Florida Senate - 2009 SB 2178 By Senator Crist 12-00432H-09 20092178__ 1 A bill to be entitled 2 An act relating to mail-in secondhand dealers of 3 jewelry and precious metals; creating part III of ch. 4 538, F.S.; defining terms; excluding certain persons 5 and businesses from applicability of the act; 6 providing registration and recordkeeping requirements; 7 providing for verification of a seller's 8 identification; requiring the seller to present a 9 notarized statement to the secondhand dealer that the 10 photographic identification is true and accurate under 11 certain circumstances; requiring the seller to provide 12 a sworn statement that the seller is the lawful owner 13 of the jewelry or precious metals that are offered for 14 sale and has the authority to sell the jewelry or 15 precious metals; prescribing procedures for 16 deficiencies in information required to be provided by 17 a seller; providing holding periods for jewelry and 18 precious metals; providing procedures for returning a 19 seller's jewelry and precious metals; providing 20 procedures for notifying a law enforcement agency of 21 transactions; prescribing procedures for tendering 22 payments; requiring the dealer to remit payment to the 23 seller within 2 business days and for the seller to 24 acknowledge receipt of payment within 30-calendar 25 days; providing for the inspection of records and 26 premises by law enforcement agencies; providing 27 holding periods for jewelry and precious metals 28 purchased by a secondhand dealer; providing 29 requirements for the storage of jewelry and precious 30 metals; describing prohibited acts and practices; 31 providing criminal penalties; providing for a cause of 32 action for stolen jewelry and precious metals; 33 providing for a petition for the return of jewelry and 34 precious metals; providing an effective date. 35 36 Be It Enacted by the Legislature of the State of Florida: 37 38 Section 1. Part III of chapter 538, Florida Statutes, 39 consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35, 40 538.36, 538.37, and 538.38, is created to read: 41 Part III 42 MAIL-IN SECONDHAND JEWELRY AND PRECIOUS METAL DEALERS 43 538.31 Definitions.—As used in this part, the term: 44 (1) “Department” means the Department of Revenue. 45 (2) “Jewelry” means a personal ornament that contains 46 precious metals and may contain gemstones. 47 (3) “Precious metals” means any item containing any gold, 48 silver, or platinum, or any combination thereof. 49 (4) “Secondhand dealer” means any person or business within 50 this state that regularly engages in the business of purchasing 51 jewelry or precious metals only through the mail or package 52 delivery service. 53 (5) “Seller” means any person or business that offers 54 jewelry or precious metals that belong solely to that person or 55 business for sale to another and that person or business has the 56 authority to sell the jewelry or precious metals to another. 57 (6) “Transaction” means the purchase of jewelry or precious 58 metals by a secondhand dealer. 59 538.32 Applicability.—This part does not apply to: 60 (1) Any person or business that is open to the public for 61 walk-in business at a secondhand store and is regulated under 62 part I. 63 (2) The purchase, consignment, or trade of jewelry or 64 precious metals with another mail-in secondhand precious metal 65 dealer or secondhand dealer regulated under part I. 66 538.33 Registration and recordkeeping requirements.— 67 (1) A secondhand dealer may not conduct business under this 68 part without registering with the department and complying with 69 all registration requirements as set forth in s. 538.09. 70 (2) A secondhand dealer may not pay a seller for jewelry or 71 precious metals until the seller has provided, on a transaction 72 form provided by the secondhand dealer and approved by the 73 Department of Law Enforcement, the following information: 74 (a) The seller’s name, address of primary residence, 75 telephone number, and e-mail address, if available. 76 (b) The seller’s thumbprint, free of smudges and smears, 77 affixed to a form provided by the secondhand dealer. 78 (c) The seller’s driver’s license number and issuing 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 the 82 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 dealer has not received a notarized statement from 91 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 dealer by the seller has been altered or changed since the 96 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 shall 102 verify the seller’s address of primary residence or telephone 103 number by matching the information with the United States Postal 104 Service database or a commercial telephone directory. If the 105 secondhand dealer is unable to match the seller’s name and 106 address of primary residence or name and telephone number, the 107 secondhand dealer may not complete the purchase of the seller’s 108 jewelry or precious metals and must perform only those 109 transactions that are required to return the jewelry or precious 110 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 dealer's recorded date of remittance, as 126 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 seller’s 132 jewelry or precious metals at the end of the 30-day holding 133 period required under paragraph (b), the seller’s property is 134 deemed to be abandoned and must be relinquished to the state 135 under chapter 717. 136 (d) After the expiration of the 30-day holding period under 137 paragraph (a) or upon abandonment of the seller’s property, the 138 secondhand dealer must notify the local law enforcement agency 139 within 24 hours and the law enforcement agency of competent 140 jurisdiction nearest to the seller’s address of the expiration 141 of the 30-day holding period or the abandonment of the property, 142 as applicable. The dealer must provide copies of all written 143 transactions between seller and secondhand dealer to each law 144 enforcement agency in electronic form. 145 (e) During the period in which the secondhand dealer is in 146 possession of the seller’s jewelry or precious metals, the 147 seller may request in writing, or by a consensually recorded 148 telephone call, the return of his or her jewelry or precious 149 metals. The secondhand dealer must comply with seller’s request 150 and return the seller's jewelry or precious metals, unless the 151 sale of the items is being investigated by a law enforcement 152 agency. 153 (7) For every transaction, the secondhand dealer must keep 154 a record of: 155 (a) A complete and accurate description of the seller’s 156 jewelry or precious metals, including: 157 1. The type, weight, and content of the precious metal, if 158 known. 159 2. A description of the gemstones, including the number and 160 size of each stone, if applicable. 161 3. Any unique identifying marks, numbers, or letters. 162 (b) The date that the seller’s jewelry or precious metals 163 were received by the secondhand dealer. 164 (c) The date and time of all communication from the seller. 165 (d) The telephone number of the seller, as captured by 166 caller ID, when communication is made by telephone. 167 (e) A recording of all telephone communication, if 168 consented to by the seller. 169 (f) The Internet Protocol (IP) address, date, and time when 170 communication is made by e-mail. 171 (g) The date and method of disposition of the jewelry or 172 precious metals, as well as a photograph of the jewelry or 173 precious metal. 174 (h) A digital photograph of the item sold and of any unique 175 identifying mark. 176 (8) The secondhand dealer must maintain, for at least 3 177 years, all information collected pursuant to subsections (2) and 178 (7) and all records of any transaction between the dealer and 179 seller in a form that is easily retrievable upon request by a 180 law enforcement agency. Any information maintained pursuant to 181 this section shall be grouped by each seller’s county of primary 182 residence, and shall be organized in ascending order according 183 to the dates upon which each transaction occurred. 184 (9) Unless other arrangements have been agreed upon by the 185 secondhand dealer and the appropriate law enforcement agency, 186 the secondhand dealer shall, within 24 hours after acquiring any 187 secondhand goods, deliver to the police department of the 188 municipality in which the secondhand dealer is registered or, if 189 the secondhand dealer is located outside of a municipality, to 190 the sheriff's department of the county in which the secondhand 191 dealer is registered, a record of the transaction on a form 192 approved by the Department of Law Enforcement. 193 538.34 Tendering payment.— 194 (1) Except as provided in subsection (3), the secondhand 195 dealer shall make payment to the seller by check, payable to the 196 seller using only the seller’s name and mailed to the seller's 197 address of primary residence, as submitted by the seller and 198 verified by the dealer under s. 538.33. 199 (2) Upon receipt of all documentation required by the 200 seller in s. 538.33(2), the dealer shall remit payment to the 201 seller within 2 business days and shall provide written 202 notification to the seller that he or she must acknowledge 203 receipt of funds within 30-calendar days by depositing or 204 cashing the check issued by the dealer, after which the property 205 remitted to the dealer shall be treated as provided in s. 206 538.33(6). 207 (3) Upon request by the seller, a secondhand dealer may 208 make payment by wire transfer into a bank account rather than 209 payment by check. Before completing a wire transfer, the 210 secondhand dealer must obtain a copy of a voided bank check from 211 the seller which contains the seller’s name, address of primary 212 residence, or mailing address, if different from the seller's 213 address of primary residence, and bank account number and the 214 name of his or her banking institution. The secondhand dealer 215 must verify the address on the check through the United States 216 Postal Service database, using the same method as set forth in 217 s. 538.33, and may make a wire transfer only to the bank account 218 that has been verified as the seller’s account. 219 (4) The secondhand dealer must make wire transfers only 220 through a money transmitter licensed under part II of chapter 221 560. 222 538.35 Inspection of records and premises.—The secondhand 223 dealer must allow a law enforcement agency to inspect its 224 business records, inventory, and premises during normal business 225 hours to ensure compliance with this part. The secondhand 226 dealer, upon request, must provide to the law enforcement agency 227 any transaction form and all items listed on a transaction form, 228 unless the jewelry or precious metals are no longer in the 229 possession of the secondhand dealer. 230 538.36 Holding period.— 231 (1) The dealer may not sell, barter, exchange, alter, 232 adulterate, use, or in any way dispose of any jewelry or 233 precious metals purchased from a seller until the seller has 234 acknowledged receipt of funds issued to him or her by the dealer 235 in exchange for jewelry or precious metals remitted to the 236 dealer, or if payment has been wired electronically, within 15 237 calendar days after the dealer has remitted payment to the 238 seller in exchange for jewelry or precious metals, except that 239 this holding period may be extended for purposes of complying 240 with s. 538.33(4) and (6)(e). This holding period terminates if 241 the seller demands in writing, or during a consensually recorded 242 telephone conversation, the return of the seller’s jewelry or 243 precious metals and has reimbursed the dealer for any payment 244 paid to the seller for his or her jewelry or precious metals. 245 (2) The secondhand dealer must store all precious metals 246 and jewelry in a secure location during holding periods and make 247 the items available for inspection at the request of a law 248 enforcement agency. 249 (3) The secondhand dealer assumes all responsibility of any 250 property or evidence in question, including responsibility for 251 the actions of his or her employees. 252 538.37 Acts and practices prohibited; penalties.— 253 (1) A secondhand dealer who is not registered with the 254 department as a mail-in secondhand dealer of jewelry and 255 precious metals commits a felony of the third degree, punishable 256 as provided in s. 775.082, s. 775.083, or s. 775.084, for each 257 completed transaction. The officers and corporation, if 258 convicted or found guilty of or pled nolo contendere to a 259 violation of this section, may not operate thereafter for 1 year 260 as a secondhand dealer of jewelry or precious metals within this 261 state. 262 (2) A seller who knowingly gives false personal identifying 263 information to a secondhand dealer, provides a driver’s license 264 number that does not belong to him or her, provides a thumbprint 265 that is not his or her own, or makes a false statement with 266 respect to his or her age or ownership of the jewelry or 267 precious metals, and who receives payment from the secondhand 268 dealer commits: 269 (a) If the value of the money received is less than $300, a 270 felony of the third degree, punishable as provided in s. 271 775.082, s. 775.083, or s. 775.084. 272 (b) If the value of the money received is $300 or greater, 273 a felony of the second degree, punishable as provided in s. 274 775.082, s. 775.083, or s. 775.084. 275 (3) Except as otherwise specifically provided in this 276 section, the penalty provisions of s. 538.07 apply to any 277 secondhand dealer who knowingly violates this part. 278 538.38 Stolen goods; petition for return.— 279 (1) If a person other than the seller alleges ownership of 280 jewelry or precious metals sold to a secondhand dealer, he or 281 she may bring an action for replevin in the county or circuit 282 court if a timely report of the theft of the secondhand jewelry 283 or precious metals was made to the proper authorities. An action 284 may be initiated by filing a petition in substantially the 285 following form: 286 287 Plaintiff A. B., sues defendant C. D., and alleges: 288 1. This is an action to recover possession of personal 289 property in ............ County, Florida. 290 2. The description of the property is: ...(list and 291 describe property).... 292 3. Plaintiff is entitled to the possession of the property 293 as evidenced by ...(indicate evidence such as a receipt or 294 contract and attach evidence to petition as Exhibit A).... 295 4. To plaintiff's best knowledge, information, and belief 296 the property is located at ................. 297 5. The property is wrongfully detained by defendant. 298 Defendant came into possession of the property by ...(describe 299 method of possession).... To plaintiff's best knowledge, 300 information, and belief, defendant detains the property because 301 ...(give reasons).... 302 6. The property has not been taken under an execution or 303 attachment against plaintiff’s property. 304 (2) The filing fees shall be waived by the clerk of the 305 court, and the service fees shall be waived by the sheriff. The 306 court shall award to the prevailing party attorney's fees and 307 costs. In addition, if the filing party prevails in the replevin 308 action, the court shall order payment of filing fees to the 309 clerk and service fees to the sheriff. 310 (3) Upon the filing of the petition, the court shall set a 311 hearing to be held at the earliest possible time. Upon the 312 receipt of a petition for a writ by a secondhand dealer of 313 jewelry and precious metals, the secondhand dealer must hold the 314 jewelry or precious metals at issue until the court determines 315 the respective interests of the parties. 316 (4) In addition to the civil petition for return remedy, 317 the state may file a motion as part of a pending criminal case 318 related to the jewelry or precious metals. The criminal court 319 has jurisdiction to determine ownership, to order return or 320 other disposition of the jewelry or precious metals, and to 321 order any appropriate restitution to any person. The order must 322 be entered upon hearing after proper notice has been given to 323 the secondhand dealer, the victim, and the defendant in the 324 criminal case. 325 Section 2. This act shall take effect July 1, 2009.