Florida Senate - 2009                      CS for CS for SB 2700
       
       
       
       By the Committees on Finance and Tax; and Commerce; and Senator
       Gelber
       
       
       
       593-04158A-09                                         20092700c2
    1                        A bill to be entitled                      
    2         An act relating to secondhand dealers; amending s.
    3         538.03, F.S.; excluding cardio and strength training
    4         or conditioning equipment designed primarily for
    5         indoor use from the definition of secondhand goods;
    6         creating part III of ch. 538, F.S.; providing
    7         definitions; providing exceptions; providing for
    8         registration; providing for recordkeeping; providing
    9         for the tendering of payments; providing for the
   10         inspection of records and business premises by a law
   11         enforcement agency; providing for a holding period;
   12         providing electronic access to transaction files by
   13         law enforcement agencies; providing for written
   14         notification to seller of transaction deficiencies;
   15         providing a method of relinquishment of abandoned
   16         property; providing for restitution; providing for
   17         replevin; prohibiting certain acts; providing
   18         penalties; providing for powers and duties of the
   19         Department of Revenue; providing an effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Paragraph (f) of subsection (1) of section
   24  538.03, Florida Statutes, is amended to read;
   25         538.03 Definitions; applicability.—
   26         (1) As used in this part, the term:
   27         (f) “Secondhand goods” means personal property previously
   28  owned or used, which is not regulated metals property regulated
   29  under part II and which is purchased, consigned, or traded as
   30  used property. Such secondhand goods do not include office
   31  furniture, pianos, books, clothing, organs, coins, motor
   32  vehicles, costume jewelry, cardio and strength training or
   33  conditioning equipment designed primarily for indoor use, and
   34  secondhand sports equipment that is not permanently labeled with
   35  a serial number. For purposes of this paragraph, “secondhand
   36  sports equipment” does not include golf clubs.
   37         Section 2. Part III of chapter 538, Florida Statutes,
   38  consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35,
   39  538.36, and 538.37, is created to read:
   40                              Part III                             
   41             MAIL-IN SECONDHAND PRECIOUS METALS DEALERS            
   42         538.31Definitions; applicability.—
   43         (1)As used in this part, the term:
   44         (a)“Department” means the Department of Revenue.
   45         (b)“Jewelry” means a personal ornament that contains
   46  precious metals and may contain gemstones.
   47         (c)“Mail-in secondhand precious metals dealer” means any
   48  person or entity that:
   49         1.Conducts business within this state and that contracts
   50  with other persons or entities to buy precious metals or jewelry
   51  through an Internet website, the United States mail, or
   52  telemarketing; or
   53         2.Conducts business within this state and regularly
   54  engages in the business of purchasing jewelry or precious metals
   55  through the mail or Internet-based transactions.
   56         (d)“Precious metals” means any item containing any gold,
   57  silver, or platinum, or any combination thereof.
   58         (e)“Seller” means any person or entity offering precious
   59  metals or jewelry for purchase which belong solely to that
   60  person or entity and has absolute authority to sell such goods.
   61         (f)“Transaction” includes any event relating to the
   62  purchase of secondhand precious metals or jewelry by a mail-in
   63  secondhand precious metals dealer.
   64         (2)This part does not apply to:
   65         (a)Any person or entity that is available to the public
   66  for walk-in business and regulated under part I.
   67         (b)The purchase, consignment, or trade of secondhand
   68  precious metals or jewelry with another mail-in secondhand
   69  precious metals dealer or secondhand dealer regulated under part
   70  I.
   71         538.32Registration, transaction, and recordkeeping
   72  requirements; penalties.—
   73         (1)A mail-in secondhand precious metals dealer may not
   74  conduct business under this part without registering with the
   75  department and complying with all registration regulations as
   76  set forth in s. 538.09.
   77         (2)A mail-in secondhand precious metals dealer may not
   78  remit payment to a seller unless the seller has provided the
   79  following information:
   80         (a)The seller’s name, address, telephone number, and e
   81  mail address, if available.
   82         (b)The seller’s driver’s license number and issuing state
   83  or other government-issued identification number.
   84         (c)A sworn statement made by the seller that the seller is
   85  of lawful age and that the driver’s license number or other
   86  government-issued identification number and other identifying
   87  information provided by the seller is true and correct and that
   88  the seller is the lawful owner of the goods with absolute
   89  authority to sell the goods. The statement must include the
   90  following language: “I declare under penalty of perjury that the
   91  foregoing is true and correct.”
   92         (3)For every transaction, the secondhand dealer must keep
   93  a record of the following:
   94         (a)A complete and accurate description of the seller’s
   95  goods, including:
   96         1.Precious metal type, or, if jewelry, the type of
   97  jewelry.
   98         2.Any other unique identifying marks, numbers, or letters.
   99  The description must be in an electronic format agreed upon by
  100  the dealer and the appropriate law enforcement agency.
  101         (b)The date that the seller’s goods were received by the
  102  mail-in secondhand precious metals dealer.
  103  
  104  This information must be provided to the appropriate law
  105  enforcement agency within 24 hours after entering into the
  106  contract unless other arrangements are made between the business
  107  and the law enforcement agency.
  108         (4)For every transaction, pictures of the secondhand goods
  109  which are the subject of the transaction must be available
  110  online for electronic viewing, via a website accessible by
  111  username and password only, by a law enforcement agency at no
  112  charge. In addition, the electronic files must be searchable by
  113  a law enforcement agency for queries concerning property
  114  descriptions, secondhand dealer transaction information, and the
  115  seller’s personal identification including address, state of
  116  residence and zip code.
  117         (5)The mail-in secondhand precious metals dealer must
  118  maintain, for a period of not less than 2 years, all information
  119  under subsections (2) and (3) and all records of any transaction
  120  between the dealer and seller in a form that is easily
  121  retrievable upon request by a law enforcement agency.
  122         (6)The mail-in secondhand precious metals dealer must
  123  provide the appropriate law enforcement agency with an
  124  electronic copy of the name, address, phone number, driver’s
  125  license number, or government-issued identification number, and
  126  issuing state of the person from whom the dealer purchased or
  127  acquired the precious metals or jewelry.
  128         (7)(a)If the seller fails to provide the information
  129  required under s. 538.32(2)(a) and (b), the secondhand dealer
  130  may verify the identity and information of the seller through a
  131  national provider of personal identification verification
  132  services. Evidence from the personal identification verification
  133  service must be maintained by the secondhand dealer and
  134  available for review by a law enforcement agency upon request.
  135         (b)Alternatively, a secondhand dealer must give written
  136  notice to the seller, by United States mail or e-mail if an e
  137  mail address is provided by the seller, that information
  138  otherwise required to be given by seller under s. 538.32(2) has
  139  not been provided by the seller to the secondhand dealer. Notice
  140  of the deficient information must be sent by the secondhand
  141  dealer no later than 10 days after the transaction is received
  142  by the secondhand dealer. The secondhand dealer must specify in
  143  the notice that:
  144         1.The seller must provide the missing information or must
  145  request the return of the property from the secondhand dealer
  146  within 30 days after receiving the notice from the secondhand
  147  dealer; and
  148         2.The failure of the seller to provide the missing
  149  information or request return of the property within the
  150  applicable 30-day time period shall result in abandonment of the
  151  seller’s property to the Bureau of Unclaimed Property of the
  152  Department of Financial Services pursuant to chapter 717.
  153         (c)If the seller fails to remedy the deficiency in
  154  information or request return of the property within 30 days
  155  after receiving the notice, the seller’s property is deemed
  156  abandoned and is relinquished to the Bureau of Unclaimed
  157  Property pursuant to chapter 717 if the property’s true market
  158  value is greater than $50 as defined in chapter 717.
  159         (d)Within 24 hours after the expiration of the 30-day hold
  160  period for the property, the secondhand dealer must notify the
  161  appropriate law enforcement agency of the abandonment of the
  162  property by electronic transmission or by sending a copy of the
  163  completed form authorized by chapter 717 to the Department of
  164  Financial Services, Bureau of Unclaimed Property.
  165         (8)(a)If there is probable cause that goods held by a
  166  secondhand dealer are stolen, the law enforcement agency with
  167  jurisdiction over the secondhand dealer may place a 90-day
  168  written hold order on the goods and may take possession of the
  169  goods from the dealer during the 90-day hold period. The 90-day
  170  hold period may be extended beyond 90 days by a court of
  171  competent jurisdiction upon a finding of probable cause that the
  172  property is stolen and further holding is necessary for the
  173  purpose of trial or to safeguard the property.
  174         (b)If the secondhand dealer maintains possession of the
  175  goods during any hold period, the secondhand dealer assumes all
  176  responsibility, civil and criminal, for the safekeeping of the
  177  property or evidence in question, including responsibility for
  178  the actions of any employee of the dealer.
  179         (c)While a hold order is in effect, the secondhand dealer
  180  must, if in possession of the goods, release the property
  181  subject to the hold order to the custody of a law enforcement
  182  agency for use in a criminal investigation. Release of the
  183  property to the law enforcement agency is not considered a
  184  waiver or release of the secondhand dealer’s rights or interest
  185  in the property unless the secondhand dealer is not owed
  186  restitution for the property.
  187         (d)The property must be returned to the secondhand dealer
  188  upon completion of the criminal proceeding unless the court
  189  orders an alternative disposition or the secondhand dealer is
  190  not due restitution for the property. When another disposition
  191  is ordered, the court shall additionally order the person from
  192  whom the secondhand dealer acquired the property to pay
  193  restitution to the secondhand dealer in the amount that the
  194  secondhand dealer paid for the property together with reasonable
  195  attorney’s fees and costs.
  196         (9) If a secondhand dealer contests the identification or
  197  ownership of the property, the person alleging ownership of the
  198  property may, if a timely report of the theft of the goods was
  199  made to the proper authorities, bring an action for replevin in
  200  the county or circuit court by petition in substantially the
  201  following form:
  202         (a)Plaintiff A. B., sues defendant C. D., and alleges:
  203         1. This is an action to recover possession of personal
  204  property in _______________ County, Florida.
  205         2. The description of the property is: (list property). To
  206  the best of plaintiff’s knowledge, information, and belief, the
  207  value of the property is $_______________.
  208         3. Plaintiff is entitled to the possession of the property
  209  under a security agreement dated __________, (year), a copy of
  210  which is attached.
  211         4. To plaintiff’s best knowledge, information, and belief,
  212  the property is located at ____________________.
  213         5. The property is wrongfully detained by defendant.
  214  Defendant came into possession of the property by (describe
  215  method of possession). To plaintiff’s best knowledge,
  216  information, and belief, defendant detains the property because
  217  (give reasons).
  218         6. The property has not been taken under an execution or
  219  attachment against plaintiff’s property.
  220         (b) The filing fees shall be waived by the clerk of the
  221  court and the service fees shall be waived by the sheriff. The
  222  court shall award the prevailing party attorney’s fees and
  223  costs. In addition, if the filing party prevails in the replevin
  224  action, the court shall order payment of filing fees to the
  225  clerk and service fees to the sheriff.
  226         (c) Upon the filing of the petition, the court shall set a
  227  hearing to be held at the earliest possible time. Upon receipt
  228  of a petition for a writ by a secondhand dealer, the dealer
  229  shall hold the property at issue until the court determines the
  230  respective interests of the parties.
  231         (d) In addition to the civil petition for return remedy,
  232  the state may file a motion as part of a pending criminal case
  233  related to the property. The criminal court has jurisdiction to
  234  determine ownership, to order return or other disposition of the
  235  property, and to order any appropriate restitution to any
  236  person. The order must be entered upon hearing after proper
  237  notice has been given to the secondhand dealer, the victim, and
  238  the defendant in the criminal case.
  239         538.33Tendering payment.—
  240         (1)Any payment by the mail-in secondhand precious metals
  241  dealer resulting from the sale, purchase, consignment, or trade
  242  of precious metals must be made to the person or entity by check
  243  to a lawful bank account or via a money services business
  244  licensed under part II of chapter 560.
  245         538.34Inspection of records and premises.—The dealer must
  246  allow a law enforcement agency to inspect its business records,
  247  inventory, and premises during normal business hours to ensure
  248  compliance with this part.
  249         538.35Holding period.—
  250         (1)The dealer may not sell, barter, exchange, alter,
  251  adulterate, use, or in any way dispose of any goods purchased
  252  from a seller within 10 calendar days after the date payment is
  253  issued for acquisition of the goods.
  254         (2)Records of the sale, purchase, consignment, or trade of
  255  precious metals or jewelry must be maintained by the business
  256  for at least 2 years after the date of the transaction.
  257         538.36Acts and practices prohibited; penalties.—
  258         (1)Any dealer not registered with the department as a
  259  mail-in secondhand precious metals dealer, or who fails to
  260  comply with this part, commits a felony of the third degree for
  261  each completed transaction, punishable as provided in s.
  262  775.082, s. 775.083, or s. 775.084. If an officer or corporation
  263  is convicted or found guilty of, or pleads nolo contendere to,
  264  any such offense, the officer or corporation may not operate
  265  thereafter for 1 year as a mail-in secondhand precious metals
  266  dealer within the state.
  267         (2)Any person who knowingly gives false personal
  268  identifying information to the dealer, who provides a driver’s
  269  license number or government-issued identification number that
  270  does not belong to him or her, or who makes any false statement
  271  with respect to being of lawful age or his or her ownership of
  272  goods, and who receives payment from the dealer commits:
  273         (a)If the value of the money received is less than $300, a
  274  felony of the third degree, punishable as provided in s.
  275  775.082, s. 775.083, or s. 775.084.
  276         (b)If the value of the money received is $300 or more, a
  277  felony of the second degree, punishable as provided in s.
  278  775.082, s. 775.083, or s. 775.084.
  279         (3)The penalty provisions of s. 538.07 apply to any dealer
  280  who knowingly violates any provision of this part.
  281         538.37Powers and duties of department.—The department has
  282  the authority provided under s. 538.11 in regard to
  283  registrations issued under this part.
  284         Section 3. This act shall take effect upon becoming a law.