Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. CS for SB 228
Ì240700bÎ240700
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/16/2021 .
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
The Committee on Judiciary (Bradley) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsection (4) of section 117.021, Florida
6 Statutes, is amended to read:
7 117.021 Electronic notarization.—
8 (4) A notary public performing a notarial act with respect
9 to an electronic record shall select the technology to be used
10 for such notarial act. A person may not require the a notary
11 public to use a particular perform a notarial act with respect
12 to an electronic record with a form of technology; however, if
13 the notary public is required by his or her contract or employer
14 to perform notarial acts with respect to electronic records, the
15 contract or employer may require the use of a particular
16 technology for those notarial acts that the notary public has
17 not selected to use.
18 Section 2. Paragraph (a) of subsection (2) of section
19 117.05, Florida Statutes, is amended to read:
20 117.05 Use of notary commission; unlawful use; notary fee;
21 seal; duties; employer liability; name change; advertising;
22 photocopies; penalties.—
23 (2)(a) The fee of a notary public may not exceed $10 for
24 any one notarial act under this part, except as provided in s.
25 117.045 or s. 117.275.
26 Section 3. Subsections (6) and (14) of section 117.201,
27 Florida Statutes, are amended to read:
28 117.201 Definitions.—As used in this part, the term:
29 (6) “Government-issued identification credential” means any
30 approved credential for verifying identity under s.
31 117.05(5)(b)2. However, for an online notarization of a
32 principal not located within the United States, a passport
33 issued by a foreign government not including the stamp of the
34 United States Bureau of Citizenship and Immigration Services may
35 be used as a government-issued identification credential to
36 verify the principal’s identity.
37 (14) “Remote Online Notarization service provider” or “RON
38 service provider” means a person that provides audio-video
39 communication technology and related processes, services,
40 software, data storage, or other services to online notaries
41 public for the purpose of directly facilitating their
42 performance of online notarizations, in compliance with the
43 requirements of this chapter and any rules adopted by the
44 Department of State pursuant to s. 117.295.
45 Section 4. Subsections (1) and (5) of section 117.225,
46 Florida Statutes, are amended to read:
47 117.225 Registration; qualifications.—A notary public, a
48 civil-law notary appointed under chapter 118, or a commissioner
49 of deeds appointed under part IV of chapter 721 may complete
50 registration as an online notary public with the Department of
51 State by:
52 (1) Holding a current commission as a notary public under
53 part I of this chapter, an appointment as a civil-law notary
54 under chapter 118, or an appointment as a commissioner of deeds
55 under part IV of chapter 721, and submitting his or her a copy
56 of such commission or proof of such commission or appointment
57 number with his or her registration.
58 (5) Identifying the RON service provider or providers whose
59 audio-video communication technology and processes for
60 credential analysis and identity-proofing technologies the
61 registrant intends to use for online notarizations, and
62 confirming that such technology and processes satisfy the
63 requirements of this chapter and any rules adopted by the
64 Department of State pursuant to s. 117.295.
65 Section 5. Section 117.231, Florida Statutes, is created to
66 read:
67 117.231 Remote administration of certain oaths.—
68 (1) When taking the oath of an individual who is testifying
69 at any court proceeding, deposition, arbitration, or public
70 hearing and who is outside of the physical presence of the
71 notary public, the notary public may fulfill the requirements of
72 s. 117.05 using audio-video communication technology.
73 (2) When taking an oath of admission to The Florida Bar
74 from an individual who is outside of the physical presence of
75 the notary public, the notary public may fulfill the
76 requirements of s. 117.05 using audio-video communication
77 technology.
78 (3) If an individual is located outside of this state at
79 the time the notary public is to take the individual’s oath
80 under this section, consent from the individual must be obtained
81 to take his or her oath using audio-video communication
82 technology pursuant to this section.
83 (4) When taking an oath under this section, the notary
84 public is not required to be an online notary public or to use a
85 RON service provider.
86 Section 6. Subsections (1), (2), (4), and (5) of section
87 117.245, Florida Statutes, are amended to read:
88 117.245 Electronic journal of online notarizations.—
89 (1) An online notary public shall keep one or more secure
90 electronic journals of online notarizations performed by the
91 online notary public. For each online notarization, the
92 electronic journal entry must contain all of the following:
93 (a) The date and time of the notarization.
94 (b) The type of notarial act performed, whether an oath or
95 acknowledgment.
96 (c) The type, the title, or a description of the electronic
97 record or proceeding.
98 (d) The name and address of each principal involved in the
99 transaction or proceeding.
100 (e) Evidence of identity of each principal involved in the
101 transaction or proceeding in either any of the following forms:
102 1. A statement that the person is personally known to the
103 online notary public; or.
104 2.a. A notation of the type of government-issued
105 identification credential provided to the online notary public;
106 b. An indication that the government-issued identification
107 credential satisfied the credential analysis; and.
108 c.(f) An indication that the principal satisfactorily
109 passed the identity proofing.
110 (g) An indication that the government-issued identification
111 credential satisfied the credential analysis.
112 (f)(h) The fee, if any, charged for the notarization.
113 (2) The RON service provider online notary public shall
114 retain an uninterrupted and unedited copy of the recording of
115 the audio-video communication in which an online notarization is
116 performed. The online notary public shall ensure that the
117 recording includes must include all of the following:
118 (a) Appearance by the principal and any witness before the
119 online notary public.
120 (b) Confirmation of the identity of the principal and any
121 witness.
122 (c) A general description or identification of the records
123 to be signed.
124 (d) At the commencement of the recording, recitation by the
125 online notary public of information sufficient to identify the
126 notarial act.
127 (e) A declaration by the principal that his or her
128 signature on the record is knowingly and voluntarily made.
129 (f) All of the actions and spoken words of the principal,
130 notary public, and any required witness during the entire online
131 notarization, including the signing of any records before the
132 online notary public.
133 (4) The electronic journal required under subsection (1)
134 and the recordings of audio-video communications required under
135 subsection (2) shall be maintained for at least 10 years after
136 the date of the notarial act. However, a full copy of the
137 recording of the audio-video communication required under
138 subsection (2) relating to an online notarization session that
139 involves the signing of an electronic will must be maintained by
140 a qualified custodian in accordance with chapters 731 and 732.
141 The Department of State maintains jurisdiction over the
142 electronic journal and audio-video communication recordings to
143 investigate notarial misconduct for a period of 10 years after
144 the date of the notarial act. The online notary public, a
145 guardian of an incapacitated online notary public, or the
146 personal representative of a deceased online notary public may,
147 by contract with a secure repository in accordance with any
148 rules established under this chapter, delegate to the repository
149 the online notary public’s duty to retain the electronic journal
150 and the required recordings of audio-video communications,
151 provided that the Department of State is notified of such
152 delegation of retention duties to the repository within 30 days
153 thereafter, including the effective date of the delegation and
154 the address and contact information for the repository. If an
155 online notary public delegates to a secure repository under this
156 section, the online notary public shall make an entry in his or
157 her electronic journal identifying such repository, and provide
158 notice to the Department of State as required in this
159 subsection. A RON service provider may, by contract with a
160 secure repository in accordance with any rules established under
161 this chapter, delegate to the repository the RON service
162 provider’s duty to retain the required recordings of audio-video
163 communications, provided that the Department of State is
164 notified of such delegation of retention duties to the
165 repository within 30 days thereafter, including the effective
166 date of the delegation and the address and contact information
167 for the repository. During any delegation under this subsection,
168 the secure repository shall fulfill the responsibilities of the
169 online notary public or RON service provider to provide copies
170 or access under s. 117.255(2) and (3).
171 (5) An omitted or incomplete entry in the electronic
172 journal does not impair the validity of the notarial act or of
173 the electronic record which was notarized, but may be introduced
174 as evidence to establish violations of this chapter; as evidence
175 of possible fraud, forgery, impersonation, duress, incapacity,
176 undue influence, minority, illegality, or unconscionability; or
177 for other evidentiary purposes. However, if the recording of the
178 audio-video communication required under subsection (2) relating
179 to the online notarization of the execution of an electronic
180 will cannot be produced by the RON service provider, the online
181 notary public, or the qualified custodian, the electronic will
182 shall be treated as a lost or destroyed will subject to s.
183 733.207.
184 Section 7. Section 117.255, Florida Statutes, is amended to
185 read:
186 117.255 Use of electronic journal, signature, and seal.—
187 (1) An online notary public shall:
188 (a)(1) Take reasonable steps to ensure that any registered
189 device used to create an electronic seal is current and has not
190 been revoked or terminated by the issuing or registering
191 authority of the device.
192 (b)(2) Keep the electronic journal and electronic seal
193 secure and under his or her sole control, which includes access
194 protection using passwords or codes under control of the online
195 notary public. The online notary public may not allow another
196 person to use the online notary public’s electronic journal,
197 electronic signature, or electronic seal, other than a RON
198 service provider or other authorized person providing services
199 to an online notary public to facilitate performance of online
200 notarizations.
201 (c)(3) Attach or logically associate the electronic
202 signature and seal to the electronic notarial certificate of an
203 electronic record in a manner that is capable of independent
204 verification using tamper-evident technology that renders any
205 subsequent change or modification to the electronic record
206 evident.
207 (d)(4) Notify an appropriate law enforcement agency and the
208 Department of State of any unauthorized use of or compromise to
209 the security of the electronic journal, official electronic
210 signature, or electronic seal within 7 days after discovery of
211 such unauthorized use or compromise to security.
212 (2)(5) An online notary public shall provide Make
213 electronic copies, upon request, of the pertinent entries in the
214 electronic journal, and a RON service provider shall provide
215 access to the related audio-video communication recordings, or a
216 copy thereof, to the following persons upon request:
217 (a) The parties to an electronic record notarized by the
218 online notary public;
219 (b) The qualified custodian of an electronic will notarized
220 by the online notary public;
221 (c) The title agent, settlement agent, or title insurer who
222 insured the electronic record or engaged the online notary
223 public with regard to a real estate transaction;
224 (d) The online notary public’s RON service provider whose
225 services were used by the online notary public to notarize the
226 electronic record;
227 (e) Any person who is asked to accept a power of attorney
228 that was notarized by the online notary public;
229 (e)(f) The Department of State pursuant to a notary
230 misconduct investigation; and
231 (f)(g) Any other persons pursuant to a subpoena, court
232 order, law enforcement investigation, or other lawful inspection
233 demand;
234 (g) With respect to audio-video communication recordings of
235 an online notarization, the online notary public performing that
236 notarization; and
237 (h) With respect to electronic copies of pertinent entries
238 in the electronic journal, the RON service provider used for the
239 online notarizations associated with those entries.
240 (3)(6) The online notary public may charge a fee not to
241 exceed $20 per transaction record for making and delivering
242 electronic copies of a given series of related electronic
243 records, and a RON service provider may charge a fee not to
244 exceed $20 for providing access to, or a copy of, the related
245 audio-video communication records, except such copies or access
246 must be provided without charge if requested by any of the
247 following within the 10-year period specified in s. 117.245(4):
248 (a) A party to the electronic record;
249 (b) In a real estate transaction, the title agent,
250 settlement agent, or title insurer who insured the electronic
251 record or engaged the online notary public with regard to such
252 transaction; or
253 (c) The Department of State pursuant to an investigation
254 relating to the official misconduct of an online notary public;
255 (d) The qualified custodian of an electronic will notarized
256 by the online notary public;
257 (e) With respect to audio-video communication recordings of
258 an online notarization, the online notary public performing that
259 notarization; or
260 (f) With respect to electronic copies of a given series of
261 related electronic records, the RON service provider used for
262 the online notarization of those records.
263
264 If the online notary public or RON service provider charges does
265 charge a fee, the online notary public or RON service provider
266 must shall disclose the amount of such fee to the requester
267 before making the electronic copies or providing access to, or
268 making a copy of, the requested audio-video communication
269 recordings.
270 Section 8. Subsection (5) of section 117.265, Florida
271 Statutes, is amended to read:
272 117.265 Online notarization procedures.—
273 (5)(a) An online notary public shall select the RON service
274 provider to be used to perform an online notarization, and a
275 person may not require the online notary public to use a
276 particular RON service provider; however, if the online notary
277 public is required by his or her contract or employer to perform
278 online notarizations, the contract or employer may require the
279 use of a particular RON service provider for those online
280 notarizations.
281 (b) An online notary public may change his or her RON
282 service provider or providers from time to time, but shall
283 notify the Department of State of such change, and its effective
284 date, within 30 days thereafter.
285 Section 9. Section 117.275, Florida Statutes, is amended to
286 read:
287 117.275 Fees for online notarization.—An online notary
288 public or the employer of such online notary public may charge a
289 fee, not to exceed $25, for performing an online notarial act
290 notarization under this part. Fees for services other than
291 notarial acts, including the services of a RON service provider,
292 are not governed by this section. A RON service provider’s
293 services are also not considered closing services, as defined in
294 s. 627.7711, and a fee for those services may be separately
295 charged.
296 Section 10. Subsections (2) and (4) of section 117.295,
297 Florida Statutes, are amended, and subsection (8) is added to
298 that section, to read:
299 117.295 Standards for electronic and online notarization;
300 rulemaking authority.—
301 (2) By January 1, 2020, The Department of State shall:
302 (a) Adopt forms, processes, and interim or emergency rules
303 necessary to accept applications from and register online
304 notaries public pursuant to s. 117.225.
305 (b) Publish on its website a list containing each online
306 notary public, the online notary public’s RON service providers
307 from January 1, 2022, and thereafter, the effective dates during
308 which the online notary public used each RON service provider,
309 as identified pursuant to ss. 117.225(5) and 117.265(5)(b), any
310 secure repositories to which the online notary public may have
311 delegated his or her duties pursuant to s. 117.225(4) from
312 January 1, 2022, and thereafter, and the effective dates of that
313 delegation.
314 (4)(a) A RON service provider must file a self
315 certification with the Department of State, on a form adopted by
316 department rule, confirming that its audio-video communication
317 technology and related processes, services, software, data
318 storage, or other services provided to online notaries public
319 for the purpose of directly facilitating their performance of
320 online notarizations satisfy the requirements of this chapter
321 and any rules adopted by the Department of State pursuant to
322 this section. Each certification shall remain active for a
323 period of 1 year from the date of filing. The Department of
324 State must publish on its website a list of each RON service
325 provider that has filed a self-certification, the date of filing
326 of the self-certification, any secure repositories to which the
327 RON service provider may have delegated its duties pursuant to
328 s. 117.225(4) from January 1, 2022, and thereafter, and the
329 effective dates of that delegation.
330 (b) A RON service provider is deemed to have satisfied
331 tamper-evident technology requirements by use of technology that
332 renders any subsequent change or modification to the electronic
333 record evident.
334 (8) A RON service provider may not use, sell, or offer to
335 sell or transfer to another person for use or sale any personal
336 information obtained under this part which identifies a
337 principal, a witness, or a person named in a record presented
338 for online notarization, except:
339 (a) As necessary to facilitate performance of a notarial
340 act;
341 (b) To administer or process a record provided by or on
342 behalf of a principal or the transaction of which the record is
343 a part;
344 (c) To detect fraud, identity theft, or other criminal
345 activities;
346 (d) In accordance with this part and the rules adopted
347 pursuant to this part or any other applicable federal, state, or
348 local law, or to comply with a lawful subpoena or court order or
349 a lawful request from a law enforcement or regulatory agency;
350 (e) To monitor and improve the audio-video communication
351 technology and related processes, services, software, data
352 storage, or other services offered by the RON service provider
353 to online notaries public for the purpose of directly
354 facilitating their performance of online notarizations.
355 (f) In connection with a proposed or actual sale, merger,
356 transfer, or exchange of all or a portion of a business or
357 operating unit of a RON service provider, or the dissolution,
358 insolvency, or cessation of operations of a business or
359 operating unit, if limited to such personal information held by
360 that business or unit and any transferee agrees to comply with
361 the restrictions set forth in this subsection.
362 Section 11. This act shall take effect January 1, 2022.
363 ================= T I T L E A M E N D M E N T ================
364 And the title is amended as follows:
365 Delete everything before the enacting clause
366 and insert:
367 A bill to be entitled
368 An act relating to notaries public; amending s.
369 117.021, F.S.; clarifying that a notary public is
370 entitled to select particular technology in performing
371 a notarial act with respect to an electronic record;
372 authorizing a notary public’s contract or employer to
373 require the use of a particular technology in
374 performing a notarial act with respect to an
375 electronic record; amending s. 117.05, F.S.; revising
376 limitations on notary public fees; amending s.
377 117.201, F.S.; revising definitions; amending s.
378 117.225, F.S.; revising certain registration
379 requirements for online notaries public; creating s.
380 117.231, F.S.; authorizing notaries public to remotely
381 swear in witnesses using audio-video communication
382 technology; authorizing notaries public to remotely
383 swear in new attorneys admitted to The Florida Bar
384 using audio-video communication technology; amending
385 s. 117.245, F.S.; modifying requirements for entries
386 in the electronic journal maintained by an online
387 notary public; requiring a remote online notarization
388 service provider, rather than an online notary public,
389 to retain audio-video communication recordings of
390 online notarizations; authorizing a RON service
391 provider to delegate this duty to a secure repository
392 under certain conditions; conforming provisions to
393 changes made by the act; amending s. 117.255, F.S.;
394 revising provisions governing access to audio-video
395 communication recordings to conform to changes made by
396 the act; authorizing a remote online notarization
397 service provider to charge a fee for access to such
398 recordings, subject to specified limitations; amending
399 s. 117.265, F.S.; clarifying that an online notary
400 public is entitled to select his or her remote online
401 notarization service provider; authorizing a notary
402 public’s contract or employer to require the use of a
403 particular remote online notarization service provider
404 in performing online notarizations; requiring an
405 online notary public to notify the Department of State
406 of the effective date of a change in the remote online
407 notarization service provider used; amending s.
408 117.275, F.S.; clarifying limitations on fees charged
409 for online notarizations; amending s. 117.295, F.S.;
410 requiring the department to publish on its website a
411 list containing certain information on online notaries
412 public; requiring a remote online notarization service
413 provider to file a self-certification with the
414 department; specifying the duration of a self
415 certification; requiring the department to publish on
416 its website a list containing certain information on
417 self-certified remote online notarization service
418 providers; prohibiting a remote online notarization
419 service provider from using, selling, or offering to
420 sell or transfer personal information obtained in the
421 course of performing online notarizations; providing
422 exceptions; providing an effective date.