557 | licensee makes the office aware, prior to an examination, that |
1558 | the licensee no longer meets the net worth requirements, the |
1559 | mortgage lender or correspondent mortgage lender shall have 120 |
1560 | days within which to satisfy the net worth requirements. A |
1561 | mortgage lender or correspondent mortgage lender shall not |
1562 | resume acting as a mortgage lender or correspondent mortgage |
1563 | lender without written authorization from the office, which |
1564 | authorization shall be granted if the mortgage lender or |
1565 | correspondent mortgage lender provides the office with |
1566 | documentation which satisfies the requirements of s. |
1567 | 494.0061(2)(1)(c), s. 494.0062(2)(1)(c), or s. 494.0065(2), |
1568 | whichever is applicable. |
1569 | Section 23. Paragraph (c) of subsection (3) of section |
1570 | 501.137, Florida Statutes, is amended to read: |
1571 | 501.137 Mortgage lenders; tax and insurance payments from |
1572 | escrow accounts; duties.-- |
1573 | (3) |
1574 | (c) If the lender violates paragraph (a) and the premium |
1575 | payment is more than 90 days overdue or if the insurer refuses |
1576 | to reinstate the insurance policy, the lender shall pay the |
1577 | difference between the cost of the previous insurance policy and |
1578 | a new, comparable insurance policy for a period of 2 years. If |
1579 | the lender refuses, the lender is liable for the reasonable |
1580 | attorney's fees and costs of the property owner for a violation |
1581 | of this section. |
1582 | Section 24. Subsection (8) is added to section 516.01, |
1583 | Florida Statutes, to read: |
1584 | 516.01 Definitions.--As used in this chapter, the term: |
1585 | (8) "Control person" means an individual, partnership, |
1586 | corporation, trust, or other organization that possesses the |
1587 | power, directly or indirectly, to direct the management or |
1588 | policies of a company, whether through ownership of securities, |
1589 | by contract, or otherwise. A person is presumed to control a |
1590 | company if, with respect to a particular company, that person: |
1591 | (a) Is a director, general partner, or officer exercising |
1592 | executive responsibility or having similar status or functions; |
1593 | (b) Directly or indirectly may vote 10 percent or more of |
1594 | a class of a voting security or sell or direct the sale of 10 |
1595 | percent or more of a class of voting securities; or |
1596 | (c) In the case of a partnership, may receive upon |
1597 | dissolution or has contributed 10 percent or more of the |
1598 | capital. |
1599 | Section 25. Section 516.03, Florida Statutes, is amended |
1600 | to read: |
1601 | 516.03 Application for license; fees; etc.-- |
1602 | (1) APPLICATION.--Application for a license to make loans |
1603 | under this chapter shall be in the form prescribed by rule of |
1604 | the commission. The commission may require each applicant to |
1605 | provide any information reasonably necessary to determine the |
1606 | applicant's eligibility for licensure. The applicant shall also |
1607 | provide information that the office requires concerning any |
1608 | officer, director, control person, member, partner, or joint |
1609 | venturer of the applicant or any person having the same or |
1610 | substantially similar status or performing substantially similar |
1611 | functions or concerning any individual who is the ultimate |
1612 | equitable owner of a 10-percent or greater interest in the |
1613 | applicant. The office may require information concerning any |
1614 | such applicant or person, including, but not limited to, his or |
1615 | her full name and any other names by which he or she may have |
1616 | been known, age, social security number, residential history, |
1617 | qualifications, educational and business history, and |
1618 | disciplinary and criminal history. The applicant must provide |
1619 | evidence of liquid assets of at least $25,000, and shall contain |
1620 | the name, residence and business addresses of the applicant and, |
1621 | if the applicant is a copartnership or association, of every |
1622 | member thereof and, if a corporation, of each officer and |
1623 | director thereof, also the county and municipality with the |
1624 | street and number or approximate location where the business is |
1625 | to be conducted, and such further relevant information as the |
1626 | commission or office may require. At the time of making such |
1627 | application the applicant shall pay to the office a |
1628 | nonrefundable biennial license fee of $625. Applications, except |
1629 | for applications to renew or reactivate a license, must also be |
1630 | accompanied by a nonrefundable an investigation fee of $200. An |
1631 | application is considered received for purposes of s. 120.60 |
1632 | upon receipt of a completed application form as prescribed by |
1633 | commission rule, a nonrefundable application fee of $625, and |
1634 | any other fee prescribed by law. The commission may adopt rules |
1635 | requiring to allow electronic submission of any form, document, |
1636 | or fee required by this act if such rules reasonably accommodate |
1637 | technological or financial hardship. The commission may |
1638 | prescribe by rule requirements and procedures for obtaining an |
1639 | exemption due to a technological or financial hardship. |
1640 | (2) FEES.--Fees herein provided for in this section shall |
1641 | be collected by the office and shall be turned into the State |
1642 | Treasury to the credit of the regulatory trust fund under the |
1643 | office. The office shall have full power to employ such |
1644 | examiners or clerks to assist the office as may from time to |
1645 | time be deemed necessary and fix their compensation. The |
1646 | commission may adopt rules requiring to allow electronic |
1647 | submission of any fee required by this section if such rules |
1648 | reasonably accommodate technological or financial hardship. The |
1649 | commission may prescribe by rule requirements and procedures for |
1650 | obtaining an exemption due to a technological or financial |
1651 | hardship. |
1652 | Section 26. Paragraph (a) of subsection (3) of section |
1653 | 516.031, Florida Statutes, is amended to read: |
1654 | 516.031 Finance charge; maximum rates.-- |
1655 | (3) OTHER CHARGES.-- |
1656 | (a) In addition to the interest, delinquency, and |
1657 | insurance charges herein provided for, no further or other |
1658 | charges or amount whatsoever for any examination, service, |
1659 | commission, or other thing or otherwise shall be directly or |
1660 | indirectly charged, contracted for, or received as a condition |
1661 | to the grant of a loan, except: |
1662 | 1. An amount not to exceed $25 $10 to reimburse a portion |
1663 | of the costs for investigating the character and credit of the |
1664 | person applying for the loan; |
1665 | 2. An annual fee of $25 on the anniversary date of each |
1666 | line-of-credit account; |
1667 | 3. Charges paid for brokerage fee on a loan or line of |
1668 | credit of more than $10,000, title insurance, and the appraisal |
1669 | of real property offered as security when paid to a third party |
1670 | and supported by an actual expenditure; |
1671 | 4. Intangible personal property tax on the loan note or |
1672 | obligation when secured by a lien on real property; |
1673 | 5. The documentary excise tax and lawful fees, if any, |
1674 | actually and necessarily paid out by the licensee to any public |
1675 | officer for filing, recording, or releasing in any public office |
1676 | any instrument securing the loan, which fees may be collected |
1677 | when the loan is made or at any time thereafter; |
1678 | 6. The premium payable for any insurance in lieu of |
1679 | perfecting any security interest otherwise required by the |
1680 | licensee in connection with the loan, if the premium does not |
1681 | exceed the fees which would otherwise be payable, which premium |
1682 | may be collected when the loan is made or at any time |
1683 | thereafter; |
1684 | 7. Actual and reasonable attorney's fees and court costs |
1685 | as determined by the court in which suit is filed; |
1686 | 8. Actual and commercially reasonable expenses of |
1687 | repossession, storing, repairing and placing in condition for |
1688 | sale, and selling of any property pledged as security; or |
1689 | 9. A delinquency charge not to exceed $10 for each payment |
1690 | in default for a period of not less than 10 days, if the charge |
1691 | is agreed upon, in writing, between the parties before imposing |
1692 | the charge. |
1693 |
|
1694 | Any charges, including interest, in excess of the combined total |
1695 | of all charges authorized and permitted by this chapter |
1696 | constitute a violation of chapter 687 governing interest and |
1697 | usury, and the penalties of that chapter apply. In the event of |
1698 | a bona fide error, the licensee shall refund or credit the |
1699 | borrower with the amount of the overcharge immediately but |
1700 | within 20 days from the discovery of such error. |
1701 | Section 27. Section 516.05, Florida Statutes, is amended |
1702 | to read: |
1703 | 516.05 License.-- |
1704 | (1) Upon the filing of an application for a license and |
1705 | payment of all applicable fees, the office shall, unless the |
1706 | application is to renew or reactivate an existing license, make |
1707 | an investigation of the facts concerning the applicant's |
1708 | background proposed activities. If the office determines that a |
1709 | license should be granted, it shall issue the license for a |
1710 | period not to exceed 2 years. Biennial licensure periods and |
1711 | procedures for renewal of licenses shall be established by the |
1712 | rule of the commission. If the office determines that grounds |
1713 | exist under this chapter for denial of an application other than |
1714 | an application to renew a license, it shall deny such |
1715 | application, return to the applicant the sum paid as a license |
1716 | fee, and retain the investigation fee. |
1717 | (2) A license that is not renewed at the end of the |
1718 | biennium established by the commission shall automatically |
1719 | revert to inactive status. An inactive license may be |
1720 | reactivated upon submission of a completed reactivation |
1721 | application, payment of the biennial license fee, and payment of |
1722 | a reactivation fee which shall equal the biennial license fee. A |
1723 | license expires on the date at which it has been inactive for 6 |
1724 | months. |
1725 | (3) Only one place of business for the purpose of making |
1726 | loans under this chapter may be maintained under one license, |
1727 | but the office may issue additional licenses to a licensee upon |
1728 | compliance with all the provisions of this chapter governing |
1729 | issuance of a single license. |
1730 | (4) Each licensee shall report, on a form prescribed by |
1731 | rule of the commission, any change to the information contained |
1732 | in any initial application form or any amendment to such |
1733 | application not later than 30 days after the change is |
1734 | effective. |
1735 | (5) Each licensee shall report any changes in the |
1736 | partners, officers, members, joint venturers, directors, or |
1737 | control persons of any licensee, or changes in the form of |
1738 | business organization, by written amendment in such form and at |
1739 | such time as the commission specifies by rule. |
1740 | (a) In any case in which a person or a group of persons, |
1741 | directly or indirectly or acting by or through one or more |
1742 | persons, proposes to purchase or acquire a controlling interest |
1743 | in a licensee, such person or group must submit an initial |
1744 | application for licensure before such purchase or acquisition at |
1745 | such time and in such form as the commission prescribes by rule. |
1746 | (b) As used in this subsection, the term "controlling |
1747 | interest" means possession of the power to direct or cause the |
1748 | direction of the management or policies of a company whether |
1749 | through ownership of securities, by contract, or otherwise. Any |
1750 | person who directly or indirectly has the right to vote 25 |
1751 | percent or more of the voting securities of a company or is |
1752 | entitled to 25 percent or more of the company's profits is |
1753 | presumed to possess a controlling interest. |
1754 | (c) Any addition of a partner, officer, member, joint |
1755 | venturer, director, or control person of the applicant who does |
1756 | not have a controlling interest and who has not previously |
1757 | complied with the provisions of s. 516.03(1) shall be subject to |
1758 | such provisions unless required to file an initial application |
1759 | in accordance with paragraph (a). If the office determines that |
1760 | the licensee does not continue to meet licensure requirements, |
1761 | the office may bring administrative action in accordance with s. |
1762 | 516.07 to enforce the provisions of this chapter. |
1763 | (d) The commission shall adopt rules pursuant to ss. |
1764 | 120.536(1) and 120.54 providing for the waiver of the |
1765 | application required by this subsection if the person or group |
1766 | of persons proposing to purchase or acquire a controlling |
1767 | interest in a licensee has previously complied with the |
1768 | provisions of s. 516.03(1) with the same legal entity or is |
1769 | currently licensed with the office under this chapter. |
1770 | (4) Prior to relocating his or her place of business, a |
1771 | licensee must file with the office, in the manner prescribed by |
1772 | commission rule, notice of the relocation. |
1773 | (6)(5) A licensee may conduct the business of making loans |
1774 | under this chapter within a place of business in which other |
1775 | business is solicited or engaged in, unless the office shall |
1776 | find that the conduct of such other business by the licensee |
1777 | results in an evasion of this chapter. Upon such finding, the |
1778 | office shall order the licensee to desist from such evasion; |
1779 | provided, however, that no license shall be granted to or |
1780 | renewed for any person or organization engaged in the pawnbroker |
1781 | business. |
1782 | (6) If any person purchases substantially all of the |
1783 | assets of any existing licensed place of business, the purchaser |
1784 | shall give immediate notice thereof to the office and shall be |
1785 | granted a 90-day temporary license for the place of business |
1786 | within 10 days after the office's receipt of an application for |
1787 | a permanent license. Issuance of a temporary license for a place |
1788 | of business nullifies the existing license for the place of |
1789 | business, and the temporary licensee is subject to any |
1790 | disciplinary action provided for by this chapter. |
1791 | (7) Licenses are not transferable or assignable. A |
1792 | licensee may invalidate any license by delivering it to the |
1793 | office with a written notice of the delivery, but such delivery |
1794 | does not affect any civil or criminal liability or the authority |
1795 | to enforce this chapter for acts committed in violation thereof. |
1796 | (8) The office may refuse to process an initial |
1797 | application for a license if the applicant or any person with |
1798 | power to direct the management or policies of the applicant's |
1799 | business is the subject of a pending criminal prosecution in any |
1800 | jurisdiction until conclusion of such criminal prosecution. |
1801 | (9) A licensee that is the subject of a voluntary or |
1802 | involuntary bankruptcy filing must report such filing to the |
1803 | office within 7 business days after the filing date. |
1804 | Section 28. Subsection (1) of section 516.07, Florida |
1805 | Statutes, is amended to read: |
1806 | 516.07 Grounds for denial of license or for disciplinary |
1807 | action.-- |
1808 | (1) The following acts are violations of this chapter and |
1809 | constitute grounds for denial of an application for a license to |
1810 | make consumer finance loans and grounds for any of the |
1811 | disciplinary actions specified in subsection (2): |
1812 | (a) A material misstatement of fact in an application for |
1813 | a license.; |
1814 | (b) Failure to maintain liquid assets of at least $25,000 |
1815 | at all times for the operation of business at a licensed |
1816 | location or proposed location.; |
1817 | (c) Failure to demonstrate financial responsibility, |
1818 | experience, character, or general fitness, such as to command |
1819 | the confidence of the public and to warrant the belief that the |
1820 | business operated at the licensed or proposed location is |
1821 | lawful, honest, fair, efficient, and within the purposes of this |
1822 | chapter.; |
1823 | (d) The violation, either knowingly or without the |
1824 | exercise of due care, of any provision of this chapter, any rule |
1825 | or order adopted under this chapter, or any written agreement |
1826 | entered into with the office.; |
1827 | (e) Any act of fraud, misrepresentation, or deceit, |
1828 | regardless of reliance by or damage to a borrower, or any |
1829 | illegal activity, where such acts are in connection with a loan |
1830 | under this chapter. Such acts include, but are not limited to: |
1831 | 1. Willful imposition of illegal or excessive charges; or |
1832 | 2. Misrepresentation, circumvention, or concealment of any |
1833 | matter required to be stated or furnished to a borrower.; |
1834 | (f) The use of unreasonable collection practices or of |
1835 | false, deceptive, or misleading advertising, where such acts are |
1836 | in connection with the operation of a business to make consumer |
1837 | finance loans.; |
1838 | (g) Any violation of part III of chapter 817 or part II of |
1839 | chapter 559 or of any rule adopted under part II of chapter |
1840 | 559.; |
1841 | (h) Failure to maintain, preserve, and keep available for |
1842 | examination, all books, accounts, or other documents required by |
1843 | this chapter, by any rule or order adopted under this chapter, |
1844 | or by any agreement entered into with the office.; |
1845 | (i) Refusal to permit inspection of books and records in |
1846 | an investigation or examination by the office or refusal to |
1847 | comply with a subpoena issued by the office.; |
1848 | (j) Pleading nolo contendere to, or having been convicted |
1849 | or found guilty of, a crime involving fraud, dishonest dealing, |
1850 | or any act of moral turpitude, regardless of whether |
1851 | adjudication is withheld.; |
1852 | (k) Paying money or anything else of value, directly or |
1853 | indirectly, to any person as compensation, inducement, or reward |
1854 | for referring loan applicants to a licensee.; |
1855 | (l) Allowing any person other than the licensee to use the |
1856 | licensee's business name, address, or telephone number in an |
1857 | advertisement.; |
1858 | (m) Accepting or advertising that the licensee accepts |
1859 | money on deposit or as consideration for the issuance or |
1860 | delivery of certificates of deposit, savings certificates, or |
1861 | similar instruments, except to the extent permitted under |
1862 | chapter 517.; or |
1863 | (n) Failure to pay any fee, charge, or fine imposed or |
1864 | assessed pursuant to this chapter or any rule adopted under this |
1865 | chapter. |
1866 | (o) Using the name or logo of a financial institution, as |
1867 | defined in s. 655.005(1), or its affiliates or subsidiaries when |
1868 | marketing or soliciting existing or prospective customers if |
1869 | such marketing materials are used without the written consent of |
1870 | the financial institution and in a manner that would lead a |
1871 | reasonable person to believe that the material or solicitation |
1872 | originated from, was endorsed by, or is related to or the |
1873 | responsibility of the financial institution or its affiliates or |
1874 | subsidiaries. |
1875 | (p) Payment to the office for a license or permit with a |
1876 | check or electronic transmission of funds that is dishonored by |
1877 | the applicant's or licensee's financial institution. |
1878 | Section 29. Section 516.08, Florida Statutes, is repealed. |
1879 | Section 30. Subsection (3) is added to section 516.12, |
1880 | Florida Statutes, to read: |
1881 | 516.12 Records to be kept by licensee.-- |
1882 | (3) The commission may prescribe by rule the minimum |
1883 | information to be shown in the books, accounts, records, and |
1884 | documents of licensees for purposes of enabling the office to |
1885 | determine the licensee's compliance with ss. 516.001-516.36. In |
1886 | addition, the commission may prescribe by rule the requirements |
1887 | for the destruction of books, accounts, records, and documents |
1888 | retained by the licensee after completion of the time period |
1889 | specified in subsection (1). |
1890 | Section 31. Section 516.19, Florida Statutes, is amended |
1891 | to read: |
1892 | 516.19 Penalties.--Any person who violates any of the |
1893 | provisions of s. 516.02, s. 516.031, s. 516.05(3), s. 516.05(4), |
1894 | s. 516.05(6)(5), or s. 516.07(1)(e) is guilty of a misdemeanor |
1895 | of the first degree, punishable as provided in s. 775.082 or s. |
1896 | 775.083. |
1897 | Section 32. Subsection (4) of section 517.021, Florida |
1898 | Statutes, is amended to read: |
1899 | 517.021 Definitions.--When used in this chapter, unless |
1900 | the context otherwise indicates, the following terms have the |
1901 | following respective meanings: |
1902 | (4) "Branch office" means any location in this state of a |
1903 | dealer or investment adviser at which one or more associated |
1904 | persons regularly conduct the business of rendering investment |
1905 | advice or effecting any transactions in, or inducing or |
1906 | attempting to induce the purchase or sale of, any security or |
1907 | any location that is held out as such. The commission may adopt |
1908 | by rule exceptions to this definition for dealers in order to |
1909 | maintain consistency with the definition of a branch office used |
1910 | by self-regulatory organizations authorized by the Securities |
1911 | and Exchange Commission, including, but not limited to, the |
1912 | National Association of Securities Dealers or the New York Stock |
1913 | Exchange. The commission may adopt by rule exceptions to this |
1914 | definition for investment advisers office of a dealer or |
1915 | investment adviser located in this state, other than the |
1916 | principal office of the dealer or investment adviser, which |
1917 | nonprincipal office is owned or controlled by the dealer or |
1918 | investment adviser for the purpose of conducting a securities |
1919 | business. |
1920 | Section 33. Subsection (9) of section 517.051, Florida |
1921 | Statutes, is amended to read: |
1922 | 517.051 Exempt securities.--The exemptions provided herein |
1923 | from the registration requirements of s. 517.07 are |
1924 | self-executing and do not require any filing with the office |
1925 | prior to claiming such exemption. Any person who claims |
1926 | entitlement to any of these exemptions bears the burden of |
1927 | proving such entitlement in any proceeding brought under this |
1928 | chapter. The registration provisions of s. 517.07 do not apply |
1929 | to any of the following securities: |
1930 | (9) A security issued by a corporation organized and |
1931 | operated exclusively for religious, educational, benevolent, |
1932 | fraternal, charitable, or reformatory purposes and not for |
1933 | pecuniary profit, no part of the net earnings of which |
1934 | corporation inures to the benefit of any private stockholder or |
1935 | individual, or any security of a fund that is excluded from the |
1936 | definition of an investment company under s. 3(c)(10)(B) of the |
1937 | Investment Company Act of 1940; provided that no person shall |
1938 | directly or indirectly offer or sell securities under this |
1939 | subsection except by an offering circular containing full and |
1940 | fair disclosure, as prescribed by the rules of the commission, |
1941 | of all material information, including, but not limited to, a |
1942 | description of the securities offered and terms of the offering, |
1943 | a description of the nature of the issuer's business, a |
1944 | statement of the purpose of the offering and the intended |
1945 | application by the issuer of the proceeds thereof, and financial |
1946 | statements of the issuer prepared in conformance with United |
1947 | States generally accepted accounting principles. Section 6(c) of |
1948 | the Philanthropy Protection Act of 1995, Pub. L. No. 104-62, |
1949 | shall not preempt any provision of this chapter. |
1950 | Section 34. Subsection (18) of section 517.061, Florida |
1951 | Statutes, is amended to read: |
1952 | 517.061 Exempt transactions.--The exemption for each |
1953 | transaction listed below is self-executing and does not require |
1954 | any filing with the office prior to claiming such exemption. Any |
1955 | person who claims entitlement to any of the exemptions bears the |
1956 | burden of proving such entitlement in any proceeding brought |
1957 | under this chapter. The registration provisions of s. 517.07 do |
1958 | not apply to any of the following transactions; however, such |
1959 | transactions are subject to the provisions of ss. 517.301, |
1960 | 517.311, and 517.312: |
1961 | (18) The offer or sale of any security effected by or |
1962 | through a person in compliance with registered pursuant to s. |
1963 | 517.12(17). |
1964 | Section 35. Paragraph (g) of subsection (3) of section |
1965 | 517.081, Florida Statutes, is amended to read: |
1966 | 517.081 Registration procedure.-- |
1967 | (3) The office may require the applicant to submit to the |
1968 | office the following information concerning the issuer and such |
1969 | other relevant information as the office may in its judgment |
1970 | deem necessary to enable it to ascertain whether such securities |
1971 | shall be registered pursuant to the provisions of this section: |
1972 | (g)1. A specimen copy of the security and a copy of any |
1973 | circular, prospectus, advertisement, or other description of |
1974 | such securities. |
1975 | 2. The commission shall adopt a form for a simplified |
1976 | offering circular to be used solely by corporations to register, |
1977 | under this section, securities of the corporation that are sold |
1978 | in offerings in which the aggregate offering price in any |
1979 | consecutive 12-month period does not exceed the amount provided |
1980 | in s. 3(b) of the Securities Act of 1933. The following issuers |
1981 | shall not be eligible to submit a simplified offering circular |
1982 | adopted pursuant to this subparagraph: |
1983 | a. An issuer seeking to register securities for resale by |
1984 | persons other than the issuer. |
1985 | b. An issuer who is subject to any of the |
1986 | disqualifications described in 17 C.F.R. s. 230.262, adopted |
1987 | pursuant to the Securities Act of 1933, or who has been or is |
1988 | engaged or is about to engage in an activity that would be |
1989 | grounds for denial, revocation, or suspension under s. 517.111. |
1990 | For purposes of this subparagraph, an issuer includes an |
1991 | issuer's director, officer, shareholder who owns at least 10 |
1992 | percent of the shares of the issuer, promoter, or selling agent |
1993 | of the securities to be offered or any officer, director, or |
1994 | partner of such selling agent. |
1995 | c. An issuer who is a development-stage company that |
1996 | either has no specific business plan or purpose or has indicated |
1997 | that its business plan is to merge with an unidentified company |
1998 | or companies. |
1999 | d. An issuer of offerings in which the specific business |
2000 | or properties cannot be described. |
2001 | e. Any issuer the office determines is ineligible if the |
2002 | form would not provide full and fair disclosure of material |
2003 | information for the type of offering to be registered by the |
2004 | issuer. |
2005 | f. Any corporation which has failed to provide the office |
2006 | the reports required for a previous offering registered pursuant |
2007 | to this subparagraph. |
2008 |
|
2009 | As a condition precedent to qualifying for use of the simplified |
2010 | offering circular, a corporation shall agree to provide the |
2011 | office with an annual financial report containing a balance |
2012 | sheet as of the end of the issuer's fiscal year and a statement |
2013 | of income for such year, prepared in accordance with United |
2014 | States generally accepted accounting principles and accompanied |
2015 | by an independent accountant's report. If the issuer has more |
2016 | than 100 security holders at the end of a fiscal year, the |
2017 | financial statements must be audited. Annual financial reports |
2018 | must be filed with the office within 90 days after the close of |
2019 | the issuer's fiscal year for each of the first 5 years following |
2020 | the effective date of the registration. |
2021 | Section 36. Subsections (6), (7), (10), (11), (15), and |
2022 | (17) of section 517.12, Florida Statutes, are amended to read: |
2023 | 517.12 Registration of dealers, associated persons, |
2024 | investment advisers, and branch offices.-- |
2025 | (6) A dealer, associated person, investment adviser, or |
2026 | branch office, in order to obtain registration, must file with |
2027 | the office a written application, on a form which the commission |
2028 | may by rule prescribe, verified under oath. The commission may |
2029 | establish, by rule, procedures for depositing fees and filing |
2030 | documents by electronic means provided such procedures provide |
2031 | the office with the information and data required by this |
2032 | section. Each dealer or investment adviser must also file an |
2033 | irrevocable written consent to service of civil process similar |
2034 | to that provided for in s. 517.101. The application shall |
2035 | contain such information as the commission or office may require |
2036 | concerning such matters as: |
2037 | (a) The name of the applicant and the address of its |
2038 | principal office and each office in this state. |
2039 | (b) The applicant's form and place of organization; and, |
2040 | if the applicant is a corporation, a copy of its articles of |
2041 | incorporation and amendments to the articles of incorporation |
2042 | or, if a partnership, a copy of the partnership agreement. |
2043 | (c) The applicant's proposed method of doing business and |
2044 | financial condition and history, including a certified financial |
2045 | statement showing all assets and all liabilities, including |
2046 | contingent liabilities of the applicant as of a date not more |
2047 | than 90 days prior to the filing of the application. |
2048 | (d) The names and addresses of all associated persons of |
2049 | the applicant to be employed in this state and the offices to |
2050 | which they will be assigned. |
2051 | (7) The application shall also contain such information as |
2052 | the commission or office may require about the applicant; any |
2053 | partner, officer, or director of the applicant or any person |
2054 | having a similar status or performing similar functions; any |
2055 | person directly or indirectly controlling the applicant; or any |
2056 | employee of a dealer or of an investment adviser rendering |
2057 | investment advisory services. Each applicant shall file a |
2058 | complete set of fingerprints. A fingerprint card submitted to |
2059 | the office must be taken by an authorized law enforcement agency |
2060 | officer. The office shall submit the Such fingerprints shall be |
2061 | submitted to the Department of Law Enforcement for state |
2062 | processing and the Department of Law Enforcement shall forward |
2063 | the fingerprints to or the Federal Bureau of Investigation for |
2064 | state and federal processing. The cost of the fingerprint |
2065 | processing may be borne by the office, the employer, or the |
2066 | person subject to the background check. The Department of Law |
2067 | Enforcement shall submit an invoice to the office for the |
2068 | fingerprints received each month. The office shall screen the |
2069 | background results to determine if the applicant meets licensure |
2070 | requirements. The commission may waive, by rule, the requirement |
2071 | that applicants must file a set of fingerprints or the |
2072 | requirement that such fingerprints must be processed by the |
2073 | Department of Law Enforcement or the Federal Bureau of |
2074 | Investigation. The commission or office may require information |
2075 | about any such applicant or person concerning such matters as: |
2076 | (a) His or her full name, and any other names by which he |
2077 | or she may have been known, and his or her age, social security |
2078 | number, photograph, qualifications, and educational and business |
2079 | history. |
2080 | (b) Any injunction or administrative order by a state or |
2081 | federal agency, national securities exchange, or national |
2082 | securities association involving a security or any aspect of the |
2083 | securities business and any injunction or administrative order |
2084 | by a state or federal agency regulating banking, insurance, |
2085 | finance, or small loan companies, real estate, mortgage brokers, |
2086 | or other related or similar industries, which injunctions or |
2087 | administrative orders relate to such person. |
2088 | (c) His or her conviction of, or plea of nolo contendere |
2089 | to, a criminal offense or his or her commission of any acts |
2090 | which would be grounds for refusal of an application under s. |
2091 | 517.161. |
2092 | (d) The names and addresses of other persons of whom the |
2093 | office may inquire as to his or her character, reputation, and |
2094 | financial responsibility. |
2095 | (10) An applicant for registration shall pay an assessment |
2096 | fee of $200, in the case of a dealer or investment adviser, or |
2097 | $40, in the case of an associated person. The assessment fee of |
2098 | an associated person shall be reduced to $30, but only after the |
2099 | office determines, by final order, that sufficient funds have |
2100 | been allocated to the Securities Guaranty Fund pursuant to s. |
2101 | 517.1203 to satisfy all valid claims filed in accordance with s. |
2102 | 517.1203(2) and after all amounts payable under any service |
2103 | contract entered into by the office pursuant to s. 517.1204, and |
2104 | all notes, bonds, certificates of indebtedness, other |
2105 | obligations, or evidences of indebtedness secured by such notes, |
2106 | bonds, certificates of indebtedness, or other obligations, have |
2107 | been paid or provision has been made for the payment of such |
2108 | amounts, notes, bonds, certificates of indebtedness, other |
2109 | obligations, or evidences of indebtedness. An associated person |
2110 | may not having current fingerprint cards filed with the National |
2111 | Association of Securities Dealers or a national securities |
2112 | exchange registered with the Securities and Exchange Commission |
2113 | shall be assessed an additional fee to cover the cost for the |
2114 | said fingerprint cards to be processed by the office. Such fee |
2115 | shall be determined by rule of the commission. Each dealer and |
2116 | each investment adviser shall pay an assessment fee of $100 for |
2117 | each office in this state, except its designated principal |
2118 | office. Such fees become the revenue of the state, except for |
2119 | those assessments provided for under s. 517.131(1) until such |
2120 | time as the Securities Guaranty Fund satisfies the statutory |
2121 | limits, and are not returnable in the event that registration is |
2122 | withdrawn or not granted. |
2123 | (11) If the office finds that the applicant is of good |
2124 | repute and character and has complied with the provisions of |
2125 | this chapter and the rules made pursuant hereto, it shall |
2126 | register the applicant. The registration of each dealer, |
2127 | investment adviser, branch office, and associated person expires |
2128 | will expire on December 31 of the year the registration became |
2129 | effective unless the registrant has renewed his or her |
2130 | registration on or before that date. The commission may |
2131 | establish by rule procedures for renewing the registration of a |
2132 | branch office through the Central Registration Depository, and |
2133 | the registration of each branch office will expire on March 31, |
2134 | of the year in which it became effective unless the registrant |
2135 | has renewed its registration on or before that date. |
2136 | Registration may be renewed by furnishing such information as |
2137 | the commission may require, together with payment of the fee |
2138 | required in subsection (10) for dealers, investment advisers, |
2139 | associated persons, or branch offices and the payment of any |
2140 | amount lawfully due and owing to the office pursuant to any |
2141 | order of the office or pursuant to any agreement with the |
2142 | office. Any dealer, investment adviser, or associated person |
2143 | registrant who has not renewed a registration by the time the |
2144 | current registration expires may request reinstatement of such |
2145 | registration by filing with the office, on or before January 31 |
2146 | of the year following the year of expiration, such information |
2147 | as may be required by the commission, together with payment of |
2148 | the fee required in subsection (10) for dealers, investment |
2149 | advisers, or associated persons and a late fee equal to the |
2150 | amount of such fee. Any reinstatement of registration granted by |
2151 | the office during the month of January shall be deemed effective |
2152 | retroactive to January 1 of that year. |
2153 | (15)(a) In order to facilitate uniformity and streamline |
2154 | procedures for persons who are subject to registration in |
2155 | multiple jurisdictions, the commission may adopt by rule uniform |
2156 | forms that have been approved by the Securities and Exchange |
2157 | Commission, and any subsequent amendments to such forms, if the |
2158 | forms are substantially consistent with the provisions of this |
2159 | chapter. Uniform forms that the commission may adopt to |
2160 | administer this section include, but are not limited to: |
2161 | 1. Form BR, Uniform Branch Office Registration Form, |
2162 | adopted October 2005. |
2163 | 2. Form U4, Uniform Application for Securities Industry |
2164 | Registration or Transfer, adopted October 2005. |
2165 | 3. Form U5, Uniform Termination Notice for Securities |
2166 | Industry Registration, adopted October 2005. |
2167 | 4. Form ADV, Uniform Application for Investment Adviser |
2168 | Registration, adopted October 2003. |
2169 | 5. Form ADV-W, Notice of Withdrawal from Registration as |
2170 | an Investment Adviser, adopted October 2003. |
2171 | 6. Form BD, Uniform Application for Broker-Dealer |
2172 | Registration, adopted July 1999. |
2173 | 7. Form BDW, Uniform Request for Broker-Dealer Withdrawal, |
2174 | adopted August 1999. |
2175 | (b) In lieu of filing with the office the applications |
2176 | specified in subsection (6), the fees required by subsection |
2177 | (10), the renewals required by subsection (11), and the |
2178 | termination notices required by subsection (12), the commission |
2179 | may by rule establish procedures for the deposit of such fees |
2180 | and documents with the Central Registration Depository or the |
2181 | Investment Adviser Registration Depository of the National |
2182 | Association of Securities Dealers, Inc., as developed under |
2183 | contract with the North American Securities Administrators |
2184 | Association, Inc.; provided, however, that such procedures shall |
2185 | provide the office with the information and data as required by |
2186 | this section. |
2187 | (17)(a) A dealer that is located in Canada, does not have |
2188 | an and has no office or other physical presence in this state, |
2189 | and has made a notice filing in accordance with this subsection |
2190 | is exempt from the registration requirements of this section and |
2191 | may, provided the dealer is registered in accordance with this |
2192 | section, effect transactions in securities with or for, or |
2193 | induce or attempt to induce the purchase or sale of any security |
2194 | by: |
2195 | 1. A person from Canada who is present temporarily resides |
2196 | in this state and with whom the Canadian dealer had a bona fide |
2197 | dealer-client relationship before the person entered the United |
2198 | States; or |
2199 | 2. A person from Canada who is present in a resident of |
2200 | this state, and whose transactions are in a self-directed, tax- |
2201 | advantaged tax advantage retirement plan in Canada of which the |
2202 | person is the holder or contributor. |
2203 | (b) A notice filing under this subsection must consist of |
2204 | documents the commission by rule requires to be filed, together |
2205 | with a consent to service of process and a nonrefundable filing |
2206 | fee of $200. The commission may establish by rule procedures for |
2207 | the deposit of fees and the filing of documents to be made by |
2208 | electronic means, if such procedures provide the office with the |
2209 | information and data required by this section An associated |
2210 | person who represents a Canadian dealer registered under this |
2211 | section may, provided the agent is registered in accordance with |
2212 | this section, effect transactions in securities in this state as |
2213 | permitted for a dealer, under subsection (a). |
2214 | (c) A Canadian dealer may make a notice filing register |
2215 | under this subsection if the section provided that such dealer |
2216 | provides to the office: |
2217 | 1. A notice filing Files an application in the form the |
2218 | commission requires by rule required by the jurisdiction in |
2219 | which the dealer has a head office. |
2220 | 2. Files A consent to service of process. |
2221 | 3. Evidence that the Canadian dealer is registered as a |
2222 | dealer in good standing in the jurisdiction in which the |
2223 | dealer's main office is located from which it is effecting |
2224 | transactions into this state and files evidence of such |
2225 | registration with the office. |
2226 | 4. Evidence that the Canadian dealer is a member of a |
2227 | self-regulatory organization or stock exchange in Canada. |
2228 | (d) The office may issue a permit to evidence the |
2229 | effectiveness of a notice filing for a Canadian dealer. |
2230 | (e) A notice filing is effective upon receipt by the |
2231 | office. A notice filing expires on December 31 of the year in |
2232 | which the filing becomes effective unless the Canadian dealer |
2233 | has renewed the filing on or before that date. A Canadian dealer |
2234 | may annually renew a notice filing by furnishing to the office |
2235 | such information as the office requires together with a renewal |
2236 | fee of $200 and the payment of any amount due and owing the |
2237 | office pursuant to any agreement with the office. Any Canadian |
2238 | dealer who has not renewed a notice filing by the time a current |
2239 | notice filing expires may request reinstatement of such notice |
2240 | filing by filing with the office, on or before January 31 of the |
2241 | year following the year the notice filing expires, such |
2242 | information as the commission requires by rule, together with |
2243 | the payment of $200 and a late fee of $200. A reinstatement of a |
2244 | notice filing granted by the office during the month of January |
2245 | is effective retroactively to January 1 of that year. |
2246 | (f)(d) An associated person who represents a Canadian |
2247 | dealer who has made a notice filing registered under this |
2248 | subsection is exempt from the registration requirements of this |
2249 | section and may effect section in effecting transactions in |
2250 | securities in this state as permitted for a dealer under |
2251 | paragraph (a) if such person may register under this section |
2252 | provided that such person: |
2253 | 1. Files an application in the form required by the |
2254 | jurisdiction in which the dealer has its head office. |
2255 | 2. is registered in good standing in the jurisdiction from |
2256 | which he or she is effecting transactions into this state and |
2257 | files evidence of such registration with the office. |
2258 | (e) If the office finds that the applicant is of good |
2259 | repute and character and has complied with the provisions of |
2260 | this chapter, the office shall register the applicant. |
2261 | (g)(f) A Canadian dealer who has made a notice filing |
2262 | registered under this subsection section shall: |
2263 | 1. Maintain its provincial or territorial registration and |
2264 | its membership in a self-regulatory organization or stock |
2265 | exchange in good standing. |
2266 | 2. Provide the office upon request with its books and |
2267 | records relating to its business in this state as a dealer. |
2268 | 3. Provide the office upon request notice of each civil, |
2269 | criminal, or administrative action initiated against the dealer. |
2270 | 4. Disclose to its clients in this state that the dealer |
2271 | and its associated persons agents are not subject to the full |
2272 | regulatory requirements under this chapter. |
2273 | 5. Correct any inaccurate information within 30 days |
2274 | after, if the information contained in the notice filing |
2275 | application form becomes inaccurate for any reason before or |
2276 | after the dealer becomes registered. |
2277 | (h)(g) An associated person representing of a Canadian |
2278 | dealer who has made a notice filing registered under this |
2279 | subsection section shall: |
2280 | 1. Maintain provincial or territorial registration in good |
2281 | standing. |
2282 | 2. Provide the office upon request with notice of each |
2283 | civil, criminal, or administrative action initiated against such |
2284 | person. |
2285 | 3. Through the dealer, correct any inaccurate information |
2286 | within 30 days, if the information contained in the application |
2287 | form becomes inaccurate for any reason before or after the |
2288 | associated person becomes registered. |
2289 | (i) A notice filing may be terminated by filing notice of |
2290 | such termination with the office. Unless another date is |
2291 | specified by the Canadian dealer, such notice is effective upon |
2292 | receipt of the notice by the office. |
2293 | (j) All fees collected under this subsection become the |
2294 | revenue of the state, except those assessments provided for |
2295 | under s. 517.131(1), until the Securities Guaranty Fund has |
2296 | satisfied the statutory limits. Such fees are not returnable if |
2297 | a notice filing is withdrawn. |
2298 | (h) Renewal applications for Canadian dealers and |
2299 | associated persons under this section must be filed before |
2300 | December 31 each year. Every applicant for registration or |
2301 | renewal registration under this section shall pay the fee for |
2302 | dealers and associated persons under this chapter. |
2303 | Section 37. Paragraphs (b) and (e) of subsection (3) of |
2304 | section 517.131, Florida Statutes, are amended, and subsection |
2305 | (5) is added to that section, to read: |
2306 | 517.131 Securities Guaranty Fund.-- |
2307 | (3) Any person is eligible to seek recovery from the |
2308 | Securities Guaranty Fund if: |
2309 | (b) Such person has made all reasonable searches and |
2310 | inquiries to ascertain whether the judgment debtor possesses |
2311 | real or personal property or other assets subject to being sold |
2312 | or applied in satisfaction of the judgment, and by her or his |
2313 | search the person has discovered no property or assets; or she |
2314 | or he has discovered property and assets and has taken all |
2315 | necessary action and proceedings for the application thereof to |
2316 | the judgment, but the amount thereby realized was insufficient |
2317 | to satisfy the judgment. To verify compliance with such |
2318 | condition, the office may require such person to have a writ of |
2319 | execution be issued upon such judgment, and may further require |
2320 | a showing that no personal or real property of the judgment |
2321 | debtor liable to be levied upon in complete satisfaction of the |
2322 | judgment can be found, or may require an affidavit from the |
2323 | claimant setting forth the reasonable searches and inquiries |
2324 | undertaken and the result of those searches and inquiries. |
2325 | (e) The office waives compliance with the requirements of |
2326 | paragraph (a) or paragraph (b). The office may waive such |
2327 | compliance if the dealer, investment adviser, or associated |
2328 | person which is the subject of the claim filed with the office |
2329 | is the subject of any proceeding in which a receiver has been |
2330 | appointed by a court of competent jurisdiction. If the office |
2331 | waives such compliance, the office may, upon petition by the |
2332 | debtor or the court-appointed trustee, examiner, or receiver, |
2333 | distribute funds from the Securities Guaranty Fund up to the |
2334 | amount allowed under s. 517.141. Any waiver granted pursuant to |
2335 | this section shall be considered a judgment for purposes of |
2336 | complying with the requirements of this section and of s. |
2337 | 517.141. |
2338 | (5) The commission may adopt rules pursuant to ss. |
2339 | 120.536(1) and 120.54 specifying the procedures for complying |
2340 | with subsections (2), (3), and (4), including rules for the form |
2341 | of submission and guidelines for the sufficiency and content of |
2342 | submissions of notices and claims. |
2343 | Section 38. Subsections (2) and (5) of section 517.141, |
2344 | Florida Statutes, are amended, and subsection (11) is added to |
2345 | that section, to read: |
2346 | 517.141 Payment from the fund.-- |
2347 | (2) Regardless of the number of claims or claimants |
2348 | involved, payments for claims shall be limited in the aggregate |
2349 | to $100,000 against any one dealer, investment adviser, or |
2350 | associated person. If the total claims exceed the aggregate |
2351 | limit of $100,000, the office shall prorate the payment based |
2352 | upon the ratio that the person's claim bears to the total claims |
2353 | filed. |
2354 | (5) If the final judgment that which gave rise to the |
2355 | claim is overturned in any appeal or in any collateral |
2356 | proceeding, the claimant shall reimburse the fund all amounts |
2357 | paid from the fund to the claimant on the claim. If the claimant |
2358 | satisfies the judgment specified in s. 517.131(3)(a), the |
2359 | claimant shall reimburse the fund all amounts paid from the fund |
2360 | to the claimant on the claim. Such reimbursement shall be paid |
2361 | to the office within 60 days after the final resolution of the |
2362 | appellate or collateral proceedings or the satisfaction of |
2363 | judgment, with the 60-day period commencing on the date the |
2364 | final order or decision is entered in such proceedings. |
2365 | (11) The commission may adopt rules pursuant to ss. |
2366 | 120.536(1) and 120.54 specifying procedures for complying with |
2367 | this section, including rules for the form of submission and |
2368 | guidelines for the sufficiency and content of submissions of |
2369 | notices and claims. |
2370 | Section 39. Subsection (1) of section 517.161, Florida |
2371 | Statutes, is amended to read: |
2372 | 517.161 Revocation, denial, or suspension of registration |
2373 | of dealer, investment adviser, associated person, or branch |
2374 | office.-- |
2375 | (1) Registration under s. 517.12 may be denied or any |
2376 | registration granted may be revoked, restricted, or suspended by |
2377 | the office if the office determines that such applicant or |
2378 | registrant: |
2379 | (a) Has violated any provision of this chapter or any rule |
2380 | or order made under this chapter; |
2381 | (b) Has made a material false statement in the application |
2382 | for registration; |
2383 | (c) Has been guilty of a fraudulent act in connection with |
2384 | rendering investment advice or in connection with any sale of |
2385 | securities, has been or is engaged or is about to engage in |
2386 | making fictitious or pretended sales or purchases of any such |
2387 | securities or in any practice involving the rendering of |
2388 | investment advice or the sale of securities which is fraudulent |
2389 | or in violation of the law; |
2390 | (d) Has made a misrepresentation or false statement to, or |
2391 | concealed any essential or material fact from, any person in the |
2392 | rendering of investment advice or the sale of a security to such |
2393 | person; |
2394 | (e) Has failed to account to persons interested for all |
2395 | money and property received; |
2396 | (f) Has not delivered, after a reasonable time, to persons |
2397 | entitled thereto securities held or agreed to be delivered by |
2398 | the dealer, broker, or investment adviser, as and when paid for, |
2399 | and due to be delivered; |
2400 | (g) Is rendering investment advice or selling or offering |
2401 | for sale securities through any associated person not registered |
2402 | in compliance with the provisions of this chapter; |
2403 | (h) Has demonstrated unworthiness to transact the business |
2404 | of dealer, investment adviser, or associated person; |
2405 | (i) Has exercised management or policy control over or |
2406 | owned 10 percent or more of the securities of any dealer or |
2407 | investment adviser that has been declared bankrupt, or had a |
2408 | trustee appointed under the Securities Investor Protection Act; |
2409 | or is, in the case of a dealer or investment adviser, insolvent; |
2410 | (j) Has been convicted of, or has entered a plea of guilty |
2411 | or nolo contendere to, a crime against the laws of this state or |
2412 | any other state or of the United States or of any other country |
2413 | or government which relates to registration as a dealer, |
2414 | investment adviser, issuer of securities, associated person, or |
2415 | branch office; which relates to the application for such |
2416 | registration; or which involves moral turpitude or fraudulent or |
2417 | dishonest dealing; |
2418 | (k) Has had a final judgment entered against her or him in |
2419 | a civil action upon grounds of fraud, embezzlement, |
2420 | misrepresentation, or deceit; |
2421 | (l) Is of bad business repute; or |
2422 | (m) Has been the subject of any decision, finding, |
2423 | injunction, suspension, prohibition, revocation, denial, |
2424 | judgment, or administrative order by any court of competent |
2425 | jurisdiction, administrative law judge, or by any state or |
2426 | federal agency, national securities, commodities, or option |
2427 | exchange, or national securities, commodities, or option |
2428 | association, involving a violation of any federal or state |
2429 | securities or commodities law or any rule or regulation |
2430 | promulgated thereunder, or any rule or regulation of any |
2431 | national securities, commodities, or options exchange or |
2432 | national securities, commodities, or options association, or has |
2433 | been the subject of any injunction or adverse administrative |
2434 | order by a state or federal agency regulating banking, |
2435 | insurance, finance or small loan companies, real estate, |
2436 | mortgage brokers or lenders, money transmitters, or other |
2437 | related or similar industries. For purposes of this subsection, |
2438 | the office may not deny registration to any applicant who has |
2439 | been continuously registered with the office for 5 years from |
2440 | the entry of such decision, finding, injunction, suspension, |
2441 | prohibition, revocation, denial, judgment, or administrative |
2442 | order provided such decision, finding, injunction, suspension, |
2443 | prohibition, revocation, denial, judgment, or administrative |
2444 | order has been timely reported to the office pursuant to the |
2445 | commission's rules; or. |
2446 | (n) Made payment to the office for a registration or |
2447 | notice filing with a check or electronic transmission of funds |
2448 | that is dishonored by the applicant's, registrant's, or notice |
2449 | filer's financial institution. |
2450 | Section 40. Section 520.02, Florida Statutes, is amended |
2451 | to read: |
2452 | 520.02 Definitions.--In this act, unless the context or |
2453 | subject matter otherwise requires: |
2454 | (1) "Branch" means any location, other than a licensee's |
2455 | principal place of business, at which a licensee operates or |
2456 | conducts business under this act or which a licensee owns or |
2457 | controls for the purpose of conducting business under this act. |
2458 | (2) "Cash price" means the price at which a seller, in the |
2459 | ordinary course of business, offers to sell for cash the |
2460 | property or service that is the subject of the transaction. At |
2461 | the seller's option, the term "cash price" may include the price |
2462 | of accessories, services related to the sale, service contracts, |
2463 | and taxes and fees for license, title, and registration of the |
2464 | motor vehicle. The term "cash price" does not include any |
2465 | finance charge. |
2466 | (3) "Commission" means the Financial Services Commission. |
2467 | (4) "Control person" means an individual, partnership, |
2468 | corporation, trust, or other organization that possesses the |
2469 | power, directly or indirectly, to direct the management or |
2470 | policies of a company, whether through ownership of securities, |
2471 | by contract, or otherwise. A person is presumed to control a |
2472 | company if, with respect to a particular company, that person: |
2473 | (a) Is a director, general partner, or officer exercising |
2474 | executive responsibility or having similar status or functions; |
2475 | (b) Directly or indirectly may vote 10 percent or more of |
2476 | a class of a voting security or sell or direct the sale of 10 |
2477 | percent or more of a class of voting securities; or |
2478 | (c) In the case of a partnership, may receive upon |
2479 | dissolution or has contributed 10 percent or more of the |
2480 | capital. |
2481 | (5) "Down payment" means the amount, including the value |
2482 | of any property used as a trade-in, paid to a seller to reduce |
2483 | the cash price of goods or services purchased in a credit sale |
2484 | transaction. A deferred portion of a down payment may be treated |
2485 | as part of the down payment if it is payable not later than the |
2486 | due date of the second otherwise regularly scheduled payment and |
2487 | is not subject to a finance charge. |
2488 | (6) "Finance charge" means the cost of consumer credit as |
2489 | a dollar amount. The term "finance charge" includes any charge |
2490 | payable directly or indirectly by the buyer and imposed directly |
2491 | or indirectly by the seller as an incident to or a condition of |
2492 | the extension of credit. The term "finance charge" does not |
2493 | include any charge of a type payable in a comparable cash |
2494 | transaction. |
2495 | (7) "Holder" of a retail installment contract means the |
2496 | retail seller of a motor vehicle retail installment contract or |
2497 | an assignee of such contract. |
2498 | (8) "Mobile home" means a structure, transportable in one |
2499 | or more sections, which is 8 body feet or more in width and is |
2500 | 32 body feet or more in length, designed to be used as a |
2501 | dwelling with or without a permanent foundation when connected |
2502 | to the required utilities, and includes the plumbing, heating, |
2503 | air-conditioning, and electrical systems contained therein. |
2504 | (9) "Motor vehicle" means any device or vehicle, including |
2505 | automobiles, motorcycles, motor trucks, trailers, mobile homes, |
2506 | and all other vehicles operated over the public highways and |
2507 | streets of this state and propelled by power other than muscular |
2508 | power, but excluding traction engines, road rollers, implements |
2509 | of husbandry and other agricultural equipment, and vehicles |
2510 | which run only upon a track. |
2511 | (10)(15) "Motor vehicle retail installment seller" or |
2512 | "seller" means a person engaged in the business of selling motor |
2513 | vehicles to retail buyers in retail installment transactions. |
2514 | (11)(4) "Office" means the Office of Financial Regulation |
2515 | of the commission. |
2516 | (12)(10) "Official fees" means fees and charges prescribed |
2517 | by law which actually are or will be paid to public officials |
2518 | for determining the existence of, or for perfecting, releasing, |
2519 | or satisfying, any security related to the credit transaction, |
2520 | or the premium payable for any insurance in lieu of perfecting |
2521 | any security interest otherwise required by the creditor in |
2522 | connection with the transaction, if the premium does not exceed |
2523 | the fees and charges which would otherwise be payable to public |
2524 | officials. |
2525 | (13)(11) "Person" means an individual, partnership, |
2526 | corporation, association, and any other group however organized. |
2527 | (14)(12) "Principal place of business" means the physical |
2528 | location designated on the licensee's application for licensure, |
2529 | unless otherwise designated as required by this chapter. |
2530 | (15)(13) "Retail buyer" or "buyer" means a person who buys |
2531 | a motor vehicle from a seller not principally for the purpose of |
2532 | resale, and who executes a retail installment contract in |
2533 | connection therewith or a person who succeeds to the rights and |
2534 | obligations of such person. |
2535 | (16)(14) "Retail installment contract" or "contract" means |
2536 | an agreement, entered into in this state, pursuant to which the |
2537 | title to, or a lien upon the motor vehicle, which is the subject |
2538 | matter of a retail installment transaction, is retained or taken |
2539 | by a seller from a retail buyer as security, in whole or in |
2540 | part, for the buyer's obligation. The term includes a |
2541 | conditional sales contract and a contract for the bailment or |
2542 | leasing of a motor vehicle by which the bailee or lessee |
2543 | contracts to pay as compensation for its use a sum substantially |
2544 | equivalent to or in excess of its value and by which it is |
2545 | agreed that the bailee or lessee is bound to become, or for no |
2546 | further or a merely nominal consideration, has the option of |
2547 | becoming, the owner of the motor vehicle upon full compliance |
2548 | with the provisions of the contract. |
2549 | (17)(16) "Retail installment transaction" means any |
2550 | transaction evidenced by a retail installment contract entered |
2551 | into between a retail buyer and a seller wherein the retail |
2552 | buyer buys a motor vehicle from the seller at a deferred payment |
2553 | price payable in one or more deferred installments. |
2554 | (18)(17) "Sales finance company" means a person engaged in |
2555 | the business of purchasing retail installment contracts from one |
2556 | or more sellers. The term includes, but is not limited to, a |
2557 | bank or trust company, if so engaged. The term does not include |
2558 | the pledge of an aggregate number of such contracts to secure a |
2559 | bona fide loan thereon. |
2560 | (19)(18) Words in the singular include the plural and vice |
2561 | versa. |
2562 | Section 41. Subsections (2) through (5) of section 520.03, |
2563 | Florida Statutes, are amended to read: |
2564 | 520.03 Licenses.-- |
2565 | (2) An application for a license under this part must be |
2566 | submitted to the office in such form as the commission may |
2567 | prescribe by rule. The commission may require each applicant to |
2568 | provide any information reasonably necessary to determine the |
2569 | applicant's eligibility for licensure. The applicant shall also |
2570 | provide information that the office requires concerning any |
2571 | officer, director, control person, member, partner, or joint |
2572 | venturer of the applicant or any person having the same or |
2573 | substantially similar status or performing substantially similar |
2574 | functions or any individual who is the ultimate equitable owner |
2575 | of a 10-percent or greater interest in the applicant. The office |
2576 | may require information concerning any such applicant or person, |
2577 | including, but not limited to, his or her full name and any |
2578 | other names by which he or she may have been known, age, social |
2579 | security number, residential history, qualifications, |
2580 | educational and business history, and disciplinary and criminal |
2581 | history. If the office determines that an application should be |
2582 | granted, it shall issue the license for a period not to exceed 2 |
2583 | years. A nonrefundable application fee of $175 shall accompany |
2584 | an initial application for the principal place of business and |
2585 | each application for a branch location of a retail installment |
2586 | seller who is required to be licensed under this chapter. An |
2587 | application is considered received for purposes of s. 120.60 |
2588 | upon receipt of a completed application form as prescribed by |
2589 | commission rule, a nonrefundable application fee of $175, and |
2590 | any other fee prescribed by law. |
2591 | (3) The nonrefundable renewal fee for a motor vehicle |
2592 | retail installment seller license shall be $175. The commission |
2593 | shall establish by rule biennial licensure periods and |
2594 | procedures for renewal of licenses. A license that is not |
2595 | renewed by the end of the biennium established by the commission |
2596 | shall revert from active to inactive status. An inactive license |
2597 | may be reactivated within 6 months after becoming inactive upon |
2598 | filing a completed reactivation form, payment of the |
2599 | nonrefundable renewal fee, and payment of a reactivation fee |
2600 | equal to the nonrefundable renewal fee. A license that is not |
2601 | reactivated within 6 months after becoming inactive |
2602 | automatically expires. |
2603 | (4) Each license shall specify the location for which it |
2604 | is issued and must be conspicuously displayed at that location. |
2605 | Prior to relocating a principal place of business or any branch |
2606 | location, the licensee must provide to the office notice of the |
2607 | relocation in a form prescribed by commission rule. A licensee |
2608 | may not transact business as a motor vehicle retail installment |
2609 | seller except under the name by which it is licensed. Licenses |
2610 | issued under this part are not transferable or assignable. |
2611 | (5) The office may deny an initial application for a |
2612 | license under this part if the applicant or any officer, |
2613 | director, control person, member, partner, or joint venturer |
2614 | person with power to direct the management or policies of the |
2615 | applicant is the subject of a pending criminal prosecution or |
2616 | governmental enforcement action, in any jurisdiction, until |
2617 | conclusion of such criminal prosecution or enforcement action. |
2618 | Section 42. Subsections (10) through (18) of section |
2619 | 520.31, Florida Statutes, are renumbered as subsections (11) |
2620 | through (19), respectively, subsection (4) of that section is |
2621 | renumbered as subsection (10), and a new subsection (4) is added |
2622 | to that section, to read: |
2623 | 520.31 Definitions.--Unless otherwise clearly indicated by |
2624 | the context, the following words when used in this act, for the |
2625 | purposes of this act, shall have the meanings respectively |
2626 | ascribed to them in this section: |
2627 | (4) "Control person" means an individual, partnership, |
2628 | corporation, trust, or other organization that possesses the |
2629 | power, directly or indirectly, to direct the management or |
2630 | policies of a company, whether through ownership of securities, |
2631 | by contract, or otherwise. A person is presumed to control a |
2632 | company if, with respect to a particular company, that person: |
2633 | (a) Is a director, general partner, or officer exercising |
2634 | executive responsibility or having similar status or functions; |
2635 | (b) Directly or indirectly has the right to vote 10 |
2636 | percent or more of a class of a voting security or has the power |
2637 | to sell or direct the sale of 10 percent or more of a class of |
2638 | voting securities; or |
2639 | (c) In the case of a partnership, has the right to receive |
2640 | upon dissolution or has contributed 10 percent or more of the |
2641 | capital. |
2642 | Section 43. Subsections (2) through (5) of section 520.32, |
2643 | Florida Statutes, are amended to read: |
2644 | 520.32 Licenses.-- |
2645 | (2) An application for a license under this part must be |
2646 | submitted to the office in such form as the commission may |
2647 | prescribe by rule. The commission may require each applicant to |
2648 | provide any information reasonably necessary to determine the |
2649 | applicant's eligibility for licensure. The applicant shall also |
2650 | provide information that the office requires concerning any |
2651 | officer, director, control person, member, partner, or joint |
2652 | venturer of the applicant or any person having the same or |
2653 | substantially similar status or performing substantially similar |
2654 | functions or any individual who is the ultimate equitable owner |
2655 | of a 10-percent or greater interest in the applicant. The office |
2656 | may require information concerning any such applicant or person, |
2657 | including his or her full name and any other names by which he |
2658 | or she may have been known, age, social security number, |
2659 | residential history, qualifications, educational and business |
2660 | history, and disciplinary and criminal history. If the office |
2661 | determines that an application should be granted, it shall issue |
2662 | the license for a period not to exceed 2 years. A nonrefundable |
2663 | application fee of $175 shall accompany an initial application |
2664 | for the principal place of business and each application for a |
2665 | branch location of a retail installment seller. An application |
2666 | is considered received for purposes of s. 120.60 upon receipt of |
2667 | a completed application form as prescribed by commission rule, a |
2668 | nonrefundable application fee of $175, and any other fee |
2669 | prescribed by law. |
2670 | (3) The nonrefundable renewal fee for a retail seller |
2671 | license shall be $175. Biennial licensure periods and procedures |
2672 | for renewal of licenses may also be established by the |
2673 | commission by rule. A license that is not renewed at the end of |
2674 | the biennium established by the commission shall revert from |
2675 | active to inactive status. An inactive license may be |
2676 | reactivated within 6 months after becoming inactive upon filing |
2677 | a completed reactivation form, payment of the nonrefundable |
2678 | renewal fee, and payment of a reactivation fee equal to the |
2679 | nonrefundable renewal fee. A license that is not reactivated |
2680 | within 6 months after becoming inactive automatically expires. |
2681 | (4) Each license must specify the location for which it is |
2682 | issued and must be conspicuously displayed at that location. If |
2683 | a licensee's principal place of business or branch location |
2684 | changes, the licensee shall notify the office and the office |
2685 | shall endorse the change of location without charge. A licensee |
2686 | may not transact business as a retail installment seller except |
2687 | under the name by which it is licensed. A license issued under |
2688 | this part is not transferable or assignable. |
2689 | (5) The office may deny an initial application for a |
2690 | license under this part if the applicant or any officer, |
2691 | director, control person, member, partner, or joint venturer |
2692 | person with power to direct the management or policies of the |
2693 | applicant is the subject of a pending criminal prosecution or |
2694 | governmental enforcement action, in any jurisdiction, until |
2695 | conclusion of such criminal prosecution or enforcement action. |
2696 | Section 44. Subsections (2) through (5) of section 520.52, |
2697 | Florida Statutes, are amended to read: |
2698 | 520.52 Licensees.-- |
2699 | (2) An application for a license under this part must be |
2700 | submitted to the office in such form as the commission may |
2701 | prescribe by rule. The commission may require each applicant to |
2702 | provide any information reasonably necessary to determine the |
2703 | applicant's eligibility for licensure. The applicant shall also |
2704 | provide information that the office requires concerning any |
2705 | officer, director, control person, member, partner, or joint |
2706 | venturer of the applicant or any person having the same or |
2707 | substantially similar status or performing substantially similar |
2708 | functions or any individual who is the ultimate equitable owner |
2709 | of a 10-percent or greater interest in the applicant. The office |
2710 | may require information concerning any such applicant or person, |
2711 | including his or her full name and any other names by which he |
2712 | or she may have been known, age, social security number, |
2713 | residential history, qualifications, educational and business |
2714 | history, and disciplinary and criminal history. If the office |
2715 | determines that an application should be granted, it shall issue |
2716 | the license for a period not to exceed 2 years. A nonrefundable |
2717 | application fee of $175 shall accompany an initial application |
2718 | for the principal place of business and each branch location of |
2719 | a sales finance company. An application is considered received |
2720 | for purposes of s. 120.60 upon receipt of a completed |
2721 | application form as prescribed by commission rule, a |
2722 | nonrefundable application fee of $175, and any other fee |
2723 | prescribed by law. |
2724 | (3) The nonrefundable renewal fee for a sales finance |
2725 | company license shall be $175. Biennial licensure periods and |
2726 | procedures for renewal of licenses may also be established by |
2727 | the commission by rule. A license that is not renewed at the end |
2728 | of the biennium established by the commission shall revert from |
2729 | active to inactive status. An inactive license may be |
2730 | reactivated within 6 months after becoming inactive upon filing |
2731 | a completed reactivation form, payment of the nonrefundable |
2732 | renewal fee, and payment of a reactivation fee equal to the |
2733 | nonrefundable renewal fee. A license that is not reactivated |
2734 | within 6 months after becoming inactive automatically expires. |
2735 | (4) Each license must specify the location for which it is |
2736 | issued and must be conspicuously displayed at that location. If |
2737 | a licensee's principal place of business or branch location |
2738 | changes, the licensee shall notify the office and the office |
2739 | shall endorse the change of location without charge. A licensee |
2740 | may not transact business as a sales finance company except |
2741 | under the name by which it is licensed. A license issued under |
2742 | this part is not transferable or assignable. |
2743 | (5) The office may deny an initial application for a |
2744 | license under this part if the applicant or any officer, |
2745 | director, control person, member, partner, or joint venturer |
2746 | person with power to direct the management or policies of the |
2747 | applicant is the subject of a pending criminal prosecution or |
2748 | governmental enforcement action, in any jurisdiction, until |
2749 | conclusion of such criminal prosecution or enforcement action. |
2750 | Section 45. Subsections (5), (6), (7), (15), (16), and |
2751 | (22) of section 520.61, Florida Statutes, are renumbered as |
2752 | subsections (7), (5), (16), (22), (15), and (23), respectively, |
2753 | and a new subsection (6) is added to that section to read: |
2754 | 520.61 Definitions.--As used in this act: |
2755 | (6) "Control person" means an individual, partnership, |
2756 | corporation, trust, or other organization that possesses the |
2757 | power, directly or indirectly, to direct the management or |
2758 | policies of a company, whether through ownership of securities, |
2759 | by contract, or otherwise. A person is presumed to control a |
2760 | company if, with respect to a particular company, that person: |
2761 | (a) Is a director, general partner, or officer exercising |
2762 | executive responsibility or having similar status or functions; |
2763 | (b) Directly or indirectly may vote 10 percent or more of |
2764 | a class of a voting security or sell or direct the sale of 10 |
2765 | percent or more of a class of voting securities; or |
2766 | (c) In the case of a partnership, may receive upon |
2767 | dissolution or has contributed 10 percent or more of the |
2768 | capital. |
2769 | Section 46. Subsections (2) through (5) of section 520.63, |
2770 | Florida Statutes, are amended to read: |
2771 | 520.63 Licensees.-- |
2772 | (2) An application for a license under this part must be |
2773 | submitted to the office in such form as the commission may |
2774 | prescribe by rule. The commission may require each applicant to |
2775 | provide any information reasonably necessary to determine the |
2776 | applicant's eligibility for licensure. The applicant shall also |
2777 | provide information that the office requires concerning any |
2778 | officer, director, control person, member, partner, or joint |
2779 | venturer of the applicant or any person having the same or |
2780 | substantially similar status or performing substantially similar |
2781 | functions or any individual who is the ultimate equitable owner |
2782 | of a 10-percent or greater interest in the applicant. The office |
2783 | may require information concerning any such applicant or person, |
2784 | including, but not limited to, his or her full name and any |
2785 | other names by which he or she may have been known, age, social |
2786 | security number, residential history, qualifications, |
2787 | educational and business history, and disciplinary and criminal |
2788 | history. If the office determines that an application should be |
2789 | granted, it shall issue the license for a period not to exceed 2 |
2790 | years. A nonrefundable application fee of $175 shall accompany |
2791 | an initial application for the principal place of business and |
2792 | each application for a branch location of a home improvement |
2793 | finance seller. An application is considered received for |
2794 | purposes of s. 120.60 upon receipt of a completed application |
2795 | form as prescribed by commission rule, a nonrefundable |
2796 | application fee of $175, and any other fee prescribed by law. |
2797 | (3) The nonrefundable renewal fee for a home improvement |
2798 | finance license shall be $175. Biennial licensure periods and |
2799 | procedures for renewal of licenses may also be established by |
2800 | the commission by rule. A license that is not renewed at the end |
2801 | of the biennium established by the commission shall |
2802 | automatically revert from active to inactive status. An inactive |
2803 | license may be reactivated within 6 months after becoming |
2804 | inactive upon filing a completed reactivation form, payment of |
2805 | the nonrefundable renewal fee, and payment of a reactivation fee |
2806 | equal to the nonrefundable renewal fee. A license that is not |
2807 | reactivated within 6 months after becoming inactive |
2808 | automatically expires. |
2809 | (4) Each license must specify the location for which it is |
2810 | issued and must be conspicuously displayed at that location. If |
2811 | a home improvement finance seller's principal place of business |
2812 | or any branch location changes, the licensee shall notify the |
2813 | office and the office shall endorse the change of location |
2814 | without charge. A licensee may not transact business as a home |
2815 | improvement finance seller except under the name by which it is |
2816 | licensed. A license issued under this part is not transferable |
2817 | or assignable. |
2818 | (5) The office may deny an initial application for a |
2819 | license under this part if the applicant or any officer, |
2820 | director, control person, member, partner, or joint venturer |
2821 | person with power to direct the management or policies of the |
2822 | applicant is the subject of a pending criminal prosecution or |
2823 | governmental enforcement action, in any jurisdiction, until |
2824 | conclusion of such criminal prosecution or enforcement action. |
2825 | Section 47. Subsection (5) of section 520.994, Florida |
2826 | Statutes, is amended to read: |
2827 | 520.994 Powers of office.-- |
2828 | (5) The office shall administer and enforce this chapter. |
2829 | The commission has authority to adopt rules pursuant to ss. |
2830 | 120.536(1) and 120.54 to implement the provisions of this |
2831 | chapter. The commission may adopt rules requiring to allow |
2832 | electronic submission of any form, document, or fee required by |
2833 | this chapter if such rules reasonably accommodate technological |
2834 | or financial hardship. The commission may prescribe by rule |
2835 | requirements and procedures for obtaining an exemption due to a |
2836 | technological or financial hardship. |
2837 | Section 48. Subsections (1) and (4) of section 520.995, |
2838 | Florida Statutes, are amended to read: |
2839 | 520.995 Grounds for disciplinary action.-- |
2840 | (1) The following acts are violations of this chapter and |
2841 | constitute grounds for the disciplinary actions specified in |
2842 | subsection (2): |
2843 | (a) Failure to comply with any provision of this chapter, |
2844 | any rule or order adopted pursuant to this chapter, or any |
2845 | written agreement entered into with the office.; |
2846 | (b) Fraud, misrepresentation, deceit, or gross negligence |
2847 | in any home improvement finance transaction or retail |
2848 | installment transaction, regardless of reliance by or damage to |
2849 | the buyer or owner.; |
2850 | (c) Fraudulent misrepresentation, circumvention, or |
2851 | concealment of any matter required to be stated or furnished to |
2852 | a retail buyer or owner pursuant to this chapter, regardless of |
2853 | reliance by or damage to the buyer or owner.; |
2854 | (d) Willful imposition of illegal or excessive charges in |
2855 | any retail installment transaction or home improvement finance |
2856 | transaction.; |
2857 | (e) False, deceptive, or misleading advertising by a |
2858 | seller or home improvement finance seller.; |
2859 | (f) Failure to maintain, preserve, and keep available for |
2860 | examination, all books, accounts, or other documents required by |
2861 | this chapter, by any rule or order adopted pursuant to this |
2862 | chapter, or by any agreement entered into with the office.; |
2863 | (g) Refusal to permit inspection of books and records in |
2864 | an investigation or examination by the office or refusal to |
2865 | comply with a subpoena issued by the office.; |
2866 | (h) Criminal conduct in the course of a person's business |
2867 | as a seller, as a home improvement finance seller, or as a sales |
2868 | finance company.; or |
2869 | (i) Failure to timely pay any fee, charge, or fine imposed |
2870 | or assessed pursuant to this chapter or any rule adopted under |
2871 | this chapter. |
2872 | (j) Using the name or logo of a financial institution, as |
2873 | defined in s. 655.005(1), or its affiliates or subsidiaries when |
2874 | marketing or soliciting existing or prospective customers if |
2875 | such marketing materials are used without the written consent of |
2876 | the financial institution and in a manner that would lead a |
2877 | reasonable person to believe that the material or solicitation |
2878 | originated from, was endorsed by, or is related to or the |
2879 | responsibility of the financial institution or its affiliates or |
2880 | subsidiaries. |
2881 | (k) Payment to the office for a license or permit with a |
2882 | check or electronic transmission of funds that is dishonored by |
2883 | the applicant's or licensee's financial institution. |
2884 | (4) It is sufficient cause for the office to take any of |
2885 | the actions specified in subsection (2) as to any partnership, |
2886 | corporation, or association, if the office finds grounds for |
2887 | such action as to any member of the partnership, as to any |
2888 | officer or director of the corporation or association, or as to |
2889 | any control person, partner, or joint venturer person with power |
2890 | to direct the management or policies of the partnership, |
2891 | corporation, or association. |
2892 | Section 49. Subsection (4) of section 520.997, Florida |
2893 | Statutes, is amended to read: |
2894 | 520.997 Books, accounts, and records.-- |
2895 | (4) The commission may prescribe by rule the minimum |
2896 | information to be shown in the books, accounts, documents, and |
2897 | records of licensees so that such records will enable the office |
2898 | to determine compliance with the provisions of this chapter. In |
2899 | addition, the commission may prescribe by rule requirements for |
2900 | the destruction of books, accounts, records, and documents |
2901 | retained by the licensee after completion of the time period |
2902 | specified in subsection (3). |
2903 | Section 50. Section 520.999, Florida Statutes, is created |
2904 | to read: |
2905 | 520.999 Requirements of licensees.-- |
2906 | (1) Each licensee under this chapter shall report, on a |
2907 | form prescribed by rule of the commission, any change in the |
2908 | information contained in any initial application form or any |
2909 | amendment to such application not later than 30 days after the |
2910 | change is effective. |
2911 | (2) Each licensee under this chapter shall report any |
2912 | changes in the partners, officers, members, joint venturers, |
2913 | directors, or control persons of any licensee or changes in the |
2914 | form of business organization by written amendment in such form |
2915 | and at such time as the commission specifies by rule. |
2916 | (a) In any case in which a person or a group of persons, |
2917 | directly or indirectly or acting by or through one or more |
2918 | persons, proposes to purchase or acquire a controlling interest |
2919 | in a licensee, such person or group must submit an initial |
2920 | application for licensure before such purchase or acquisition at |
2921 | such time and in such form as the commission prescribes by rule. |
2922 | (b) As used in subsection, the term "controlling interest" |
2923 | means possession of the power to direct or cause the direction |
2924 | of the management or policies of a company whether through |
2925 | ownership of securities, by contract, or otherwise. Any person |
2926 | who directly or indirectly has the right to vote 25 percent or |
2927 | more of the voting securities of a company or is entitled to 25 |
2928 | percent or more of its profits is presumed to possess a |
2929 | controlling interest. |
2930 | (c) Any addition of a partner, officer, member, joint |
2931 | venturer, director, or control person of the applicant who does |
2932 | not have a controlling interest and who has not previously |
2933 | complied with the provisions of ss. 520.03(2), 520.32(2), |
2934 | 520.52(2), and 520.63(2) shall be subject to such provisions |
2935 | unless required to file an initial application in accordance |
2936 | with paragraph (a). If the office determines that the licensee |
2937 | does not continue to meet licensure requirements, the office may |
2938 | bring administrative action in accordance with s. 520.995 to |
2939 | enforce the provisions of this chapter. |
2940 | (d) The commission shall adopt rules pursuant to ss. |
2941 | 120.536(1) and 120.54 providing for the waiver of the |
2942 | application required by this subsection if the person or group |
2943 | of persons proposing to purchase or acquire a controlling |
2944 | interest in a licensee has previously complied with the |
2945 | provisions of ss. 520.03(2), 520.32(2), 520.52(2), and 520.63(2) |
2946 | with the same legal entity or is currently licensed with the |
2947 | office under this chapter. |
2948 | Section 51. Subsection (5) of section 537.009, Florida |
2949 | Statutes, is amended to read: |
2950 | 537.009 Recordkeeping; reporting; safekeeping of |
2951 | property.-- |
2952 | (5) The commission may prescribe by rule the books, |
2953 | accounts, documents, and records, and the minimum information to |
2954 | be shown in the books, accounts, documents, and records, of |
2955 | licensees so that such records will enable the office to |
2956 | determine compliance with the provisions of this act. In |
2957 | addition, the commission may prescribe by rule requirements for |
2958 | the destruction of books, accounts, records, and documents |
2959 | retained by the licensee after completion of the time period |
2960 | specified in subsection (3). |
2961 | Section 52. Paragraph (e) of subsection (2) of section |
2962 | 559.9232, Florida Statutes, is amended to read: |
2963 | 559.9232 Definitions; exclusion of rental-purchase |
2964 | agreements from certain regulations.-- |
2965 | (2) A rental-purchase agreement that complies with this |
2966 | act shall not be construed to be, nor be governed by, any of the |
2967 | following: |
2968 | (e) A lease or agreement which constitutes a "retail |
2969 | installment contract" or "retail installment transaction" as |
2970 | those terms are defined in s. 520.31(13) and (14); or |
2971 | Section 53. Subsection (3) is added to section 560.105, |
2972 | Florida Statutes, to read: |
2973 | 560.105 Supervisory powers; rulemaking.-- |
2974 | (3) The commission may adopt rules pursuant to ss. |
2975 | 120.536(1) and 120.54 requiring electronic submission of any |
2976 | forms, documents, or fees required by this code if such rules |
2977 | reasonably accommodate technological or financial hardship. The |
2978 | commission may prescribe by rule requirements and procedures for |
2979 | obtaining an exemption due to a technological or financial |
2980 | hardship. |
2981 | Section 54. Paragraph (y) is added to subsection (1) of |
2982 | section 560.114, Florida Statutes, to read: |
2983 | 560.114 Disciplinary actions.-- |
2984 | (1) The following actions by a money transmitter or money |
2985 | transmitter-affiliated party are violations of the code and |
2986 | constitute grounds for the issuance of a cease and desist order, |
2987 | the issuance of a removal order, the denial of a registration |
2988 | application or the suspension or revocation of any registration |
2989 | previously issued pursuant to the code, or the taking of any |
2990 | other action within the authority of the office pursuant to the |
2991 | code: |
2992 | (y) Payment to the office for a license or permit with a |
2993 | check or electronic transmission of funds that is dishonored by |
2994 | the applicant's or licensee's financial institution. |
2995 | Section 55. Subsection (2) of section 560.121, Florida |
2996 | Statutes, is amended to read: |
2997 | 560.121 Records; limited restrictions upon public |
2998 | access.-- |
2999 | (2) The commission may prescribe by rule the minimum |
3000 | information that must be shown in the books, accounts, records, |
3001 | and documents of licensees for purposes of enabling the office |
3002 | to determine the licensee's compliance with this chapter. In |
3003 | addition, the commission may prescribe by rule requirements for |
3004 | the destruction of books, accounts, records, and documents |
3005 | retained by the licensee after completion of the time period |
3006 | specified in this subsection. Examination reports, investigatory |
3007 | records, applications, and related information compiled by the |
3008 | office, or photographic copies thereof, shall be retained by the |
3009 | office for a period of at least 3 years following the date that |
3010 | the examination or investigation ceases to be active. |
3011 | Application records, and related information compiled by the |
3012 | office, or photographic copies thereof, shall be retained by the |
3013 | office for a period of at least 2 years following the date that |
3014 | the registration ceases to be active. |
3015 | Section 56. Section 560.126, Florida Statutes, is amended |
3016 | to read: |
3017 | 560.126 Significant events; notice required.-- |
3018 | (1) Unless exempted by the office, every money transmitter |
3019 | must provide the office with a written notice within 30 15 days |
3020 | after the occurrence or knowledge of, whichever period of time |
3021 | is greater, any of the following events: |
3022 | (a)(1) The filing of a petition under the United States |
3023 | Bankruptcy Code for bankruptcy or reorganization by the money |
3024 | transmitter. |
3025 | (b)(2) The commencement of any registration suspension or |
3026 | revocation proceeding, either administrative or judicial, or the |
3027 | denial of any original registration request or a registration |
3028 | renewal, by any state, the District of Columbia, any United |
3029 | States territory, or any foreign country, in which the money |
3030 | transmitter operates or plans to operate or has registered to |
3031 | operate. |
3032 | (c)(3) A felony indictment relating to the money |
3033 | transmission business involving the money transmitter or a money |
3034 | transmitter-affiliated party of the money transmitter. |
3035 | (d)(4) The felony conviction, guilty plea, or plea of nolo |
3036 | contendere, if the court adjudicates the nolo contendere pleader |
3037 | guilty, or the adjudication of guilt of a money transmitter or |
3038 | money transmitter-affiliated party. |
3039 | (e)(5) The interruption of any corporate surety bond |
3040 | required by the code. |
3041 | (f)(6) Any suspected criminal act, as defined by the |
3042 | commission by rule, perpetrated in this state against a money |
3043 | transmitter or authorized vendor. |
3044 |
|
3045 | However, a person does not incur liability no liability shall be |
3046 | incurred by any person as a result of making a good-faith good |
3047 | faith effort to fulfill this disclosure requirement. |
3048 | (2)(a) Each registrant under this code shall report, on a |
3049 | form prescribed by rule of the commission, any change in the |
3050 | information contained in any initial application form or any |
3051 | amendment thereto not later than 30 days after the change is |
3052 | effective. |
3053 | (b) Each registrant under the code shall report any |
3054 | changes in the partners, officers, members, joint venturers, |
3055 | directors, controlling shareholders, or responsible persons of |
3056 | any registrant or changes in the form of business organization |
3057 | by written amendment in such form and at such time as the |
3058 | commission specifies by rule. |
3059 | 1. In any case in which a person or a group of persons, |
3060 | directly or indirectly or acting by or through one or more |
3061 | persons, proposes to purchase or acquire a controlling interest |
3062 | in a licensee, such person or group must submit an initial |
3063 | application for registration as a money transmitter before such |
3064 | purchase or acquisition at such time and in such form as the |
3065 | commission prescribes by rule. |
3066 | 2. As used in this subsection, the term "controlling |
3067 | interest" means possession of the power to direct or cause the |
3068 | direction of the management or policies of a company whether |
3069 | through ownership of securities, by contract, or otherwise. Any |
3070 | person who directly or indirectly has the right to vote 25 |
3071 | percent or more of the voting securities of a company or is |
3072 | entitled to 25 percent or more of its profits is presumed to |
3073 | possess a controlling interest. |
3074 | 3. Any addition of a partner, officer, member, joint |
3075 | venturer, director, controlling shareholder, or responsible |
3076 | person of the applicant who does not have a controlling interest |
3077 | and who has not previously complied with ss. 560.205 and 560.306 |
3078 | shall be subject to such provisions unless required to file an |
3079 | initial application in accordance with subparagraph 1. If the |
3080 | office determines that the registrant does not continue to meet |
3081 | registration requirements, the office may bring administrative |
3082 | action in accordance with s. 560.114 to enforce the provisions |
3083 | of this code. |
3084 | 4. The commission shall adopt rules pursuant to ss. |
3085 | 120.536(1) and 120.54 providing for the waiver of the |
3086 | application required by this subsection if the person or group |
3087 | of persons proposing to purchase or acquire a controlling |
3088 | interest in a registrant has previously complied with the |
3089 | provisions of ss. 560.205 and 560.306 with the same legal entity |
3090 | or is currently registered with the office under this code. |
3091 | Section 57. Section 560.127, Florida Statutes, is amended |
3092 | to read: |
3093 | 560.127 Control of a money transmitter.-- |
3094 | (1) A person has control over a money transmitter if: |
3095 | (1)(a) The individual, partnership, corporation, trust, or |
3096 | other organization possesses the power, directly or indirectly, |
3097 | to direct the management or policies of a company, whether |
3098 | through ownership of securities, by contract, or otherwise. A |
3099 | person is presumed to control a company if, with respect to a |
3100 | particular company, that person: |
3101 | (a) Is a director, general partner, or officer exercising |
3102 | executive responsibility or having similar status or functions; |
3103 | (b) Directly or indirectly may vote 25 percent or more of |
3104 | a class of a voting security or sell or direct the sale of 25 |
3105 | percent or more of a class of voting securities; or |
3106 | (c) In the case of a partnership, may receive upon |
3107 | dissolution or has contributed 25 percent or more of the |
3108 | capital. The person directly or indirectly or acting through one |
3109 | or more other persons owns, controls, or has power to vote 25 |
3110 | percent or more of any class of voting securities of the money |
3111 | transmitter; or |
3112 | (2)(b) The office determines, after notice and opportunity |
3113 | for hearing, that the person directly or indirectly exercises a |
3114 | controlling influence over the activities of the money |
3115 | transmitter. |
3116 | (2) In any case in which a person or a group of persons, |
3117 | directly or indirectly or acting by or through one or more |
3118 | persons, proposes to purchase or acquire a controlling interest |
3119 | in a money transmitter, and thereby to change the control of |
3120 | that money transmitter, each person or group of persons shall |
3121 | provide written notice to the office. |
3122 | (a) A money transmitter whose stock is traded on an |
3123 | organized stock exchange shall provide the office with written |
3124 | notice within 15 days after knowledge of such change in control. |
3125 | (b) A money transmitter whose stock is not publicly traded |
3126 | shall provide the office with not less than 30 days' prior |
3127 | written notice of such proposed change in control. |
3128 | (3) After a review of the written notification, the office |
3129 | may require the money transmitter to provide additional |
3130 | information relating to other and former addresses, and the |
3131 | reputation, character, responsibility, and business |
3132 | affiliations, of the proposed new owner or each of the proposed |
3133 | new owners of the money transmitter. |
3134 | (a) The office may deny the person or group of persons |
3135 | proposing to purchase, or who have acquired control of, a money |
3136 | transmitter if, after investigation, the office determines that |
3137 | the person or persons are not qualified by reputation, |
3138 | character, experience, or financial responsibility to control or |
3139 | operate the money transmitter in a legal and proper manner and |
3140 | that the interests of the other stockholders, if any, or the |
3141 | interests of the public generally may be jeopardized by the |
3142 | proposed change in ownership, controlling interest, or |
3143 | management. |
3144 | (b) The office may disapprove any person who has been |
3145 | convicted of, or pled guilty or nolo contendere to, a violation |
3146 | of s. 560.123, s. 655.50, chapter 896, or any similar state, |
3147 | federal, or foreign law. |
3148 | Section 58. Section 560.205, Florida Statutes, is amended |
3149 | to read: |
3150 | 560.205 Qualifications of applicant for registration; |
3151 | contents.-- |
3152 | (1) To qualify for registration under this part, an |
3153 | applicant must demonstrate to the office such character and |
3154 | general fitness as to command the confidence of the public and |
3155 | warrant the belief that the registered business will be operated |
3156 | lawfully and fairly. The office may investigate each applicant |
3157 | to ascertain whether the qualifications and requirements |
3158 | prescribed by this part have been met. The office's |
3159 | investigation may include a criminal background investigation of |
3160 | all controlling shareholders, principals, officers, directors, |
3161 | members, and responsible persons of a funds transmitter and a |
3162 | payment instrument seller and all persons designated by a funds |
3163 | transmitter or payment instrument seller as an authorized |
3164 | vendor. Each controlling shareholder, principal, officer, |
3165 | director, member, and responsible person of a funds transmitter |
3166 | or payment instrument seller, unless the applicant is a publicly |
3167 | traded corporation as defined by the commission by rule, a |
3168 | subsidiary thereof, or a subsidiary of a bank or bank holding |
3169 | company organized and regulated under the laws of any state or |
3170 | the United States, shall file a complete set of fingerprints. A |
3171 | fingerprint card submitted to the office must be taken by an |
3172 | authorized law enforcement agency officer. The office shall |
3173 | submit the Such fingerprints must be submitted to the Department |
3174 | of Law Enforcement for state processing and the Department of |
3175 | Law Enforcement shall forward the fingerprints to or the Federal |
3176 | Bureau of Investigation for state and federal processing. The |
3177 | cost of the fingerprint processing may be borne by the office, |
3178 | the employer, or the person subject to the background check. The |
3179 | Department of Law Enforcement shall submit an invoice to the |
3180 | office for the fingerprints received each month. The office |
3181 | shall screen the background results to determine if the |
3182 | applicant meets licensure requirements. The commission may waive |
3183 | by rule the requirement that applicants file a set of |
3184 | fingerprints or the requirement that such fingerprints be |
3185 | processed by the Department of Law Enforcement or the Federal |
3186 | Bureau of Investigation. |
3187 | (2) Each application for registration must be submitted |
3188 | under oath to the office on such forms as the commission |
3189 | prescribes by rule and must be accompanied by a nonrefundable |
3190 | application fee. Such fee may not exceed $500 for each payment |
3191 | instrument seller or funds transmitter and $50 for each |
3192 | authorized vendor or location operating within this state. The |
3193 | application must contain forms shall set forth such information |
3194 | as the commission reasonably requires by rule, including, but |
3195 | not limited to: |
3196 | (a) The name and address of the applicant, including any |
3197 | fictitious or trade names used by the applicant in the conduct |
3198 | of its business. |
3199 | (b) The history of the applicant's material litigation, |
3200 | criminal convictions, pleas of nolo contendere, and cases of |
3201 | adjudication withheld. |
3202 | (c) A description of the activities conducted by the |
3203 | applicant, the applicant's history of operations, and the |
3204 | business activities in which the applicant seeks to engage in |
3205 | this state. |
3206 | (d) A list identifying the applicant's proposed authorized |
3207 | vendors in this state, including the location or locations in |
3208 | this state at which the applicant and its authorized vendors |
3209 | propose to conduct registered activities. |
3210 | (d)(e) A sample authorized vendor contract, if applicable. |
3211 | (e)(f) A sample form of payment instrument, if applicable. |
3212 | (f)(g) The name and address of the clearing financial |
3213 | institution or financial institutions through which the |
3214 | applicant's payment instruments will be drawn or through which |
3215 | such payment instruments will be payable. |
3216 | (g)(h) Documents revealing that the net worth and bonding |
3217 | requirements specified in s. 560.209 have been or will be |
3218 | fulfilled. |
3219 | (3) Each application for registration by an applicant that |
3220 | is a corporation shall contain also set forth such information |
3221 | as the commission reasonably requires by rule, including, but |
3222 | not limited to: |
3223 | (a) The date of the applicant's incorporation and state of |
3224 | incorporation. |
3225 | (b) A certificate of good standing from the state or |
3226 | country in which the applicant was incorporated. |
3227 | (c) A description of the corporate structure of the |
3228 | applicant, including the identity of any parent or subsidiary of |
3229 | the applicant, and the disclosure of whether any parent or |
3230 | subsidiary is publicly traded on any stock exchange. |
3231 | (d) The name, social security number, business and |
3232 | residence addresses, and employment history for the past 5 years |
3233 | for each executive officer, each director, each controlling |
3234 | shareholder, and the responsible person who will be in charge of |
3235 | all the applicant's business activities in this state. |
3236 | (e) The history of material litigation and criminal |
3237 | convictions, pleas of nolo contendere, and cases of adjudication |
3238 | withheld for each executive officer, each director, each |
3239 | controlling shareholder, and the responsible person who will be |
3240 | in charge of the applicant's registered activities. |
3241 | (f) Copies of the applicant's audited financial statements |
3242 | for the current year and, if available, for the immediately |
3243 | preceding 2-year period. In cases where the applicant is a |
3244 | wholly owned subsidiary of another corporation, the parent's |
3245 | consolidated audited financial statements may be submitted to |
3246 | satisfy this requirement. An applicant who is not required to |
3247 | file audited financial statements may satisfy this requirement |
3248 | by filing unaudited financial statements verified under penalty |
3249 | of perjury, as provided by the commission by rule. |
3250 | (g) An applicant who is not required to file audited |
3251 | financial statements may file copies of the applicant's |
3252 | unconsolidated, unaudited financial statements for the current |
3253 | year and, if available, for the immediately preceding 2-year |
3254 | period. |
3255 | (h) If the applicant is a publicly traded company, copies |
3256 | of all filings made by the applicant with the United States |
3257 | Securities and Exchange Commission, or with a similar regulator |
3258 | in a country other than the United States, within the year |
3259 | preceding the date of filing of the application. |
3260 | (4) Each application for registration submitted to the |
3261 | office by an applicant that is not a corporation shall contain |
3262 | also set forth such information as the commission reasonably |
3263 | requires by rule, including, but not limited to: |
3264 | (a) Evidence that the applicant is registered to do |
3265 | business in this state. |
3266 | (b) The name, business and residence addresses, personal |
3267 | financial statement and employment history for the past 5 years |
3268 | for each individual having a controlling ownership interest in |
3269 | the applicant, and each responsible person who will be in charge |
3270 | of the applicant's registered activities. |
3271 | (c) The history of material litigation and criminal |
3272 | convictions, pleas of nolo contendere, and cases of adjudication |
3273 | withheld for each individual having a controlling ownership |
3274 | interest in the applicant and each responsible person who will |
3275 | be in charge of the applicant's registered activities. |
3276 | (d) Copies of the applicant's audited financial statements |
3277 | for the current year, and, if available, for the preceding 2 |
3278 | years. An applicant who is not required to file audited |
3279 | financial statements may satisfy this requirement by filing |
3280 | unaudited financial statements verified under penalty of |
3281 | perjury, as provided by the commission by rule. |
3282 | (5) Each applicant shall designate and maintain an agent |
3283 | in this state for service of process. |
3284 | Section 59. Section 560.207, Florida Statutes, is amended |
3285 | to read: |
3286 | 560.207 Renewal of registration; registration fee.-- |
3287 | (1) Registration may be renewed for a 24-month period or |
3288 | the remainder of any such period without proration following the |
3289 | date of its expiration by furnishing such information as the |
3290 | commission requires by rule, together with the payment of the |
3291 | fees required under subsections (2), (3), and (4), upon the |
3292 | filing with the office of an application and other statements |
3293 | and documents as may reasonably be required of registrants by |
3294 | the commission. However, the registrant must remain qualified |
3295 | for such registration under the provisions of this part. |
3296 | (2) Each renewal of All registration must renewal |
3297 | applications shall be accompanied by a nonrefundable renewal fee |
3298 | not to exceed $1,000. A registration expires on April 30 of the |
3299 | year in which the existing registration expires, unless the |
3300 | registrant has renewed his or her registration on or before that |
3301 | date. In no event shall a registration be issued for a period in |
3302 | excess of 24 months. The commission may adopt rules pursuant to |
3303 | ss. 120.536(1) and 120.54 to implement this section All renewal |
3304 | applications must be filed on or after January 1 of the year in |
3305 | which the existing registration expires, but before the |
3306 | expiration date of April 30. If the renewal application is filed |
3307 | prior to the expiration date of an existing registration, no |
3308 | late fee shall be paid in connection with such renewal |
3309 | application. If the renewal application is filed within 60 |
3310 | calendar days after the expiration date of an existing |
3311 | registration, then, in addition to the $1,000 renewal fee, the |
3312 | renewal application shall be accompanied by a nonrefundable late |
3313 | fee of $500. If the registrant has not filed a renewal |
3314 | application within 60 calendar days after the expiration date of |
3315 | an existing registration, a new application shall be filed with |
3316 | the office pursuant to s. 560.205. |
3317 | (3) In addition to the renewal fee required under |
3318 | subsection (2), each registrant must pay Every registration |
3319 | renewal application shall also include a 2-year nonrefundable |
3320 | registration renewal fee of $50 for each authorized vendor or |
3321 | location operating within this state or, at the option of the |
3322 | registrant, a total 2-year nonrefundable renewal fee of $20,000 |
3323 | may be paid to renew the registration of all such locations |
3324 | currently registered at the time of renewal. |
3325 | (4) A registration may be reinstated only if the renewal |
3326 | fee and a nonrefundable late fee of $500 are filed within 60 |
3327 | calendar days after the expiration of the existing registration. |
3328 | The office shall grant a reinstatement of registration if an |
3329 | application is filed during the 60-day period, and the |
3330 | reinstatement is effective upon receipt of the required fees and |
3331 | any information that the commission requires by rule. If a |
3332 | registrant does not file an application for reinstatement of the |
3333 | registration within the 60 calendar days after expiration of an |
3334 | existing registration, the registration expires and a new |
3335 | application must be filed with the office pursuant to s. |
3336 | 560.205. |
3337 | Section 60. Subsection (1) of section 560.210, Florida |
3338 | Statutes, is amended to read: |
3339 | 560.210 Permissible investments.-- |
3340 | (1) A registrant shall at all times possess permissible |
3341 | investments with an aggregate market value calculated in |
3342 | accordance with United States generally accepted accounting |
3343 | principles of not less than the aggregate face amount of all |
3344 | outstanding funds transmissions transmitted and outstanding |
3345 | payment instruments issued or sold by the registrant or an |
3346 | authorized vendor in the United States. |
3347 | Section 61. Subsection (2) of section 560.211, Florida |
3348 | Statutes, is amended to read: |
3349 | 560.211 Records.-- |
3350 | (2) The records required to be maintained by the code may |
3351 | be maintained by the registrant at any location if, provided |
3352 | that the registrant notifies the office in writing of the |
3353 | location of the records in its application or otherwise by |
3354 | amendment as prescribed by commission rule. The registrant shall |
3355 | make such records available to the office for examination and |
3356 | investigation in this state, as permitted by the code, within 7 |
3357 | days after receipt of a written request. |
3358 | Section 62. Section 560.305, Florida Statutes, is amended |
3359 | to read: |
3360 | 560.305 Application.--Each application for registration |
3361 | must shall be in writing and under oath to the office, in such |
3362 | form as the commission prescribes. The application must contain |
3363 | such information as the commission requires by rule, including, |
3364 | but not limited to shall include the following: |
3365 | (1) The legal name, social security number, and residence |
3366 | and business addresses of the applicant if the applicant is a |
3367 | natural person, or, if the applicant is a partnership, |
3368 | association, or corporation, the name of every partner, officer, |
3369 | or director, member, controlling shareholder, or responsible |
3370 | person thereof. |
3371 | (2) The location of the principal office of the applicant. |
3372 | (3) The complete address of any other locations at which |
3373 | the applicant proposes to engage in such activities since the |
3374 | provisions of registration apply to each and every operating |
3375 | location of a registrant. |
3376 | (4) Such other information as the commission or office |
3377 | reasonably requires with respect to the applicant or any money |
3378 | transmitter-affiliated party of the applicant; however, the |
3379 | commission or office may not require more information than is |
3380 | specified in part II. |
3381 | Section 63. Subsections (1) and (4) of section 560.306, |
3382 | Florida Statutes, are amended to read: |
3383 | 560.306 Standards.-- |
3384 | (1) In order to qualify for registration under this part, |
3385 | an applicant must demonstrate to the office that he or she has |
3386 | such character and general fitness as will command the |
3387 | confidence of the public and warrant the belief that the |
3388 | registered business will be operated lawfully and fairly. The |
3389 | office may investigate each applicant to ascertain whether the |
3390 | qualifications and requirements prescribed by this part have |
3391 | been met. The office's investigation may include a criminal |
3392 | background investigation of all controlling shareholders, |
3393 | principals, officers, directors, members, and responsible |
3394 | persons of a check casher and a foreign currency exchanger and |
3395 | all persons designated by a foreign currency exchanger or check |
3396 | casher as an authorized vendor. Each controlling shareholder, |
3397 | principal, officer, director, member, and responsible person of |
3398 | a check casher or foreign currency exchanger, unless the |
3399 | applicant is a publicly traded corporation as defined by the |
3400 | commission by rule, a subsidiary thereof, or a subsidiary of a |
3401 | bank or bank holding company organized and regulated under the |
3402 | laws of any state or the United States, shall file a complete |
3403 | set of fingerprints. A fingerprint card submitted to the office |
3404 | must be taken by an authorized law enforcement agency officer. |
3405 | The office shall submit the Such fingerprints must be submitted |
3406 | to the Department of Law Enforcement for state processing and |
3407 | the Department of Law Enforcement shall forward the fingerprints |
3408 | to or the Federal Bureau of Investigation for state and federal |
3409 | processing. The cost for the fingerprint processing may be borne |
3410 | by the office, the employer, or the person subject to the |
3411 | background check. The Department of Law Enforcement shall submit |
3412 | an invoice to the office for the fingerprints received each |
3413 | month. The office shall screen the background results to |
3414 | determine if the applicant meets licensure requirements. The |
3415 | commission may waive by rule the requirement that applicants |
3416 | file a set of fingerprints or the requirement that such |
3417 | fingerprints be processed by the Department of Law Enforcement |
3418 | or the Federal Bureau of Investigation. |
3419 | (4) Each registration application and renewal application |
3420 | must specify the location at which the applicant proposes to |
3421 | establish its principal place of business and any other |
3422 | location, including authorized vendors operating in this state. |
3423 | The registrant shall notify the office of any changes to any |
3424 | such locations. Any registrant may satisfy this requirement by |
3425 | providing the office with a list of such locations, including |
3426 | all authorized vendors operating in this state, not less than |
3427 | annually. A registrant may not transact business as a check |
3428 | casher or a foreign currency exchanger except pursuant to the |
3429 | name under which it is registered. |
3430 | Section 64. Section 560.308, Florida Statutes, is amended |
3431 | to read: |
3432 | 560.308 Registration terms; renewal; renewal fees.-- |
3433 | (1) Registration may be renewed for a 24-month period, or |
3434 | the remainder of any such period without proration, following |
3435 | the date of its expiration by furnishing such information as the |
3436 | commission requires by rule, together with the payment of the |
3437 | fees required under subsections (2), (3), and (4). Registration |
3438 | pursuant to this part shall remain effective through the |
3439 | remainder of the second calendar year following its date of |
3440 | issuance unless during such calendar year the registration is |
3441 | surrendered, suspended, or revoked. |
3442 | (2) Each application for renewal of registration must be |
3443 | accompanied by The office shall renew registration upon receipt |
3444 | of a completed renewal form and payment of a nonrefundable |
3445 | renewal fee not to exceed $500. A registration expires on |
3446 | December 31 of the year in which the existing registration |
3447 | expires, unless the registrant has renewed his or her |
3448 | registration on or before that date The completed renewal form |
3449 | and payment of the renewal fee shall occur on or after June 1 of |
3450 | the year in which the existing registration expires. |
3451 | (3) In addition to the renewal fee required by subsection |
3452 | (2), each registrant must pay a 2-year nonrefundable |
3453 | registration renewal fee of $50 for each authorized vendor or |
3454 | location operating within this state or, at the option of the |
3455 | registrant, a total 2-year nonrefundable renewal fee of $20,000 |
3456 | may be paid to renew the registration of all such locations |
3457 | currently registered at the time of renewal. |
3458 | (4) Registration that is not renewed on or before the |
3459 | expiration date of the registration period automatically |
3460 | expires. A renewal application and fee, and a nonrefundable late |
3461 | fee of $250, must be filed within 60 calendar days after the |
3462 | expiration of an existing registration in order for the |
3463 | registration to be reinstated. The office shall grant a |
3464 | reinstatement of registration if application is filed during the |
3465 | 60-day period, and the reinstatement is effective upon receipt |
3466 | of the required fees and any information that the commission |
3467 | requires by rule. If the registrant has not filed an a renewal |
3468 | application within 60 calendar days after the expiration date of |
3469 | an existing registration, the registration expires and a new |
3470 | application must be filed with the office pursuant to s. |
3471 | 560.307. |
3472 | Section 65. Subsection (2) of section 560.310, Florida |
3473 | Statutes, is amended to read: |
3474 | 560.310 Records of check cashers and foreign currency |
3475 | exchangers.-- |
3476 | (2) The records required to be maintained by the code may |
3477 | be maintained by the registrant at any location if, provided |
3478 | that the registrant notifies the office, in writing, of the |
3479 | location of the records in its application or otherwise by |
3480 | amendment as prescribed by commission rule. The registrant shall |
3481 | make such records available to the office for examination and |
3482 | investigation in this state, as permitted by the code, within 7 |
3483 | days after receipt of a written request. |
3484 | Section 66. Subsections (2) and (4) of section 560.403, |
3485 | Florida Statutes, are amended to read: |
3486 | 560.403 Requirements of registration; declaration of |
3487 | intent.-- |
3488 | (2) A registrant under this part shall renew his or her |
3489 | intent to engage in the business of deferred presentment |
3490 | transactions or to act as a deferred presentment provider upon |
3491 | renewing his or her registration under part II or part III and |
3492 | shall do so by indicating his or her intent on the renewal form |
3493 | and by submitting a nonrefundable deferred presentment provider |
3494 | renewal fee of $1,000, in addition to any fees required for |
3495 | renewal of registration under part II or part III. |
3496 | (4) The notice of intent of a registrant under this part |
3497 | who fails to timely renew his or her intent to engage in the |
3498 | business of deferred presentment transactions or to act as a |
3499 | deferred presentment provider on or before the expiration date |
3500 | of the registration period automatically expires. A renewal |
3501 | declaration of intent and fee, and a nonrefundable late fee of |
3502 | $500, must be filed within 60 calendar days after the expiration |
3503 | of an existing registration in order for the declaration of |
3504 | intent to be reinstated. The office shall grant a reinstatement |
3505 | of registration if application is filed during the 60-day |
3506 | period, and the reinstatement is effective upon receipt of the |
3507 | required fees and any information that the commission requires |
3508 | by rule. If the registrant has not filed a reinstatement of a |
3509 | renewal declaration of intent within 60 calendar days after the |
3510 | expiration date of an existing registration, the notice of |
3511 | intent expires and a new declaration of intent must be filed |
3512 | with the office. |
3513 | Section 67. Section 655.935, Florida Statutes, is amended |
3514 | to read: |
3515 | 655.935 Search procedure on death of lessee.--If |
3516 | satisfactory proof of the death of the lessee is presented, a |
3517 | lessor shall permit the person named in a court order for the |
3518 | purpose, or if no order has been served upon the lessor, the |
3519 | spouse, a parent, an adult descendant, or a person named as a |
3520 | personal representative in a copy of a purported will produced |
3521 | by such person, to open and examine the contents of a safe- |
3522 | deposit box leased or co-leased by a decedent, or any documents |
3523 | delivered by a decedent for safekeeping, in the presence of an |
3524 | officer of the lessor; and the lessor, if so requested by such |
3525 | person, shall deliver: |
3526 | (1) Any writing purporting to be a will of the decedent, |
3527 | to the court having probate jurisdiction in the county in which |
3528 | the financial institution is located; |
3529 | (2) Any writing purporting to be a deed to a burial plot |
3530 | or to give burial instructions, to the person making the request |
3531 | for a search; and |
3532 | (3) Any document purporting to be an insurance policy on |
3533 | the life of the decedent, to the beneficiary named therein. |
3534 |
|
3535 | No other contents may be removed pursuant to this section and |
3536 | access granted pursuant to this section shall not be considered |
3537 | the initial opening of the safe-deposit box pursuant to s. |
3538 | 733.6065 by a personal representative appointed by a court in |
3539 | this state. |
3540 | Section 68. Subsections (1) and (2) of section 655.936, |
3541 | Florida Statutes, are amended to read: |
3542 | 655.936 Delivery of safe-deposit box contents or property |
3543 | held in safekeeping to personal representative.-- |
3544 | (1) Subject to the provisions of subsection (3), the |
3545 | lessor shall immediately deliver to a resident personal |
3546 | representative appointed by a court in this state, upon |
3547 | presentation of a certified copy of his or her letters of |
3548 | authority, all property deposited with it by the decedent for |
3549 | safekeeping, and shall grant the resident personal |
3550 | representative access to any safe-deposit box in the decedent's |
3551 | name and permit him or her to remove from such box any part or |
3552 | all of the contents thereof. |
3553 | (2) If a foreign personal representative of a deceased |
3554 | lessee has been appointed by a court of any other state, a |
3555 | lessor may, at its discretion, after 3 months from the issuance |
3556 | to such foreign personal representative of his or her letters of |
3557 | authority, deliver to such foreign personal representative all |
3558 | properties deposited with it for safekeeping and the contents of |
3559 | any safe-deposit box in the name of the decedent if at such time |
3560 | the lessor has not received written notice of the appointment of |
3561 | a personal representative in this state, and such delivery is a |
3562 | valid discharge of the lessor for all property or contents so |
3563 | delivered. A Such foreign personal representative appointed by a |
3564 | court of any other state shall furnish the lessor with an |
3565 | affidavit setting forth facts showing the domicile of the |
3566 | deceased lessee to be other than this state and stating that |
3567 | there are no unpaid creditors of the deceased lessee in this |
3568 | state, together with a certified copy of his or her letters of |
3569 | authority. A lessor making delivery pursuant to this subsection |
3570 | shall maintain in its files a receipt executed by such foreign |
3571 | personal representative which itemizes in detail all property so |
3572 | delivered. |
3573 | Section 69. Section 655.937, Florida Statutes, is amended |
3574 | to read: |
3575 | 655.937 Access to safe-deposit boxes leased in two or more |
3576 | names.-- |
3577 | (1) Unless When specifically provided in the lease or |
3578 | rental agreement to the contrary, if covering a safe-deposit box |
3579 | is heretofore or hereafter rented or leased in the names of two |
3580 | or more lessees, that access to the safe-deposit box will be |
3581 | granted to either lessee, or to either or the survivor, access |
3582 | to the safe-deposit box shall be granted to: |
3583 | (a) Either or any of such lessees, regardless of whether |
3584 | or not the other lessee or lessees or any of them are living or |
3585 | competent.; or |
3586 | (b) Subject to s. 655.933, those persons named in s. |
3587 | 655.933. |
3588 | (c) Subject to s. 655.935, those persons named in s. |
3589 | 655.935. |
3590 | (d)(b) Subject to s. 773.6065, the personal representative |
3591 | of the estate of either or any of such lessees who is deceased, |
3592 | or the guardian of the property of either or any of such lessees |
3593 | who is incapacitated. |
3594 | (2) In all cases described in subsection (1),; and, in |
3595 | either such case, the provisions of s. 655.933 apply, and the |
3596 | signature on the safe-deposit entry or access record,(or the |
3597 | receipt or acquittance, in the case of property or documents |
3598 | otherwise held for safekeeping,) is a valid and sufficient |
3599 | release and discharge to the lessor for granting access to such |
3600 | safe-deposit box or for the delivery of such property or |
3601 | documents otherwise held for safekeeping. |
3602 | (3)(2) A lessor may not be held liable for damages or |
3603 | penalty by reason of any access granted or delivery made |
3604 | pursuant to this section. |
3605 | (4) The right of access by a co-lessee is separate from |
3606 | the rights and responsibilities of other persons who may be |
3607 | granted access to a safe-deposit box after the death or |
3608 | incapacity of another co-lessee and such right of access is not |
3609 | subject to the provisions of s. 655.935 or s. 733.6065 or other |
3610 | requirements imposed upon personal representatives, guardians, |
3611 | or other fiduciaries. |
3612 | (5) After the death of a co-lessee, the surviving co- |
3613 | lessee or any other person who is granted access to the safe- |
3614 | deposit box pursuant to this section may make a written |
3615 | inventory of the box, which must be conducted by the person |
3616 | making the request in the presence of one other person as |
3617 | specified in this section. Each person present shall verify the |
3618 | contents of the box by signing a copy of the inventory under |
3619 | penalty of perjury. |
3620 | (a) If the person making the written inventory is the |
3621 | surviving co-lessee, the other person may be any other person |
3622 | granted access pursuant to this section, an employee of the |
3623 | institution where the box is located, or an attorney licensed in |
3624 | this state. |
3625 | (b) If the person making the written inventory is not a |
3626 | surviving co-lessee, the other person may be a surviving co- |
3627 | lessee, an employee of the institution where the box is located, |
3628 | or an attorney licensed in this state. |
3629 | Section 70. Effective upon this act becoming a law, |
3630 | subsection (3) of section 679.705, Florida Statutes, is amended |
3631 | to read: |
3632 | 679.705 Effectiveness of action taken before effective |
3633 | date.-- |
3634 | (3) This act does not render ineffective an effective |
3635 | financing statement that, before this act takes effect, is filed |
3636 | and satisfies the applicable requirements for perfection under |
3637 | the law of the jurisdiction governing perfection as provided in |
3638 | s. 679.103, Florida Statutes 2000. However, except as otherwise |
3639 | provided in subsections (4) and (5) and s. 679.706, the |
3640 | financing statement ceases to be effective at the earlier of: |
3641 | (a) The time the financing statement would have ceased to |
3642 | be effective under the law of the jurisdiction in which it is |
3643 | filed; or |
3644 | (b) December 31 June 30, 2006. |
3645 | Section 71. Section 733.6065, Florida Statutes, is amended |
3646 | to read: |
3647 | 733.6065 Opening safe-deposit box.-- |
3648 | (1) Subject to the provisions of s. 655.936(2), the |
3649 | initial opening of a the decedent's safe-deposit box that is |
3650 | leased or co-leased by the decedent shall be conducted in the |
3651 | presence of any two of the following persons: an employee of the |
3652 | institution where the box is located, the personal |
3653 | representative, or the personal representative's attorney of |
3654 | record. Each person who is present must verify the contents of |
3655 | the box by signing a copy of the inventory under penalties of |
3656 | perjury. The personal representative shall file the safe-deposit |
3657 | box inventory, together with a copy of the box entry record from |
3658 | a date which is 6 months prior to the date of death to the date |
3659 | of inventory, with the court within 10 days after the box is |
3660 | opened. Unless otherwise ordered by the court, this inventory |
3661 | and the attached box entry record is subject to inspection only |
3662 | by persons entitled to inspect an inventory under s. 733.604(1). |
3663 | The personal representative may remove the contents of the box. |
3664 | (2) The right to open and examine the contents of a safe- |
3665 | deposit box leased by a decedent, or any documents delivered by |
3666 | a decedent for safekeeping, and to receive items as provided for |
3667 | in s. 655.935 are separate from in addition to the rights |
3668 | provided for in subsection (1). |
3669 | Section 72. For the 2006-2007 fiscal year, the recurring |
3670 | sum of $700,515 is appropriated from the Regulatory Trust Fund |
3671 | to the Office of Financial Regulation for the purpose of |
3672 | implementing the provisions of s. 494.0033(2)(b), Florida |
3673 | Statutes, for third-party administration of the mortgage broker |
3674 | test. |
3675 | Section 73. Except as otherwise expressly provided in this |
3676 | act, this act shall take effect October 1, 2006. |