The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Banking and Insurance
BILL: SB 128
INTRODUCER: Senator Rodriguez
SUBJECT: Contacting Consumer Debtors
DATE: March 28, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Moody Knudson BI Pre-meeting
2. AEG
3. FP
I. Summary:
Senate Bill 128 creates s. 559.721, F.S., to prohibit creditors – defined as consumer collection
agencies and out-of-state consumer debt collectors – from contacting for the purpose of
collecting a debt certain debtors that are victims of certain crimes, or part of vulnerable classes of
persons:
Victims of elders and economic abuse;
Victims of human trafficking and economic abuse;
Victims of identity theft;
A debtor who is protected by an injunction for protection against exploitation of a vulnerable
adult; and
A debtor whose debt arose when the debtor was in foster care.
The bill’s prohibition on consumer debt collection requires proof be provided to the creditor that
the debtor was a crime victim. Victims of elder economic abuse, human trafficking, and identity
theft must provide a creditor with a specified copy of an official report, such as a police report or
an official documentation. These victims and a debtor whose debt arose when he or she was in
foster care also must provide the creditor with an affidavit confirming certain information
regarding the debt and how it was incurred.
Victims of elder economic abuse or human trafficking who comply with these requirements may
not be contacted by creditors for two years from the date the affidavit is provided or indefinitely
if the perpetrator of the crime has been convicted of the reported offense.
The bill provides that the new section may not be construed to mean that the debtor is discharged
from the debt that he or she may have been incurred as a result of the crime. The bill also
provides that the provisions of the new section applies to out-of-state consumer debt collectors,
even if they are exempted from registering with the Office of Financial Regulation (OFR). OFR
is required to report certain information regarding consumer complaints of an alleged violation
REVISED: BILL: SB 128 Page 2
of the new section to the appropriate regulatory body, the Federal Government, or The Florida
Bar. Finally, the bill applies the provisions of s. 559.77, F.S., regarding civil remedies which
authorize a debtor to bring an action against a creditor who violates s. 559.721, F.S., and subjects
such creditor to certain damages, costs, and fees.
The bill is effective July 1, 2023.
II. Present Situation:
Debt Collection Laws
Federal Fair Debt Collection Practices Act (the FDCPA)
The FDCPA was established as a result of abusive, deceptive, and unfair debt collection
practices.
1
The FDCPA is aimed at eliminating abusive debt collection practices by debt
collectors,
2
to ensure those that do not engage in abusive practices are not competitively
disadvantaged, and to promote consistent state action to protect consumers.
3,4
A debt collector who is attempting to acquire location information of the consumer must comply
with certain requirements, such as identify himself, state that he is confirming or correcting
location information, and identify his employer only if expressly asked.
5
With limited
exceptions, the FDCPA limits circumstances under which a debt collector may communicate
with a consumer
6
with respect to collecting any debt,
7,8
and restricts the individuals with whom a
debt collector may communicate about any debt.
9
If a consumer notifies a debt collector in
writing that he or she refuses to pay a debt or wishes to cease communication, the debt collector
must not communicate with the consumer except to notify the consumer of specified
information.
10
Except if the information is relayed during initial communications or the
consumer paid the debt, within five days after the initial communication with a consumer a debt
1
15 U.S.C. s. 1692(a).
2
15 U.S.C. s. 1692a(6) defines “debt collector” as any person who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding certain exclusions,
the term included any creditor who, in the process of collecting his debts, uses any name other than his own which would
indicate that a third person is collecting or attempting to collect such debts. For purposes of s. 1692f(6), the term includes any
person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the
enforcement of security interest. The term excludes certain persons, such as any officer or employee of a creditor.
3
15 U.S.C. s. 1692a(3) defines “consumer” as any natural person obligated or allegedly obligated to pay any debt.
4
15 U.S.C. s. 1692(c).
5
15 U.S.C. s. 1692b(1).
6
15 U.S.C. s. 1692b(d) defines “consumer,” for purposes of this section, to include the consumer’s spouse, parent (if the
consumer is a minor), guardian, executor, or administrator.
7
15 U.S.C. s. 1692a(5) defines “debt” as any obligation or alleged obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for
personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
8
15 U.S.C. s. 1692c(a) (for instance, providing the time or place in which the communication may take place, and prohibiting
contact with the consumer who is represented by an attorney except for certain circumstances).
9
15 U.S.C. s. 1692c(b).
10
15 U.S.C. s. 1692c(c). BILL: SB 128 Page 3
collector must provide the consumer with a written notice containing information related to the
debt.
11
The FDCPA prohibits a debt collector from engaging in any conduct that results in harassment,
oppression, or abuse of any person in collection of a debt, and specifies certain conduct which
constitutes a violation of this provision.
12
A debt collector also is prohibited from using any
false, deceptive, or misleading representation or means in the collection of any debt, and the
FDCPA specifies conduct which constitutes a violation of this provision.
13
Any debt collector who violates these provisions is liable for actual damages, additional damages
up to $1,000 as a court allows, or certain amounts for class action suits.
14
When determining
liability, a court must consider, at a minimum, certain specified factors, such as the frequency
and persistence of noncompliance by the debt collector and the nature of noncompliance.
15
The Bureau of Consumer Financial Protection Bureau (CFPB) must by regulation exempt from
requirements of the FDCPA any class of debt collection practices within any state if the Bureau
determines that the laws of such state are substantially similar to the provision of FDCPA and
have adequate provisions of enforcement.
16
Florida Consumer Collection Practices Act
The OFR is responsible for the regulation of banks, credit unions, other financial institutions,
finance companies, and securities.
17
The OFR has three divisions, including a Division of
Consumer Finance which is responsible for the administration and enforcement of ch. 559,
F.S.,
18
known as the Florida Consumer Collection Practices Act (FCCPA). The OFR registers
and regulates consumer collection agencies.
19,20
A person is prohibited from engaging in
business as a consumer collection agency without registering with the OFR and must renew such
registration annually.
21
The following persons or entities are not required to register with the
OFR:
11
15 U.S.C. s. 1692g(a).
12
15 U.S.C. s. 1692d.
13
15 U.S.C. s. 1692e.
14
15 U.S.C. s. 1692k(a).
15
15 U.S.C. s. 1692k(b).
16
15 U.S.C. s. 1692o.
17
Section 20.121(3)(a)2., F.S.
18
Section 494.0011(1), F.S.
19
Section 559.55(3), F.S., defines “consumer collection agency” as any debt collector or business entity engaged in the
business of soliciting consumer debts for collection or of collecting consumer debts, which debt collector or business is not
expressly exempted under s. 559.553(3), F.S. Section 559.55(7), F.S., defines “debt collector” as any person who uses any
instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principal
purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed
or due or asserted to be owed or due another. The term “debt collection” includes any creditor who, in the process of
collecting her or his own debts, uses any name other than her or his own which would indicate that a person is collecting or
attempting to collect such debts. The term does not include specified persons.
20
Section 559.554(1), F.S.
21
Section 559.553(1) and (2), F.S. BILL: SB 128 Page 4
An original creditor, that is any person who offers or extends credit creating a debt
22
or to
whom a debt is owed, but does not include any person to the extent that they receive an
assignment or transfer of a debt in default solely for the purpose of facilitating collection of
such debt for another;
23
A member of The Florida Bar;
A financial institution authorized to do business in this state and any wholly owned
subsidiary and affiliate;
A licensed real estate broker;
An insurance real estate broker;
An insurance company authorized to do business in this state;
A consumer finance company and any wholly owned subsidiary and affiliate;
A person licensed to pursuant to ch. 520, F.S.;
Certain out-of-state consumer debt collectors;
24
and
An FDIC-insured institution or subsidiary or affiliate.
25
An out-of-state consumer debt collector who is not exempt and who fails to register is subject to
an enforcement action by the state.
26
A person collecting consumer debts is prohibited from engaging in certain conduct, such as to:
Simulate a law enforcement officer or a representative of any governmental agency;
Use or threaten force or violence;
Tell a debtor who disputes a consumer debt that the person will disclose to another
information affecting the debtor’s reputation for credit worthiness without also informing the
debtor of certain information;
Communicate or threaten to communicate with a debtor’s employer before obtaining final
judgment against the debtor, unless certain circumstances exist;
Use profane, obscene, vulgar, or willfully abuse language in communicating with the debtor
or any of the debtor’s family members; and
Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not
legitimate.
27
22
Section 559.55(7), F.S., defines “debt” or “consumer debt” as any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money, property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to
judgment.
23
Section 559.55(5), F.S.
24
Section 559.55(11), F.S., defines “out-of-state consumer debt collector” as any person whose business activities in Florida
involve both collecting or attempting to collect consumer debt from debtors located in Florida by means of interstate
communication originating from outside this state and soliciting consumer debt accounts for collection from creditors who
have a business presence in Florida. For purposes of this subsection, a creditor has a business presence in Florida if either the
creditor or an affiliate or subsidiary of the creditor has an office in Florida.
25
Section 559.553(6), F.S.
26
Section 559.553(4), F.S. An out-of-state consumer debt collector who is the subject of an enforcement action is liable up to
$10,000, reasonable attorney fees, and court costs. Section 559.565(1), F.S.
27
Section 559.72, F.S. BILL: SB 128 Page 5
A debtor
28
may bring a civil action against a person who violated any of the specified prohibited
acts.
29
Further a person who engages in any of the prohibited acts is liable for actual damages
and for additional statutory damages as the court may allow, but not exceeding $1,000 plus court
costs and reasonable attorney fees.
30
A court may order additional statutory damages for class
action suits, punitive damages, or other equitable relief as it deems necessary or proper.
31
The
court must consider the nature of the defendant’s noncompliance, the frequency and persistence
of the noncompliance, and the extent to which the noncompliance was intentional.
32
A person
may not be held liable if the person shows by a preponderance of the evidence that the violation
was not intentional and resulted from a bona fide error.
33
Any suit brought under s. 559.77(4),
F.S., must commence within 2 years after the date of the alleged violation.
34
A person who is registered or required to be registered in Florida as a consumer collection
agency is subject to disciplinary action for engaging in specified acts, such as fraud,
misrepresentation, concealment, or dishonest dealing by trick.
35
Potential penalties include, for
instance, issuance of a reprimand, suspension of registration, revocation of a registration, denial
of a registration, imposition of a fine of up to $10,000 for each count or separate offense, and an
administrative fine of up to $1,000 per day for each day that a person engages as a consumer
collection agency without a valid registration.
36
The OFR is responsible for receiving and maintaining records of complaints from consumers
concerning all persons who collect debts, including consumer collection agencies.
37
The OFR
must inform and furnish any relevant information to the appropriate regulatory body of Florida,
the federal government, or The Florida Bar, if a person has been named in a consumer complaint
alleging a violation of s. 559.72, F.S.
38
Elder Abuse
As the country’s “baby-boomer” population reaches retirement age and life expectancy
increases, the nation’s elder population is projected to increase from 49.2 million in 2016
39
to 79
million by 2034.
40
Florida has long been a destination state for senior citizens and has one of the
28
Section 559.55(8), F.S., defines “debtor” or “consumer” as any natural person obligated or allegedly obligated to pay any
debt.
29
Section 559.77(1), F.S.
30
Section 559.77(2), F.S.
31
Id.
32
Id.
33
Section 559.77(3), F.S.
34
Section 559.77(4).
35
Section 559.730(1), F.S.
36
Section 559.730(2), F.S.
37
Section 559.725(1), F.S.
38
Section 559.772(2), F.S.
39
Press Release, U.S. Census Bureau, The Nation’s Older Population is Still Growing, Census Bureau Reports, June 22,
2017, Release Number: CB17-100, available at https://www.census.gov/newsroom/press-releases/2017/cb17-100.html (last
visited Mar. 26, 2023).
40
Press Release, U.S. Census Bureau, Older People Projected to Outnumber Children for First Time in U.S. History, revised
October 8, 2019, available at https://www.census.gov/newsroom/press-releases/2018/cb18-41-population-projections.html
(last visited Mar. 26, 2023). BILL: SB 128 Page 6
highest percentage of senior residents in the entire nation.
41
In 2019, individuals age 65 and older
represented approximately 20.9 percent of Florida’s total population.
42
By 2030, this number is
projected to increase to 5.9 million, meaning the elderly will make up approximately one quarter
of the state’s population and it is estimated that individuals age 65 and older will account for
approximately 47.9 percent of the state’s population growth between 2010 and 2030.
43
Elder populations are vulnerable to abuse and exploitation due to risk factors associated with
aging, such as physical and mental infirmities and social isolation.
44
According to the U.S.
Department of Justice, approximately 1 in 10 seniors is abused each year in the United States,
though incidents of elder abuse are reported to local authorities in 1 out of every 24 cases.
45
Elder abuse can have significant physical and emotional effects on an older adult and can lead to
premature death.
46
Abused seniors are twice as likely to be hospitalized and three times more
likely to die than non-abused seniors.
47
Florida law provides criminal penalties for the abuse, neglect, and exploitation of elderly.
48
Under s. 825.103, F.S., a person is guilty of the “exploitation of an elderly person or disabled
adult” when he or she:
Stands in a position of trust and confidence, or has a business relationship, with an elderly
person and knowingly obtains or uses, or endeavors to obtain or use, the elderly person’s
funds, assets, or property with the intent to temporarily or permanently deprive that person of
the use, benefit, or possession of the funds, assets, or property, or to benefit someone other
than the elderly person;
49
Obtains or uses, endeavors to obtain or use, or conspires with another to obtain or use an
elderly person’s funds, assets, or property with the intent to temporarily or permanently
41
Pew Research Center, Where Do the Oldest Americans Live?, July 9, 2015, available at https://www.pewresearch.org/fact-
tank/2015/07/09/where-do-the-oldest-americans-live/ (last visited Mar. 26, 2023).
42
U.S. Census Bureau, 65 and Older Population Grows Rapidly as Baby Boomers Age, June 25, 2020, available at
https://www.census.gov/newsroom/press-releases/2020/65-older-population-grows.html (last visited Mar. 26, 2023).
43
The Office of Economic & Demographic Research (EDR), Population Data: 2016, 2020, 2025, 2030, 2035, 2040, & 2045,
County by Age, Race, Sex, and Hispanic Origin, pp. 89-90 and 269-70, available at http://edr.state.fl.us/Content/population-
demographics/data/Medium_Projections_ARSH.pdf (last visited Mar. 26, 2023); and the EDR, Econographic News:
Economic and Demographic News for Decision Makers, 2019, Vol. 1, available at http://edr.state.fl.us/content/population-
demographics/reports/econographicnews-2019v1.pdf (last visited Mar. 26, 2023).
44
National Center on Elder Abuse, What are the Risk Factors?, available at https://ncea.acl.gov/What-We-
Do/Research/Statistics-and-Data.aspx#risk (visited Mar. 26, 2023).
45
U.S. Department of Justice, Elder Justice Initiative, available at https://www.justice.gov/elderjustice (last visited Mar. 26,
2023); and National Center on Elder Abuse, What is Known about the Incidence and Prevalence of Elder Abuse in the
Community Setting?, available at https://ncea.acl.gov/What-We-Do/Research/Statistics-and-Data.aspx#prevalence (last
visited Mar. 26, 2023); see also, Ron Acierno et al., Prevalence and Correlates of Emotional, Physical, Sexual, and
Financial Abuse and Potential Neglect in the United States: The National Elder Mistreatment Study, 100:2 Am. J. Pub.
Health, at 292-297 (February 2010), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2804623/ (last visited Mar.
26, 2023).
46
U.S. Department of Justice, Elder Justice Initiative: About Elder Abuse,
available at https://www.justice.gov/elderjustice/about-elder-abuse (Mar. 26, 2023); see also, Mark S. Lachs et al., The
Mortality of Elder Mistreatment, 280:5 JAMA at 428-432 (1998), available at
https://jamanetwork.com/journals/jama/fullarticle/187817 (all sites last visited Mar. 26, 2023).
47
XinQi Dong, et al., Elder Abuse as a Risk Factor for Hospitalization in Older Persons, 173(10), JAMA Intern Med. At
911-917 (2013), available at https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/1675876 (last visited Mar.
26, 2023).
48
Sections 825.101-825.106, F.S.
49
Section 825.103(1)(a), F.S. BILL: SB 128 Page 7
deprive the elderly person of the use, benefit, or possession of the funds, assets, or property,
or to benefit someone other than the elderly person, and he or she knows or reasonably
should know that the elderly person lacks the capacity to consent;
50,51
Breaches a fiduciary duty to the elderly person while acting as the person’s guardian, trustee,
or agent under a power of attorney, and such breach results in an unauthorized appropriation,
sale, or transfer of property;
52
Misappropriates, misuses, or transfers without authorization money belonging to an elderly
person from an account in which the elderly person or disabled adult placed the funds, owned
the funds, and was the sole contributor or payee of the funds before the misappropriation,
misuse, or unauthorized transfer;
53
or
Intentionally or negligently fails to effectively use an elderly person’s income and assets for
the necessities required for that person’s support and maintenance while acting as a caregiver
or standing in a position of trust and confidence with the elderly person.
54
An offender commits a first-degree felony
55
if the funds, assets, or property involved in the
exploitation of the elderly person or disabled adult is valued at $50,000 or more.
56
An offender
commits a second-degree felony
57
if the funds, assets, or property involved in the exploitation of
the elderly person or disabled adult is valued between $10,000 and $50,000.
58
An offender
commits a third-degree felony
59
if the funds, assets, or property involved in the exploitation of an
elderly person or disabled adult is valued at less than $10,000.
60
Human Trafficking
Human trafficking is a form of modern-day slavery.
61
Human trafficking victims are young
children, teenagers, and adults who may be citizens that are trafficked domestically within the
borders of the United States or smuggled across international borders worldwide.
62
Many human
trafficking victims are induced with false promises of financial or emotional security, but are
forced or coerced into commercial sex, domestic servitude, or other types of forced labor.
63
Any
50
Section 825.101(8), F.S., defines “lacks the capacity to consent” as an impairment by reason of mental illness,
developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication,
short-term memory loss, or other cause, causing an elderly person or disabled adult to lack sufficient understanding or
capacity to make or communicate reasonable decisions concerning their person or property.
51
Section 825.103(1)(b), F.S.
52
Section 825.103(1)(c), F.S.
53
Section 825.103(1)(d), F.S.
54
Section 825.103(1)(e), F.S.
55
A first degree felony is punishable by up to 30 years imprisonment and a $10,000 fine. Sections 775.082 and 775.083, F.S.
56
Section 825.103(3)(a), F.S.
57
A second degree felony is punishable by up to 15 years imprisonment and up to a $10,000 fine. Sections 775.082 and
775.083, F.S.
58
Section 825.103(3)(b), F.S.
59
A third degree felony is punishable by up to five years imprisonment and up to a $5,000 fine. Sections 775.082, 775.083,
and 775.084, F.S.
60
Section 825.103(3)(c), F.S.
61
Section 787.06(1)(a), F.S.
62
Id.
63
The Department of Education (the DOE), Healthy Schools – Human Trafficking, available at
http://www.fldoe.org/schools/healthy-schools/human-trafficking.stml (last visited Mar. 25, 2023) (hereinafter cited as “DOE
Human Trafficking”). BILL: SB 128 Page 8
minor person who is younger than 18 years old and who is induced to perform a commercial sex
act is a human trafficking victim even if there is no forced fraud or coercion.
64
Increasingly,
criminal organizations, such as gangs, are enticing local school children into commercial sexual
exploitation or trafficking.
65
The average ages of youth who are trafficked are 11-13 years old.
66
Congress passed the Victims of Trafficking and Violence Protection Act (Act) of 2000 to combat
human trafficking by establishing several methods of prosecuting traffickers, preventing
trafficking, and protecting victims.
67
The Act contains severe penalties and mandates restitution
for victims of human trafficking.
68
The U.S. Department of Justice reports that every two minutes a child is trafficked for the
purpose of sexual exploitation in the United States.
69
Approximately 24.9 million people are
human trafficking victims in the world.
70
There are approximately 2.5 million victims of human
trafficking in the United States.
71
Since 2007, the U.S. National Human Trafficking Hotline
(NHTH) has identified 82,301 cases of human trafficking with 164,839 victims being identified
in the cases.
72
Federal Regulation
The Code of Federal Regulation prohibits the inclusion of adverse information in consumer
reporting in cases of human trafficking victims.
73
The regulation prohibits consumer reporting
agencies from furnishing any consumer report that contains adverse information about a
consumer that resulted from a severe form of trafficking in persons or sex trafficking if certain
specified documents is provided to the consumer reporting agency.
74
Examples of acceptable
documentation include a determination made by a court of competent jurisdiction or a signed
statement by the consumer attesting that the consumer is a victim of trafficking if the document
is certified by specified certain entities (e.g. federal or state entity).
75
64
Id.
65
Id.
66
The DOE, Presentation to the State Board of Education, Child Trafficking Prevention Education, p. 3, September 20, 2019,
available at http://www.fldoe.org/core/fileparse.php/5575/urlt/ChildTraffickingPres.pdf (last visited Mar. 25, 2023).
67
Pub. L. No. 106-386 (2000).
68
Id.
69
DOE Human Trafficking.
70
National Human Trafficking Hotline, What is Human Trafficking?, available at https://humantraffickinghotline.org/what-
human-trafficking (last visited Mar. 25, 2023).
71
DOE Human Trafficking.
72
NHTH, Hotline Statistics, available at https://humantraffickinghotline.org/states (last visited Mar. 25, 2023).
73
12 C.F.R. s. 1022.142
74
12 C.F.R. s. 1022.142(c).
75
12 C.F.R. s. 1022.142(b)(6). BILL: SB 128 Page 9
Human Trafficking in Florida
Florida law defines “human trafficking” as transporting, soliciting, recruiting, harboring,
providing, enticing, maintaining,
76
purchasing, patronizing, procuring, or obtaining
77
another
person for the purpose of exploitation of that person.
78
In Florida, any person who knowingly, or
in reckless disregard of the facts, engages in human trafficking, or attempts to engage in human
trafficking, or benefits financially by receiving anything of value from participation in a venture
that has subjected a person to human trafficking for labor or services, or commercial sexual
activity, commits a crime.
79
Florida law sets out several circumstances which give rise to human
trafficking and specified penalties including, in part:
Labor
80
or services
81
of any child under the age of 18 or adult believed to be a child younger
than 18 years old commits a first degree felony;
82
Labor or services of any child under the age of 18 or adult believed to be a child younger
than 18 years old who is an unauthorized alien
83
commits a first degree felony;
84
Labor or services who does so by the transfer or transport of any child under the age of 18 or
an adult believed to be a child younger than 18 years old from outside of Florida to within
Florida commits a first degree felony;
85
Commercial sexual activity
86
who does so by the transfer or transport of any child under the
age of 18 or an adult believed to be a child younger than 18 years old from outside of Florida
to within Florida commits a first degree felony;
87
or
76
Section 787.06(2)(f), F.S., provides “maintain” means, in relation to labor or services, to secure or make possible continued
performance thereof, regardless of any initial agreement on the part of the victim to perform such type service. Section
787.06(2)(h), F.S., defines “services” as any act committed at the behest of, under the supervision of, or for the benefit of
another, including forced marriage, servitude, or the removal of organs.
77
Section 787.06(2)(g), F.S., provides “obtain” means, in relation to labor, commercial sexual activity, or services, to receive,
take possession of, or take custody of another person or secure performance thereof.
78
Section 787.06(2)(d), F.S.
79
Section 787.06(3), F.S.
80
Section 787.06(2)(e), F.S., provides “labor” means work of economic or financial value.
81
Section 787.06(2)(h), F.S., provides “services” means any act committed at the behest of, under the supervision of, or for
the benefit of another. The term includes, but is not limited to, forced marriage, servitude, or the removal of organs.
82
Section 787.06(3)(a)1., F.S.
83
Section 787.06(2)(j), F.S., defines “unauthorized alien” as an alien who is not authorized under federal law to be employed
in the United States, as provided in 8 U.S.C. s. 1324a(h)(3).
84
Section 787.06(3)(c)1., F.S.
85
Section 787.06(3)(e)1., F.S.
86
Section 787.06(2)(b), F.S., defines “commercial sexual activity” as any violation of ch. 796, F.S., or an attempt to commit
any such offense, and includes sexually explicit performances and the production of pornography. Section 787.06(2)(i), F.S.,
defines “sexual explicit performance” as an act or show, whether public or private, that is live, photographed, recorded, or
videotaped and intended to arouse or satisfy the sexual desires or appeal to the prurient interest.
87
Section 787.06(3)(f)1., F.S., provides that an offense committed under these circumstances is punishable by a term of
imprisonment not exceeding life or as provided in ss. 775.082, 775.083, or 775.084, F.S. BILL: SB 128 Page 10
Commercial sexual activity
88
in which any child under the age of 18 or an adult believed to
be a child younger than 18 years old, or in which any person who is mentally defective
89
or
mentally incapacitated
90
is involved commits a life felony.
91
First degree felonies are reclassified as a life felony if a person causes great bodily harm,
permanent disability, or permanent disfigurement to another person during the commission of the
offense.
92
Ignorance of the human trafficking victim’s age, the victim’s misrepresentation of his
or her age, or a bona fide belief of the victim’s age cannot be raised as a defense by a
defendant.
93
Identity Theft
Federal laws establish several offenses for identity theft, such as knowingly and without legal
authority producing an identification document, authentication feature, or a false identification
document.
94
Other federal law offenses relating to identity theft or fraud include violations of
other statutes such as credit card fraud,
95
computer fraud,
96
mail fraud,
97
wire fraud,
98
or financial
institutions fraud.
99
Each of these offenses are felonies that carry substantial penalties, including
imprisonment up to 30 years, fines, and criminal forfeiture.
100
Victims of identity theft may
report such crimes to the Federal Trade Commission.
101
There are also Florida laws which establish criminal offenses for identity theft, such as willfully
and without authorization
102
fraudulently using or possessing personal identification information
of another person without first obtaining the person’s consent.
103
Offenses may be first, second,
88
Section 787.06(2)(b), F.S., defines “commercial sexual activity” as any violation of ch. 796, F.S., or an attempt to commit
any such offense, and includes sexually explicit performances and the production of pornography. Section 787.06(2)(i), F.S.,
defines “sexual explicit performance” as an act or show, whether public or private, that is live, photographed, recorded, or
videotaped and intended to arouse or satisfy the sexual desires or appeal to the prurient interest.
89
Section 794.011(1)(b), F.S., defines “mentally defective” as a mental disease or defect which renders a person temporarily
or permanently incapable of appraising the nature of his or her conduct.
90
Section 794.011(1)(c), F.S., defines “mental incapacitated” as temporarily incapable of appraising or controlling a person’s
own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent
or due to any other act committed upon that person without his or her consent.
91
A life felony is punishable by a term of life imprisonment, $15,000 fine, or both as provided in ss. 775.082(3)(a)6.,
775.083, or 775.084, F.S.
92
Section 787.06(8)(b), F.S.
93
Section 787.06(9), F.S.
94
18 U.S.C. s. 1028.
95
18 U.S.C. s. 1029.
96
18 U.S.C. s. 1030.
97
18 U.S.C. s. 1341.
98
18 U.S.C. s. 1343.
99
18 U.S.C. s. 1344.
100
The United States Department of Justice, Identity Theft, Nov. 16, 2020, available at: Identity Theft (justice.gov) (last
visited Mar. 26, 2023).
101
The Federal Trade Commission, Report Identity Theft, available at: Report Identity Theft | Federal Trade Commission
(ftc.gov) (last visited Mar. 26, 2023).
102
Section 817.568(1)(b), F.S., defines “authorization” as empowerment, permission, or competence to act.
103
Section 817.568(2), F.S. BILL: SB 128 Page 11
or third degree felonies depending on the amount and number of persons affected.
104
Florida
laws also contain criminal provisions relating to theft
105
and other fraudulent practices.
106
Elder Exploitation Injunctions
In 2018, the Legislature created a cause of action for an injunction prohibiting exploitation of a
vulnerable adult.
107
Section 825.1035, F.S., specifies who may file for an injunction, including:
A vulnerable adult in imminent danger of being exploited;
The guardian of a vulnerable adult in imminent danger of being exploited;
A person or organization acting on behalf of the vulnerable adult with the consent of the
vulnerable adult or his or her guardian;
An agent under a valid durable power of attorney with the authority specifically granted in
the power of attorney; or
A person who simultaneously files a petition for determination of incapacity and appointment
of an emergency temporary guardian with respect to the vulnerable adult.
108
Current law also:
Allows the court to grant a temporary injunction under certain circumstances;
Lists standards for the court to follow when issuing an injunction; and
Identifies forms of relief the court may grant to a vulnerable adult in issuing an injunction,
including temporary and exclusive use of a shared residence and freezing the assets and
credit lines of the vulnerable adult and those of an individual accused of exploiting the
vulnerable adult.
109
The court may issue a temporary injunction ex parte, prior to the hearing on the petition, which
grants relief as the court deems proper if the court finds:
An immediate and present danger of exploitation of the vulnerable adult exists;
There is a likelihood of irreparable harm and nonavailability of an adequate remedy at law;
There is a substantial likelihood of success on the merits;
The threatened injury to the vulnerable adult outweighs possible harm to the respondent;
Granting a temporary injunction will not disserve the public interest; and
Such injunction provides for the vulnerable adult’s physical or financial safety.
110
An ex parte temporary injunction may not exceed 15 days, and a hearing on the petition for the
injunction must be set for a date no later than the last day the temporary injunction is effective.
111
The court may grant a continuance for the hearing, for good cause shown. However, the ex parte
injunction is not be extended beyond the initial 15 days as a result of the continuance.
112
104
Id.
105
Ch. 812, F.S.
106
Ch. 817, F.S.
107
Chapter 2018-100, L.O.F.; codified in s. 825.1035, F.S.
108
Section 825.1035(2)(a)1.-5., F.S.
109
See s. 825.1035, F.S.
110
Section 825.1035(5)(a), F.S.
111
Section 825.1035(5)(d), F.S.
112
Id. BILL: SB 128 Page 12
The court may issue a final injunction upon notice and hearing if the court finds:
The vulnerable adult is the victim or imminent danger of becoming a victim of exploitation;
There is a likelihood of irreparable harm and nonavailability of an adequate remedy at law;
The threatened injury to the vulnerable adult outweighs possible harm to the respondent;
Where the injunction freezes assets of the respondent, the court finds probable cause that
exploitation has occurred, the freeze only affects the proceeds of such exploitation, and there
is a substantial likelihood that such assets will be ordered to be returned to the vulnerable
adult; and
The relief provides for the vulnerable adult’s physical or financial safety.
113
The terms of the injunction may remain in effect until the injunction is modified or dissolved.
114
Foster Care
The child welfare system identifies families whose children
115
are in danger of suffering or have
suffered abuse,
116
abandonment,
117
or neglect
118
and works with those families to address the
problems that are endangering children. If the problems cannot be ameliorated, the child welfare
system finds other caregivers for children, such as foster care, relative and nonrelative
caregivers, or adoptive families.
119
“Foster care” is defined as care provided a child in a foster
family or boarding home, group home, agency boarding home, child care institution, or any
combination thereof.
120
113
Section 825.1035(8)(a)1., F.S.
114
Section 825.1035(8)(c), F.S.
115
See s. 39.01(14), F.S., for the definition of “child who is found to be dependent.”
116
Section 39.01(2), F.S. The term “abuse” means any willful act or threatened act that results in any physical, mental, or
sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be
significantly impaired. Abuse of a child includes the birth of a new child into a family during the course of an open
dependency case when the parent or caregiver has been determined to lack the protective capacity to safely care for the
children in the home and has not substantially complied with the case plan towards successful reunification or met the
conditions for return of the children into the home. Abuse of a child includes acts or omissions. Corporal discipline of a child
by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to
the child.
117
Section 39.01(1), F.S. The term “abandoned” or “abandonment” means a situation in which the parent or legal custodian
of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant
contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship
with the child, or both.
118
Sections 39.01(50) and 39.201(2)(a), F.S. “Neglect” occurs when a child is deprived of, or is allowed to be deprived of,
necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation
or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of
being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial
inability unless actual services for relief have been offered to and rejected by such person. A parent or legal custodian
legitimately practicing religious beliefs in accordance with a recognized church or religious organization who thereby does
not provide specific medical treatment for a child may not, for that reason alone, be considered a negligent parent or legal
custodian; however, such an exception does not preclude a court from ordering necessary services.
119
See s. 39.001(1), F.S.
120
Section 39.01(29), F.S. BILL: SB 128 Page 13
Action Letters for Foster Children
In 2014, the CFPB released action letters for child welfare case workers to send to credit bureaus
for debt incurred by foster children.
121
The three letters address credit reports that: (a) should not
exist for the child in foster care,
122
(b) has errors from before the youth turned 18,
123
and (c) has
errors for foster care youth over 18.
124
Case workers are encouraged to send the relevant letters
to the credit bureaus if they find errors on foster children’s credit reports.
125
III. Effect of Proposed Changes:
Section 2 of the bill creates s. 559.721, F.S., which prohibits consumer collection agencies from
contacting certain debtors once the creditor received specified evidence. A creditor may not
contact a debtor regarding a debt that arises from documented elder and economic abuse, human
trafficking and economic abuse, identity theft, or a debt that arose when the debtor was in foster
care. Also, a creditor may not contact a debtor upon receiving notice that the debtor is protected
by an injunction for protection against exploitation of a vulnerable adult.
For the no contact provision to apply to victims of elder and economic abuse, the debtor, or a
person with fiduciary responsibility, must provide to the creditor: (a) a police report that a debtor
has been the victim of elder abuse by a specified alleged perpetrator, and (b) a signed affidavit
swearing under penalty of perjury that the following are true:
The debtor was the victim of elder abuse as documented in a police report;
As a result of the abuse, the debtor was compelled to incur debt or was provided credit that
the debtor would not otherwise have incurred in the absence of the abuse, such as the
debtor’s identity being stolen; and
The debt was incurred solely because of elder abuse.
If the debtor complies with these requirements, the no contact provision applies either (a) for 2
years after the affidavit is provided, or (b) indefinitely, if the perpetrator has been convicted of a
crime relating to elder abuse arising from the conduct referenced in the police report.
For the no contact provision to apply to victims of human trafficking and economic abuse, the
debtor must provide to the creditor: (a) official documentation
126
that shows at least one incident
of human trafficking has occurred in which the debtor is listed as a victim and in which the
121
The CFPB, CFPB Releases Tools to Protect Foster Care Children from Credit Reporting Problems, May 1, 2014,
available at: CFPB Releases Tools To Protect Foster Care Children From Credit Reporting Problems | Consumer Financial
Protection Bureau (consumerfinance.gov) (hereinafter cited as “CFPB Tools to Protect Foster Care Children”) (last visited
Mar. 25, 2023).
122
The CFPB, Credit Report Dispute Template for Youth in Foster Care, available at: 201405_cfpb_foster-youth-
letter_minor-dispute.doc (live.com) (last visited Mar. 25, 2023).
123
The CFPB, Credit Report Dispute Template for Youth 18 or Older in Foster Care – Activity Occurred When Minor,
available at: 201405_cfpb_foster-youth-letter_adult-minor-dispute.doc (live.com) (last visited Mar. 25, 2023).
124
The CFPB, Credit Report Dispute Template for Youth 18 or Older in Foster Care, available at: 201405_cfpb_foster-
youth-letter_adult-dispute.doc (live.com) (last visited Mar. 25, 2023).
125
The CFPB Tools to Protect Foster Care Children.
126
Section 943.0583(1)(b), F.S., defines “official documentation” as any documentation issued by a federal, state, or local
agency tending to show a person’s status as a victim of human trafficking. BILL: SB 128 Page 14
debtor received relocation assistance,
127
and (b) a signed affidavit swearing under penalty of
perjury that the following are true:
The debtor was the victim of human trafficking as documented in a police report or there has
been a determination that the debtor should receive relocation assistance;
As a result of the human trafficking, the debtor was compelled to incur debt or was provided
credit that the debtor would not otherwise have incurred in the absence of the abuse, such as
the debtor’s identity being stolen; and
The debt was incurred solely because of and during the period of human trafficking.
If the debtor complies with these requirements, the no contact provision applies either (a) for 2
years after the affidavit is provided, or (b) indefinitely, if the perpetrator has been convicted of a
crime relating to human trafficking as alleged in the police report.
For the no contact provision to apply to victims of identity theft, the debtor must provide to the
creditor: (a) a Federal Trade Commission identity theft report confirming that the debtor is the
victim of identity theft, and (b) a signed affidavit swearing the following are true:
The debtor was the victim of identity theft as documented in the Federal Trade Commission
identity theft report;
As a result of the identity theft, the debt was incurred in the debtor’s name but in no way
benefited the debtor; and
The debt that is the subject of the creditor’s contact with the debtor was incurred solely
because of identity theft.
If the debtor complies with these requirements, there is no time limit for how long the provision
applies.
For the no contact provision to apply to children who were in foster care, the debtor must provide
to the creditor a signed affidavit, swearing under penalty of perjury, that the following are true:
The debtor was in foster care; and
The debt was incurred during the time when the debtor was in foster care.
If the debtor complies with these requirements, there is no time limit for how long the
provision applies.
The bill provides that s. 559.721, F.S., may not be construed or interpreted to discharge an
individual from a debt he or she may have incurred as a result of a crime.
“Creditor” is defined as a person required to be registered under s. 559.553, F.S. A consumer
collection agency is required to be registered under that section.
Section 1 provides that out-of-state consumer debt collectors, whether registered or exempt from
registration, are subject to sanctions for violating s. 559.721, F.S.
127
Section 960.196(2), F.S., provides that a victim may be granted an award for relocation assistance if there is proof that a
human trafficking offense was committed as provided in s. 787.06(3)(b), (d), (f), and (g), and that the crime was reported to
the proper authorities and filed within specified timeframes depending on when the crime occurred. BILL: SB 128 Page 15
Section 3 requires the OFR to inform and furnish relevant information to specified entities if a
person has been named in a consumer complaint alleging a violation of s. 559.721, F.S.
Section 4 authorizes a debtor to bring a civil action against a person for violating s. 559.721, F.S.
in the county where the alleged violator resides or has its principal place of business, or in the
county where the violation occurred. The bill makes any person who fails to comply with the
new section liable for damages, court costs, and reasonable attorney fees as provided under
current law for other prohibited acts under ch. 559, F.S.
Section 5 provides the bill is effective July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Federal law and Florida law provide that, in the event any inconsistency between any
provision of FDCPA and the FCCPA, the provision which is more protective of the
consumer or debtor must prevail.
128
The bill would add provisions that are more
protective of certain categories of persons and therefore should prevail.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
128
15 U.S.C. s. 1692n; Section 559.552, F.S. BILL: SB 128 Page 16
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends sections 559.565, 559.725, 559.77 of the Florida Statutes.
This bill creates section 559.721 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.