((LATE FILED FOR: APRIL 24 THIRD READING ))Amendment
Bill No. CS/CS/HB 339
Amendment No. 341199
CHAMBER ACTION
Senate House
.
.
.






1Representative Rivera offered the following:
2
3     Amendment (with title amendment)
4     Between lines 31 and 32, insert:
5     Section 3.  Part III of chapter 538, Florida Statutes,
6consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35,
7538.36, and 538.37, is created to read:
8
PART III
9
MAIL-IN SECONDHAND PRECIOUS METALS DEALERS
10     538.31  Definitions; applicability.--
11     (1)  As used in this part, the term:
12     (a)  "Department" means the Department of Revenue.
13     (b)  "Jewelry" means a personal ornament that contains
14precious metals and may contain gemstones.
15     (c)  "Mail-in secondhand precious metals dealer" means any
16person or entity that:
17     1.  Conducts business within this state and that contracts
18with other persons or entities to buy precious metals or jewelry
19through an Internet website, the United States mail, or
20telemarketing; or
21     2.  Conducts business within this state and regularly
22engages in the business of purchasing jewelry or precious metals
23through the mail or Internet-based transactions.
24     (d)  "Precious metals" means any item containing any gold,
25silver, or platinum, or any combination thereof.
26     (e)  "Seller" means any person or entity offering precious
27metals or jewelry for purchase which belong solely to that
28person or entity and has absolute authority to sell such goods.
29     (f)  "Transaction" includes any event relating to the
30purchase of secondhand precious metals or jewelry by a mail-in
31secondhand precious metals dealer.
32     (2)  This part does not apply to:
33     (a)  Any person or entity that is available to the public
34for walk-in business and regulated under part I.
35     (b)  The purchase, consignment, or trade of secondhand
36precious metals or jewelry with another mail-in secondhand
37precious metals dealer or secondhand dealer regulated under part
38I.
39     538.32  Registration, transaction, and recordkeeping
40requirements; penalties.--
41     (1)  A mail-in secondhand precious metals dealer may not
42conduct business under this part without registering with the
43department and complying with all registration regulations as
44set forth in s. 538.09.
45     (2)  A mail-in secondhand precious metals dealer may not
46remit payment to a seller unless the seller has provided the
47following information:
48     (a)  The seller's name, address, telephone number, and e-
49mail address, if available.
50     (b)  The seller's driver's license number and issuing state
51or other government-issued identification number.
52     (c)  A sworn statement made by the seller that the seller
53is of lawful age and that the driver's license number or other
54government-issued identification number and other identifying
55information provided by the seller is true and correct and that
56the seller is the lawful owner of the goods with absolute
57authority to sell the goods. The statement must include the
58following language: "I declare under penalty of perjury that the
59foregoing is true and correct."
60     (3)  For every transaction, the secondhand dealer must keep
61a record of the following:
62     (a)  A complete and accurate description of the seller's
63goods, including:
64     1.  Precious metal type, or, if jewelry, the type of
65jewelry.
66     2.  Any other unique identifying marks, numbers, or
67letters. The description must be in an electronic format agreed
68upon by the dealer and the appropriate law enforcement agency.
69     (b)  The date that the seller's goods were received by the
70mail-in secondhand precious metals dealer.
71
72This information must be provided to the appropriate law
73enforcement agency within 24 hours after entering into the
74contract unless other arrangements are made between the business
75and the law enforcement agency.
76     (4)  For every transaction, pictures of the secondhand
77goods which are the subject of the transaction must be available
78online for electronic viewing, via a website accessible by
79username and password only, by a law enforcement agency at no
80charge. In addition, the electronic files must be searchable by
81a law enforcement agency for queries concerning property
82descriptions, secondhand dealer transaction information, and the
83seller's personal identification including address, state of
84residence and zip code.
85     (5)  The mail-in secondhand precious metals dealer must
86maintain, for a period of not less than 2 years, all information
87under subsections (2) and (3) and all records of any transaction
88between the dealer and seller in a form that is easily
89retrievable upon request by a law enforcement agency.
90     (6)  The mail-in secondhand precious metals dealer must
91provide the appropriate law enforcement agency with an
92electronic copy of the name, address, phone number, driver's
93license number, or government-issued identification number, and
94issuing state of the person from whom the dealer purchased or
95acquired the precious metals or jewelry.
96     (7)(a)  If the seller fails to provide the information
97required under s. 538.32(2)(a) and (b), the secondhand dealer
98may verify the identity and information of the seller through a
99national provider of personal identification verification
100services. Evidence from the personal identification verification
101service must be maintained by the secondhand dealer and
102available for review by a law enforcement agency upon request.
103     (b)  Alternatively, a secondhand dealer must give written
104notice to the seller, by United States mail or e-mail if an e-
105mail address is provided by the seller, that information
106otherwise required to be given by seller under s. 538.32(2) has
107not been provided by the seller to the secondhand dealer. Notice
108of the deficient information must be sent by the secondhand
109dealer no later than 10 days after the transaction is received
110by the secondhand dealer. The secondhand dealer must specify in
111the notice that:
112     1.  The seller must provide the missing information or must
113request the return of the property from the secondhand dealer
114within 30 days after receiving the notice from the secondhand
115dealer; and
116     2.  The failure of the seller to provide the missing
117information or request return of the property within the
118applicable 30-day time period shall result in abandonment of the
119seller's property to the Bureau of Unclaimed Property of the
120Department of Financial Services pursuant to chapter 717.
121     (c)  If the seller fails to remedy the deficiency in
122information or request return of the property within 30 days
123after receiving the notice, the seller's property is deemed
124abandoned and is relinquished to the Bureau of Unclaimed
125Property pursuant to chapter 717 if the property's true market
126value is greater than $50 as defined in chapter 717.
127     (d)  Within 24 hours after the expiration of the 30-day
128hold period for the property, the secondhand dealer must notify
129the appropriate law enforcement agency of the abandonment of the
130property by electronic transmission or by sending a copy of the
131completed form authorized by chapter 717 to the Department of
132Financial Services, Bureau of Unclaimed Property.
133     (8)(a)  If there is probable cause that goods held by a
134secondhand dealer are stolen, the law enforcement agency with
135jurisdiction over the secondhand dealer may place a 90-day
136written hold order on the goods and may take possession of the
137goods from the dealer during the 90-day hold period. The 90-day
138hold period may be extended beyond 90 days by a court of
139competent jurisdiction upon a finding of probable cause that the
140property is stolen and further holding is necessary for the
141purpose of trial or to safeguard the property.
142     (b)  If the secondhand dealer maintains possession of the
143goods during any hold period, the secondhand dealer assumes all
144responsibility, civil and criminal, for the safekeeping of the
145property or evidence in question, including responsibility for
146the actions of any employee of the dealer.
147     (c)  While a hold order is in effect, the secondhand dealer
148must, if in possession of the goods, release the property
149subject to the hold order to the custody of a law enforcement
150agency for use in a criminal investigation. Release of the
151property to the law enforcement agency is not considered a
152waiver or release of the secondhand dealer's rights or interest
153in the property unless the secondhand dealer is not owed
154restitution for the property.
155     (d)  The property must be returned to the secondhand dealer
156upon completion of the criminal proceeding unless the court
157orders an alternative disposition or the secondhand dealer is
158not due restitution for the property. When another disposition
159is ordered, the court shall additionally order the person from
160whom the secondhand dealer acquired the property to pay
161restitution to the secondhand dealer in the amount that the
162secondhand dealer paid for the property together with reasonable
163attorney's fees and costs.
164     (9)  If a secondhand dealer contests the identification or
165ownership of the property, the person alleging ownership of the
166property may, if a timely report of the theft of the goods was
167made to the proper authorities, bring an action for replevin in
168the county or circuit court by petition in substantially the
169following form:
170     (a)  Plaintiff A. B., sues defendant C. D., and alleges:
171     1.  This is an action to recover possession of personal
172property in _______________ County, Florida.
173     2.  The description of the property is: (list property). To
174the best of plaintiff's knowledge, information, and belief, the
175value of the property is $_______________.
176     3.  Plaintiff is entitled to the possession of the property
177under a security agreement dated __________, (year), a copy of
178which is attached.
179     4.  To plaintiff's best knowledge, information, and belief,
180the property is located at ____________________.
181     5.  The property is wrongfully detained by defendant.
182Defendant came into possession of the property by (describe
183method of possession). To plaintiff's best knowledge,
184information, and belief, defendant detains the property because
185(give reasons).
186     6.  The property has not been taken under an execution or
187attachment against plaintiff's property.
188     (b)  The filing fees shall be waived by the clerk of the
189court and the service fees shall be waived by the sheriff. The
190court shall award the prevailing party attorney's fees and
191costs. In addition, if the filing party prevails in the replevin
192action, the court shall order payment of filing fees to the
193clerk and service fees to the sheriff.
194     (c)  Upon the filing of the petition, the court shall set a
195hearing to be held at the earliest possible time. Upon receipt
196of a petition for a writ by a secondhand dealer, the dealer
197shall hold the property at issue until the court determines the
198respective interests of the parties.
199     (d)  In addition to the civil petition for return remedy,
200the state may file a motion as part of a pending criminal case
201related to the property. The criminal court has jurisdiction to
202determine ownership, to order return or other disposition of the
203property, and to order any appropriate restitution to any
204person. The order must be entered upon hearing after proper
205notice has been given to the secondhand dealer, the victim, and
206the defendant in the criminal case.
207     538.33  Tendering payment.--Any payment by the mail-in
208secondhand precious metals dealer resulting from the sale,
209purchase, consignment, or trade of precious metals must be made
210to the person or entity by check to a lawful bank account or via
211a money services business licensed under part II of chapter 560.
212     538.34  Inspection of records and premises.--The dealer
213must allow a law enforcement agency to inspect its business
214records, inventory, and premises during normal business hours to
215ensure compliance with this part.
216     538.35  Holding period.--
217     (1)  The dealer may not sell, barter, exchange, alter,
218adulterate, use, or in any way dispose of any goods purchased
219from a seller within 10 calendar days after the date payment is
220issued for acquisition of the goods.
221     (2)  Records of the sale, purchase, consignment, or trade
222of precious metals or jewelry must be maintained by the business
223for at least 2 years after the date of the transaction.
224     538.36  Acts and practices prohibited; penalties.--
225     (1)  Any dealer not registered with the department as a
226mail-in secondhand precious metals dealer, or who fails to
227comply with this part, commits a felony of the third degree for
228each completed transaction, punishable as provided in s.
229775.082, s. 775.083, or s. 775.084. If an officer or corporation
230is convicted or found guilty of, or pleads nolo contendere to,
231any such offense, the officer or corporation may not operate
232thereafter for 1 year as a mail-in secondhand precious metals
233dealer within the state.
234     (2)  Any person who knowingly gives false personal
235identifying information to the dealer, who provides a driver's
236license number or government-issued identification number that
237does not belong to him or her, or who makes any false statement
238with respect to being of lawful age or his or her ownership of
239goods, and who receives payment from the dealer commits:
240     (a)  If the value of the money received is less than $300,
241a felony of the third degree, punishable as provided in s.
242775.082, s. 775.083, or s. 775.084.
243     (b)  If the value of the money received is $300 or more, a
244felony of the second degree, punishable as provided in s.
245775.082, s. 775.083, or s. 775.084.
246     (3)  The penalty provisions of s. 538.07 apply to any
247dealer who knowingly violates any provision of this part.
248     538.37  Powers and duties of department.--The department
249has the authority provided under s. 538.11.
250
251
252
-----------------------------------------------------
253
T I T L E  A M E N D M E N T
254     Remove line 7 and insert:
255secondary metals recyclers; creating part III of ch. 538,
256F.S.; providing definitions; providing exceptions;
257providing for registration; providing for recordkeeping;
258providing for the tendering of payments; providing for the
259inspection of records and business premises by a law
260enforcement agency; providing for a holding period;
261providing electronic access to transaction files by law
262enforcement agencies; providing for written notification
263to seller of transaction deficiencies; providing a method
264of relinquishment of abandoned property; providing for
265restitution; providing for replevin; prohibiting certain
266acts; providing penalties; providing for powers and duties
267of the Department of Revenue; providing an effective date.


CODING: Words stricken are deletions; words underlined are additions.