1 | A bill to be entitled |
2 | An act relating to mail-in secondhand dealers of jewelry |
3 | and precious metals; creating part III of ch. 538, F.S.; |
4 | defining terms; excluding certain persons and businesses |
5 | from applicability of the act; providing registration and |
6 | recordkeeping requirements; providing for verification of |
7 | a seller's identification; requiring the seller to present |
8 | a notarized statement to the secondhand dealer that the |
9 | photographic identification is true and accurate under |
10 | certain circumstances; requiring the seller to provide a |
11 | sworn statement that the seller is the lawful owner of the |
12 | jewelry or precious metals that are offered for sale and |
13 | has the authority to sell the jewelry or precious metals; |
14 | prescribing procedures for deficiencies in information |
15 | required to be provided by a seller; providing holding |
16 | periods for jewelry and precious metals; providing |
17 | procedures for returning a seller's jewelry and precious |
18 | metals; providing procedures for notifying a law |
19 | enforcement agency of transactions; prescribing procedures |
20 | for tendering payments; requiring the dealer to remit |
21 | payment to the seller within 2 business days and for the |
22 | seller to acknowledge receipt of payment within 30- |
23 | calendar days; providing for the inspection of records and |
24 | premises by law enforcement agencies; providing holding |
25 | periods for jewelry and precious metals purchased by a |
26 | secondhand dealer; providing requirements for the storage |
27 | of jewelry and precious metals; describing prohibited acts |
28 | and practices; providing criminal penalties; providing for |
29 | a cause of action for stolen jewelry and precious metals; |
30 | providing for a petition for the return of jewelry and |
31 | precious metals; providing for filing fees and award of |
32 | attorney's fees and costs; providing an effective date. |
33 |
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34 | Be It Enacted by the Legislature of the State of Florida: |
35 |
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36 | Section 1. Part III of chapter 538, Florida Statutes, |
37 | consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35, |
38 | 538.36, 538.37, and 538.38, is created to read: |
39 | Part III |
40 | MAIL-IN SECONDHAND JEWELRY AND PRECIOUS METAL DEALERS |
41 | 538.31 Definitions.--As used in this part, the term: |
42 | (1) "Department" means the Department of Revenue. |
43 | (2) "Jewelry" means a personal ornament that contains |
44 | precious metals and may contain gemstones. |
45 | (3) "Precious metals" means any item containing any gold, |
46 | silver, or platinum, or any combination thereof. |
47 | (4) "Secondhand dealer" means any person or business |
48 | within this state that regularly engages in the business of |
49 | purchasing jewelry or precious metals only through the mail or |
50 | package delivery service. |
51 | (5) "Seller" means any person or business that offers |
52 | jewelry or precious metals that belong solely to that person or |
53 | business for sale to another and that person or business has the |
54 | authority to sell the jewelry or precious metals to another. |
55 | (6) "Transaction" means the purchase of jewelry or |
56 | precious metals by a secondhand dealer. |
57 | 538.32 Applicability.--This part does not apply to: |
58 | (1) Any person or business that is open to the public for |
59 | walk-in business at a secondhand store and is regulated under |
60 | part I. |
61 | (2) The purchase, consignment, or trade of jewelry or |
62 | precious metals with another mail-in secondhand jewelry and |
63 | precious metals dealer or secondhand dealer regulated under part |
64 | I. |
65 | 538.33 Registration and recordkeeping requirements.-- |
66 | (1) A secondhand dealer may not conduct business under |
67 | this part without registering with the department and complying |
68 | with all registration requirements as set forth in s. 538.09. |
69 | (2) A secondhand dealer may not pay a seller for jewelry |
70 | or precious metals until the seller has provided, on a |
71 | transaction form provided by the secondhand dealer and approved |
72 | by the Department of Law Enforcement, the following information: |
73 | (a) The seller's name, address of primary residence, |
74 | telephone number, and e-mail address, if available. |
75 | (b) The seller's thumbprint, free of smudges and smears, |
76 | affixed to a form provided by the secondhand dealer. |
77 | (c) The seller's driver's license number and issuing |
78 | state. |
79 | (d) Any other information required by the form approved by |
80 | the Department of Law Enforcement. |
81 | (3) The seller of jewelry or precious metals shall give |
82 | the secondhand dealer a notarized statement confirming that the |
83 | identification information supplied on the transaction form is |
84 | the same that appears on the seller's driver's license or other |
85 | government-issued identification for which the seller has been |
86 | photographed and that the photo identification presented to the |
87 | notary belongs to the person from whom the secondhand dealer has |
88 | received precious metals or jewelry in exchange for payment if |
89 | any of the following conditions apply: |
90 | (a) The secondhand dealer has not received a notarized |
91 | statement from the seller in any previous transaction; |
92 | (b) For any transaction that the seller has evaluated will |
93 | be worth at least $300; or |
94 | (c) The identification or contact information provided to |
95 | the secondhand dealer by the seller has been altered or changed |
96 | since the seller's most recent transaction with the dealer. |
97 | (4) The seller must provide a sworn statement made by the |
98 | seller that the seller is the lawful owner of the jewelry or |
99 | precious metals that are offered for sale and has the authority |
100 | to sell the jewelry or precious metals. |
101 | (5) Before tendering any payment, a secondhand dealer |
102 | shall verify the seller's address of primary residence or |
103 | telephone number by matching the information with the United |
104 | States Postal Service database or a commercial telephone |
105 | directory. If the secondhand dealer is unable to match the |
106 | seller's name and address of primary residence or name and |
107 | telephone number, the secondhand dealer may not complete the |
108 | purchase of the seller's jewelry or precious metals and may |
109 | perform only those transactions that are required to return the |
110 | jewelry or precious metals to the seller. |
111 | (6)(a) If the seller fails to provide the information |
112 | required on the transaction form under subsection (2), the |
113 | secondhand dealer must give written notice to the seller of the |
114 | deficient information within 15 days after the secondhand dealer |
115 | receives the seller's transaction form. The secondhand dealer |
116 | must request in the notice that the seller provide the missing |
117 | information within 30 days after receiving the secondhand |
118 | dealer's notice. The notice must state that if the seller does |
119 | not provide the missing information within the allotted 30 days, |
120 | the seller's jewelry or precious metals will be held for an |
121 | additional 30 days before they are deemed abandoned and |
122 | relinquished to the state under chapter 717. The same |
123 | notification requirements must apply to any transaction in which |
124 | the seller has failed to acknowledge receipt of funds within 30- |
125 | calendar days after the secondhand dealer's recorded date of |
126 | remittance, as required by s. 538.34(2). |
127 | (b) If the seller fails to remedy the deficiency in the |
128 | transaction form within 30 days after receiving the notice, the |
129 | secondhand dealer must hold the seller's property for an |
130 | additional 30 days. |
131 | (c) If the secondhand dealer continues to hold the |
132 | seller's jewelry or precious metals at the end of the 30-day |
133 | holding period required under paragraph (b), the seller's |
134 | property is deemed to be abandoned and must be relinquished to |
135 | the state under chapter 717. |
136 | (d) After the expiration of the 30-day holding period |
137 | under paragraph (a) or upon abandonment of the seller's |
138 | property, the secondhand dealer must notify the local law |
139 | enforcement agency within 24 hours and the law enforcement |
140 | agency of competent jurisdiction nearest to the seller's address |
141 | of the expiration of the 30-day holding period or the |
142 | abandonment of the property, as applicable. The secondhand |
143 | dealer must provide copies of all written transactions between |
144 | the seller and the secondhand dealer to each law enforcement |
145 | agency in electronic form. |
146 | (e) During the period in which the secondhand dealer is in |
147 | possession of the seller's jewelry or precious metals, the |
148 | seller may request in writing, or by a consensually recorded |
149 | telephone call, the return of his or her jewelry or precious |
150 | metals. The secondhand dealer must comply with seller's request |
151 | and return the seller's jewelry or precious metals, unless the |
152 | sale of the items is being investigated by a law enforcement |
153 | agency. |
154 | (7) For every transaction, the secondhand dealer must keep |
155 | a record of: |
156 | (a) A complete and accurate description of the seller's |
157 | jewelry or precious metals, including: |
158 | 1. The type, weight, and content of the precious metal, if |
159 | known. |
160 | 2. A description of the gemstones, including the number |
161 | and size of each stone, if applicable. |
162 | 3. Any unique identifying marks, numbers, or letters. |
163 | (b) The date that the seller's jewelry or precious metals |
164 | was received by the secondhand dealer. |
165 | (c) The date and time of each communication from the |
166 | seller. |
167 | (d) The telephone number of the seller, as captured by |
168 | caller ID, when communication is made by telephone. |
169 | (e) A recording of all telephone communication, if |
170 | consented to by the seller. |
171 | (f) The Internet Protocol (IP) address, date, and time |
172 | when communication is made by e-mail. |
173 | (g) The date and method of disposition of the jewelry or |
174 | precious metals, as well as a photograph of the jewelry or |
175 | precious metals. |
176 | (h) A digital photograph of the item sold and of any |
177 | unique identifying mark. |
178 | (8) The secondhand dealer must maintain, for at least 3 |
179 | years, all information collected pursuant to subsections (2) and |
180 | (7) and all records of any transaction between the dealer and |
181 | the seller in a form that is easily retrievable upon request by |
182 | a law enforcement agency. Any information maintained pursuant to |
183 | this section shall be grouped by each seller's county of primary |
184 | residence and shall be organized in ascending order according to |
185 | the dates on which each transaction occurred. |
186 | (9) Unless other arrangements have been agreed upon by the |
187 | secondhand dealer and the appropriate law enforcement agency, |
188 | the secondhand dealer shall, within 24 hours after acquiring any |
189 | secondhand goods, deliver to the police department of the |
190 | municipality in which the secondhand dealer is registered or, if |
191 | the secondhand dealer is located outside of a municipality, to |
192 | the sheriff's department of the county in which the secondhand |
193 | dealer is registered, a record of the transaction on a form |
194 | approved by the Department of Law Enforcement. |
195 | 538.34 Tendering payment.-- |
196 | (1) Except as provided in subsection (3), the secondhand |
197 | dealer shall make payment to the seller by check, payable to the |
198 | seller using only the seller's name and mailed to the seller's |
199 | address of primary residence, as submitted by the seller and |
200 | verified by the dealer under s. 538.33. |
201 | (2) Upon receipt of all documentation required by the |
202 | seller in s. 538.33(2), the secondhand dealer shall remit |
203 | payment to the seller within 2 business days and shall provide |
204 | written notification to the seller that he or she must |
205 | acknowledge receipt of funds within 30-calendar days by |
206 | depositing or cashing the check issued by the dealer, after |
207 | which the property remitted to the dealer shall be treated as |
208 | provided in s. 538.33(6). |
209 | (3) Upon request by the seller, a secondhand dealer may |
210 | make payment by wire transfer into a bank account rather than |
211 | payment by check. Before completing a wire transfer, the |
212 | secondhand dealer must obtain a copy of a voided bank check from |
213 | the seller which contains the seller's name, address of primary |
214 | residence, or mailing address, if different from the seller's |
215 | address of primary residence, and bank account number and the |
216 | name of his or her banking institution. The secondhand dealer |
217 | must verify the address on the check through the United States |
218 | Postal Service database, using the same method as set forth in |
219 | s. 538.33, and may make a wire transfer only to the bank account |
220 | that has been verified as the seller's account. |
221 | (4) The secondhand dealer must make wire transfers only |
222 | through a money transmitter licensed under part II of chapter |
223 | 560. |
224 | 538.35 Inspection of records and premises.--The secondhand |
225 | dealer must allow a law enforcement agency to inspect its |
226 | business records, inventory, and premises during normal business |
227 | hours to ensure compliance with this part. The secondhand |
228 | dealer, upon request, must provide to the law enforcement agency |
229 | any transaction form and all items listed on a transaction form, |
230 | unless the jewelry or precious metals are no longer in the |
231 | possession of the secondhand dealer. |
232 | 538.36 Holding period.-- |
233 | (1) The secondhand dealer may not sell, barter, exchange, |
234 | alter, adulterate, use, or in any way dispose of any jewelry or |
235 | precious metals purchased from a seller until the seller has |
236 | acknowledged receipt of funds issued to him or her by the dealer |
237 | in exchange for jewelry or precious metals remitted to the |
238 | dealer, or if payment has been wired electronically, within 15- |
239 | calendar days after the dealer has remitted payment to the |
240 | seller in exchange for jewelry or precious metals, except that |
241 | this holding period may be extended for purposes of complying |
242 | with s. 538.33(4) and (6)(e). This holding period terminates if |
243 | the seller demands in writing, or during a consensually recorded |
244 | telephone conversation, the return of the seller's jewelry or |
245 | precious metals and has reimbursed the secondhand dealer for any |
246 | payment paid to the seller for his or her jewelry or precious |
247 | metals. |
248 | (2) The secondhand dealer must store all precious metals |
249 | and jewelry in a secure location during holding periods and make |
250 | the items available for inspection at the request of a law |
251 | enforcement agency. |
252 | (3) The secondhand dealer assumes all responsibility of |
253 | any property or evidence in question, including responsibility |
254 | for the actions of his or her employees. |
255 | 538.37 Acts and practices prohibited; penalties.-- |
256 | (1) A secondhand dealer who is not registered with the |
257 | department as a mail-in secondhand dealer of jewelry and |
258 | precious metals commits a felony of the third degree, punishable |
259 | as provided in s. 775.082, s. 775.083, or s. 775.084, for each |
260 | completed transaction. The officers and corporation, if |
261 | convicted or found guilty of or pled nolo contendere to a |
262 | violation of this section, may not operate thereafter for 1 year |
263 | as a secondhand dealer of jewelry or precious metals within this |
264 | state. |
265 | (2) A seller who knowingly gives false personal |
266 | identifying information to a secondhand dealer, provides a |
267 | driver's license number that does not belong to him or her, |
268 | provides a thumbprint that is not his or her own, or makes a |
269 | false statement with respect to his or her age or ownership of |
270 | the jewelry or precious metals, and who receives payment from |
271 | the secondhand dealer commits: |
272 | (a) If the value of the money received is less than $300, |
273 | a felony of the third degree, punishable as provided in s. |
274 | 775.082, s. 775.083, or s. 775.084. |
275 | (b) If the value of the money received is $300 or greater, |
276 | a felony of the second degree, punishable as provided in s. |
277 | 775.082, s. 775.083, or s. 775.084. |
278 | (3) Except as otherwise provided in this section, the |
279 | penalty provisions of s. 538.07 apply to any secondhand dealer |
280 | who knowingly violates this part. |
281 | 538.38 Stolen goods; petition for return.-- |
282 | (1) If a person other than the seller alleges ownership of |
283 | jewelry or precious metals sold to a secondhand dealer, he or |
284 | she may bring an action for replevin in the county or circuit |
285 | court if a timely report of the theft of the secondhand jewelry |
286 | or precious metals was made to the proper authorities. An action |
287 | may be initiated by filing a petition in substantially the |
288 | following form: |
289 |
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290 | Plaintiff A. B., sues defendant C. D., and alleges: |
291 | 1. This is an action to recover possession of personal |
292 | property in ............ County, Florida. |
293 | 2. The description of the property is: ...(list and |
294 | describe property).... |
295 | 3. Plaintiff is entitled to the possession of the property |
296 | as evidenced by ...(indicate evidence such as a receipt or |
297 | contract and attach evidence to petition as Exhibit A).... |
298 | 4. To plaintiff's best knowledge, information, and belief, |
299 | the property is located at ................. |
300 | 5. The property is wrongfully detained by defendant. |
301 | Defendant came into possession of the property by ...(describe |
302 | method of possession).... To plaintiff's best knowledge, |
303 | information, and belief, defendant detains the property because |
304 | ...(give reasons).... |
305 | 6. The property has not been taken under an execution or |
306 | attachment against plaintiff's property. |
307 | (2) The filing fees shall be waived by the clerk of the |
308 | court, and the service fees shall be waived by the sheriff. The |
309 | court shall award to the prevailing party attorney's fees and |
310 | costs. In addition, if the filing party prevails in the replevin |
311 | action, the court shall order payment of filing fees to the |
312 | clerk and service fees to the sheriff. |
313 | (3) Upon the filing of the petition, the court shall set a |
314 | hearing to be held at the earliest possible time. Upon the |
315 | receipt of a petition for a writ by a secondhand dealer of |
316 | jewelry and precious metals, the secondhand dealer must hold the |
317 | jewelry or precious metals at issue until the court determines |
318 | the respective interests of the parties. |
319 | (4) In addition to the civil petition for return remedy, |
320 | the state may file a motion as part of a pending criminal case |
321 | related to the jewelry or precious metals. The criminal court |
322 | has jurisdiction to determine ownership, to order return or |
323 | other disposition of the jewelry or precious metals, and to |
324 | order any appropriate restitution to any person. The order must |
325 | be entered upon hearing after proper notice has been given to |
326 | the secondhand dealer, the victim, and the defendant in the |
327 | criminal case. |
328 | Section 2. This act shall take effect July 1, 2009. |