This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0737.RRS
DATE: 3/26/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 737 Secondhand Goods
SPONSOR(S): Barnaby
TIED BILLS: IDEN./SIM. BILLS: SB 442
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Regulatory Reform & Economic
Development Subcommittee
Larkin Anstead
2) Commerce Committee
SUMMARY ANALYSIS
Chapter 538, F.S., regulates secondhand dealers and secondary metal recyclers in the trade of secondhand
goods. A secondhand dealer is a person, corporation, or other business organization or entity, that is not a
secondary metals recycler, engaged in the business of purchasing, consigning, or trading secondhand goods.
Secondhand goods are previously owned or used personal property that is purchased, consigned, or traded as
used property.
The bill amends the definition of “secondhand goods” to exclude “money”; gold bullion, silver bullion, platinum
bullion, palladium bullion, or rhodium bullion if such bullion has been assayed and is properly marked as to its
weight and fineness.
The bill removes coins from the list of items which are expressly excluded from the definition of “secondhand
goods” and replaces “coins” with “money”.
The bill does not appear to impact state or local governments.
The bill takes effect July 1, 2023.
STORAGE NAME: h0737.RRS PAGE: 2
DATE: 3/26/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Chapter 538, F.S., regulates secondhand dealers and secondary metal recyclers in the trade of
secondhand goods. A secondhand dealer
1
is defined as any person, corporation, or other business
organization or entity that is not a secondary metals recycler and is engaged in the business of
purchasing, consigning, or trading secondhand goods. The term also includes a secondhand dealer
engaged in purchasing secondhand goods by means of an automated kiosk.
2
“Secondhand goods” means personal property previously owned or used which is not regulated metals
property regulated under part II of ch. 538, and which is purchased, consigned, or traded as used
property. The term includes gift certificates and credit memos
3
as defined in s. 501.95 which are
purchased, consigned, or traded by a secondhand dealer.
The term does not include:
office furniture,
pianos,
books,
clothing,
organs,
coins,
motor vehicles,
costume jewelry,
cardio and strength training or conditioning equipment designed primarily for indoor use, an
secondhand sports equipment that is not permanently labeled with a serial number.
4
o The term “secondhand sports equipment” does not include golf clubs.
Secondary metals recyclers may not sell “regulated metals property” without obtaining proof of
ownership or permission from the owner if the person is an employee of such owner. Regulated metals
property means any item composed primarily of any nonferrous metals. The term does not include
aluminum beverage containers, used beverage containers, or similar beverage containers; however,
the term includes stainless steel beer kegs and items made of ferrous metal obtained from any
restricted regulated metals property.
Restricted regulated metals property is subject to restrictions and includes the following:
A manhole cover.
An electric light pole or other utility structure and its fixtures, wires, and hardware that are
readily identifiable as connected to the utility structure.
A guard rail.
A street sign, traffic sign, or traffic signal and its fixtures and hardware.
Communication, transmission, distribution, and service wire from a utility, including copper or
aluminum bus bars, connectors, grounding plates, or grounding wire.
1
A pawnbroker is different than a secondhand dealer. “Pawn” means any advancement of funds on the security of pledged goods on
condition that the pledged goods are left in the possession of the pawnbroker for the duration of the pawn and may be redeemed by the
pledgor on the terms and conditions contained in this section. See s. 539.001, F.S; Pawnshops must be registered and are regulated by
the Florida Department of Agriculture and Consumer Services. Pawnshops, Florida Department of Agriculture & Consumer Services,
https://www.fdacs.gov/Consumer-Resources/Consumer-Rights-and-Responsibilities/Pawnshops (last March 24, 2023).
2
S. 538.03(1)(h), F.S.
3
S. 501.95, F.S., defines “credit memo” as a certificate, card, stored value card, or similar instrument issued in exchange for returned
merchandise when the certificate, card, or similar instrument is redeemable for merchandise, food, or services regardless of whether
any cash may be paid to the owner of the certificate, card, or instrument as part of the redemption transaction.
4
S. 538.03(1)(i), F.S. STORAGE NAME: h0737.RRS PAGE: 3
DATE: 3/26/2023
A funeral marker or funeral vase.
A historical marker.
Railroad equipment, including, but not limited to, a tie plate, signal house, control box, switch
plate, E clip, or rail tie junction.
Any metal item that is observably marked upon reasonable inspection with any form of the
name, initials, or logo of a governmental entity, utility company, cemetery, or railroad.
A copper, aluminum, or aluminum-copper condensing or evaporator coil, including its tubing or
rods, from an air-conditioning or heating unit, excluding coils from window air-conditioning or
heating units and motor vehicle air-conditioning or heating units.
An aluminum or stainless steel container or bottle designed to hold propane for fueling forklifts.
A stainless steel beer keg.
A catalytic converter or any nonferrous part of a catalytic converter unless purchased as part of
a motor vehicle.
Metallic wire that has been burned in whole or in part to remove insulation.
A brass or bronze commercial valve or fitting, referred to as a “fire department connection and
control valve” or an “FDC valve,” that is commonly used on structures for access to water for the
purpose of extinguishing fires.
A brass or bronze commercial potable water backflow preventer valve that is commonly used to
prevent backflow of potable water from commercial structures into municipal domestic water
service systems.
A shopping cart.
A brass water meter.
A storm grate.
A brass sprinkler head used in commercial agriculture.
More than two lead-acid batteries, or any part or component thereof, in a single purchase or
from the same individual in a single day.
Regulation of Secondhand Dealers and Secondary Metals Recyclers
Local law enforcement and three state agencies have statutory obligations regarding Florida's
secondhand dealers, mail-in secondhand dealers, and secondary metals recyclers.
The three state agencies include:
5
Florida Department of Revenue- Maintains the statewide registration system for secondhand
dealers, mail-in secondhand dealers, and secondary metals recyclers.
Florida Department of Highway Safety & Motor Vehicles (DHSMV) - Oversees recordkeeping,
proof of ownership, reporting, and enforcement of state laws related to the dismantling or
destruction of motor vehicles, recreational vehicles, and mobile homes by salvage motor vehicle
dealers and secondary metals recyclers (Chapter 319, F.S.). Depending on the type of
materials obtained, certain businesses may be required to register as a salvage motor vehicle
dealer in addition to registration as a secondary metals recycler. (Section 320.27, F.S)
Florida Department of Law Enforcement (FDLE) -Approves transaction forms that document the
sale/purchase of secondary metals. Secondary metals recyclers must complete and maintain
these forms for specified time periods (Chapter 538, F.S.).
Records and Reporting Requirements
A secondhand dealer must annually register his or her business with the Department of Revenue.
6
Examples of businesses that must register as a secondhand dealer include:
consignment stores (excluding stores that consign only clothes);
secondhand stores;
5
Secondary Metal Information, Florida Department of Law Enforcement, https://www.fdle.state.fl.us/SMI (last visited March 24, 2023).
6
S. 538.09, F.S.; What Businesses Are Required to Register as Secondhand Dealers?, Florida Department of Revenue,
https://floridarevenue.com/faq/Pages/FAQSearch.aspx?Cat=4&Subcat=59 (last visited March 24, 2023). STORAGE NAME: h0737.RRS PAGE: 4
DATE: 3/26/2023
music stores that buy or trade used music CDs;
used tire dealers; and
used furniture stores (other than office furniture).
Upon each acquisition of secondhand goods, a secondhand dealer must complete a transaction form
that details the goods purchased and the seller’s identity.
A “transaction” is defined as “any purchase, consignment, or trade of secondhand goods by a
secondhand dealer.”
7
The secondhand dealer must retain this document for at least three years and
forward a copy to the appropriate law enforcement agency within 24 hours after the acquisition of the
secondhand goods.
8
The secondhand dealer must also must keep copies on the registered
secondhand dealer premises for at least one year after the transaction.
9
In addition to the descriptive statements of the secondhand goods and the seller’s identity, the
transaction record must also include:
A statement of the date, time, and place of the transaction;
A summary of the goods acquired, including brand name, model number, serial number, and
other unique identifiers;
Digital photographs of the goods acquired in the report that is submitted to law enforcement;
and
A description of the person from whom the goods were acquired, including his or her right
thumbprint, name and address, and a physical description.
10
Holding Period
Secondhand dealers are required to hold all secondhand goods for at least 15 days after they acquire
the property.
However, secondhand dealers are required to hold certain items for 30 days:
11
a precious metal,
12
gemstone,
jewelry;
antique furnishings,
fixtures, or decorative objects; or
an item of art as defined in s. 686.501, F.S.,
13
Additionally, a secondhand good must be held for 30 days if the secondhand dealer uses an automated
kiosk.
14
Such holding period is not applicable, however, when the person known by the secondhand dealer to
be the person from whom the goods were acquired desires to redeem, repurchase, or recover the
7
S. 538.03(1)(j), F.S.
8
S. 538.04(1), F.S.
9
Id.
10
Id.
11
S. 538.06(1), F.S.
12
S. 538.03(1)(f), F.S., defines “precious metals” as any item containing any gold, silver, or platinum, or any combination thereof,
excluding any chemical or any automotive, photographic, electrical, medical, or dental materials or electronic parts.
13
S. 686.501, F.S., defines “art” as a painting, sculpture, drawing, work of graphic art, pottery, weaving, batik, macramé, quilt, print,
photograph, or craft work executed in materials including, but not limited to, clay, textile, paper, fiber, wood, tile, metal, plastic, or glass.
The term includes a rare map which is offered as a limited edition or a map 80 years old or older; or a rare document or rare print which
includes, a print, engraving, etching, woodcut, lithograph, or serigraph which is offered as a limited edition, or one 80 years old or older.
14
S. 538.03(1)(c), F.S., defines an “automated kiosk” as an interactive device that is permanently installed within a secure retail space
and that has the following technological functions: remotely monitored by a live representative during all business hours; verification of
a seller’s identity by government-issued photographic identification card; automated reading and recording of item serial numbers;
ability to compare item serial numbers against databases of stolen items; secure storage of goods accepted by the kiosk; and capture
and storage of images during the transaction. STORAGE NAME: h0737.RRS PAGE: 5
DATE: 3/26/2023
goods, provided the dealer can produce the record of the original transaction with verification that the
customer is the person from whom the goods were originally acquired.
15
If a law enforcement officer has probable cause to believe that the goods held by a secondhand dealer
are stolen, the officer may place a 90-day written hold order on the goods. This prevents the
secondhand dealer from selling the goods and preserves them for use as evidence in a criminal trial.
16
Additionally, this allows for the possibility of the goods to be returned to their rightful owner.
Law enforcement agencies with jurisdiction enforce compliance with registration, record keeping,
holding periods, and inspection requirements.
17
A person who knowingly violates the requirements
governing secondhand dealers in ch. 538, F.S., commits a first-degree misdemeanor, punishable by up
to 1 year in jail and a $10,000 fine.
18
Methods for Return of Stolen Goods held by a Secondhand Dealer
A victim of a theft may recover his or her goods, or their value, through one of three methods:
A victim may purchase his or her items back from the secondhand dealer, and then file a civil
action against the thief for reimbursement of the cost expended.
A court may order restitution or return of the goods to the secondhand dealer or victim of the
crime.
19
If the court orders return of the goods or restitution to the victim, the court must also
order restitution to the secondhand dealer from the person who sold the goods to the
secondhand dealer.
20
A victim may file a civil action for replevin against the secondhand dealer.
21
Replevin is an action for the repossession of personal property that was wrongfully taken or detained
by the defendant, where the plaintiff secures a bond for and holds the property until the court decides
the rightful owner.
22
Petitions for replevin must contain the following information:
Proof of ownership or right of possession of the property in question and a description of the
property;
A description of how, to the best of plaintiff’s knowledge, the property was wrongfully taken by
the defendant; and
A statement that the property was not taken under any legal basis such as execution, tax, or
fine.
23
In an action for replevin, a court is required to award the prevailing party attorney fees and costs. When
the petitioner is the prevailing party, the court may also order payment of the filing and service fees.
24
Victims of theft and prevailing plaintiffs in an action for replevin are entitled to damages for loss of use,
which are limited to no more than the value of the property before it was taken or damaged.
25
A secondhand dealer commits a noncriminal violation, punishable by a fine of up to $2,500 if the
following occurs:
Owner or lienor makes a written demand for return of the property and provides proof of
ownership or proof of the right of possession to the secondhand dealer at least five days before
filing a replevin action;
The secondhand dealer knows or should have known based on the proof provided above, the
property belongs to the owner or lienor;
15
S. 538.06(1), F.S.
16
S. 538.06(3), F.S.
17
S. 538.05, F.S.
18
S. 538.07(1), F.S.
19
S. 538.07(2), F.S.
20
S. 538.06(4), F.S.
21
S. 538.08, F.S.
22
BLACK’S LAW DICTIONARY (10th ed. 2014) (defining the term “replevin”); see also, ch. 78, F.S., “Replevin.”
23
Ss. 78.055 and 538.08, F.S.
24
S. 538.08(2), F.S. Otherwise, the filing and services fees are waived.
25
Foresight Enterprises, Inc. v. Leisure Time Properties, Inc., 466 So.2d 283, 286 (Fla. 5th DCA 1985). The plaintiff is also entitled to
the summary procedure provided in s. 51.011, F.S. STORAGE NAME: h0737.RRS PAGE: 6
DATE: 3/26/2023
The secondhand dealer fails to return the property and does not file an action for interpleader
26
to determine conflicting claims to the property; and
The owner or lienor prevails in the replevin action against the secondhand dealer.
27
Currently, there appears to be ambiguity about whether products, such as precious metals, money
28
, or
coins
29
are considered securities and potentially subject a retailer of such to a variety of other laws outside
the secondhand goods regulatory scheme.
30
Effect of Bill
The bill amends s. 538.03, F.S., to revise the definition of “secondhand goods” to exclude:
money; and
gold bullion
31
,
silver bullion,
platinum bullion,
palladium bullion, or
rhodium bullion
o If such bullion has been assayed
32
and is properly marked as to its weight and fineness.
The bill removes “coins” from the list of items which are expressly excluded from the definition of
“secondhand goods”.
The bill clarifies that all currency is exempt from the required holding period under Part I of ch. 538, F.S.
Thus, the holding period of 30 days for certain bullion as described above is eliminated.
B. SECTION DIRECTORY:
Section 1: Amends s. 538.03, F.S., relating to secondhand goods.
Section 2: Provides effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill does not appear to have an impact on state revenues.
2. Expenditures:
The bill does not appear to have an impact on state expenditures.
26
Generally, interpleader is suit to determine a right to property held by a disinterested third party (called a stakeholder) who is in doubt
about ownership and who therefore deposits the property with the court to permit interested parties to litigate ownership. BLACK’S LAW
DICTIONARY (10th ed. 2014) (defining the term “interpleader”).
27
S. 538.08(5), F.S.
28
Money” means a medium of exchange authorized or adopted by a domestic or foreign government as part of its currency. S.
538.18(5), F.S.
29
“Coins” is not defined in the Florida Statutes. The dictionary defines “coins” as “usually flat piece of metal issued by governmental
authority as money.” Coin Definition & Meaning, Merriam-Webster, Merriam-Webster, https://www.merriam-webster.com/dictionary/coin
(last visited March 26, 2023).
30
David Cosgrove, Retail Precious Metals Dealers Beware, Cosgrove Law Group , https://www.cosgrovelawllc.com/12-02-13-retail-
precious-metals-dealers-beware.html (last visited March 26, 2023).
31
“Bullion is a physical precious metal in the form of a bar, coin, or round that is almost entirely valued by its precious metal melt value
alone.” What Is Bullion?, SD Bullion , https://sdbullion.com/what-is-bullion (last visited March 25, 2023).
32
For example, “a gold assay is a process to measure the purity of items containing gold. It helps to ensure that gold coins or bullion
bars produced by a mint meet the correct purity and content standards.” Will Kenton, What Is Assay?, Investopedia, Investopedia, Nov.
21, 2022,
https://www.investopedia.com/terms/a/assay.asp#:~:text=A%20gold%20assay%20is%20a,correct%20purity%20and%20content%20st
andards (last visited March 25, 2023). STORAGE NAME: h0737.RRS PAGE: 7
DATE: 3/26/2023
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The bill does not appear to have an impact on local government revenues.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Secondhand dealers who purchase bullion may see a cost benefit because these items are expressly
excluded from the definition of a secondhand goods and therefore, are no longer required to be held for
30 days.
D. FISCAL COMMENTS:
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither requires nor authorizes administrative rulemaking by executive agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
There may be potential issues with removing “coins” from the exception from the secondhand goods
regulations. “Coins” potentially means and includes currency that is not currently in circulation.
However, replacing such term with “money” broadens the applicability with unknown consequences.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES