Florida Senate - 2009 COMMITTEE AMENDMENT Bill No. CS for SB 2700 Barcode 538616 LEGISLATIVE ACTION Senate . House . . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Finance and Tax (Ring) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 6 Section 1. Paragraph (f) of subsection (1) of section 7 538.03, Florida Statutes, is amended to read; 8 538.03 Definitions; applicability.— 9 (1) As used in this part, the term: 10 (f) “Secondhand goods” means personal property previously 11 owned or used, which is not regulated metals property regulated 12 under part II and which is purchased, consigned, or traded as 13 used property. Such secondhand goods do not include office 14 furniture, pianos, books, clothing, organs, coins, motor 15 vehicles, costume jewelry, exercise equipment, and secondhand 16 sports equipment that is not permanently labeled with a serial 17 number. For purposes of this paragraph, “secondhand sports 18 equipment” does not include golf clubs. 19 Section 2. Part III of chapter 538, Florida Statutes, 20 consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35, 21 538.36, and 538.37, is created to read: 22 Part III 23 MAIL-IN SECONDHAND PRECIOUS METALS DEALERS 24 538.31 Definitions; applicability.— 25 (1) As used in this part, the term: 26 (a) “Department” means the Department of Revenue. 27 (b) “Jewelry” means a personal ornament that contains 28 precious metals and may contain gemstones. 29 (c) “Mail-in secondhand precious metals dealer” means any 30 person or entity that: 31 1. Conducts business within this state and that contracts 32 with other persons or entities to buy precious metals or jewelry 33 through an Internet website, the United States mail, or 34 telemarketing; or 35 2. Conducts business within this state and regularly 36 engages in the business of purchasing jewelry or precious metals 37 through the mail or Internet-based transactions. 38 (d) “Precious metals” means any item containing any gold, 39 silver, or platinum, or any combination thereof. 40 (e) “Seller” means any person or entity offering precious 41 metals or jewelry for purchase which belong solely to that 42 person or entity and has absolute authority to sell such goods. 43 (f) “Transaction” includes any event relating to the 44 purchase of secondhand precious metals or jewelry by a mail-in 45 secondhand precious metals dealer. 46 (2) This part does not apply to: 47 (a) Any person or entity that is available to the public 48 for walk-in business and regulated under part I. 49 (b) The purchase, consignment, or trade of secondhand 50 precious metals or jewelry with another mail-in secondhand 51 precious metals dealer or secondhand dealer regulated under part 52 I. 53 538.32 Registration, transaction, and recordkeeping 54 requirements; penalties.— 55 (1) A mail-in secondhand precious metals dealer may not 56 conduct business under this part without registering with the 57 department and complying with all registration regulations as 58 set forth in s. 538.09. 59 (2) A mail-in secondhand precious metals dealer may not 60 remit payment to a seller unless the seller has provided the 61 following information: 62 (a) The seller’s name, address, telephone number, and e 63 mail address, if available. 64 (b) The seller’s driver’s license number and issuing state 65 or other government-issued identification number. 66 (c) A sworn statement made by the seller that the seller is 67 of lawful age and that the driver’s license number or other 68 government-issued identification number and other identifying 69 information provided by the seller is true and correct and that 70 the seller is the lawful owner of the goods with absolute 71 authority to sell the goods. The statement must include the 72 following language: “I declare under penalty of perjury that the 73 foregoing is true and correct.” 74 (3) For every transaction, the secondhand dealer must keep 75 a record of the following: 76 (a) A complete and accurate description of the seller’s 77 goods, including: 78 1. Precious metal type, or, if jewelry, the type of 79 jewelry. 80 2. Any other unique identifying marks, numbers, or letters. 81 The description must be in an electronic format agreed upon by 82 the dealer and the appropriate law enforcement agency. 83 (b) The date that the seller’s goods were received by the 84 mail-in secondhand precious metals dealer. 85 86 This information must be provided to the appropriate law 87 enforcement agency within 24 hours after entering into the 88 contract unless other arrangements are made between the business 89 and the law enforcement agency. 90 (4) For every transaction, pictures of the secondhand goods 91 which are the subject of the transaction must be available 92 online for electronic viewing, via a website accessible by 93 username and password only, by a law enforcement agency at no 94 charge. In addition, the electronic files must be searchable by 95 a law enforcement agency for queries concerning property 96 descriptions, secondhand dealer transaction information, and the 97 seller’s personal identification including address, state of 98 residence and zip code. 99 (5) The mail-in secondhand precious metals dealer must 100 maintain, for a period of not less than 2 years, all information 101 under subsections (2) and (3) and all records of any transaction 102 between the dealer and seller in a form that is easily 103 retrievable upon request by a law enforcement agency. 104 (6) The mail-in secondhand precious metals dealer must 105 provide the appropriate law enforcement agency with an 106 electronic copy of the name, address, phone number, driver’s 107 license number, or government-issued identification number, and 108 issuing state of the person from whom the dealer purchased or 109 acquired the precious metals or jewelry. 110 (7)(a) If the seller fails to provide the information 111 required under s. 538.32(2)(a) and (b), the secondhand dealer 112 may verify the identity and information of the seller through a 113 national provider of personal identification verification 114 services. Evidence from the personal identification verification 115 service must be maintained by the secondhand dealer and 116 available for review by a law enforcement agency upon request. 117 (b) Alternatively, a secondhand dealer must give written 118 notice to the seller, by United States mail or e-mail if an e 119 mail address is provided by the seller, that information 120 otherwise required to be given by seller under s. 538.32(2) has 121 not been provided by the seller to the secondhand dealer. Notice 122 of the deficient information must be sent by the secondhand 123 dealer no later than 10 days after the transaction is received 124 by the secondhand dealer. The secondhand dealer must specify in 125 the notice that: 126 1. The seller must provide the missing information or must 127 request the return of the property from the secondhand dealer 128 within 30 days after receiving the notice from the secondhand 129 dealer; and 130 2. The failure of the seller to provide the missing 131 information or request return of the property within the 132 applicable 30-day time period shall result in abandonment of the 133 seller’s property to the Bureau of Unclaimed Property of the 134 Department of Financial Services pursuant to chapter 717. 135 (c) If the seller fails to remedy the deficiency in 136 information or request return of the property within 30 days 137 after receiving the notice, the seller’s property is deemed 138 abandoned and is relinquished to the Bureau of Unclaimed 139 Property pursuant to under chapter 717 if the property’s true 140 market value is greater than $50 as defined in chapter 717. 141 (d) Within 24 hours after the expiration of the 30-day hold 142 period for the property, the secondhand dealer must notify the 143 appropriate law enforcement agency of the abandonment of the 144 property by electronic transmission or by sending a copy of the 145 completed form authorized by chapter 717 to the Department of 146 Financial Services, Bureau of Unclaimed Property. 147 (8)(a) If there is probable cause that goods held by a 148 secondhand dealer are stolen, the law enforcement agency with 149 jurisdiction over the secondhand dealer may place a 90-day 150 written hold order on the goods and may take possession of the 151 goods from the dealer during the 90-day hold period. The 90-day 152 hold period may be extended beyond 90 days by a court of 153 competent jurisdiction upon a finding of probable cause that the 154 property is stolen and further holding is necessary for the 155 purpose of trial or to safeguard the property. 156 (b) If the secondhand dealer maintains possession of the 157 goods during any hold period, the secondhand dealer assumes all 158 responsibility, civil and criminal, for the safekeeping of the 159 property or evidence in question, including responsibility for 160 the actions of any employee of the dealer. 161 (c) While a hold order is in effect, the secondhand dealer 162 must, if in possession of the goods, release the property 163 subject to the hold order to the custody of a law enforcement 164 agency for use in a criminal investigation. Release of the 165 property to the law enforcement agency is not considered a 166 waiver or release of the secondhand dealer’s rights or interest 167 in the property unless the secondhand dealer is not owed 168 restitution for the property. 169 (d) The property must be returned to the secondhand dealer 170 upon completion of the criminal proceeding unless the court 171 orders an alternative disposition or the secondhand dealer is 172 not due restitution for the property. When another disposition 173 is ordered, the court shall additionally order the person from 174 whom the secondhand dealer acquired the property to pay 175 restitution to the secondhand dealer in the amount that the 176 secondhand dealer paid for the property together with reasonable 177 attorney’s fees and costs. 178 (9) If a secondhand dealer contests the identification or 179 ownership of the property, the person alleging ownership of the 180 property may, if a timely report of the theft of the goods was 181 made to the proper authorities, bring an action for replevin in 182 the county or circuit court by petition in substantially the 183 following form: 184 (a) Plaintiff A. B., sues defendant C. D., and alleges: 185 1. This is an action to recover possession of personal 186 property in _______________ County, Florida. 187 2. The description of the property is: (list property). To 188 the best of plaintiff’s knowledge, information, and belief, the 189 value of the property is $_______________. 190 3. Plaintiff is entitled to the possession of the property 191 under a security agreement dated __________, (year), a copy of 192 which is attached. 193 4. To plaintiff’s best knowledge, information, and belief, 194 the property is located at ____________________. 195 5. The property is wrongfully detained by defendant. 196 Defendant came into possession of the property by (describe 197 method of possession). To plaintiff’s best knowledge, 198 information, and belief, defendant detains the property because 199 (give reasons). 200 6. The property has not been taken under an execution or 201 attachment against plaintiff’s property. 202 (b) The filing fees shall be waived by the clerk of the 203 court and the service fees shall be waived by the sheriff. The 204 court shall award the prevailing party attorney’s fees and 205 costs. In addition, if the filing party prevails in the replevin 206 action, the court shall order payment of filing fees to the 207 clerk and service fees to the sheriff. 208 (c) Upon the filing of the petition, the court shall set a 209 hearing to be held at the earliest possible time. Upon receipt 210 of a petition for a writ by a secondhand dealer, the dealer 211 shall hold the property at issue until the court determines the 212 respective interests of the parties. 213 (d) In addition to the civil petition for return remedy, 214 the state may file a motion as part of a pending criminal case 215 related to the property. The criminal court has jurisdiction to 216 determine ownership, to order return or other disposition of the 217 property, and to order any appropriate restitution to any 218 person. The order must be entered upon hearing after proper 219 notice has been given to the secondhand dealer, the victim, and 220 the defendant in the criminal case. 221 538.33 Tendering payment.— 222 (1) Any payment by the mail-in secondhand precious metals 223 dealer resulting from the sale, purchase, consignment, or trade 224 of precious metals must be made to the person or entity by check 225 to a lawful bank account or via a money services business 226 licensed under part II of chapter 560. 227 538.34 Inspection of records and premises.—The dealer must 228 allow a law enforcement agency to inspect its business records, 229 inventory, and premises during normal business hours to ensure 230 compliance with this part. 231 538.35 Holding period.— 232 (1) The dealer may not sell, barter, exchange, alter, 233 adulterate, use, or in any way dispose of any goods purchased 234 from a seller within 10 calendar days after the date payment is 235 issued for acquisition of the goods. 236 (2) Records of the sale, purchase, consignment, or trade of 237 precious metals or jewelry must be maintained by the business 238 for at least 2 years after the date of the transaction. 239 538.36 Acts and practices prohibited; penalties.— 240 (1) Any dealer not registered with the department as a 241 mail-in secondhand precious metals dealer, or who fails to 242 comply with this part, commits a felony of the third degree for 243 each completed transaction, punishable as provided in s. 244 775.082, s. 775.083, or s. 775.084. If an officer or corporation 245 is convicted or found guilty of, or pleads nolo contendere to, 246 any such offense, the officer or corporation may not operate 247 thereafter for 1 year as a mail-in secondhand precious metals 248 dealer within the state. 249 (2) Any person who knowingly gives false personal 250 identifying information to the dealer, who provides a driver’s 251 license number or government-issued identification number that 252 does not belong to him or her, or who makes any false statement 253 with respect to being of lawful age or his or her ownership of 254 goods, and who receives payment from the dealer commits: 255 (a) If the value of the money received is less than $300, a 256 felony of the third degree, punishable as provided in s. 257 775.082, s. 775.083, or s. 775.084. 258 (b) If the value of the money received is $300 or more, a 259 felony of the second degree, punishable as provided in s. 260 775.082, s. 775.083, or s. 775.084. 261 (3) The penalty provisions of s. 538.07 apply to any dealer 262 who knowingly violates any provision of this part. 263 538.37 Powers and duties of department.—The department has 264 the authority provided under s. 538.11 in regard to 265 registrations issued under this part. 266 Section 3. This act shall take effect up on becoming law. 267 268 ================= T I T L E A M E N D M E N T ================ 269 And the title is amended as follows: 270 Delete everything before the enacting clause 271 and insert: 272 A bill to be entitled 273 An act relating to secondhand dealers; amending s. 274 538.03, F.S.; excluding exercise equipment from the 275 definition of secondhand goods; creating part III of 276 ch. 538, F.S.; providing definitions; providing 277 exceptions; providing for registration; providing for 278 recordkeeping; providing for the tendering of 279 payments; providing for the inspection of records and 280 business premises by a law enforcement agency; 281 providing for a holding period; providing electronic 282 access to transaction files by law enforcement 283 agencies; providing for written notification to seller 284 of transaction deficiencies; providing a method of 285 relinquishment of abandoned property; providing for 286 restitution; providing for replevin; prohibiting 287 certain acts; providing penalties; providing for 288 powers and duties of the Department of Revenue; 289 providing an effective date.