Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 1528
       
       
       
       
       
       
                                Barcode 363172                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  03/29/2011           .                                
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       The Committee on Commerce and Tourism (Flores) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (u) of subsection (1) of section
    6  319.30, Florida Statutes, is amended to read:
    7         319.30 Definitions; dismantling, destruction, change of
    8  identity of motor vehicle or mobile home; salvage.—
    9         (1) As used in this section, the term:
   10         (u) “Secondary metals recycler” means secondary metals
   11  recycler as defined in s. 538.18(11) s. 538.18(8).
   12         Section 2. Paragraph (j) is added to subsection (1) of
   13  section 538.03, Florida Statutes, to read:
   14         538.03 Definitions; applicability.—
   15         (1) As used in this part, the term:
   16         (j) “Appropriate law enforcement official” means the
   17  sheriff of the county in which a secondhand dealer is located
   18  and, in the case of a secondhand dealer located within a
   19  municipality, the police chief of the municipality in which the
   20  secondhand dealer is located; however, any sheriff or police
   21  chief may designate as the appropriate law enforcement official
   22  for the county or municipality, as applicable, any law
   23  enforcement officer working within the county or municipality
   24  headed by that sheriff or police chief. This paragraph does not
   25  limit the power and responsibilities of the sheriff.
   26         Section 3. Subsection (1) of section 538.04, Florida
   27  Statutes, is amended to read:
   28         538.04 Recordkeeping requirements; penalties.—
   29         (1) Secondhand dealers shall complete a secondhand dealers
   30  transaction form at the time of the actual transaction. A
   31  secondhand dealer shall maintain a copy of a completed
   32  transaction form on the registered premises for at least 1 year
   33  after the date of the transaction. However, the secondhand
   34  dealer shall maintain a copy of the transaction form for not
   35  less than 3 years. Unless other arrangements have been agreed
   36  upon by the secondhand dealer and the appropriate law
   37  enforcement agency, the secondhand dealer shall, within 24 hours
   38  after the acquisition of any secondhand goods, deliver to the
   39  appropriate law enforcement official police department of the
   40  municipality where the goods were acquired or, if the goods were
   41  acquired outside of a municipality, to the sheriff’s department
   42  of the county where the goods were acquired, a record of the
   43  transaction on a form approved by the Department of Law
   44  Enforcement. Such record shall contain:
   45         (a) The time, date, and place of the transaction.
   46         (b) A complete and accurate description of the goods
   47  acquired, including the following information, if applicable:
   48         1. Brand name.
   49         2. Model number.
   50         3. Manufacturer’s serial number.
   51         4. Size.
   52         5. Color, as apparent to the untrained eye.
   53         6. Precious metal type, weight, and content if known.
   54         7. Gemstone description, including the number of stones, if
   55  applicable.
   56         8. In the case of firearms, the type of action, caliber or
   57  gauge, number of barrels, barrel length, and finish.
   58         9. Any other unique identifying marks, numbers, or letters.
   59         (c) A description of the person from whom the goods were
   60  acquired, including:
   61         1. Full name, current residential address, workplace, and
   62  home and work phone numbers.
   63         2. Height, weight, date of birth, race, gender, hair color,
   64  eye color, and any other identifying marks.
   65         3. The right thumbprint, free of smudges and smears, of the
   66  person from whom the goods were acquired.
   67         (d) Any other information required by the form approved by
   68  the Department of Law Enforcement.
   69         Section 4. Section 538.18, Florida Statutes, is amended to
   70  read:
   71         538.18 Definitions.—As used in this part, the term:
   72         (1) “Appropriate law enforcement official” means the
   73  sheriff of the county in which a secondary metals recycler is
   74  located and, in the case of a secondary metals recycler located
   75  within a municipality, the police chief of the municipality in
   76  which the secondary metals recycler is located; however, any
   77  sheriff or police chief may designate as the appropriate law
   78  enforcement official for the county or municipality, as
   79  applicable, any law enforcement officer working within the
   80  county or municipality headed by that sheriff or police chief.
   81  This subsection does not limit the power and responsibilities of
   82  the sheriff.
   83         (2)(9) “Department” means the Department of Revenue.
   84         (3)(1) “Ferrous metals” means any metals containing
   85  significant quantities of iron or steel.
   86         (4)(2) “Fixed location” means any site occupied by a
   87  secondary metals recycler as owner of the site or as lessee of
   88  the site under a lease or other rental agreement providing for
   89  occupation of the site by the secondary metals recycler for a
   90  total duration of not less than 364 days.
   91         (5)(3) “Money” means a medium of exchange authorized or
   92  adopted by a domestic or foreign government as part of its
   93  currency.
   94         (6)(4) “Nonferrous metals” means metals not containing
   95  significant quantities of iron or steel, including, without
   96  limitation, copper, brass, aluminum, bronze, lead, zinc, nickel,
   97  and alloys thereof, excluding precious metals subject to
   98  regulation under part I.
   99         (7)(5) “Personal identification card” means any government
  100  issued photographic identification card.
  101         (8)(6) “Purchase transaction” means a transaction in which
  102  a secondary metals recycler gives consideration for regulated
  103  metals property.
  104         (9)(7) “Regulated metals property” means any item composed
  105  primarily of any nonferrous metals. The term does, but shall not
  106  include aluminum beverage containers, used beverage containers,
  107  or similar beverage containers; however,. the term includes
  108  shall include stainless steel beer kegs.
  109         (10) “Restricted regulated metals property” means any
  110  regulated metals property listed in s. 538.26(6)(b), the sale of
  111  which is restricted as provided in s. 538.26(6)(a).
  112         (11)(8) “Secondary metals recycler” means any person who:
  113         (a) Is engaged, from a fixed location or otherwise, in the
  114  business of gathering or obtaining ferrous or nonferrous metals
  115  that have served their original economic purpose or is in the
  116  business of performing the manufacturing process by which
  117  ferrous metals or nonferrous metals are converted into raw
  118  material products consisting of prepared grades and having an
  119  existing or potential economic value; or
  120         (b) Has facilities for performing the manufacturing process
  121  by which ferrous metals or nonferrous metals are converted into
  122  raw material products consisting of prepared grades and having
  123  an existing or potential economic value, other than by the
  124  exclusive use of hand tools, by methods including, without
  125  limitation, processing, sorting, cutting, classifying, cleaning,
  126  baling, wrapping, shredding, shearing, or changing the physical
  127  form or chemical content thereof.
  128         (12) “Utility” means a person, firm, corporation,
  129  association, or political subdivision, whether private,
  130  municipal, county, or cooperative, which is engaged in the sale,
  131  generation, provision, or delivery of gas, electricity, heat,
  132  water, oil, sewer service, or telephone, telegraph, radio,
  133  communications, or telecommunications service.
  134         Section 5. Section 538.19, Florida Statutes, is amended to
  135  read:
  136         538.19 Records required; limitation of liability.—
  137         (1) A secondary metals recycler shall complete a
  138  transaction form at the time of the actual transaction. Unless
  139  other arrangements have been agreed upon, the secondary metals
  140  recycler shall, within 24 hours after acquiring the regulated
  141  metals, deliver to the appropriate law enforcement official a
  142  record of the transaction on a form approved by the Department
  143  of Law Enforcement. The recycler shall also maintain a legible
  144  record of all purchase transactions to which the such secondary
  145  metals recycler is a party.
  146         (2) The following information must be maintained on the a
  147  form approved by the Department of Law Enforcement for each
  148  purchase transaction:
  149         (a) The name and address of the secondary metals recycler.
  150         (b) The name, initials, or other identification of the
  151  individual entering the information on the ticket.
  152         (c) The date and time of the transaction.
  153         (d) The weight, quantity, or volume, and a description of
  154  the type of regulated metals property purchased in a purchase
  155  transaction.
  156         (e) The amount of consideration given in a purchase
  157  transaction for the regulated metals property.
  158         (f) A signed statement from the person delivering the
  159  regulated metals property stating that she or he is the rightful
  160  owner of, or is entitled to sell, the regulated metals property
  161  being sold. If the purchase involves a stainless steel beer keg,
  162  the seller must provide written documentation from the
  163  manufacturer that the seller is the owner of the stainless steel
  164  beer keg or is an employee or agent of the manufacturer.
  165         (g) The distinctive number from the personal identification
  166  card of the person delivering the regulated metals property to
  167  the secondary metals recycler.
  168         (h) A description of the person from whom the goods were
  169  acquired, including:
  170         1. Full name, current residential address, workplace, and
  171  home and work phone numbers.
  172         2. Height, weight, date of birth, race, gender, hair color,
  173  eye color, and any other identifying marks.
  174         3. The right thumbprint, free of smudges and smears.
  175         4. Vehicle description to include the make, model, and tag
  176  number of the vehicle and trailer of the person selling the
  177  regulated metals property.
  178         5. Any other information required by the form approved by
  179  the Department of Law Enforcement.
  180         (i) A photograph, videotape, or digital image of the
  181  regulated metals being sold.
  182         (j) A photograph, videotape, or similar likeness of the
  183  person receiving consideration in which such person’s facial
  184  features are clearly visible.
  185         (3) Any secondary metals recycler may, with the approval of
  186  the appropriate law enforcement official, use that maintains an
  187  electronic database containing the information required in
  188  subsection (2) paragraph (2)(h), along with an oath of ownership
  189  with a signature of the seller of the secondary metals being
  190  purchased by the secondary metals recycler and a right
  191  thumbprint that has no smudges and smears on the oath of
  192  ownership for each purchase transaction, shall be exempt from
  193  the records requirement of paragraph (2)(h). A secondary metals
  194  recycler complies with the requirements of this section if it
  195  maintains an electronic database containing the information
  196  required by subsection (2) paragraph (2)(h) as long as the
  197  electronic information required by subsection (2) paragraph
  198  (2)(h), along with an electronic oath of ownership with an
  199  electronic signature of the seller of the secondary metals being
  200  purchased by the secondary metals recyclers and an electronic
  201  image of the seller’s right thumbprint that has no smudges and
  202  smears, can be downloaded onto a paper form in the image of the
  203  form approved by the Department of Law Enforcement as provided
  204  in subsection (2).
  205         (4) If an appropriate law enforcement official supplies the
  206  software and the secondary metals recycler has the computer
  207  ability, the recycler shall electronically transmit regulated
  208  metals transaction records required by this section. If a
  209  recycler does not have such ability, the appropriate law
  210  enforcement official may provide the recycler with a computer
  211  and necessary equipment to electronically transmit such records.
  212  The appropriate law enforcement official shall retain ownership
  213  of the computer, unless otherwise agreed upon, and the recycler
  214  shall maintain the computer in good working order, ordinary wear
  215  and tear excepted. A recycler who transmits such records
  216  electronically is not required to also provide the original or
  217  paper copies of the forms to the appropriate law enforcement
  218  official. However, such official may, for purposes of a criminal
  219  investigation, require the recycler to provide the original of a
  220  transaction form that has been electronically transferred within
  221  24 hours after receipt of the request.
  222         (5)(4) A secondary metals recycler shall maintain or cause
  223  to be maintained the information required by this section for
  224  not less than 2 5 years from the date of the purchase
  225  transaction.
  226         (6)(5)If a purchase transaction involves the transfer of
  227  regulated metals property from A secondary metals recycler
  228  registered with the department who purchases a motor vehicle
  229  from a licensed salvage motor vehicle dealer as defined in s.
  230  320.27 or from to another secondary metals recycler registered
  231  with the department and who uses a mechanical crusher to convert
  232  the vehicle to scrap metal must obtain a signed statement from
  233  the seller stating that the seller has surrendered the vehicle’s
  234  certificate of title to the Department of Highway Safety and
  235  Motor Vehicles as provided in s. 319.30 or has otherwise
  236  complied with the titling requirements provided by law for
  237  conversion of the vehicle to scrap metal. A, the secondary
  238  metals recycler is not liable for the seller’s failure to comply
  239  with the titling requirements provided by law for conversion of
  240  a motor vehicle to scrap metal if the secondary metals recycler
  241  obtains and maintains the seller’s signed statement receiving
  242  the regulated metals property shall record the name and address
  243  of the secondary metals recycler from which it received the
  244  regulated metals property in lieu of the requirements of
  245  paragraph (2)(h).
  246         Section 6. Section 538.235, Florida Statutes, is amended to
  247  read:
  248         538.235 Method of payment.—
  249         (1) A secondary metals recycler may shall not enter into
  250  any cash transaction:
  251         (a) In excess of $1,000 in payment for the purchase of
  252  regulated metals property; or
  253         (b) In any amount for the purchase of restricted regulated
  254  metals property.
  255         (2) Payment in excess of $1,000 for the purchase of
  256  regulated metals property or payment in any amount for the
  257  purchase of restricted regulated metals property must shall be
  258  made by check issued and payable to the seller or by electronic
  259  payment to the seller’s bank account or the bank account of the
  260  seller’s employer metal and payable to the seller.
  261         Section 7. Subsection (5) of section 538.26, Florida
  262  Statutes, is amended, and subsection (6) is added to that
  263  section, to read:
  264         538.26 Certain acts and practices prohibited.—It is
  265  unlawful for a secondary metals recycler to do or allow any of
  266  the following acts:
  267         (5) Purchase regulated metals property in return for money
  268  from a trailer, a vehicle, or any location other than a fixed
  269  location or from any person who is required to prove ownership
  270  under s. 538.19 pursuant to subsection (4). However, regulated
  271  metals may be purchased from a nonfixed location, or from such
  272  person, with any negotiable or nonnegotiable instrument,
  273  including a check or draft or any other type of instrument
  274  purchased with money and sold for the purpose of making payments
  275  or transfers to others.
  276         (6)(a) Purchase any restricted regulated metals property
  277  listed in paragraph (b) unless the secondary metals recycler
  278  obtains reasonable proof that the seller:
  279         1. Owns such property. Reasonable proof of ownership may
  280  include, but is not limited to, a receipt or bill of sale; or
  281         2. Is an employee, agent, or contractor of the property’s
  282  owner and is authorized to sell the property on behalf of the
  283  owner. Reasonable proof of authorization to sell the property
  284  includes, but is not limited to, a signed letter on the owner’s
  285  letterhead, dated no later than 90 days before the sale,
  286  authorizing the seller to sell the property.
  287         (b) The purchase of any of the following regulated metals
  288  property is subject to the restrictions provided in paragraph
  289  (a):
  290         1. A manhole cover.
  291         2. An electric light pole or other utility structure and
  292  its fixtures, wires, and hardware that are readily identifiable
  293  as connected to the utility structure.
  294         3. A guard rail.
  295         4. A street sign, traffic sign, or traffic signal and its
  296  fixtures and hardware.
  297         5. Communication, transmission, distribution, and service
  298  wire from a utility, including copper or aluminum bus bars,
  299  connectors, grounding plates, or grounding wire.
  300         6. A funeral marker or funeral vase.
  301         7. A historical marker.
  302         8. Railroad equipment, including, but not limited to, a tie
  303  plate, signal house, control box, switch plate, E clip, or rail
  304  tie junction.
  305         9. A metal item that is observably marked, upon reasonable
  306  inspection, with any form of the name, initials, or logo of a
  307  governmental entity, utility company, cemetery, or railroad.
  308         10. A copper, aluminum, or aluminum-copper condensing or
  309  evaporator coil, including its tubing or rods, from an air
  310  conditioning or heating unit, excluding coils from window air
  311  conditioning or heating units and motor vehicle air-conditioning
  312  or heating units.
  313         11. An aluminum or stainless steel container or bottle
  314  designed to hold propane for fueling forklifts.
  315         12. A stainless steel beer keg.
  316         13. A catalytic converter or any nonferrous part of a
  317  catalytic converter unless purchased as part of a motor vehicle.
  318         14. Metallic wire that has been burned in whole or in part
  319  to remove insulation.
  320         15. A brass or bronze commercial valve or fitting, referred
  321  to as a “fire department connection and control valve” or an
  322  “FDC valve,” which is commonly used on structures for access to
  323  water for the purpose of extinguishing fires.
  324         16. A brass or bronze commercial potable water backflow
  325  preventer valve that is commonly used to prevent backflow of
  326  potable water from commercial structures into municipal domestic
  327  water service systems.
  328         17. A shopping cart.
  329         Section 8. Section 538.27, Florida Statutes, is created to
  330  read:
  331         538.27 Secondary metals recyclers; limitation of liability;
  332  inference.—
  333         (1) A secondary metals recycler is not liable for any civil
  334  claim of replevin or damages resulting from a purchase
  335  transaction of regulated metals property which complies with
  336  this chapter.
  337         (2) As provided in s. 812.022(7), proof that a purchase
  338  transaction for regulated metals property by a secondary metals
  339  recycler complied with this part gives rise to an inference that
  340  the secondary metals recycler did not know or have reason to
  341  believe that the property was stolen and that the recycler did
  342  not have intent to commit theft or deal in stolen property.
  343         Section 9. Section 538.28, Florida Statutes, is created to
  344  read:
  345         538.28 Local government regulation; preemption.—
  346         (1) The regulation of purchase transactions involving
  347  regulated metals property is preempted to the state. Except as
  348  provided in subsection (2), an ordinance or regulation adopted
  349  by a county or municipality relating to the purchase or sale of
  350  regulated metals property or the registration or licensure of
  351  secondary metals recyclers is void.
  352         (2) This part does not preempt an ordinance or regulation
  353  originally enacted by a county or municipality before March 1,
  354  2011, or any subsequent amendment to such ordinance or
  355  regulation.
  356         Section 10. Paragraph (b) of subsection (2) of section
  357  539.001, Florida Statutes, is amended to read:
  358         539.001 The Florida Pawnbroking Act.—
  359         (2) DEFINITIONS.—As used in this section, the term:
  360         (b) “Appropriate law enforcement official” means the
  361  sheriff of the county in which a pawnshop is located and or, in
  362  the case of a pawnshop located within a municipality, the police
  363  chief of the municipality in which the pawnshop is located;
  364  however, any sheriff or police chief may designate as the
  365  appropriate law enforcement official for the county or
  366  municipality, as applicable, any law enforcement officer working
  367  within the county or municipality headed by that sheriff or
  368  police chief. Nothing in This subsection does not limit limits
  369  the power and responsibilities of the sheriff.
  370         Section 11. Subsection (7) is added to section 812.022,
  371  Florida Statutes, to read:
  372         812.022 Evidence of theft or dealing in stolen property.—
  373         (7) Proof that a purchase transaction for regulated metals
  374  property by a secondary metals recycler complied with part II of
  375  chapter 538 gives rise to an inference that the secondary metals
  376  recycler did not know or have reason to believe that the
  377  property was stolen and that the recycler did not have intent to
  378  commit theft or deal in stolen property.
  379         Section 12. This act shall take effect July 1, 2011.
  380  
  381  ================= T I T L E  A M E N D M E N T ================
  382         And the title is amended as follows:
  383         Delete everything before the enacting clause
  384  and insert:
  385                        A bill to be entitled                      
  386         An act relating to secondary metals recyclers;
  387         amending s. 319.30, F.S.; conforming a cross
  388         reference; amending s. 538.03, F.S.; defining the term
  389         “appropriate law enforcement official”; amending s.
  390         538.04, F.S.; clarifying a provision requiring that a
  391         secondhand dealer deliver a transaction form to the
  392         appropriate law enforcement official; amending s.
  393         538.18, F.S.; revising and providing definitions;
  394         amending s. 538.19, F.S.; requiring that a secondary
  395         metals recycler complete a transaction form and
  396         transmit it to the appropriate law enforcement
  397         official within 24 hours after the acquisition of
  398         regulated metals; authorizing such recyclers to use an
  399         electronic database and transmit transaction forms
  400         electronically under certain circumstances;
  401         authorizing appropriate law enforcement officials to
  402         provide software and computer equipment to recyclers;
  403         requiring that a recycler produce an original form in
  404         certain situations; revising the period required for
  405         secondary metals recyclers to maintain certain
  406         information regarding purchase transactions involving
  407         regulated metals property; revising requirements for
  408         the types of information that secondary metals
  409         recyclers must obtain and maintain regarding purchase
  410         transactions; limiting the liability of secondary
  411         metals recyclers for the conversion of motor vehicles
  412         to scrap metal under certain circumstances; amending
  413         s. 538.235, F.S.; revising requirements for payments
  414         made by secondary metals recyclers to sellers of
  415         regulated metals property, to which penalties apply;
  416         providing methods of payment for restricted regulated
  417         metals property; requiring that purchases of certain
  418         property be made by check or by electronic payment;
  419         amending s. 538.26, F.S.; prohibiting secondary metals
  420         recyclers from purchasing regulated metals property
  421         without maintaining certain records; deleting
  422         provisions prohibiting the purchase of regulated
  423         metals property from certain persons or at certain
  424         locations; prohibiting the purchase of specified
  425         restricted regulated metals property without obtaining
  426         certain proof of the seller’s ownership or
  427         authorization to sell the property; creating s.
  428         538.27, F.S.; limiting civil liability of secondary
  429         metals recyclers under certain circumstances;
  430         establishing an inference that secondary metals
  431         recyclers do not commit theft or deal in stolen
  432         property under certain circumstances; creating s.
  433         538.28, F.S.; preempting to the state the regulation
  434         of secondary metals recyclers and purchase
  435         transactions involving regulated metals property;
  436         exempting certain ordinances and regulations from
  437         preemption; amending s. 539.001, F.S.; clarifying a
  438         definition for purposes of the Florida Pawnbroking
  439         Act; amending s. 812.022, F.S.; establishing an
  440         inference that secondary metals recyclers do not
  441         commit theft or deal in stolen property under certain
  442         circumstances; providing an effective date.