HB 1513

1
A bill to be entitled
2An act relating to mail-in secondhand dealers of jewelry
3and precious metals; creating part III of ch. 538, F.S.;
4defining terms; excluding certain persons and businesses
5from applicability of the act; providing registration and
6recordkeeping requirements; providing for verification of
7a seller's identification; requiring the seller to present
8a notarized statement to the secondhand dealer that the
9photographic identification is true and accurate under
10certain circumstances; requiring the seller to provide a
11sworn statement that the seller is the lawful owner of the
12jewelry or precious metals that are offered for sale and
13has the authority to sell the jewelry or precious metals;
14prescribing procedures for deficiencies in information
15required to be provided by a seller; providing holding
16periods for jewelry and precious metals; providing
17procedures for returning a seller's jewelry and precious
18metals; providing procedures for notifying a law
19enforcement agency of transactions; prescribing procedures
20for tendering payments; requiring the dealer to remit
21payment to the seller within 2 business days and for the
22seller to acknowledge receipt of payment within 30-
23calendar days; providing for the inspection of records and
24premises by law enforcement agencies; providing holding
25periods for jewelry and precious metals purchased by a
26secondhand dealer; providing requirements for the storage
27of jewelry and precious metals; describing prohibited acts
28and practices; providing criminal penalties; providing for
29a cause of action for stolen jewelry and precious metals;
30providing for a petition for the return of jewelry and
31precious metals; providing for filing fees and award of
32attorney's fees and costs; providing an effective date.
33
34Be It Enacted by the Legislature of the State of Florida:
35
36     Section 1.  Part III of chapter 538, Florida Statutes,
37consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35,
38538.36, 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
44precious metals and may contain gemstones.
45     (3)  "Precious metals" means any item containing any gold,
46silver, or platinum, or any combination thereof.
47     (4)  "Secondhand dealer" means any person or business
48within this state that regularly engages in the business of
49purchasing jewelry or precious metals only through the mail or
50package delivery service.
51     (5)  "Seller" means any person or business that offers
52jewelry or precious metals that belong solely to that person or
53business for sale to another and that person or business has the
54authority to sell the jewelry or precious metals to another.
55     (6)  "Transaction" means the purchase of jewelry or
56precious 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
59walk-in business at a secondhand store and is regulated under
60part I.
61     (2)  The purchase, consignment, or trade of jewelry or
62precious metals with another mail-in secondhand jewelry and
63precious metals dealer or secondhand dealer regulated under part
64I.
65     538.33  Registration and recordkeeping requirements.--
66     (1)  A secondhand dealer may not conduct business under
67this part without registering with the department and complying
68with all registration requirements as set forth in s. 538.09.
69     (2)  A secondhand dealer may not pay a seller for jewelry
70or precious metals until the seller has provided, on a
71transaction form provided by the secondhand dealer and approved
72by the Department of Law Enforcement, the following information:
73     (a)  The seller's name, address of primary residence,
74telephone number, and e-mail address, if available.
75     (b)  The seller's thumbprint, free of smudges and smears,
76affixed to a form provided by the secondhand dealer.
77     (c)  The seller's driver's license number and issuing
78state.
79     (d)  Any other information required by the form approved by
80the Department of Law Enforcement.
81     (3)  The seller of jewelry or precious metals shall give
82the secondhand dealer a notarized statement confirming that the
83identification information supplied on the transaction form is
84the same that appears on the seller's driver's license or other
85government-issued identification for which the seller has been
86photographed and that the photo identification presented to the
87notary belongs to the person from whom the secondhand dealer has
88received precious metals or jewelry in exchange for payment if
89any of the following conditions apply:
90     (a)  The secondhand dealer has not received a notarized
91statement from the seller in any previous transaction;
92     (b)  For any transaction that the seller has evaluated will
93be worth at least $300; or
94     (c)  The identification or contact information provided to
95the secondhand dealer by the seller has been altered or changed
96since the seller's most recent transaction with the dealer.
97     (4)  The seller must provide a sworn statement made by the
98seller that the seller is the lawful owner of the jewelry or
99precious metals that are offered for sale and has the authority
100to sell the jewelry or precious metals.
101     (5)  Before tendering any payment, a secondhand dealer
102shall verify the seller's address of primary residence or
103telephone number by matching the information with the United
104States Postal Service database or a commercial telephone
105directory. If the secondhand dealer is unable to match the
106seller's name and address of primary residence or name and
107telephone number, the secondhand dealer may not complete the
108purchase of the seller's jewelry or precious metals and may
109perform only those transactions that are required to return the
110jewelry or precious metals to the seller.
111     (6)(a)  If the seller fails to provide the information
112required on the transaction form under subsection (2), the
113secondhand dealer must give written notice to the seller of the
114deficient information within 15 days after the secondhand dealer
115receives the seller's transaction form. The secondhand dealer
116must request in the notice that the seller provide the missing
117information within 30 days after receiving the secondhand
118dealer's notice. The notice must state that if the seller does
119not provide the missing information within the allotted 30 days,
120the seller's jewelry or precious metals will be held for an
121additional 30 days before they are deemed abandoned and
122relinquished to the state under chapter 717. The same
123notification requirements must apply to any transaction in which
124the seller has failed to acknowledge receipt of funds within 30-
125calendar days after the secondhand dealer's recorded date of
126remittance, as required by s. 538.34(2).
127     (b)  If the seller fails to remedy the deficiency in the
128transaction form within 30 days after receiving the notice, the
129secondhand dealer must hold the seller's property for an
130additional 30 days.
131     (c)  If the secondhand dealer continues to hold the
132seller's jewelry or precious metals at the end of the 30-day
133holding period required under paragraph (b), the seller's
134property is deemed to be abandoned and must be relinquished to
135the state under chapter 717.
136     (d)  After the expiration of the 30-day holding period
137under paragraph (a) or upon abandonment of the seller's
138property, the secondhand dealer must notify the local law
139enforcement agency within 24 hours and the law enforcement
140agency of competent jurisdiction nearest to the seller's address
141of the expiration of the 30-day holding period or the
142abandonment of the property, as applicable. The secondhand
143dealer must provide copies of all written transactions between
144the seller and the secondhand dealer to each law enforcement
145agency in electronic form.
146     (e)  During the period in which the secondhand dealer is in
147possession of the seller's jewelry or precious metals, the
148seller may request in writing, or by a consensually recorded
149telephone call, the return of his or her jewelry or precious
150metals. The secondhand dealer must comply with seller's request
151and return the seller's jewelry or precious metals, unless the
152sale of the items is being investigated by a law enforcement
153agency.
154     (7)  For every transaction, the secondhand dealer must keep
155a record of:
156     (a)  A complete and accurate description of the seller's
157jewelry or precious metals, including:
158     1.  The type, weight, and content of the precious metal, if
159known.
160     2.  A description of the gemstones, including the number
161and 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
164was received by the secondhand dealer.
165     (c)  The date and time of each communication from the
166seller.
167     (d)  The telephone number of the seller, as captured by
168caller ID, when communication is made by telephone.
169     (e)  A recording of all telephone communication, if
170consented to by the seller.
171     (f)  The Internet Protocol (IP) address, date, and time
172when communication is made by e-mail.
173     (g)  The date and method of disposition of the jewelry or
174precious metals, as well as a photograph of the jewelry or
175precious metals.
176     (h)  A digital photograph of the item sold and of any
177unique identifying mark.
178     (8)  The secondhand dealer must maintain, for at least 3
179years, all information collected pursuant to subsections (2) and
180(7) and all records of any transaction between the dealer and
181the seller in a form that is easily retrievable upon request by
182a law enforcement agency. Any information maintained pursuant to
183this section shall be grouped by each seller's county of primary
184residence and shall be organized in ascending order according to
185the dates on which each transaction occurred.
186     (9)  Unless other arrangements have been agreed upon by the
187secondhand dealer and the appropriate law enforcement agency,
188the secondhand dealer shall, within 24 hours after acquiring any
189secondhand goods, deliver to the police department of the
190municipality in which the secondhand dealer is registered or, if
191the secondhand dealer is located outside of a municipality, to
192the sheriff's department of the county in which the secondhand
193dealer is registered, a record of the transaction on a form
194approved by the Department of Law Enforcement.
195     538.34  Tendering payment.--
196     (1)  Except as provided in subsection (3), the secondhand
197dealer shall make payment to the seller by check, payable to the
198seller using only the seller's name and mailed to the seller's
199address of primary residence, as submitted by the seller and
200verified by the dealer under s. 538.33.
201     (2)  Upon receipt of all documentation required by the
202seller in s. 538.33(2), the secondhand dealer shall remit
203payment to the seller within 2 business days and shall provide
204written notification to the seller that he or she must
205acknowledge receipt of funds within 30-calendar days by
206depositing or cashing the check issued by the dealer, after
207which the property remitted to the dealer shall be treated as
208provided in s. 538.33(6).
209     (3)  Upon request by the seller, a secondhand dealer may
210make payment by wire transfer into a bank account rather than
211payment by check. Before completing a wire transfer, the
212secondhand dealer must obtain a copy of a voided bank check from
213the seller which contains the seller's name, address of primary
214residence, or mailing address, if different from the seller's
215address of primary residence, and bank account number and the
216name of his or her banking institution. The secondhand dealer
217must verify the address on the check through the United States
218Postal Service database, using the same method as set forth in
219s. 538.33, and may make a wire transfer only to the bank account
220that has been verified as the seller's account.
221     (4)  The secondhand dealer must make wire transfers only
222through a money transmitter licensed under part II of chapter
223560.
224     538.35  Inspection of records and premises.--The secondhand
225dealer must allow a law enforcement agency to inspect its
226business records, inventory, and premises during normal business
227hours to ensure compliance with this part. The secondhand
228dealer, upon request, must provide to the law enforcement agency
229any transaction form and all items listed on a transaction form,
230unless the jewelry or precious metals are no longer in the
231possession of the secondhand dealer.
232     538.36  Holding period.--
233     (1)  The secondhand dealer may not sell, barter, exchange,
234alter, adulterate, use, or in any way dispose of any jewelry or
235precious metals purchased from a seller until the seller has
236acknowledged receipt of funds issued to him or her by the dealer
237in exchange for jewelry or precious metals remitted to the
238dealer, or if payment has been wired electronically, within 15-
239calendar days after the dealer has remitted payment to the
240seller in exchange for jewelry or precious metals, except that
241this holding period may be extended for purposes of complying
242with s. 538.33(4) and (6)(e). This holding period terminates if
243the seller demands in writing, or during a consensually recorded
244telephone conversation, the return of the seller's jewelry or
245precious metals and has reimbursed the secondhand dealer for any
246payment paid to the seller for his or her jewelry or precious
247metals.
248     (2)  The secondhand dealer must store all precious metals
249and jewelry in a secure location during holding periods and make
250the items available for inspection at the request of a law
251enforcement agency.
252     (3)  The secondhand dealer assumes all responsibility of
253any property or evidence in question, including responsibility
254for 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
257department as a mail-in secondhand dealer of jewelry and
258precious metals commits a felony of the third degree, punishable
259as provided in s. 775.082, s. 775.083, or s. 775.084, for each
260completed transaction. The officers and corporation, if
261convicted or found guilty of or pled nolo contendere to a
262violation of this section, may not operate thereafter for 1 year
263as a secondhand dealer of jewelry or precious metals within this
264state.
265     (2)  A seller who knowingly gives false personal
266identifying information to a secondhand dealer, provides a
267driver's license number that does not belong to him or her,
268provides a thumbprint that is not his or her own, or makes a
269false statement with respect to his or her age or ownership of
270the jewelry or precious metals, and who receives payment from
271the secondhand dealer commits:
272     (a)  If the value of the money received is less than $300,
273a felony of the third degree, punishable as provided in s.
274775.082, s. 775.083, or s. 775.084.
275     (b)  If the value of the money received is $300 or greater,
276a felony of the second degree, punishable as provided in s.
277775.082, s. 775.083, or s. 775.084.
278     (3)  Except as otherwise provided in this section, the
279penalty provisions of s. 538.07 apply to any secondhand dealer
280who knowingly violates this part.
281     538.38  Stolen goods; petition for return.--
282     (1)  If a person other than the seller alleges ownership of
283jewelry or precious metals sold to a secondhand dealer, he or
284she may bring an action for replevin in the county or circuit
285court if a timely report of the theft of the secondhand jewelry
286or precious metals was made to the proper authorities. An action
287may be initiated by filing a petition in substantially the
288following form:
289
290     Plaintiff A. B., sues defendant C. D., and alleges:
291     1.  This is an action to recover possession of personal
292property in ............ County, Florida.
293     2.  The description of the property is: ...(list and
294describe property)....
295     3.  Plaintiff is entitled to the possession of the property
296as evidenced by ...(indicate evidence such as a receipt or
297contract and attach evidence to petition as Exhibit A)....
298     4.  To plaintiff's best knowledge, information, and belief,
299the property is located at .................
300     5.  The property is wrongfully detained by defendant.
301Defendant came into possession of the property by ...(describe
302method of possession).... To plaintiff's best knowledge,
303information, and belief, defendant detains the property because
304...(give reasons)....
305     6.  The property has not been taken under an execution or
306attachment against plaintiff's property.
307     (2)  The filing fees shall be waived by the clerk of the
308court, and the service fees shall be waived by the sheriff. The
309court shall award to the prevailing party attorney's fees and
310costs. In addition, if the filing party prevails in the replevin
311action, the court shall order payment of filing fees to the
312clerk and service fees to the sheriff.
313     (3)  Upon the filing of the petition, the court shall set a
314hearing to be held at the earliest possible time. Upon the
315receipt of a petition for a writ by a secondhand dealer of
316jewelry and precious metals, the secondhand dealer must hold the
317jewelry or precious metals at issue until the court determines
318the respective interests of the parties.
319     (4)  In addition to the civil petition for return remedy,
320the state may file a motion as part of a pending criminal case
321related to the jewelry or precious metals. The criminal court
322has jurisdiction to determine ownership, to order return or
323other disposition of the jewelry or precious metals, and to
324order any appropriate restitution to any person. The order must
325be entered upon hearing after proper notice has been given to
326the secondhand dealer, the victim, and the defendant in the
327criminal case.
328     Section 2.  This act shall take effect July 1, 2009.


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