Florida Senate - 2019                                    SB 1466
       
       
        
       By Senator Gibson
       
       
       
       
       
       6-01134A-19                                           20191466__
    1                        A bill to be entitled                      
    2         An act relating to protection for vulnerable
    3         investors; amending s. 415.1034, F.S.; requiring
    4         securities dealers, investment advisers, and
    5         associated persons to immediately report knowledge or
    6         suspicion of abuse, neglect, or exploitation of
    7         vulnerable adults to the Department of Children and
    8         Families’ central abuse hotline; creating s. 517.34,
    9         F.S.; defining terms; authorizing dealers, investment
   10         advisers, and associated persons to delay certain
   11         transactions or disbursements if such persons
   12         reasonably believe exploitation of specified adults
   13         has occurred, is occurring, has been attempted, or
   14         will be attempted; providing that such reasonable
   15         belief may be based on certain facts and
   16         circumstances; specifying requirements for dealers,
   17         investment advisers, and associated persons in
   18         notifying certain parties and the Office of Financial
   19         Regulation after placing delays on transactions or
   20         disbursements; requiring the office to specify certain
   21         means of receiving notice; authorizing the department
   22         to share certain information with the reporting
   23         dealer, investment adviser, or associated person;
   24         specifying the expiration of the delays; authorizing
   25         dealers or investment advisers to extend delays, under
   26         certain circumstances, for a specified time period;
   27         providing that delays may be shortened or extended by
   28         a court of competent jurisdiction; requiring dealers,
   29         investment advisers, and associated persons to make
   30         certain records available to the office; providing
   31         immunity from civil or administrative liability to
   32         dealers, investment advisers, or associated persons
   33         under certain circumstances; requiring dealers and
   34         investment advisers to develop certain training
   35         policies and programs, develop and maintain certain
   36         procedures, conduct training for associated persons,
   37         and maintain certain records; providing construction;
   38         providing an effective date.
   39          
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. Paragraph (a) of subsection (1) of section
   43  415.1034, Florida Statutes, is amended to read:
   44         415.1034 Mandatory reporting of abuse, neglect, or
   45  exploitation of vulnerable adults; mandatory reports of death.—
   46         (1) MANDATORY REPORTING.—
   47         (a) Any person who knows, or who has reasonable cause to
   48  suspect, that a vulnerable adult has been or is being abused,
   49  neglected, or exploited shall immediately report such knowledge
   50  or suspicion to the central abuse hotline. Such person includes,
   51  including, but is not limited to, any:
   52         1. Physician, osteopathic physician, medical examiner,
   53  chiropractic physician, nurse, paramedic, emergency medical
   54  technician, or hospital personnel engaged in the admission,
   55  examination, care, or treatment of vulnerable adults.;
   56         2. Health professional or mental health professional other
   57  than one listed in subparagraph 1.;
   58         3. Practitioner who relies solely on spiritual means for
   59  healing.;
   60         4. Nursing home staff; assisted living facility staff;
   61  adult day care center staff; adult family-care home staff;
   62  social worker; or other professional adult care, residential, or
   63  institutional staff.;
   64         5. State, county, or municipal criminal justice employee or
   65  law enforcement officer.;
   66         6. Employee of the Department of Business and Professional
   67  Regulation conducting inspections of public lodging
   68  establishments under s. 509.032.;
   69         7. Florida advocacy council or Disability Rights Florida
   70  member or a representative of the State Long-Term Care Ombudsman
   71  Program.; or
   72         8. Bank, savings and loan, or credit union officer,
   73  trustee, or employee.,
   74         9.Dealer, investment adviser, or associated person under
   75  chapter 517.
   76  
   77  who knows, or has reasonable cause to suspect, that a vulnerable
   78  adult has been or is being abused, neglected, or exploited shall
   79  immediately report such knowledge or suspicion to the central
   80  abuse hotline.
   81         Section 2. Section 517.34, Florida Statutes, is created to
   82  read:
   83         517.34 Protection of specified adults.—
   84         (1)As used in this section, the term:
   85         (a)1.“Exploitation” means:
   86         a. With respect to a person who stands in a position of
   87  trust and confidence with a specified adult, knowingly, by
   88  deception or intimidation, obtaining or using, or endeavoring to
   89  obtain or use, the specified adult’s funds, assets, or property
   90  with the intent to temporarily or permanently deprive the
   91  specified adult of the use, benefit, or possession of the funds,
   92  assets, or property for the benefit of someone other than the
   93  specified adult;
   94         b.With respect to a person who knows or should know that a
   95  specified adult lacks the capacity to consent, obtaining or
   96  using, or endeavoring to obtain or use, the specified adult’s
   97  funds, assets, or property with the intent to temporarily or
   98  permanently deprive the specified adult of the use, benefit, or
   99  possession of the funds, assets, or property for the benefit of
  100  someone other than the specified adult; or
  101         c.The wrongful or unauthorized taking, withholding,
  102  appropriation, or use of money, assets, or property of a
  103  specified adult, or any act or omission by a person, including
  104  through the use of a power of attorney, guardianship, or
  105  conservatorship of an eligible adult, to:
  106         (I)Obtain control over the specified adult’s money,
  107  assets, or property through deception, intimidation, or undue
  108  influence to deprive him or her of the ownership, use, benefit,
  109  or possession of the money, assets, or property; or
  110         (II)Convert the specified adult’s money, assets, or
  111  property to deprive him or her of the ownership, use, benefit,
  112  or possession of the money, assets, or property.
  113         2.“Exploitation” may include, but is not limited to:
  114         a.A breach of a fiduciary relationship, such as the misuse
  115  of a power of attorney or the abuse of guardianship duties,
  116  resulting in the unauthorized appropriation, sale, or transfer
  117  of property.
  118         b.An unauthorized taking of personal assets.
  119         c.Misappropriation, misuse, or transfer of moneys
  120  belonging to a specified adult from a personal or joint account.
  121         d. The intentional or negligent failure to effectively use
  122  a specified adult’s income and assets for the necessities
  123  required for the specified adult’s support and maintenance.
  124         (b)“Law enforcement agency” means an agency or political
  125  subdivision of this state or of the United States whose primary
  126  responsibility is the prevention and detection of crime or the
  127  enforcement of the penal laws of this state or the United
  128  States, and whose agents and officers are empowered by law to
  129  conduct criminal investigations or to make arrests.
  130         (c)“Specified adult” means a natural person 65 years of
  131  age or older, or a vulnerable adult as defined in s. 415.102.
  132         (d)“Trusted contact” means a natural person 18 years of
  133  age or older, whom the account owner has expressly identified as
  134  a person who may be contacted about the account.
  135         (2)A dealer, investment adviser, or associated person may
  136  delay a transaction on, or a disbursement of funds or securities
  137  from, an account of a specified adult or an account for which a
  138  specified adult is a beneficiary or beneficial owner, if the
  139  dealer, investment adviser, or associated person reasonably
  140  believes that exploitation of the specified adult has occurred,
  141  is occurring, has been attempted, or will be attempted in
  142  connection with the transaction or disbursement.
  143         (a)The dealer’s, investment adviser’s, or associated
  144  person’s reasonable belief of exploitation may be based on the
  145  facts and circumstances observed in such dealer’s, investment
  146  adviser’s, or associated person’s business relationship with the
  147  specified adult.
  148         (b)1.Within 3 business days after the date on which the
  149  delay was first placed, the dealer, investment adviser, or
  150  associated person shall:
  151         a.Provide written notice of the temporary hold and the
  152  reason for the hold to all parties authorized to transact
  153  business on the account and any trusted contact on the account
  154  via the contact information provided in the account, unless the
  155  dealer, investment adviser, or associated person reasonably
  156  believes that any such party engaged or is engaging in the
  157  suspected exploitation of the specified adult. Such written
  158  notice may be provided electronically.
  159         b.Notify the office, either by telephone or in writing, of
  160  the temporary hold and the reason for the temporary hold. The
  161  office shall specify a telephone number for receiving such
  162  notice and the means by which such notice may be electronically
  163  submitted.
  164         2.Notwithstanding any law to the contrary, the Department
  165  of Children and Families may share the status and result of any
  166  investigation with the reporting dealer, investment adviser, or
  167  associated person.
  168         (3)A delay on a transaction or disbursement under
  169  subsection (2) expires 15 business days after the date on which
  170  the delay was first placed. However, the dealer or investment
  171  adviser may extend the delay for up to 10 additional business
  172  days if its review of the available facts and circumstances
  173  continues to support its good faith belief that exploitation of
  174  the specified adult has occurred, is occurring, has been
  175  attempted, or will be attempted. The length of the delay may be
  176  shortened or extended at any time by a court of competent
  177  jurisdiction. This subsection does not prevent a dealer,
  178  investment adviser, or associated person from terminating a
  179  delay after communication with the parties authorized to
  180  transact business on the account and any trusted contact on the
  181  account.
  182         (4)A dealer, investment adviser, or associated person
  183  subject to the jurisdiction of the office shall make available
  184  to the office, upon request, all records relating to a delay or
  185  report made by the dealer, investment adviser, or associated
  186  person pursuant to this section.
  187         (5)A dealer, investment adviser, or associated person who
  188  delays a transaction or disbursement pursuant to this section,
  189  who provides records to an agency of competent jurisdiction
  190  pursuant to this section, or who participates in a judicial or
  191  arbitration proceeding resulting therefrom, is presumed to be
  192  acting based upon a reasonable belief of exploitation and is
  193  immune from any civil or administrative liability that otherwise
  194  might be incurred or imposed, unless lack of such reasonable
  195  belief is shown by a preponderance of the evidence. This
  196  subsection does not supersede or diminish any immunity under
  197  chapter 415.
  198         (6)(a)Before placing a delay on a transaction or
  199  disbursement pursuant to this section, a dealer or investment
  200  adviser must develop training policies or programs reasonably
  201  designed to educate associated persons on issues pertaining to
  202  exploitation, must develop and maintain written procedures
  203  regarding the manner in which suspected exploitation must be
  204  reported to supervisory personnel, and must conduct training for
  205  all associated persons.
  206         (b)The dealer or investment adviser shall maintain a
  207  written record of compliance with this subsection.
  208         (7)This section does not create new rights or obligations
  209  of a dealer, investment adviser, or associated person under
  210  other applicable laws or rules. In addition, this section does
  211  not limit the right of a dealer, investment adviser, or
  212  associated person to otherwise refuse or place a delay on a
  213  transaction or disbursement under other applicable laws or rules
  214  or under an applicable customer agreement.
  215         (8)Absent a reasonable belief of exploitation as provided
  216  in this section, this section does not alter a dealer’s,
  217  investment adviser’s, or associated person’s obligation to
  218  comply with instructions from a client to close an account or
  219  transfer an account to another dealer, investment adviser, or
  220  associated person.
  221         Section 3. This act shall take effect July 1, 2019.