| 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 |
|
| 34 | Be It Enacted by the Legislature of the State of Florida: |
| 35 |
|
| 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 |
|
| 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. |