Florida Senate - 2009 SB 1126
By Senator Richter
37-01404-09 20091126__
1 A bill to be entitled
2 An act relating to investor protection; amending s.
3 16.56, F.S.; expanding jurisdiction of the Office of
4 Statewide Prosecution to investigate and prosecute
5 certain additional offenses; amending s. 517.021,
6 F.S.; revising definitions; amending s. 517.072, F.S.;
7 exempting certain transactions in viatical settlement
8 investments from certain registration requirements;
9 specifying application of certain provisions; amending
10 s. 517.12, F.S.; revising requirements for
11 registration of dealers, associated persons,
12 investment advisers, and branch offices, including
13 fingerprinting requirements; amending s. 517.121,
14 F.S.; authorizing the Office of Financial Regulation
15 to suspend registration for registrant failure to
16 provide certain records; providing for rescinding
17 suspensions; amending ss. 517.1215 and 517.1217, F.S.;
18 changing an agency reference; amending s. 517.131,
19 F.S.; revising a Securities Guaranty Fund disbursement
20 requirement; amending s. 517.141, F.S.; excluding
21 postjudgment interest from payments from the fund;
22 amending s. 517.161, F.S.; expanding the class of
23 persons related to or associated with an applicant or
24 registrant for which certain violations may result in
25 adverse actions taken against registrations;
26 authorizing the office to suspend a registration under
27 certain circumstances; creating s. 517.1611, F.S.;
28 requiring the Financial Services Commission to adopt
29 rules for imposing registration sanctions for certain
30 violations by registrants and associated or related
31 persons; requiring the commission to adopt rules for
32 disqualifying registrants for certain periods of time
33 for certain criminal actions; providing rules
34 criteria; amending s. 517.191, F.S.; authorizing the
35 office to apply to the court for orders directing
36 restitution; authorizing the office to apply to the
37 court to impose civil penalties for certain
38 violations; specifying limitations; authorizing the
39 Attorney General, with approval of the office, to
40 investigate and enforce certain provisions;
41 authorizing the Attorney General to bring certain
42 actions for injunctive relief; authorizing the
43 Attorney General to recover certain investigation and
44 enforcement costs and attorney fees; providing for
45 deposit of certain recovered moneys into the Legal
46 Affairs Revolving Trust Fund; amending s. 517.221,
47 F.S.; increasing the amount of certain administrative
48 fines; authorizing the office to bar certain persons
49 from submitting applications or notifications for a
50 license or registration under certain circumstances;
51 specifying nonapplication of time limitations to
52 certain office enforcement actions; amending s.
53 517.275, F.S.; revising criteria for prohibited
54 practices relating to commodities; amending s. 905.34,
55 F.S.; expanding subject matter jurisdiction of the
56 statewide grand jury to include certain additional
57 offenses; providing an effective date.
58
59 Be It Enacted by the Legislature of the State of Florida:
60
61 Section 1. Paragraphs (a) and (b) of subsection (1) of
62 section 16.56, Florida Statutes, are amended to read:
63 16.56 Office of Statewide Prosecution.—
64 (1) There is created in the Department of Legal Affairs an
65 Office of Statewide Prosecution. The office shall be a separate
66 “budget entity” as that term is defined in chapter 216. The
67 office may:
68 (a) Investigate and prosecute the offenses of:
69 1. Bribery, burglary, criminal usury, extortion, gambling,
70 kidnapping, larceny, murder, prostitution, perjury, robbery,
71 carjacking, and home-invasion robbery;
72 2. Any crime involving narcotic or other dangerous drugs;
73 3. Any violation of the provisions of the Florida RICO
74 (Racketeer Influenced and Corrupt Organization) Act, including
75 any offense listed in the definition of racketeering activity in
76 s. 895.02(1)(a), providing such listed offense is investigated
77 in connection with a violation of s. 895.03 and is charged in a
78 separate count of an information or indictment containing a
79 count charging a violation of s. 895.03, the prosecution of
80 which listed offense may continue independently if the
81 prosecution of the violation of s. 895.03 is terminated for any
82 reason;
83 4. Any violation of the provisions of the Florida Anti
84 Fencing Act;
85 5. Any violation of the provisions of the Florida Antitrust
86 Act of 1980, as amended;
87 6. Any crime involving, or resulting in, fraud or deceit
88 upon any person;
89 7. Any violation of s. 847.0135, relating to computer
90 pornography and child exploitation prevention, or any offense
91 related to a violation of s. 847.0135 or any violation of
92 chapter 827 where the crime is facilitated by or connected to
93 the use of the Internet or any device capable of electronic data
94 storage or transmission;
95 8. Any violation of the provisions of chapter 815;
96 9. Any criminal violation of part I of chapter 499;
97 10. Any violation of the provisions of the Florida Motor
98 Fuel Tax Relief Act of 2004;
99 11. Any criminal violation of s. 409.920 or s. 409.9201; or
100 12. Any crime involving voter registration, voting, or
101 candidate or issue petition activities;
102 13. Any criminal violation of the Florida Money Laundering
103 Act; or
104 14. Any criminal violation of the Florida Securities and
105 Investor Protection Act;
106 or any attempt, solicitation, or conspiracy to commit any of the
107 crimes specifically enumerated above. The office shall have such
108 power only when any such offense is occurring, or has occurred,
109 in two or more judicial circuits as part of a related
110 transaction, or when any such offense is connected with an
111 organized criminal conspiracy affecting two or more judicial
112 circuits. Information or indictments used in bringing criminal
113 cases in more than one judicial circuit shall contain general
114 allegations stating the judicial circuits and counties in which
115 crimes are alleged to have occurred or the judicial circuits and
116 counties in which crimes affecting such circuits or counties are
117 alleged to have been connected with an organized criminal
118 conspiracy.
119 (b) Investigate and prosecute any crime enumerated in
120 subparagraphs (a)1.-14. (a)1.-12. facilitated by or connected to
121 the use of the Internet. Any such crime is a crime occurring in
122 every judicial circuit within the state.
123 Section 2. Subsection (4), paragraph (a) of subsection
124 (13), and subsection (23) of section 517.021, Florida Statutes,
125 are amended to read:
126 517.021 Definitions.—When used in this chapter, unless the
127 context otherwise indicates, the following terms have the
128 following respective meanings:
129 (4) “Branch office” means any location in this state of a
130 dealer or investment adviser at which one or more associated
131 persons regularly conduct the business of rendering investment
132 advice or effecting any transactions in, or inducing or
133 attempting to induce the purchase or sale of, any security or
134 any location that is held out as such. The commission may adopt
135 by rule exceptions to this definition for dealers in order to
136 maintain consistency with the definition of a branch office used
137 by self-regulatory organizations authorized by the Securities
138 and Exchange Commission, including, but not limited to, the
139 Financial Industry Regulatory Authority National Association of
140 Securities Dealers or the New York Stock Exchange. The
141 commission may adopt by rule exceptions to this definition for
142 investment advisers.
143 (13)(a) “Investment adviser” includes any person who
144 receives for compensation, directly or indirectly, and engages
145 for all or part of her or his time, directly or indirectly, or
146 through publications or writings, in the business of advising
147 others as to the value of securities or as to the advisability
148 of investments in, purchasing of, or selling of securities,
149 except a dealer whose performance of these services is solely
150 incidental to the conduct of her or his business as a dealer and
151 who receives no special compensation for such services.
152 (23) “Viatical settlement investment” means an agreement
153 for the purchase, sale, assignment, transfer, devise, or bequest
154 of all or any portion of a legal or equitable interest in a
155 viaticated policy as defined in chapter 626. The term does not
156 include:
157 (a) The transfer or assignment of an interest in a
158 previously viaticated policy from a natural person who transfers
159 or assigns no more than one such interest in 1 calendar year.
160 (b) The provision of stop-loss coverage to a viatical
161 settlement provider, financing entity, or related provider
162 trust, as those terms are defined in s. 626.9911, by an
163 authorized or eligible insurer.
164 (c) The transfer or assignment of a viaticated policy from
165 a licensed viatical settlement provider to another licensed
166 viatical settlement provider, a related provider trust, a
167 financing entity, or a special purpose entity, as those terms
168 are defined in s. 626.9911, or to a contingency insurer provided
169 that such transfer or assignment is not the direct or indirect
170 promotion of any scheme or enterprise with the intent of
171 violating or evading any provision of this chapter.
172 (d) The transfer or assignment of a viaticated policy to a
173 bank, trust company, savings institution, insurance company,
174 dealer, investment company as defined in the Investment Company
175 Act of 1940, pension or profit-sharing trust, or qualified
176 institutional buyer as defined in United States Securities and
177 Exchange Commission Rule 144A, 17 C.F.R. s. 230.144A(a), or to
178 an accredited investor as defined by Rule 501 of Regulation D of
179 the Securities Act Rules, provided such transfer or assignment
180 is not for the direct or indirect promotion of any scheme or
181 enterprise with the intent of violating or evading any provision
182 of this chapter.
183 (e) The transfer or assignment of a viaticated policy by a
184 conservator of a viatical settlement provider appointed by a
185 court of competent jurisdiction who transfers or assigns
186 ownership of viaticated policies pursuant to that court's order.
187 Section 3. Section 517.072, Florida Statutes, is amended to
188 read:
189 517.072 Viatical settlement investments.—
190 (1) The exemptions provided for by ss. 517.051(6), (8), and
191 (10) do not apply to a viatical settlement investment.
192 (2) The offering of a viatical settlement investment is not
193 an exempt transaction under s. 517.061(2), (3), (8), (11), and
194 (18), regardless of whether the offering otherwise complies with
195 the conditions of that section, unless such offering is to a
196 qualified institutional buyer.
197 (3) The registration provisions of ss. 517.07 and 517.12 do
198 not apply to any of the following transactions in viatical
199 settlement investments; however, such transactions in viatical
200 settlement investments are subject to the provisions of ss.
201 517.301, 517.311, and 517.312:
202 (a) The transfer or assignment of an interest in a
203 previously viaticated policy from a natural person who transfers
204 or assigns no more than one such interest in a single calendar
205 year.
206 (b) The provision of stop-loss coverage to a viatical
207 settlement provider, financing entity, or related provider
208 trust, as those terms are defined in s. 626.9911, by an
209 authorized or eligible insurer.
210 (c) The transfer or assignment of a viaticated policy from
211 a licensed viatical settlement provider to another licensed
212 viatical settlement provider, a related provider trust, a
213 financing entity, or a special purpose entity, as those terms
214 are defined in s. 626.9911, or to a contingency insurer,
215 provided such transfer or assignment is not the direct or
216 indirect promotion of any scheme or enterprise with the intent
217 of violating or evading any provision of this chapter.
218 (d) The transfer or assignment of a viaticated policy to a
219 bank, trust company, savings institution, insurance company,
220 dealer, investment company as defined in the Investment Company
221 Act of 1940, pension or profit-sharing trust, or qualified
222 institutional buyer as defined in United States Securities and
223 Exchange Commission Rule 144A, 17 C.F.R. s. 230.144A(a), or to
224 an accredited investor as defined by Rule 501 of Regulation D of
225 the Securities Act Rules, provided such transfer or assignment
226 is not for the direct or indirect promotion of any scheme or
227 enterprise with the intent of violating or evading any provision
228 of this chapter.
229 (e) The transfer or assignment of a viaticated policy by a
230 conservator of a viatical settlement provider appointed by a
231 court of competent jurisdiction who transfers or assigns
232 ownership of viaticated policies pursuant to that court's order.
233 Section 4. Subsections (7), (8), and (11) and paragraph (b)
234 of subsection (15) of section 517.12, Florida Statutes, are
235 amended to read:
236 517.12 Registration of dealers, associated persons,
237 investment advisers, and branch offices.—
238 (7) The application shall also contain such information as
239 the commission or office may require about the applicant; any
240 partner, member, officer, or director of the applicant or any
241 person having a similar status or performing similar functions;
242 any person directly or indirectly controlling the applicant; or
243 any employee of a dealer or of an investment adviser rendering
244 investment advisory services. Each applicant or any natural
245 person listed on the application form shall file a complete set
246 of fingerprints. A fingerprint card submitted to the office must
247 be taken by an authorized law enforcement agency or in a manner
248 approved by the commission or office by rule. The office shall
249 submit the fingerprints to the Department of Law Enforcement for
250 state processing, and the Department of Law Enforcement shall
251 forward the fingerprints to the Federal Bureau of Investigation
252 for federal processing. All fingerprint cards submitted to the
253 Department of Law Enforcement shall be entered into the
254 statewide automated fingerprint identification system authorized
255 by s. 943.05(2)(b). The office shall notify the Department of
256 Law Enforcement when a person whose fingerprint information is
257 retained by the Department of Law Enforcement is no longer
258 registered with the office. The cost of the fingerprint
259 processing may be borne by the office, the employer, or the
260 person subject to the background check. The Department of Law
261 Enforcement shall submit an invoice to the office for the
262 fingerprints received each month. The office shall screen the
263 background results to determine if the applicant meets licensure
264 requirements. The commission may waive, by rule, the requirement
265 that applicants must file a set of fingerprints or the
266 requirement that such fingerprints must be processed by the
267 Department of Law Enforcement or the Federal Bureau of
268 Investigation. The commission or office may require information
269 about any such applicant or person concerning such matters as:
270 (a) His or her full name, and any other names by which he
271 or she may have been known, and his or her age, social security
272 number, photograph, qualifications, and educational and business
273 history.
274 (b) Any injunction or administrative order by a state or
275 federal agency, national securities exchange, or national
276 securities association involving a security or any aspect of the
277 securities business and any injunction or administrative order
278 by a state or federal agency regulating banking, insurance,
279 finance, or small loan companies, real estate, mortgage brokers,
280 or other related or similar industries, which injunctions or
281 administrative orders relate to such person.
282 (c) His or her conviction of, or plea of nolo contendere
283 to, a criminal offense or his or her commission of any acts
284 which would be grounds for refusal of an application under s.
285 517.161.
286 (d) The names and addresses of other persons of whom the
287 office may inquire as to his or her character, reputation, and
288 financial responsibility.
289 (8) The commission or office may require the applicant or
290 one or more principals or general partners, or natural persons
291 exercising similar functions, or any associated person applicant
292 to successfully pass oral or written examinations. Because any
293 principal, manager, supervisor, or person exercising similar
294 functions shall be responsible for the acts of the associated
295 persons affiliated with a dealer or investment adviser, the
296 examination standards may be higher for a dealer, office
297 manager, principal, or person exercising similar functions than
298 for a nonsupervisory associated person. The commission may waive
299 the examination process when it determines that such
300 examinations are not in the public interest. The office shall
301 waive the examination requirements for any person who has passed
302 any tests as prescribed in s. 15(b)(7) of the Securities
303 Exchange Act of 1934 that relates to the position to be filled
304 by the applicant.
305 (11) If the office finds that the applicant is of good
306 repute and character and has complied with the provisions of
307 this chapter and the rules made pursuant hereto, it shall
308 register the applicant. The registration of each dealer,
309 investment adviser, branch office, and associated person expires
310 on December 31 of the year the registration became effective
311 unless the registrant has renewed his or her registration on or
312 before that date. The commission may establish by rule
313 procedures for renewing the registration of a branch office
314 through the Central Registration Depository. Registration may be
315 renewed by furnishing such information as the commission may
316 require, together with payment of the fee required in subsection
317 (10) for dealers, investment advisers, associated persons, or
318 branch offices and the payment of any amount lawfully due and
319 owing to the office pursuant to any order of the office or
320 pursuant to any agreement with the office. Any dealer,
321 investment adviser, or associated person, or branch office
322 registrant who has not renewed a registration by the time the
323 current registration expires may request reinstatement of such
324 registration by filing with the office, on or before January 31
325 of the year following the year of expiration, such information
326 as may be required by the commission, together with payment of
327 the fee required in subsection (10) for dealers, investment
328 advisers, or associated persons, or branch office and a late fee
329 equal to the amount of such fee. Any reinstatement of
330 registration granted by the office during the month of January
331 shall be deemed effective retroactive to January 1 of that year.
332 (15)
333 (b) In lieu of filing with the office the applications
334 specified in subsection (6), the fees required by subsection
335 (10), the renewals required by subsection (11), and the
336 termination notices required by subsection (12), the commission
337 may by rule establish procedures for the deposit of such fees
338 and documents with the Central Registration Depository or the
339 Investment Adviser Registration Depository of the Financial
340 Industry Regulatory Authority National Association of Securities
341 Dealers, Inc., as developed under contract with the North
342 American Securities Administrators Association, Inc.
343 Section 5. Subsection (3) is added to section 517.121,
344 Florida Statutes, to read:
345 517.121 Books and records requirements; examinations.—
346 (3) Registration under s. 517.12 may be immediately
347 suspended by the office if the registrant fails to provide to
348 the office, within 30 days after a written request, any of the
349 records required by this section and the rules adopted under
350 this section. The suspension may be rescinded if the registrant
351 submits the requested records to the office. For purposes of s.
352 120.60(6), failure to provide any of such records constitutes
353 immediate and serious danger to the public health, safety, and
354 welfare.
355 Section 6. Subsection (2) of section 517.1215, Florida
356 Statutes, is amended to read:
357 517.1215 Requirements, rules of conduct, and prohibited
358 business practices for investment advisors and their associated
359 persons.—
360 (2) The commission shall by rule establish rules of conduct
361 and prohibited business practices for investment advisers and
362 their associated persons. In adopting the rules, the commission
363 shall consider general industry standards as expressed in the
364 rules and regulations of the various federal and self-regulatory
365 agencies and regulatory associations, including, but not limited
366 to, the United States Securities and Exchange Commission, the
367 Financial Industry Regulatory Authority National Association of
368 Securities Dealers, and the North American Securities
369 Administrators Association.
370 Section 7. Section 517.1217, Florida Statutes, is amended
371 to read:
372 517.1217 Rules of conduct and prohibited business practices
373 for dealers and their associated persons.—The commission by rule
374 may establish rules of conduct and prohibited business practices
375 for dealers and their associated persons. In adopting the rules,
376 the commission shall consider general industry standards as
377 expressed in the rules and regulations of the various federal
378 and self-regulatory agencies and regulatory associations,
379 including, but not limited to, the United States Securities and
380 Exchange Commission, the Financial Industry Regulatory Authority
381 National Association of Securities Dealers, and the North
382 American Securities Administrators Association.
383 Section 8. Subsection (2) of section 517.131, Florida
384 Statutes, is amended to read:
385 517.131 Securities Guaranty Fund.—
386 (2) The Securities Guaranty Fund shall be disbursed as
387 provided in s. 517.141 to a person who is adjudged by a court of
388 competent jurisdiction to have suffered monetary damages as a
389 result of any of the following acts committed by a dealer,
390 investment adviser, or associated person who was licensed under
391 this chapter at the time the act was committed:
392 (a) A specific violation of s. 517.07.
393 (b) A specific violation of s. 517.301.
394 Section 9. Subsection (1) of section 517.141, Florida
395 Statutes, is amended to read:
396 517.141 Payment from the fund.—
397 (1) Any person who meets all of the conditions prescribed
398 in s. 517.131 may apply to the office for payment to be made to
399 such person from the Securities Guaranty Fund in the amount
400 equal to the unsatisfied portion of such person's judgment or
401 $10,000, whichever is less, but only to the extent and amount
402 reflected in the judgment as being actual or compensatory
403 damages, excluding postjudgment interest, costs, and attorney's
404 fees.
405 Section 10. Subsections (1) and (6) of section 517.161,
406 Florida Statutes, are amended to read:
407 517.161 Revocation, denial, or suspension of registration
408 of dealer, investment adviser, associated person, or branch
409 office.—
410 (1) Registration under s. 517.12 may be denied or any
411 registration granted may be revoked, restricted, or suspended by
412 the office if the office determines that such applicant or
413 registrant; any partner, member, officer, or director of the
414 applicant or registrant or any person having a similar status or
415 performing similar functions; or any person directly or
416 indirectly controlling the applicant or registrant:
417 (a) Has violated any provision of this chapter or any rule
418 or order made under this chapter;
419 (b) Has made a material false statement in the application
420 for registration;
421 (c) Has been guilty of a fraudulent act in connection with
422 rendering investment advice or in connection with any sale of
423 securities, has been or is engaged or is about to engage in
424 making fictitious or pretended sales or purchases of any such
425 securities or in any practice involving the rendering of
426 investment advice or the sale of securities which is fraudulent
427 or in violation of the law;
428 (d) Has made a misrepresentation or false statement to, or
429 concealed any essential or material fact from, any person in the
430 rendering of investment advice or the sale of a security to such
431 person;
432 (e) Has failed to account to persons interested for all
433 money and property received;
434 (f) Has not delivered, after a reasonable time, to persons
435 entitled thereto securities held or agreed to be delivered by
436 the dealer, broker, or investment adviser, as and when paid for,
437 and due to be delivered;
438 (g) Is rendering investment advice or selling or offering
439 for sale securities through any associated person not registered
440 in compliance with the provisions of this chapter;
441 (h) Has demonstrated unworthiness to transact the business
442 of dealer, investment adviser, or associated person;
443 (i) Has exercised management or policy control over or
444 owned 10 percent or more of the securities of any dealer or
445 investment adviser that has been declared bankrupt, or had a
446 trustee appointed under the Securities Investor Protection Act;
447 or is, in the case of a dealer or investment adviser, insolvent;
448 (j) Has been convicted of, or has entered a plea of guilty
449 or nolo contendere to, regardless of whether adjudication was
450 withheld, a crime against the laws of this state or any other
451 state or of the United States or of any other country or
452 government which relates to registration as a dealer, investment
453 adviser, issuer of securities, associated person, or branch
454 office; which relates to the application for such registration;
455 or which involves moral turpitude or fraudulent or dishonest
456 dealing;
457 (k) Has had a final judgment entered against her or him in
458 a civil action upon grounds of fraud, embezzlement,
459 misrepresentation, or deceit;
460 (l) Is of bad business repute;
461 (m) Has been the subject of any decision, finding, award,
462 injunction, suspension, prohibition, revocation, denial,
463 judgment, or administrative order by any court of competent
464 jurisdiction, administrative law judge, or by any state or
465 federal agency, national securities, commodities, or option
466 exchange, or national securities, commodities, or option
467 association, or any national securities, commodities, or options
468 dispute resolution forum, involving a violation of any federal
469 or state securities or commodities law or any rule or regulation
470 promulgated thereunder, or any rule or regulation of any
471 national securities, commodities, or options exchange or
472 national securities, commodities, or options association, or has
473 been the subject of any injunction or adverse administrative
474 order by a state or federal agency regulating banking,
475 insurance, finance or small loan companies, real estate,
476 mortgage brokers or lenders, money transmitters, or other
477 related or similar industries. For purposes of this subsection,
478 the office may not deny registration to any applicant who has
479 been continuously registered with the office for 5 years from
480 the date of entry of such decision, finding, injunction,
481 suspension, prohibition, revocation, denial, judgment, or
482 administrative order provided such decision, finding,
483 injunction, suspension, prohibition, revocation, denial,
484 judgment, or administrative order has been timely reported to
485 the office pursuant to the commission's rules. For purposes of
486 this paragraph, the term “state” includes Canadian provinces,
487 and the term “national” includes other countries; or
488 (n) Made payment to the office for a registration or notice
489 filing with a check or electronic transmission of funds that is
490 dishonored by the applicant's, registrant's, or notice filer's
491 financial institution.
492 (6) Registration under s. 517.12 may be denied or any
493 registration granted may be suspended or restricted if an
494 applicant or registrant is charged, in a pending enforcement
495 action or pending criminal prosecution, with any conduct that
496 would authorize denial or revocation under subsection (1).
497 Registration under s. 517.12 may be suspended or restricted if a
498 registrant is arrested for any conduct that would authorize
499 revocation under subsection (1).
500 (a) Any denial of registration ordered under this
501 subsection shall be without prejudice to the applicant's ability
502 to reapply for registration.
503 (b) Any order of suspension or restriction under this
504 subsection shall:
505 1. Take effect only after a hearing, unless no hearing is
506 requested by the registrant or unless the suspension or
507 restriction is made in accordance with s. 120.60(6).
508 2. Contain a finding that evidence of a prima facie case
509 supports the charge made in the enforcement action or criminal
510 prosecution.
511 3. Operate for no longer than 10 days beyond receipt of
512 notice by the office of termination with respect to the
513 registrant of the enforcement action or criminal prosecution.
514 (c) For purposes of this subsection:
515 1. The term “enforcement action” means any judicial
516 proceeding or any administrative proceeding where such judicial
517 or administrative proceeding is brought by an agency of the
518 United States or of any state to enforce or restrain violation
519 of any state or federal law, or any disciplinary proceeding
520 maintained by the Financial Industry Regulatory Authority
521 National Association of Securities Dealers, the National Futures
522 Association, the New York Stock Exchange, or any other similar
523 self-regulatory organization.
524 2. An enforcement action is pending at any time after
525 notice to the applicant or registrant of such action and is
526 terminated at any time after entry of final judgment or decree
527 in the case of judicial proceedings, final agency action in the
528 case of administrative proceedings, and final disposition by a
529 self-regulatory organization in the case of disciplinary
530 proceedings.
531 3. A criminal prosecution is pending at any time after
532 criminal charges are filed and is terminated at any time after
533 conviction, acquittal, or dismissal.
534 Section 11. Section 517.1611, Florida Statutes, is created
535 to read:
536 517.1611 Guidelines.—
537 (1) The commission shall adopt rules setting forth sanction
538 guidelines for violations by a registrant of any provision of
539 this chapter or the rules adopted under this chapter. Pursuant
540 to such rules, registration may be suspended, revoked, or
541 restricted, or a fine may be imposed based upon violations of
542 provisions of this chapter or the rules adopted under this
543 chapter by the registrant; any partner, member, officer, or
544 director of the registrant or any person having a similar status
545 or performing similar functions; or any person directly or
546 indirectly controlling the registrant. Such guidelines shall be
547 based upon the severity and repetition of specific offenses;
548 distinguish minor violations from those that endanger the public
549 health, safety, or welfare; and provide reasonable and
550 meaningful notice to the public of likely penalties that may be
551 imposed for proscribed conduct and ensure that such penalties
552 are imposed in a consistent manner by the office. The guidelines
553 may be adjusted based on aggravating and mitigating factors
554 established by rule and consistent with this purpose.
555 (2) The commission shall adopt rules setting forth
556 disqualifying periods pursuant to which an applicant will be
557 disqualified from eligibility for licensure based upon criminal
558 convictions, pleas of nolo contendere, or pleas of guilt,
559 regardless of whether adjudication was withheld, by the
560 applicant; any partner, member, officer, or director of the
561 applicant or any person having a similar status or performing
562 similar functions; or any person directly or indirectly
563 controlling the applicant. Such disqualifying periods may
564 include a 15-year disqualifying period based upon serious
565 felonies, a 7-year disqualifying period based upon all other
566 felonies, and a 5-year disqualifying period based upon
567 misdemeanors that relate to registration as a dealer, investment
568 adviser, issuer of securities, associated person, or branch
569 office; that relate to the application for such registration; or
570 that involve moral turpitude or fraudulent or dishonest dealing.
571 The disqualifying period shall be imposed in addition to the
572 period set by the court order of determination. The rule may
573 also consider mitigating factors, an additional waiting period
574 based upon dates of imprisonment or community supervision, an
575 additional waiting period based upon commitment of multiple
576 crimes, and other factors reasonably related to the
577 consideration of an applicant's criminal history. An applicant
578 is not eligible for registration until the expiration of the
579 disqualifying period set by rule. Section 112.011 does not apply
580 to the registration provisions under this chapter. Nothing in
581 this section changes or amends the grounds for denial under s.
582 517.161.
583 Section 12. Section 517.191, Florida Statutes, is amended
584 to read:
585 517.191 Injunction to restrain violations; enforcement by
586 Attorney General.—
587 (1) When it appears to the office, either upon complaint or
588 otherwise, that a person has engaged or is about to engage in
589 any act or practice constituting a violation of this chapter or
590 a rule or order hereunder, the office may investigate; and
591 whenever it shall believe from evidence satisfactory to it that
592 any such person has engaged, is engaged, or is about to engage
593 in any act or practice constituting a violation of this chapter
594 or a rule or order hereunder, the office may, in addition to any
595 other remedies, bring action in the name and on behalf of the
596 state against such person and any other person concerned in or
597 in any way participating in or about to participate in such
598 practices or engaging therein or doing any act or acts in
599 furtherance thereof or in violation of this chapter to enjoin
600 such person or persons from continuing such fraudulent practices
601 or engaging therein or doing any act or acts in furtherance
602 thereof or in violation of this chapter. In any such court
603 proceedings, the office may apply for, and on due showing be
604 entitled to have issued, the court's subpoena requiring
605 forthwith the appearance of any defendant and her or his
606 employees, associated persons, or agents and the production of
607 documents, books, and records that may appear necessary for the
608 hearing of such petition, to testify or give evidence concerning
609 the acts or conduct or things complained of in such application
610 for injunction. In such action, the equity courts shall have
611 jurisdiction of the subject matter, and a judgment may be
612 entered awarding such injunction as may be proper.
613 (2) In addition to all other means provided by law for the
614 enforcement of any temporary restraining order, temporary
615 injunction, or permanent injunction issued in any such court
616 proceedings, the court shall have the power and jurisdiction,
617 upon application of the office, to impound and to appoint a
618 receiver or administrator for the property, assets, and business
619 of the defendant, including, but not limited to, the books,
620 records, documents, and papers appertaining thereto. Such
621 receiver or administrator, when appointed and qualified, shall
622 have all powers and duties as to custody, collection,
623 administration, winding up, and liquidation of said property and
624 business as shall from time to time be conferred upon her or him
625 by the court. In any such action, the court may issue orders and
626 decrees staying all pending suits and enjoining any further
627 suits affecting the receiver's or administrator's custody or
628 possession of the said property, assets, and business or, in its
629 discretion, may with the consent of the presiding judge of the
630 circuit require that all such suits be assigned to the circuit
631 court judge appointing the said receiver or administrator.
632 (3) In addition to, or in lieu of, any other remedies
633 provided by this chapter, the office may apply to the court
634 hearing this matter for an order directing the defendant to of
635 restitution whereby the defendants in such action shall be
636 ordered to make restitution of those sums shown by the office to
637 have been obtained by them in violation of any of the provisions
638 of this chapter. The office has standing to request such
639 restitution on behalf of victims in cases brought by the office
640 under this chapter, regardless of the appointment of an
641 administrator or receiver under subsection (2) or an injunction
642 under subsection (1). Further, such restitution shall, at the
643 option of the court, be payable to the administrator or receiver
644 appointed pursuant to this section or directly to the persons
645 whose assets were obtained in violation of this chapter.
646 (4) In addition to any other remedies provided by this
647 chapter, the office may apply to the court hearing the matter
648 for, and the court shall have jurisdiction to impose, a civil
649 penalty against any person found to have violated any provision
650 of this chapter, any rule or order adopted by the commission or
651 office, or any written agreement entered into with the office in
652 an amount not to exceed $10,000 for a natural person or $25,000
653 for any other person, or the gross amount of any pecuniary gain
654 to such defendant for each such violation other than a violation
655 of s. 517.301 plus $50,000 for a natural person or $250,000 for
656 any other person, or the gross amount of any pecuniary gain to
657 such defendant for each violation of s. 517.301.
658 (5) In addition to all other means provided by law for
659 enforcing any of the provisions of this chapter, when it appears
660 to the Attorney General upon complaint or otherwise that a
661 person has engaged or is engaged in any act or practice
662 constituting a violation of s. 517.275, s. 517.301, s. 517.311,
663 or s. 517.312, or any rule or order issued under such sections,
664 the Attorney General, after approval from the office, may
665 investigate and enforce the provisions of this section in the
666 same manner as provided in ss. 517.201, 517.2015, and 517.171.
667 Whenever the Attorney General has reason to believe that any
668 such person has engaged or is engaged in any act or practice
669 constituting a violation of s. 517.275, s. 517.301, s. 517.311,
670 or s. 517.312, or any rule or orders issued under such sections,
671 the Attorney General may bring an action against such person and
672 any other person in any way participating in such act or
673 practice or engaging in such act or practice or doing any act in
674 furtherance of such act or practice, to obtain injunctive
675 relief, restitution, civil penalties, and any remedies provided
676 for in this section. The Attorney General may recover any costs
677 and attorney fees related to the investigation or enforcement of
678 this section. Notwithstanding any other provision of law, moneys
679 recovered by the Attorney General for costs, attorney fees, and
680 civil penalties for a violation of this section shall be
681 deposited in the Legal Affairs Revolving Trust Fund.
682 Section 13. Subsection (3) of section 517.221, Florida
683 Statutes, is amended, and subsections (4) and (5) are added to
684 that section, to read:
685 517.221 Cease and desist orders.—
686 (3) The office may impose and collect an administrative
687 fine against any person found to have violated any provision of
688 this chapter, any rule or order promulgated by the commission or
689 office, or any written agreement entered into with the office in
690 an amount not to exceed $10,000 $5,000 for each such violation.
691 All fines collected hereunder shall be deposited as received in
692 the Anti-Fraud Trust Fund.
693 (4) The office may bar, permanently or for a specific time
694 period, any person found to have violated any provision of this
695 chapter, any rule or order adopted by the commission or office,
696 or any written agreement entered into with the office from
697 submitting an application or notification for a license or
698 registration with the office.
699 (5) Notwithstanding any limitations set forth in any
700 chapter other than this chapter, time limitations do not apply
701 to any enforcement actions brought by the office pursuant to its
702 authority under this chapter.
703 Section 14. Section 517.275, Florida Statutes, is amended
704 to read:
705 517.275 Commodities; prohibited practices.—It is unlawful
706 and a violation of this chapter for any person to engage in any
707 act or practice in or from this state, which act or practice
708 constitutes a violation of any provision of the Commodity
709 Exchange Act, 7 U.S.C. ss. 1 et seq., as amended, or the rules
710 and regulations of the Commodity Futures Trading Commission
711 adopted under that act as amended upon the effective date of
712 this act.
713 Section 15. Subsection (9) of section 905.34, Florida
714 Statutes, is amended, and subsections (11) and (12) are added to
715 that section to read:
716 905.34 Powers and duties; law applicable.—The jurisdiction
717 of a statewide grand jury impaneled under this chapter shall
718 extend throughout the state. The subject matter jurisdiction of
719 the statewide grand jury shall be limited to the offenses of:
720 (9) Any criminal violation of part I of chapter 499; or
721 (11) Any criminal violation of the Florida Money Laundering
722 Act; or
723 (12) Any criminal violation of the Florida Securities and
724 Investor Protection Act;
725 or any attempt, solicitation, or conspiracy to commit any
726 violation of the crimes specifically enumerated above, when any
727 such offense is occurring, or has occurred, in two or more
728 judicial circuits as part of a related transaction or when any
729 such offense is connected with an organized criminal conspiracy
730 affecting two or more judicial circuits. The statewide grand
731 jury may return indictments and presentments irrespective of the
732 county or judicial circuit where the offense is committed or
733 triable. If an indictment is returned, it shall be certified and
734 transferred for trial to the county where the offense was
735 committed. The powers and duties of, and law applicable to,
736 county grand juries shall apply to a statewide grand jury except
737 when such powers, duties, and law are inconsistent with the
738 provisions of ss. 905.31-905.40.
739 Section 16. This act shall take effect July 1, 2009.