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 42 538.31 Definitions; 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. 71 538.32 Registration, 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. 239 538.33 Tendering 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. 245 538.34 Inspection 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. 249 538.35 Holding 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. 257 538.36 Acts 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. 281 538.37 Powers 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.