Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1536
       
       
       
       
       
       
                                Ì351226ÆÎ351226                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/01/2022           .                                
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       The Committee on Commerce and Tourism (Boyd) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 560.103, Florida Statutes, is amended to
    6  read:
    7         560.103 Definitions.—As used in this chapter, the term:
    8         (1) “Affiliated party” means a control director, officer,
    9  responsible person, employee, or foreign affiliate of a money
   10  services business, or a person who has a controlling interest in
   11  a money services business as provided in s. 560.127.
   12         (2) “Appropriate regulator” means a state, federal, or
   13  foreign agency that has been granted authority to enforce state,
   14  federal, or foreign laws related to a money services business or
   15  deferred presentment provider.
   16         (3) “Authorized vendor” means a person designated by a
   17  money services business licensed under part II of this chapter
   18  to act on behalf of the licensee at locations in this state
   19  pursuant to a written contract with the licensee.
   20         (4) “Branch office” means the physical location, other than
   21  the principal place of business, of a money services business
   22  operated by a licensee under this chapter.
   23         (5) “Cashing” means providing currency for payment
   24  instruments except for travelers checks.
   25         (6) “Check casher” means a person who sells currency in
   26  exchange for payment instruments received, except travelers
   27  checks.
   28         (7) “Commission” means the Financial Services Commission.
   29         (8) “Compliance officer” means the individual in charge of
   30  overseeing, managing, and ensuring that a money services
   31  business is in compliance with all state and federal laws and
   32  rules relating to money services businesses, as applicable,
   33  including all money laundering laws and rules.
   34         (9) “Conductor” means a natural person who presents himself
   35  or herself to a licensee for purposes of cashing a payment
   36  instrument.
   37         (10)“Control person” means:
   38         (a)A person that possesses the power, directly or
   39  indirectly, to direct the management or policies of a money
   40  services business, whether through ownership of securities, by
   41  contract, or through other means, and regardless of whether such
   42  person has an official title or receives a salary or other
   43  compensation. The following persons are each presumed to be a
   44  control person:
   45         1.The president, chief executive officer, chief financial
   46  officer, chief operations officer, chief legal officer, and
   47  compliance officer.
   48         2.A person holding any of the officer positions named in
   49  the money services business’s governing documents.
   50         3.A person holding any position named by the money
   51  services business’s liability insurance coverage for directors
   52  and officers, if the business has such coverage.
   53         4.A director of the money services business’s board of
   54  directors.
   55         (b) For a corporation that is not publicly traded, all
   56  shareholders that, directly or indirectly, own 25 percent or
   57  more or that have the power to vote 25 percent or more of a
   58  class of voting securities.
   59         (c) For a partnership, all general partners and those
   60  limited or special partners that have contributed 25 percent or
   61  more or that have the right to receive upon dissolution 25
   62  percent or more of the partnership’s capital.
   63         (d) For a trust, all trustees.
   64         (e) For a limited liability company, all managers and those
   65  members that have contributed 25 percent or more or that have
   66  the right to receive upon dissolution 25 percent or more of the
   67  limited liability company’s capital.
   68         (11)(10) “Corporate payment instrument” means a payment
   69  instrument on which the payee named on the instrument’s face is
   70  other than a natural person.
   71         (12)(11) “Currency” means the coin and paper money of the
   72  United States or of any other country which is designated as
   73  legal tender and which circulates and is customarily used and
   74  accepted as a medium of exchange in the country of issuance.
   75  Currency includes United States silver certificates, United
   76  States notes, and Federal Reserve notes. Currency also includes
   77  official foreign bank notes that are customarily used and
   78  accepted as a medium of exchange in a foreign country.
   79         (13)(12) “Deferred presentment provider” means a person who
   80  is licensed under part II or part III of this chapter and has
   81  filed a declaration of intent with the office to engage in
   82  deferred presentment transactions as provided under part IV of
   83  this chapter.
   84         (14)(13) “Department” means the Department of Financial
   85  Services.
   86         (15)(14) “Electronic instrument” means a card, tangible
   87  object, or other form of electronic payment for the transmission
   88  or payment of money or the exchange of monetary value, including
   89  a stored value card or device that contains a microprocessor
   90  chip, magnetic stripe, or other means for storing information;
   91  that is prefunded; and for which the value is decremented upon
   92  each use.
   93         (16)(15) “Financial audit report” means a report prepared
   94  in connection with a financial audit that is conducted in
   95  accordance with generally accepted auditing standards prescribed
   96  by the American Institute of Certified Public Accountants by a
   97  certified public accountant licensed to do business in the
   98  United States, and which must include:
   99         (a) Financial statements, including notes related to the
  100  financial statements and required supplementary information,
  101  prepared in conformity with accounting principles generally
  102  accepted in the United States. The notes must, at a minimum,
  103  include detailed disclosures regarding receivables that are
  104  greater than 90 days, if the total amount of such receivables
  105  represents more than 2 percent of the licensee’s total assets.
  106         (b) An expression of opinion regarding whether the
  107  financial statements are presented in conformity with accounting
  108  principles generally accepted in the United States, or an
  109  assertion to the effect that such an opinion cannot be expressed
  110  and the reasons.
  111         (17)(16) “Foreign affiliate” means a person located outside
  112  this state who has been designated by a licensee to make
  113  payments on behalf of the licensee to persons who reside outside
  114  this state. The term also includes a person located outside of
  115  this state for whom the licensee has been designated to make
  116  payments in this state.
  117         (18)(17) “Foreign currency exchanger” means a person who
  118  exchanges, for compensation, currency of the United States or a
  119  foreign government to currency of another government.
  120         (19)(18) “Fraudulent identification paraphernalia” means
  121  all equipment, products, or materials of any kind that are used,
  122  intended for use, or designed for use in the misrepresentation
  123  of a customer’s identity. The term includes, but is not limited
  124  to:
  125         (a) A signature stamp, thumbprint stamp, or other tool or
  126  device used to forge a customer’s personal identification
  127  information.
  128         (b) An original of any type of personal identification
  129  listed in s. 560.310(2)(b) which is blank, stolen, or unlawfully
  130  issued.
  131         (c) A blank, forged, fictitious, or counterfeit instrument
  132  in the similitude of any type of personal identification listed
  133  in s. 560.310(2)(b) which would in context lead a reasonably
  134  prudent person to believe that such instrument is an authentic
  135  original of such personal identification.
  136         (d) Counterfeit, fictitious, or fabricated information in
  137  the similitude of a customer’s personal identification
  138  information that, although not authentic, would in context lead
  139  a reasonably prudent person to credit its authenticity.
  140         (20)(19) “Licensee” means a person licensed under this
  141  chapter.
  142         (21)(20) “Location” means a branch office, mobile location,
  143  or location of an authorized vendor whose business activity is
  144  regulated under this chapter.
  145         (22)(21) “Monetary value” means a medium of exchange,
  146  whether or not redeemable in currency.
  147         (23)(22) “Money services business” means any person located
  148  in or doing business in this state, from this state, or into
  149  this state from locations outside this state or country who acts
  150  as a payment instrument seller, foreign currency exchanger,
  151  check casher, or money transmitter.
  152         (24)(23) “Money transmitter” means a corporation, limited
  153  liability company, limited liability partnership, or foreign
  154  entity qualified to do business in this state which receives
  155  currency, monetary value, or payment instruments for the purpose
  156  of transmitting the same by any means, including transmission by
  157  wire, facsimile, electronic transfer, courier, the Internet, or
  158  through bill payment services or other businesses that
  159  facilitate such transfer within this country, or to or from this
  160  country.
  161         (25)(24) “Net worth” means assets minus liabilities,
  162  determined in accordance with United States generally accepted
  163  accounting principles.
  164         (26)(25) “Office” means the Office of Financial Regulation
  165  of the commission.
  166         (26) “Officer” means an individual, other than a director,
  167  who participates in, or has authority to participate in, the
  168  major policymaking functions of a money services business,
  169  regardless of whether the individual has an official title or
  170  receives a salary or other compensation.
  171         (27) “Outstanding money transmission” means a money
  172  transmission to a designated recipient or a refund to a sender
  173  that has not been completed.
  174         (28) “Outstanding payment instrument” means an unpaid
  175  payment instrument whose sale has been reported to a licensee.
  176         (29) “Payment instrument” means a check, draft, warrant,
  177  money order, travelers check, electronic instrument, or other
  178  instrument, payment of money, or monetary value whether or not
  179  negotiable. The term does not include an instrument that is
  180  redeemable by the issuer in merchandise or service, a credit
  181  card voucher, or a letter of credit.
  182         (30) “Payment instrument seller” means a corporation,
  183  limited liability company, limited liability partnership, or
  184  foreign entity qualified to do business in this state which
  185  sells a payment instrument.
  186         (31) “Person” means an individual, partnership,
  187  association, trust, corporation, limited liability company, or
  188  other group, however organized, but does not include a public
  189  agency or instrumentality thereof.
  190         (32) “Personal identification information” means a
  191  customer’s name that, alone or together with any of the
  192  following information, may be used to identify that specific
  193  customer:
  194         (a) Customer’s signature.
  195         (b) Photograph, digital image, or other likeness of the
  196  customer.
  197         (c) Unique biometric data, such as the customer’s
  198  thumbprint or fingerprint, voice print, retina or iris image, or
  199  other unique physical representation of the customer.
  200         (33) “Responsible person” means an individual who is
  201  employed by or affiliated with a money services business and who
  202  has principal active management authority over the business
  203  decisions, actions, and activities of the money services
  204  business in this state.
  205         (33)“Publicly traded” means a stock is currently traded on
  206  a national securities exchange registered with the Securities
  207  and Exchange Commission, or traded on an exchange in a country
  208  other than the United States regulated by a regulator equivalent
  209  to the Securities and Exchange Commission and the disclosure and
  210  reporting requirements of such regulator are substantially
  211  similar to those of the Securities and Exchange Commission.
  212         (34) “Sells” means to sell, issue, provide, or deliver.
  213         (35) “Stored value” means funds or monetary value
  214  represented in digital electronic format, whether or not
  215  specially encrypted, and stored or capable of storage on
  216  electronic media in such a way as to be retrievable and
  217  transferred electronically.
  218         Section 2. Subsection (2) of section 560.118, Florida
  219  Statutes, is amended to read:
  220         560.118 Reports.—
  221         (2) Each licensee must submit quarterly reports to the
  222  office in a format and include information as specified by rule.
  223  The rule may require the report to contain a declaration by a
  224  control an officer, or any other responsible person authorized
  225  to make such declaration, that the report is true and correct to
  226  the best of her or his knowledge and belief.
  227         Section 3. Paragraph (d) of subsection (3) of section
  228  560.123, Florida Statutes, is amended to read:
  229         560.123 Florida Control of Money Laundering in Money
  230  Services Business Act.—
  231         (3) A money services business shall keep a record of each
  232  financial transaction occurring in this state which it knows to
  233  involve currency or other payment instrument, as prescribed by
  234  the commission, having a value greater than $10,000; to involve
  235  the proceeds of specified unlawful activity; or to be designed
  236  to evade the reporting requirements of this section or chapter
  237  896. The money services business must maintain appropriate
  238  procedures to ensure compliance with this section and chapter
  239  896.
  240         (d) A money services business, or control person officer,
  241  employee, or agent thereof, that files a report in good faith
  242  pursuant to this section is not liable to any person for loss or
  243  damage caused in whole or in part by the making, filing, or
  244  governmental use of the report, or any information contained
  245  therein.
  246         Section 4. Subsection (3) of section 560.126, Florida
  247  Statutes, is amended to read:
  248         560.126 Required notice by licensee.—
  249         (3) Each licensee must report any change in the control
  250  partners, officers, members, joint venturers, directors,
  251  controlling shareholders, or responsible persons of the licensee
  252  or changes in the form of business organization by written
  253  amendment in such form and at such time as specified by rule.
  254         (a) If any person, directly or indirectly or acting by or
  255  through one or more persons, proposes to purchase or acquire a
  256  controlling interest in a licensee, such person or group must
  257  submit an application for licensure as a money services business
  258  or deferred presentment provider before such purchase or
  259  acquisition at such time and in such form as prescribed by rule.
  260  As used in this subsection, the term “controlling interest”
  261  means the same as described in s. 560.127.
  262         (b) The addition of a control person partner, officer,
  263  member, joint venturer, director, controlling shareholder, or
  264  responsible person of the applicant who does not have a
  265  controlling interest and who has not previously complied with
  266  the applicable provisions of ss. 560.1401 and 560.141 is subject
  267  to such provisions. If the office determines that the licensee
  268  does not continue to meet the licensure requirements, the office
  269  may bring an administrative action in accordance with s. 560.114
  270  to enforce the provisions of this chapter.
  271         (c) The commission shall adopt rules providing for the
  272  waiver of the license application required by this subsection if
  273  the person or group of persons proposing to purchase or acquire
  274  a controlling interest in a licensee has previously complied
  275  with the applicable provisions of ss. 560.1401 and 560.141 under
  276  the same legal entity or is currently licensed under this
  277  chapter.
  278         Section 5. Section 560.127, Florida Statutes, is repealed.
  279         Section 6. Paragraphs (a) and (c) of subsection (1) of
  280  section 560.141, Florida Statutes, are amended to read:
  281         560.141 License application.—
  282         (1) To apply for a license as a money services business
  283  under this chapter, the applicant must submit:
  284         (a) An application to the office on forms prescribed by
  285  rule which includes the following information:
  286         1. The legal name and address of the applicant, including
  287  any fictitious or trade names used by the applicant in the
  288  conduct of its business.
  289         2. The date of the applicant’s formation and the state in
  290  which the applicant was formed, if applicable.
  291         3. The name, social security number, alien identification
  292  or taxpayer identification number, business and residence
  293  addresses, and employment history for the past 5 years for each
  294  control person officer, director, responsible person, the
  295  compliance officer, each controlling shareholder, and any other
  296  person who has a controlling interest in the money services
  297  business as provided in s. 560.127.
  298         4. A description of the organizational structure of the
  299  applicant, including the identity of any parent or subsidiary of
  300  the applicant, and the disclosure of whether any parent or
  301  subsidiary is publicly traded.
  302         5. The applicant’s history of operations in other states if
  303  applicable and a description of the money services business or
  304  deferred presentment provider activities proposed to be
  305  conducted by the applicant in this state.
  306         6. If the applicant or its parent is a publicly traded
  307  company, copies of all filings made by the applicant with the
  308  United States Securities and Exchange Commission, or with a
  309  similar regulator in a country other than the United States,
  310  within the preceding year.
  311         7. The location at which the applicant proposes to
  312  establish its principal place of business and any other
  313  location, including branch offices and authorized vendors
  314  operating in this state. For each branch office and each
  315  location of an authorized vendor, the applicant shall include
  316  the nonrefundable fee required by s. 560.143.
  317         8. The name and address of the clearing financial
  318  institution or financial institutions through which the
  319  applicant’s payment instruments are drawn or through which the
  320  payment instruments are payable.
  321         9. The history of the applicant’s material litigation,
  322  criminal convictions, pleas of nolo contendere, and cases of
  323  adjudication withheld.
  324         10. The history of material litigation, arrests, criminal
  325  convictions, pleas of nolo contendere, and cases of adjudication
  326  withheld for each control executive officer, director,
  327  controlling shareholder, and responsible person.
  328         11. The name of the registered agent in this state for
  329  service of process unless the applicant is a sole proprietor.
  330         12. Any other information specified in this chapter or by
  331  rule.
  332         (c) Fingerprints for each person listed in subparagraph
  333  (a)3. for live-scan processing in accordance with rules adopted
  334  by the commission.
  335         1. The fingerprints may be submitted through a third-party
  336  vendor authorized by the Department of Law Enforcement to
  337  provide live-scan fingerprinting.
  338         2. The Department of Law Enforcement must conduct the state
  339  criminal history background check, and a federal criminal
  340  history background check must be conducted through the Federal
  341  Bureau of Investigation.
  342         3. All fingerprints submitted to the Department of Law
  343  Enforcement must be submitted electronically and entered into
  344  the statewide automated fingerprint identification system
  345  established in s. 943.05(2)(b) and available for use in
  346  accordance with s. 943.05(2)(g) and (h). The office shall pay an
  347  annual fee to the Department of Law Enforcement to participate
  348  in the system and shall inform the Department of Law Enforcement
  349  of any person whose fingerprints no longer must be retained.
  350         4. The costs of fingerprint processing, including the cost
  351  of retaining the fingerprints, shall be borne by the person
  352  subject to the background check.
  353         5. The office shall review the results of the state and
  354  federal criminal history background checks and determine whether
  355  the applicant meets licensure requirements.
  356         6. For purposes of this paragraph, fingerprints are not
  357  required to be submitted if the applicant is a publicly traded
  358  corporation or is exempted from this chapter under s.
  359  560.104(1). The term “publicly traded” means a stock is
  360  currently traded on a national securities exchange registered
  361  with the federal Securities and Exchange Commission or traded on
  362  an exchange in a country other than the United States regulated
  363  by a regulator equivalent to the Securities and Exchange
  364  Commission and the disclosure and reporting requirements of such
  365  regulator are substantially similar to those of the commission.
  366         7.Licensees initially approved before October 1, 2013, who
  367  are seeking renewal must submit fingerprints for each person
  368  listed in subparagraph (a)3. for live-scan processing pursuant
  369  to this paragraph. Such fingerprints must be submitted before
  370  renewing a license that is scheduled to expire between April 30,
  371  2014, and December 31, 2015.
  372         Section 7. Subsection (1) of section 560.143, Florida
  373  Statutes, is amended to read:
  374         560.143 Fees.—
  375         (1) LICENSE APPLICATION FEES.—The applicable non-refundable
  376  fees must accompany an application for licensure:
  377         (a) Part II.........................................$375.
  378         (b) Part III........................................$188.
  379         (c) Per branch office................................$38.
  380         (d) For each location of an authorized
  381  vendor......................................................$38.
  382         (e) Declaration as a deferred presentment
  383  provider.................................................$1,000.
  384         (f) Fingerprint retention fees as prescribed by rule.
  385         (g) License application fees for branch offices and
  386  authorized vendors are limited to $20,000 when such fees are
  387  assessed as a result of a change in controlling interest as
  388  defined in s. 560.127.
  389         Section 8. For the purpose of incorporating the amendments
  390  made by this act to sections 560.118 and 560.141, Florida
  391  Statutes, in references thereto, paragraph (a) of subsection (4)
  392  of section 559.952, Florida Statutes, is reenacted to read:
  393         559.952 Financial Technology Sandbox.—
  394         (4) EXCEPTIONS TO GENERAL LAW AND WAIVERS OF RULE
  395  REQUIREMENTS.—
  396         (a) Notwithstanding any other law, upon approval of a
  397  Financial Technology Sandbox application, the following
  398  provisions and corresponding rule requirements are not
  399  applicable to the licensee during the sandbox period:
  400         1. Section 516.03(1), except for the application fee, the
  401  investigation fee, the requirement to provide the social
  402  security numbers of control persons, evidence of liquid assets
  403  of at least $25,000, and the office’s authority to investigate
  404  the applicant’s background. The office may prorate the license
  405  renewal fee for an extension granted under subsection (7).
  406         2. Section 516.05(1) and (2), except that the office shall
  407  investigate the applicant’s background.
  408         3. Section 560.109, only to the extent that the section
  409  requires the office to examine a licensee at least once every 5
  410  years.
  411         4. Section 560.118(2).
  412         5. Section 560.125(1), only to the extent that the
  413  subsection would prohibit a licensee from engaging in the
  414  business of a money transmitter or payment instrument seller
  415  during the sandbox period.
  416         6. Section 560.125(2), only to the extent that the
  417  subsection would prohibit a licensee from appointing an
  418  authorized vendor during the sandbox period. Any authorized
  419  vendor of such a licensee during the sandbox period remains
  420  liable to the holder or remitter.
  421         7. Section 560.128.
  422         8. Section 560.141, except for s. 560.141(1)(a)1., 3., 7.
  423  10. and (b), (c), and (d).
  424         9. Section 560.142(1) and (2), except that the office may
  425  prorate, but may not entirely eliminate, the license renewal
  426  fees in s. 560.143 for an extension granted under subsection
  427  (7).
  428         10. Section 560.143(2), only to the extent necessary for
  429  proration of the renewal fee under subparagraph 9.
  430         11. Section 560.204(1), only to the extent that the
  431  subsection would prohibit a licensee from engaging in, or
  432  advertising that it engages in, the selling or issuing of
  433  payment instruments or in the activity of a money transmitter
  434  during the sandbox period.
  435         12. Section 560.205(2).
  436         13. Section 560.208(2).
  437         14. Section 560.209, only to the extent that the office may
  438  modify, but may not entirely eliminate, the net worth, corporate
  439  surety bond, and collateral deposit amounts required under that
  440  section. The modified amounts must be in such lower amounts that
  441  the office determines to be commensurate with the factors under
  442  paragraph (5)(c) and the maximum number of consumers authorized
  443  to receive the financial product or service under this section.
  444         Section 9. For the purpose of incorporating the amendment
  445  made by this act to section 560.141, Florida Statutes, in a
  446  reference thereto, paragraph (c) of subsection (2) of section
  447  560.114, Florida Statutes, is reenacted to read:
  448         560.114 Disciplinary actions; penalties.—
  449         (2) Pursuant to s. 120.60(6), the office may summarily
  450  suspend the license of a money services business if the office
  451  finds that a licensee poses an immediate, serious danger to the
  452  public health, safety, and welfare. A proceeding in which the
  453  office seeks the issuance of a final order for the summary
  454  suspension of a licensee shall be conducted by the commissioner
  455  of the office, or his or her designee, who shall issue such
  456  order. The following acts are deemed to constitute an immediate
  457  and serious danger to the public health, safety, and welfare,
  458  and the office may immediately suspend the license of a money
  459  services business if:
  460         (c) A natural person required to be listed on the license
  461  application for a money services business pursuant to s.
  462  560.141(1)(a)3. is criminally charged with, or arrested for, a
  463  crime described in paragraph (1)(o), paragraph (1)(p), or
  464  paragraph(1)(q).
  465         Section 10. This act shall take effect October 1, 2022.
  466  
  467  ================= T I T L E  A M E N D M E N T ================
  468  And the title is amended as follows:
  469         Delete everything before the enacting clause
  470  and insert:
  471                        A bill to be entitled                      
  472         An act relating to money services businesses; amending
  473         s. 560.103, F.S.; defining the terms “control person”
  474         and “publicly traded”; revising and deleting
  475         definitions; amending s. 560.118, F.S.; providing that
  476         a rule may require certain reports to the Office of
  477         Financial Regulation to contain declarations by
  478         control persons, rather than officers or other
  479         responsible persons; amending s. 560.123, F.S.;
  480         providing that control persons, rather than officers,
  481         are not liable for loss or damages under certain
  482         circumstances; amending s. 560.126, F.S.; requiring
  483         licensees to report changes in control persons, rather
  484         than certain other entities or persons; deleting a
  485         requirement for certain persons to submit a licensure
  486         application under certain circumstances; deleting the
  487         definition of the term “controlling interest”;
  488         providing that the addition of a control person,
  489         rather than certain other entities or persons, is
  490         subject to certain requirements; deleting a
  491         requirement for the Financial Services Commission to
  492         adopt rules; repealing s. 560.127, F.S., relating to
  493         control of a money services business; amending s.
  494         560.141, F.S.; revising requirements for applications
  495         for licensure as a money services business; deleting
  496         the definition of the term “publicly traded”; deleting
  497         obsolete language; amending s. 560.143, F.S.; removing
  498         a limitation on specified license application fees
  499         under certain circumstances; reenacting s.
  500         559.952(4)(a), F.S., relating to the Financial
  501         Technology Sandbox, to incorporate the amendments made
  502         to ss. 560.118 and 560.141, F.S., in references
  503         thereto; reenacting s. 560.114(2)(c), F.S., relating
  504         to disciplinary actions and penalties, to incorporate
  505         the amendment made to s. 560.141, F.S., in a reference
  506         thereto; providing an effective date.