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 Commerce and Tourism
BILL: SB 442
INTRODUCER: Senators Gruters and Hooper
SUBJECT: Secondhand Dealers
DATE: March 24, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Renner McKay CM Pre-meeting
2. JU
3. RC
I. Summary:
SB 442 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.”
The bill takes effect July 1, 2023.
II. Present Situation:
Chapter 538, F.S., regulates secondhand dealers and secondary metal recyclers in the trade of
secondhand goods. A secondhand dealer 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.
1
Secondhand goods are previously owned or used personal property that is purchased, consigned,
or traded as used property. The term also includes gift certificates and credit memos
2
which are
purchased, consigned, or traded by a secondhand dealer. Secondhand goods do 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, and secondhand
sports equipment that is not permanently labeled with a serial number.
3
1
Section 538.03(1)(h), F.S.
2
Section 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.
3
Section 538.03(1)(i), F.S.
REVISED: BILL: SB 442 Page 2
A secondhand dealer must annually register his or her business with the Department of
Revenue.
4
Upon each acquisition of secondhand goods, a secondhand dealer must complete a transaction
form that details the goods purchased and the seller’s identity. 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.
5
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.
6
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 a precious metal,
7
gemstone, jewelry; antique furnishings, fixtures, or decorative objects; or an item of art as
defined in s. 686.501, F.S.,
8
within 30 days after they acquire the property.
9
Additionally, a
secondhand good must be held for 30 days if the secondhand dealer uses an automated kiosk.
10
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.
11
Additionally, this allows for the possibility of the goods to be returned to their
rightful owner.
4
Section 538.09, F.S.
5
Section 538.04(1), F.S.
6
Id.
7
Section 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.
8
Section 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.
9
Section 538.06(1), F.S.
10
Section 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.
11
Section 538.06(3), F.S. BILL: SB 442 Page 3
Law enforcement agencies with jurisdiction enforce compliance with registration, record
keeping, holding periods, and inspection requirements.
12
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.
13
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.
14
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.
15
A victim may file a civil action for replevin against the secondhand dealer.
16
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.
17
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.
18
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.
19
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.
20
The plaintiff is also entitled to the summary procedure provided in s. 51.011, F.S.
12
Section 538.05, F.S.
13
Section 538.07(1), F.S.
14
Section 538.07(2), F.S.
15
Section 538.06(4), F.S.
16
Section 538.08, F.S.
17
BLACK’S LAW DICTIONARY (10th ed. 2014) (defining the term “replevin”); see also, ch. 78, F.S., “Replevin.”
18
Sections 78.055 and 538.08, F.S.
19
Section 538.08(2), F.S. Otherwise, the filing and services fees are waived.
20
Foresight Enterprises, Inc. v. Leisure Time Properties, Inc., 466 So.2d 283, 286 (Fla. 5th DCA 1985). BILL: SB 442 Page 4
A secondhand dealer commits a noncriminal violation, punishable by a fine of up to $2,500 if the
following occurs:
An 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;
The secondhand dealer fails to return the property and does not file an action for
interpleader
21
to determine conflicting claims to the property; and
The owner or lienor prevails in the replevin action against the secondhand dealer.
22
III. Effect of Proposed Changes:
The bill amends s. 538.03, F.S., to revise 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.”
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:
None identified.
21
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”).
22
Section 538.08(5), F.S. BILL: SB 442 Page 5
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Secondhand dealers who purchase the types of buillon listed in the bill may see a cost
benefit because these items are expressly excluded from the definition of a secondhand
good and, therefore, are no longer required to be held for 30 days.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 538.03 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.