Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. CS for SB 2700
       
       
       
       
       
       
                                Barcode 538616                          
       
                              LEGISLATIVE ACTION                        
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       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         538.31Definitions; 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         538.32Registration, 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         538.33Tendering 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         538.34Inspection 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         538.35Holding 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         538.36Acts 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         538.37Powers 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.