Florida Senate - 2022                      CS for CS for SB 1536
       
       
        
       By the Committees on Commerce and Tourism; and Banking and
       Insurance; and Senator Boyd
       
       
       
       
       577-02517-22                                          20221536c2
    1                        A bill to be entitled                      
    2         An act relating to money services businesses; amending
    3         s. 560.103, F.S.; defining the terms “control person”
    4         and “publicly traded”; revising and deleting
    5         definitions; amending s. 560.118, F.S.; providing that
    6         a rule may require certain reports to the Office of
    7         Financial Regulation to contain declarations by
    8         control persons, rather than officers or other
    9         responsible persons; amending s. 560.123, F.S.;
   10         providing that control persons, rather than officers,
   11         are not liable for loss or damages under certain
   12         circumstances; amending s. 560.126, F.S.; requiring
   13         licensees to report changes in control persons, rather
   14         than certain other entities or persons; deleting a
   15         requirement for certain persons to submit a licensure
   16         application under certain circumstances; deleting the
   17         definition of the term “controlling interest”;
   18         providing that the addition of a control person,
   19         rather than certain other entities or persons, is
   20         subject to certain requirements; deleting a
   21         requirement for the Financial Services Commission to
   22         adopt rules; repealing s. 560.127, F.S., relating to
   23         control of a money services business; amending s.
   24         560.141, F.S.; revising requirements for applications
   25         for licensure as a money services business; deleting
   26         the definition of the term “publicly traded”; deleting
   27         obsolete language; amending s. 560.143, F.S.; removing
   28         a limitation on specified license application fees
   29         under certain circumstances; reenacting s.
   30         559.952(4)(a), F.S., relating to the Financial
   31         Technology Sandbox, to incorporate the amendments made
   32         to ss. 560.118 and 560.141, F.S., in references
   33         thereto; reenacting s. 560.114(2)(c), F.S., relating
   34         to disciplinary actions and penalties, to incorporate
   35         the amendment made to s. 560.141, F.S., in a reference
   36         thereto; providing an effective date.
   37          
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Section 560.103, Florida Statutes, is amended to
   41  read:
   42         560.103 Definitions.—As used in this chapter, the term:
   43         (1) “Affiliated party” means a control director, officer,
   44  responsible person, employee, or foreign affiliate of a money
   45  services business, or a person who has a controlling interest in
   46  a money services business as provided in s. 560.127.
   47         (2) “Appropriate regulator” means a state, federal, or
   48  foreign agency that has been granted authority to enforce state,
   49  federal, or foreign laws related to a money services business or
   50  deferred presentment provider.
   51         (3) “Authorized vendor” means a person designated by a
   52  money services business licensed under part II of this chapter
   53  to act on behalf of the licensee at locations in this state
   54  pursuant to a written contract with the licensee.
   55         (4) “Branch office” means the physical location, other than
   56  the principal place of business, of a money services business
   57  operated by a licensee under this chapter.
   58         (5) “Cashing” means providing currency for payment
   59  instruments except for travelers checks.
   60         (6) “Check casher” means a person who sells currency in
   61  exchange for payment instruments received, except travelers
   62  checks.
   63         (7) “Commission” means the Financial Services Commission.
   64         (8) “Compliance officer” means the individual in charge of
   65  overseeing, managing, and ensuring that a money services
   66  business is in compliance with all state and federal laws and
   67  rules relating to money services businesses, as applicable,
   68  including all money laundering laws and rules.
   69         (9) “Conductor” means a natural person who presents himself
   70  or herself to a licensee for purposes of cashing a payment
   71  instrument.
   72         (10)“Control person” means:
   73         (a)A person who possesses the power, directly or
   74  indirectly, to direct the management or policies of a money
   75  services business, whether through ownership of securities, by
   76  contract, or through other means, and regardless of whether such
   77  person has an official title or receives a salary or other
   78  compensation. The following persons are each presumed to be a
   79  control person:
   80         1.The president, chief executive officer, chief financial
   81  officer, chief operations officer, chief legal officer, and
   82  compliance officer.
   83         2.A person holding any of the officer positions named in
   84  the money services business’s governing documents.
   85         3.A person holding any position named by the money
   86  services business’s liability insurance coverage for directors
   87  and officers, if the business has such coverage.
   88         4.A director of the money services business’s board of
   89  directors.
   90         (b) For a corporation that is not publicly traded, all
   91  shareholders that, directly or indirectly, own 25 percent or
   92  more or that have the power to vote 25 percent or more of a
   93  class of voting securities.
   94         (c) For a partnership, all general partners and those
   95  limited or special partners that have contributed 25 percent or
   96  more or that have the right to receive upon dissolution 25
   97  percent or more of the partnership’s capital.
   98         (d) For a trust, all trustees.
   99         (e) For a limited liability company, all managers and those
  100  members that have contributed 25 percent or more or that have
  101  the right to receive upon dissolution 25 percent or more of the
  102  limited liability company’s capital.
  103         (11)(10) “Corporate payment instrument” means a payment
  104  instrument on which the payee named on the instrument’s face is
  105  other than a natural person.
  106         (12)(11) “Currency” means the coin and paper money of the
  107  United States or of any other country which is designated as
  108  legal tender and which circulates and is customarily used and
  109  accepted as a medium of exchange in the country of issuance.
  110  Currency includes United States silver certificates, United
  111  States notes, and Federal Reserve notes. Currency also includes
  112  official foreign bank notes that are customarily used and
  113  accepted as a medium of exchange in a foreign country.
  114         (13)(12) “Deferred presentment provider” means a person who
  115  is licensed under part II or part III of this chapter and has
  116  filed a declaration of intent with the office to engage in
  117  deferred presentment transactions as provided under part IV of
  118  this chapter.
  119         (14)(13) “Department” means the Department of Financial
  120  Services.
  121         (15)(14) “Electronic instrument” means a card, tangible
  122  object, or other form of electronic payment for the transmission
  123  or payment of money or the exchange of monetary value, including
  124  a stored value card or device that contains a microprocessor
  125  chip, magnetic stripe, or other means for storing information;
  126  that is prefunded; and for which the value is decremented upon
  127  each use.
  128         (16)(15) “Financial audit report” means a report prepared
  129  in connection with a financial audit that is conducted in
  130  accordance with generally accepted auditing standards prescribed
  131  by the American Institute of Certified Public Accountants by a
  132  certified public accountant licensed to do business in the
  133  United States, and which must include:
  134         (a) Financial statements, including notes related to the
  135  financial statements and required supplementary information,
  136  prepared in conformity with accounting principles generally
  137  accepted in the United States. The notes must, at a minimum,
  138  include detailed disclosures regarding receivables that are
  139  greater than 90 days, if the total amount of such receivables
  140  represents more than 2 percent of the licensee’s total assets.
  141         (b) An expression of opinion regarding whether the
  142  financial statements are presented in conformity with accounting
  143  principles generally accepted in the United States, or an
  144  assertion to the effect that such an opinion cannot be expressed
  145  and the reasons.
  146         (17)(16) “Foreign affiliate” means a person located outside
  147  this state who has been designated by a licensee to make
  148  payments on behalf of the licensee to persons who reside outside
  149  this state. The term also includes a person located outside of
  150  this state for whom the licensee has been designated to make
  151  payments in this state.
  152         (18)(17) “Foreign currency exchanger” means a person who
  153  exchanges, for compensation, currency of the United States or a
  154  foreign government to currency of another government.
  155         (19)(18) “Fraudulent identification paraphernalia” means
  156  all equipment, products, or materials of any kind that are used,
  157  intended for use, or designed for use in the misrepresentation
  158  of a customer’s identity. The term includes, but is not limited
  159  to:
  160         (a) A signature stamp, thumbprint stamp, or other tool or
  161  device used to forge a customer’s personal identification
  162  information.
  163         (b) An original of any type of personal identification
  164  listed in s. 560.310(2)(b) which is blank, stolen, or unlawfully
  165  issued.
  166         (c) A blank, forged, fictitious, or counterfeit instrument
  167  in the similitude of any type of personal identification listed
  168  in s. 560.310(2)(b) which would in context lead a reasonably
  169  prudent person to believe that such instrument is an authentic
  170  original of such personal identification.
  171         (d) Counterfeit, fictitious, or fabricated information in
  172  the similitude of a customer’s personal identification
  173  information that, although not authentic, would in context lead
  174  a reasonably prudent person to credit its authenticity.
  175         (20)(19) “Licensee” means a person licensed under this
  176  chapter.
  177         (21)(20) “Location” means a branch office, mobile location,
  178  or location of an authorized vendor whose business activity is
  179  regulated under this chapter.
  180         (22)(21) “Monetary value” means a medium of exchange,
  181  whether or not redeemable in currency.
  182         (23)(22) “Money services business” means any person located
  183  in or doing business in this state, from this state, or into
  184  this state from locations outside this state or country who acts
  185  as a payment instrument seller, foreign currency exchanger,
  186  check casher, or money transmitter.
  187         (24)(23) “Money transmitter” means a corporation, limited
  188  liability company, limited liability partnership, or foreign
  189  entity qualified to do business in this state which receives
  190  currency, monetary value, or payment instruments for the purpose
  191  of transmitting the same by any means, including transmission by
  192  wire, facsimile, electronic transfer, courier, the Internet, or
  193  through bill payment services or other businesses that
  194  facilitate such transfer within this country, or to or from this
  195  country.
  196         (25)(24) “Net worth” means assets minus liabilities,
  197  determined in accordance with United States generally accepted
  198  accounting principles.
  199         (26)(25) “Office” means the Office of Financial Regulation
  200  of the commission.
  201         (26) “Officer” means an individual, other than a director,
  202  who participates in, or has authority to participate in, the
  203  major policymaking functions of a money services business,
  204  regardless of whether the individual has an official title or
  205  receives a salary or other compensation.
  206         (27) “Outstanding money transmission” means a money
  207  transmission to a designated recipient or a refund to a sender
  208  that has not been completed.
  209         (28) “Outstanding payment instrument” means an unpaid
  210  payment instrument whose sale has been reported to a licensee.
  211         (29) “Payment instrument” means a check, draft, warrant,
  212  money order, travelers check, electronic instrument, or other
  213  instrument, payment of money, or monetary value whether or not
  214  negotiable. The term does not include an instrument that is
  215  redeemable by the issuer in merchandise or service, a credit
  216  card voucher, or a letter of credit.
  217         (30) “Payment instrument seller” means a corporation,
  218  limited liability company, limited liability partnership, or
  219  foreign entity qualified to do business in this state which
  220  sells a payment instrument.
  221         (31) “Person” means an individual, partnership,
  222  association, trust, corporation, limited liability company, or
  223  other group, however organized, but does not include a public
  224  agency or instrumentality thereof.
  225         (32) “Personal identification information” means a
  226  customer’s name that, alone or together with any of the
  227  following information, may be used to identify that specific
  228  customer:
  229         (a) Customer’s signature.
  230         (b) Photograph, digital image, or other likeness of the
  231  customer.
  232         (c) Unique biometric data, such as the customer’s
  233  thumbprint or fingerprint, voice print, retina or iris image, or
  234  other unique physical representation of the customer.
  235         (33) “Publicly traded” means a stock is currently traded on
  236  a national securities exchange registered with the Securities
  237  and Exchange Commission, or traded on an exchange in a country
  238  other than the United States regulated by a regulator equivalent
  239  to the Securities and Exchange Commission and the disclosure and
  240  reporting requirements of such regulator are substantially
  241  similar to those of the Securities and Exchange Commission
  242  “Responsible person” means an individual who is employed by or
  243  affiliated with a money services business and who has principal
  244  active management authority over the business decisions,
  245  actions, and activities of the money services business in this
  246  state.
  247         (34) “Sells” means to sell, issue, provide, or deliver.
  248         (35) “Stored value” means funds or monetary value
  249  represented in digital electronic format, whether or not
  250  specially encrypted, and stored or capable of storage on
  251  electronic media in such a way as to be retrievable and
  252  transferred electronically.
  253         Section 2. Subsection (2) of section 560.118, Florida
  254  Statutes, is amended to read:
  255         560.118 Reports.—
  256         (2) Each licensee must submit quarterly reports to the
  257  office in a format and include information as specified by rule.
  258  The rule may require the report to contain a declaration by a
  259  control an officer, or any other responsible person authorized
  260  to make such declaration, that the report is true and correct to
  261  the best of her or his knowledge and belief.
  262         Section 3. Paragraph (d) of subsection (3) of section
  263  560.123, Florida Statutes, is amended to read:
  264         560.123 Florida Control of Money Laundering in Money
  265  Services Business Act.—
  266         (3) A money services business shall keep a record of each
  267  financial transaction occurring in this state which it knows to
  268  involve currency or other payment instrument, as prescribed by
  269  the commission, having a value greater than $10,000; to involve
  270  the proceeds of specified unlawful activity; or to be designed
  271  to evade the reporting requirements of this section or chapter
  272  896. The money services business must maintain appropriate
  273  procedures to ensure compliance with this section and chapter
  274  896.
  275         (d) A money services business, or control person officer,
  276  employee, or agent thereof, that files a report in good faith
  277  pursuant to this section is not liable to any person for loss or
  278  damage caused in whole or in part by the making, filing, or
  279  governmental use of the report, or any information contained
  280  therein.
  281         Section 4. Subsection (3) of section 560.126, Florida
  282  Statutes, is amended to read:
  283         560.126 Required notice by licensee.—
  284         (3) Each licensee must report any change in the control
  285  partners, officers, members, joint venturers, directors,
  286  controlling shareholders, or responsible persons of the licensee
  287  or changes in the form of business organization by written
  288  amendment in such form and at such time as specified by rule.
  289         (a) If any person, directly or indirectly or acting by or
  290  through one or more persons, proposes to purchase or acquire a
  291  controlling interest in a licensee, such person or group must
  292  submit an application for licensure as a money services business
  293  or deferred presentment provider before such purchase or
  294  acquisition at such time and in such form as prescribed by rule.
  295  As used in this subsection, the term “controlling interest”
  296  means the same as described in s. 560.127.
  297         (b) The addition of a control person partner, officer,
  298  member, joint venturer, director, controlling shareholder, or
  299  responsible person of the applicant who does not have a
  300  controlling interest and who has not previously complied with
  301  the applicable provisions of ss. 560.1401 and 560.141 is subject
  302  to such provisions. If the office determines that the licensee
  303  does not continue to meet the licensure requirements, the office
  304  may bring an administrative action in accordance with s. 560.114
  305  to enforce the provisions of this chapter.
  306         (c) The commission shall adopt rules providing for the
  307  waiver of the license application required by this subsection if
  308  the person or group of persons proposing to purchase or acquire
  309  a controlling interest in a licensee has previously complied
  310  with the applicable provisions of ss. 560.1401 and 560.141 under
  311  the same legal entity or is currently licensed under this
  312  chapter.
  313         Section 5. Section 560.127, Florida Statutes, is repealed.
  314         Section 6. Paragraphs (a) and (c) of subsection (1) of
  315  section 560.141, Florida Statutes, are amended to read:
  316         560.141 License application.—
  317         (1) To apply for a license as a money services business
  318  under this chapter, the applicant must submit:
  319         (a) An application to the office on forms prescribed by
  320  rule which includes the following information:
  321         1. The legal name and address of the applicant, including
  322  any fictitious or trade names used by the applicant in the
  323  conduct of its business.
  324         2. The date of the applicant’s formation and the state in
  325  which the applicant was formed, if applicable.
  326         3. The name, social security number, alien identification
  327  or taxpayer identification number, business and residence
  328  addresses, and employment history for the past 5 years for each
  329  control person officer, director, responsible person, the
  330  compliance officer, each controlling shareholder, and any other
  331  person who has a controlling interest in the money services
  332  business as provided in s. 560.127.
  333         4. A description of the organizational structure of the
  334  applicant, including the identity of any parent or subsidiary of
  335  the applicant, and the disclosure of whether any parent or
  336  subsidiary is publicly traded.
  337         5. The applicant’s history of operations in other states if
  338  applicable and a description of the money services business or
  339  deferred presentment provider activities proposed to be
  340  conducted by the applicant in this state.
  341         6. If the applicant or its parent is a publicly traded
  342  company, copies of all filings made by the applicant with the
  343  United States Securities and Exchange Commission, or with a
  344  similar regulator in a country other than the United States,
  345  within the preceding year.
  346         7. The location at which the applicant proposes to
  347  establish its principal place of business and any other
  348  location, including branch offices and authorized vendors
  349  operating in this state. For each branch office and each
  350  location of an authorized vendor, the applicant shall include
  351  the nonrefundable fee required by s. 560.143.
  352         8. The name and address of the clearing financial
  353  institution or financial institutions through which the
  354  applicant’s payment instruments are drawn or through which the
  355  payment instruments are payable.
  356         9. The history of the applicant’s material litigation,
  357  criminal convictions, pleas of nolo contendere, and cases of
  358  adjudication withheld.
  359         10. The history of material litigation, arrests, criminal
  360  convictions, pleas of nolo contendere, and cases of adjudication
  361  withheld for each control executive officer, director,
  362  controlling shareholder, and responsible person.
  363         11. The name of the registered agent in this state for
  364  service of process unless the applicant is a sole proprietor.
  365         12. Any other information specified in this chapter or by
  366  rule.
  367         (c) Fingerprints for each person listed in subparagraph
  368  (a)3. for live-scan processing in accordance with rules adopted
  369  by the commission.
  370         1. The fingerprints may be submitted through a third-party
  371  vendor authorized by the Department of Law Enforcement to
  372  provide live-scan fingerprinting.
  373         2. The Department of Law Enforcement must conduct the state
  374  criminal history background check, and a federal criminal
  375  history background check must be conducted through the Federal
  376  Bureau of Investigation.
  377         3. All fingerprints submitted to the Department of Law
  378  Enforcement must be submitted electronically and entered into
  379  the statewide automated fingerprint identification system
  380  established in s. 943.05(2)(b) and available for use in
  381  accordance with s. 943.05(2)(g) and (h). The office shall pay an
  382  annual fee to the Department of Law Enforcement to participate
  383  in the system and shall inform the Department of Law Enforcement
  384  of any person whose fingerprints no longer must be retained.
  385         4. The costs of fingerprint processing, including the cost
  386  of retaining the fingerprints, shall be borne by the person
  387  subject to the background check.
  388         5. The office shall review the results of the state and
  389  federal criminal history background checks and determine whether
  390  the applicant meets licensure requirements.
  391         6. For purposes of this paragraph, fingerprints are not
  392  required to be submitted if the applicant is a publicly traded
  393  corporation or is exempted from this chapter under s.
  394  560.104(1). The term “publicly traded” means a stock is
  395  currently traded on a national securities exchange registered
  396  with the federal Securities and Exchange Commission or traded on
  397  an exchange in a country other than the United States regulated
  398  by a regulator equivalent to the Securities and Exchange
  399  Commission and the disclosure and reporting requirements of such
  400  regulator are substantially similar to those of the commission.
  401         7.Licensees initially approved before October 1, 2013, who
  402  are seeking renewal must submit fingerprints for each person
  403  listed in subparagraph (a)3. for live-scan processing pursuant
  404  to this paragraph. Such fingerprints must be submitted before
  405  renewing a license that is scheduled to expire between April 30,
  406  2014, and December 31, 2015.
  407         Section 7. Subsection (1) of section 560.143, Florida
  408  Statutes, is amended to read:
  409         560.143 Fees.—
  410         (1) LICENSE APPLICATION FEES.—The applicable non-refundable
  411  fees must accompany an application for licensure:
  412         (a) Part II.........................................$375.
  413         (b) Part III........................................$188.
  414         (c) Per branch office................................$38.
  415         (d) For each location of an authorized
  416  vendor......................................................$38.
  417         (e) Declaration as a deferred presentment
  418  provider.................................................$1,000.
  419         (f) Fingerprint retention fees as prescribed by rule.
  420         (g) License application fees for branch offices and
  421  authorized vendors are limited to $20,000 when such fees are
  422  assessed as a result of a change in controlling interest as
  423  defined in s. 560.127.
  424         Section 8. For the purpose of incorporating the amendments
  425  made by this act to sections 560.118 and 560.141, Florida
  426  Statutes, in references thereto, paragraph (a) of subsection (4)
  427  of section 559.952, Florida Statutes, is reenacted to read:
  428         559.952 Financial Technology Sandbox.—
  429         (4) EXCEPTIONS TO GENERAL LAW AND WAIVERS OF RULE
  430  REQUIREMENTS.—
  431         (a) Notwithstanding any other law, upon approval of a
  432  Financial Technology Sandbox application, the following
  433  provisions and corresponding rule requirements are not
  434  applicable to the licensee during the sandbox period:
  435         1. Section 516.03(1), except for the application fee, the
  436  investigation fee, the requirement to provide the social
  437  security numbers of control persons, evidence of liquid assets
  438  of at least $25,000, and the office’s authority to investigate
  439  the applicant’s background. The office may prorate the license
  440  renewal fee for an extension granted under subsection (7).
  441         2. Section 516.05(1) and (2), except that the office shall
  442  investigate the applicant’s background.
  443         3. Section 560.109, only to the extent that the section
  444  requires the office to examine a licensee at least once every 5
  445  years.
  446         4. Section 560.118(2).
  447         5. Section 560.125(1), only to the extent that the
  448  subsection would prohibit a licensee from engaging in the
  449  business of a money transmitter or payment instrument seller
  450  during the sandbox period.
  451         6. Section 560.125(2), only to the extent that the
  452  subsection would prohibit a licensee from appointing an
  453  authorized vendor during the sandbox period. Any authorized
  454  vendor of such a licensee during the sandbox period remains
  455  liable to the holder or remitter.
  456         7. Section 560.128.
  457         8. Section 560.141, except for s. 560.141(1)(a)1., 3., 7.
  458  10. and (b), (c), and (d).
  459         9. Section 560.142(1) and (2), except that the office may
  460  prorate, but may not entirely eliminate, the license renewal
  461  fees in s. 560.143 for an extension granted under subsection
  462  (7).
  463         10. Section 560.143(2), only to the extent necessary for
  464  proration of the renewal fee under subparagraph 9.
  465         11. Section 560.204(1), only to the extent that the
  466  subsection would prohibit a licensee from engaging in, or
  467  advertising that it engages in, the selling or issuing of
  468  payment instruments or in the activity of a money transmitter
  469  during the sandbox period.
  470         12. Section 560.205(2).
  471         13. Section 560.208(2).
  472         14. Section 560.209, only to the extent that the office may
  473  modify, but may not entirely eliminate, the net worth, corporate
  474  surety bond, and collateral deposit amounts required under that
  475  section. The modified amounts must be in such lower amounts that
  476  the office determines to be commensurate with the factors under
  477  paragraph (5)(c) and the maximum number of consumers authorized
  478  to receive the financial product or service under this section.
  479         Section 9. For the purpose of incorporating the amendment
  480  made by this act to section 560.141, Florida Statutes, in a
  481  reference thereto, paragraph (c) of subsection (2) of section
  482  560.114, Florida Statutes, is reenacted to read:
  483         560.114 Disciplinary actions; penalties.—
  484         (2) Pursuant to s. 120.60(6), the office may summarily
  485  suspend the license of a money services business if the office
  486  finds that a licensee poses an immediate, serious danger to the
  487  public health, safety, and welfare. A proceeding in which the
  488  office seeks the issuance of a final order for the summary
  489  suspension of a licensee shall be conducted by the commissioner
  490  of the office, or his or her designee, who shall issue such
  491  order. The following acts are deemed to constitute an immediate
  492  and serious danger to the public health, safety, and welfare,
  493  and the office may immediately suspend the license of a money
  494  services business if:
  495         (c) A natural person required to be listed on the license
  496  application for a money services business pursuant to s.
  497  560.141(1)(a)3. is criminally charged with, or arrested for, a
  498  crime described in paragraph (1)(o), paragraph (1)(p), or
  499  paragraph(1)(q).
  500         Section 10. This act shall take effect October 1, 2022.