| 1 | A bill to be entitled |
| 2 | An act relating to secondhand dealers and secondary metals |
| 3 | recyclers; amending s. 538.03, F.S.; excluding specified |
| 4 | equipment from the definition of "secondhand goods"; |
| 5 | amending s. 538.21, F.S.; preempting certain local |
| 6 | government ordinances relating to hold notices for |
| 7 | secondary metals recyclers; creating part III of ch. 538, |
| 8 | F.S.; providing definitions; providing exceptions; |
| 9 | providing for registration; providing for recordkeeping; |
| 10 | providing for the tendering of payments; providing for the |
| 11 | inspection of records and business premises by a law |
| 12 | enforcement agency; providing for a holding period; |
| 13 | providing electronic access to transaction files by law |
| 14 | enforcement agencies; providing for written notification |
| 15 | to seller of transaction deficiencies; providing a method |
| 16 | of relinquishment of abandoned property; providing for |
| 17 | restitution; providing for replevin; prohibiting certain |
| 18 | acts; providing penalties; providing for powers and duties |
| 19 | of the Department of Revenue; providing an effective date. |
| 20 |
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| 21 | Be It Enacted by the Legislature of the State of Florida: |
| 22 |
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| 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. Subsection (4) is added to section 538.21, |
| 38 | Florida Statutes, to read: |
| 39 | 538.21 Hold notice.-- |
| 40 | (4) This section provides a uniform statewide process and |
| 41 | preempts municipal or county ordinances enacted after December |
| 42 | 31, 2008, relating specifically to secondary metals recyclers |
| 43 | holding such metals. |
| 44 | Section 3. Part III of chapter 538, Florida Statutes, |
| 45 | consisting of sections 538.31, 538.32, 538.33, 538.34, 538.35, |
| 46 | 538.36, and 538.37, is created to read: |
| 47 | PART III |
| 48 | MAIL-IN SECONDHAND PRECIOUS METALS DEALERS |
| 49 | 538.31 Definitions; applicability.-- |
| 50 | (1) As used in this part, the term: |
| 51 | (a) "Department" means the Department of Revenue. |
| 52 | (b) "Jewelry" means a personal ornament that contains |
| 53 | precious metals and may contain gemstones. |
| 54 | (c) "Mail-in secondhand precious metals dealer" means any |
| 55 | person or entity that: |
| 56 | 1. Conducts business within this state and that contracts |
| 57 | with other persons or entities to buy precious metals or jewelry |
| 58 | through an Internet website, the United States mail, or |
| 59 | telemarketing; or |
| 60 | 2. Conducts business within this state and regularly |
| 61 | engages in the business of purchasing jewelry or precious metals |
| 62 | through the mail or Internet-based transactions. |
| 63 | (d) "Precious metals" means any item containing any gold, |
| 64 | silver, or platinum, or any combination thereof. |
| 65 | (e) "Seller" means any person or entity offering precious |
| 66 | metals or jewelry for purchase which belong solely to that |
| 67 | person or entity and has absolute authority to sell such goods. |
| 68 | (f) "Transaction" includes any event relating to the |
| 69 | purchase of secondhand precious metals or jewelry by a mail-in |
| 70 | secondhand precious metals dealer. |
| 71 | (2) This part does not apply to: |
| 72 | (a) Any person or entity that is available to the public |
| 73 | for walk-in business and regulated under part I. |
| 74 | (b) The purchase, consignment, or trade of secondhand |
| 75 | precious metals or jewelry with another mail-in secondhand |
| 76 | precious metals dealer or secondhand dealer regulated under part |
| 77 | I. |
| 78 | 538.32 Registration, transaction, and recordkeeping |
| 79 | requirements; penalties.-- |
| 80 | (1) A mail-in secondhand precious metals dealer may not |
| 81 | conduct business under this part without registering with the |
| 82 | department and complying with all registration regulations as |
| 83 | set forth in s. 538.09. |
| 84 | (2) A mail-in secondhand precious metals dealer may not |
| 85 | remit payment to a seller unless the seller has provided the |
| 86 | following information: |
| 87 | (a) The seller's name, address, telephone number, and e- |
| 88 | mail address, if available. |
| 89 | (b) The seller's driver's license number and issuing state |
| 90 | or other government-issued identification number. |
| 91 | (c) A sworn statement made by the seller that the seller |
| 92 | is of lawful age and that the driver's license number or other |
| 93 | government-issued identification number and other identifying |
| 94 | information provided by the seller is true and correct and that |
| 95 | the seller is the lawful owner of the goods with absolute |
| 96 | authority to sell the goods. The statement must include the |
| 97 | following language: "I declare under penalty of perjury that the |
| 98 | foregoing is true and correct." |
| 99 | (3) For every transaction, the secondhand dealer must keep |
| 100 | a record of the following: |
| 101 | (a) A complete and accurate description of the seller's |
| 102 | goods, including: |
| 103 | 1. Precious metal type, or, if jewelry, the type of |
| 104 | jewelry. |
| 105 | 2. Any other unique identifying marks, numbers, or |
| 106 | letters. The description must be in an electronic format agreed |
| 107 | upon by the dealer and the appropriate law enforcement agency. |
| 108 | (b) The date that the seller's goods were received by the |
| 109 | mail-in secondhand precious metals dealer. |
| 110 |
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| 111 | This information must be provided to the appropriate law |
| 112 | enforcement agency within 24 hours after entering into the |
| 113 | contract unless other arrangements are made between the business |
| 114 | and the law enforcement agency. |
| 115 | (4) For every transaction, pictures of the secondhand |
| 116 | goods which are the subject of the transaction must be available |
| 117 | online for electronic viewing, via a website accessible by |
| 118 | username and password only, by a law enforcement agency at no |
| 119 | charge. In addition, the electronic files must be searchable by |
| 120 | a law enforcement agency for queries concerning property |
| 121 | descriptions, secondhand dealer transaction information, and the |
| 122 | seller's personal identification including address, state of |
| 123 | residence and zip code. |
| 124 | (5) The mail-in secondhand precious metals dealer must |
| 125 | maintain, for a period of not less than 2 years, all information |
| 126 | under subsections (2) and (3) and all records of any transaction |
| 127 | between the dealer and seller in a form that is easily |
| 128 | retrievable upon request by a law enforcement agency. |
| 129 | (6) The mail-in secondhand precious metals dealer must |
| 130 | provide the appropriate law enforcement agency with an |
| 131 | electronic copy of the name, address, phone number, driver's |
| 132 | license number, or government-issued identification number, and |
| 133 | issuing state of the person from whom the dealer purchased or |
| 134 | acquired the precious metals or jewelry. |
| 135 | (7)(a) If the seller fails to provide the information |
| 136 | required under s. 538.32(2)(a) and (b), the secondhand dealer |
| 137 | may verify the identity and information of the seller through a |
| 138 | national provider of personal identification verification |
| 139 | services. Evidence from the personal identification verification |
| 140 | service must be maintained by the secondhand dealer and |
| 141 | available for review by a law enforcement agency upon request. |
| 142 | (b) Alternatively, a secondhand dealer must give written |
| 143 | notice to the seller, by United States mail or e-mail if an e- |
| 144 | mail address is provided by the seller, that information |
| 145 | otherwise required to be given by seller under s. 538.32(2) has |
| 146 | not been provided by the seller to the secondhand dealer. Notice |
| 147 | of the deficient information must be sent by the secondhand |
| 148 | dealer no later than 10 days after the transaction is received |
| 149 | by the secondhand dealer. The secondhand dealer must specify in |
| 150 | the notice that: |
| 151 | 1. The seller must provide the missing information or must |
| 152 | request the return of the property from the secondhand dealer |
| 153 | within 30 days after receiving the notice from the secondhand |
| 154 | dealer; and |
| 155 | 2. The failure of the seller to provide the missing |
| 156 | information or request return of the property within the |
| 157 | applicable 30-day time period shall result in abandonment of the |
| 158 | seller's property to the Bureau of Unclaimed Property of the |
| 159 | Department of Financial Services pursuant to chapter 717. |
| 160 | (c) If the seller fails to remedy the deficiency in |
| 161 | information or request return of the property within 30 days |
| 162 | after receiving the notice, the seller's property is deemed |
| 163 | abandoned and is relinquished to the Bureau of Unclaimed |
| 164 | Property pursuant to chapter 717 if the property's true market |
| 165 | value is greater than $50 as defined in chapter 717. |
| 166 | (d) Within 24 hours after the expiration of the 30-day |
| 167 | hold period for the property, the secondhand dealer must notify |
| 168 | the appropriate law enforcement agency of the abandonment of the |
| 169 | property by electronic transmission or by sending a copy of the |
| 170 | completed form authorized by chapter 717 to the Department of |
| 171 | Financial Services, Bureau of Unclaimed Property. |
| 172 | (8)(a) If there is probable cause that goods held by a |
| 173 | secondhand dealer are stolen, the law enforcement agency with |
| 174 | jurisdiction over the secondhand dealer may place a 90-day |
| 175 | written hold order on the goods and may take possession of the |
| 176 | goods from the dealer during the 90-day hold period. The 90-day |
| 177 | hold period may be extended beyond 90 days by a court of |
| 178 | competent jurisdiction upon a finding of probable cause that the |
| 179 | property is stolen and further holding is necessary for the |
| 180 | purpose of trial or to safeguard the property. |
| 181 | (b) If the secondhand dealer maintains possession of the |
| 182 | goods during any hold period, the secondhand dealer assumes all |
| 183 | responsibility, civil and criminal, for the safekeeping of the |
| 184 | property or evidence in question, including responsibility for |
| 185 | the actions of any employee of the dealer. |
| 186 | (c) While a hold order is in effect, the secondhand dealer |
| 187 | must, if in possession of the goods, release the property |
| 188 | subject to the hold order to the custody of a law enforcement |
| 189 | agency for use in a criminal investigation. Release of the |
| 190 | property to the law enforcement agency is not considered a |
| 191 | waiver or release of the secondhand dealer's rights or interest |
| 192 | in the property unless the secondhand dealer is not owed |
| 193 | restitution for the property. |
| 194 | (d) The property must be returned to the secondhand dealer |
| 195 | upon completion of the criminal proceeding unless the court |
| 196 | orders an alternative disposition or the secondhand dealer is |
| 197 | not due restitution for the property. When another disposition |
| 198 | is ordered, the court shall additionally order the person from |
| 199 | whom the secondhand dealer acquired the property to pay |
| 200 | restitution to the secondhand dealer in the amount that the |
| 201 | secondhand dealer paid for the property together with reasonable |
| 202 | attorney's fees and costs. |
| 203 | (9) If a secondhand dealer contests the identification or |
| 204 | ownership of the property, the person alleging ownership of the |
| 205 | property may, if a timely report of the theft of the goods was |
| 206 | made to the proper authorities, bring an action for replevin in |
| 207 | the county or circuit court by petition in substantially the |
| 208 | following form: |
| 209 | (a) Plaintiff A. B., sues defendant C. D., and alleges: |
| 210 | 1. This is an action to recover possession of personal |
| 211 | property in _______________ County, Florida. |
| 212 | 2. The description of the property is: (list property). To |
| 213 | the best of plaintiff's knowledge, information, and belief, the |
| 214 | value of the property is $_______________. |
| 215 | 3. Plaintiff is entitled to the possession of the property |
| 216 | under a security agreement dated __________, (year), a copy of |
| 217 | which is attached. |
| 218 | 4. To plaintiff's best knowledge, information, and belief, |
| 219 | the property is located at ____________________. |
| 220 | 5. The property is wrongfully detained by defendant. |
| 221 | Defendant came into possession of the property by (describe |
| 222 | method of possession). To plaintiff's best knowledge, |
| 223 | information, and belief, defendant detains the property because |
| 224 | (give reasons). |
| 225 | 6. The property has not been taken under an execution or |
| 226 | attachment against plaintiff's property. |
| 227 | (b) The filing fees shall be waived by the clerk of the |
| 228 | court and the service fees shall be waived by the sheriff. The |
| 229 | court shall award the prevailing party attorney's fees and |
| 230 | costs. In addition, if the filing party prevails in the replevin |
| 231 | action, the court shall order payment of filing fees to the |
| 232 | clerk and service fees to the sheriff. |
| 233 | (c) Upon the filing of the petition, the court shall set a |
| 234 | hearing to be held at the earliest possible time. Upon receipt |
| 235 | of a petition for a writ by a secondhand dealer, the dealer |
| 236 | shall hold the property at issue until the court determines the |
| 237 | respective interests of the parties. |
| 238 | (d) In addition to the civil petition for return remedy, |
| 239 | the state may file a motion as part of a pending criminal case |
| 240 | related to the property. The criminal court has jurisdiction to |
| 241 | determine ownership, to order return or other disposition of the |
| 242 | property, and to order any appropriate restitution to any |
| 243 | person. The order must be entered upon hearing after proper |
| 244 | notice has been given to the secondhand dealer, the victim, and |
| 245 | the defendant in the criminal case. |
| 246 | 538.33 Tendering payment.--Any payment by the mail-in |
| 247 | secondhand precious metals dealer resulting from the sale, |
| 248 | purchase, consignment, or trade of precious metals must be made |
| 249 | to the person or entity by check to a lawful bank account or via |
| 250 | a money services business licensed under part II of chapter 560. |
| 251 | 538.34 Inspection of records and premises.--The dealer |
| 252 | must allow a law enforcement agency to inspect its business |
| 253 | records, inventory, and premises during normal business hours to |
| 254 | ensure compliance with this part. |
| 255 | 538.35 Holding period.-- |
| 256 | (1) The dealer may not sell, barter, exchange, alter, |
| 257 | adulterate, use, or in any way dispose of any goods purchased |
| 258 | from a seller within 10 calendar days after the date payment is |
| 259 | issued for acquisition of the goods. |
| 260 | (2) Records of the sale, purchase, consignment, or trade |
| 261 | of precious metals or jewelry must be maintained by the business |
| 262 | for at least 2 years after the date of the transaction. |
| 263 | 538.36 Acts and practices prohibited; penalties.-- |
| 264 | (1) Any dealer not registered with the department as a |
| 265 | mail-in secondhand precious metals dealer, or who fails to |
| 266 | comply with this part, commits a felony of the third degree for |
| 267 | each completed transaction, punishable as provided in s. |
| 268 | 775.082, s. 775.083, or s. 775.084. If an officer or corporation |
| 269 | is convicted or found guilty of, or pleads nolo contendere to, |
| 270 | any such offense, the officer or corporation may not operate |
| 271 | thereafter for 1 year as a mail-in secondhand precious metals |
| 272 | dealer within the state. |
| 273 | (2) Any person who knowingly gives false personal |
| 274 | identifying information to the dealer, who provides a driver's |
| 275 | license number or government-issued identification number that |
| 276 | does not belong to him or her, or who makes any false statement |
| 277 | with respect to being of lawful age or his or her ownership of |
| 278 | goods, and who receives payment from the dealer commits: |
| 279 | (a) If the value of the money received is less than $300, |
| 280 | a felony of the third degree, punishable as provided in s. |
| 281 | 775.082, s. 775.083, or s. 775.084. |
| 282 | (b) If the value of the money received is $300 or more, a |
| 283 | felony of the second degree, punishable as provided in s. |
| 284 | 775.082, s. 775.083, or s. 775.084. |
| 285 | (3) The penalty provisions of s. 538.07 apply to any |
| 286 | dealer who knowingly violates any provision of this part. |
| 287 | 538.37 Powers and duties of department.--The department |
| 288 | has the authority provided under s. 538.11. |
| 289 | Section 4. This act shall take effect October 1, 2009. |