This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1255b.JUA
DATE: 2/5/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1255 Notaries Public
SPONSOR(S): Civil Justice Subcommittee, Porras and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 16 Y, 0 N, As CS Mawn Jones
2) Justice Appropriations Subcommittee 14 Y, 0 N Saag Keith
3) Judiciary Committee
SUMMARY ANALYSIS
The law considers many documents to be of such importance that they must be signed in the presence of a
notary public to prevent fraud. A notary public is a public officer appointed and commissioned by the Governor
whose function is to take acknowledgements, administer oaths or affirmations, attest to the trueness of
photocopies of certain documents, and perform other duties as specified by Florida law.
A notary public may not notarize a signature on a document unless he or she personally knows, or has
satisfactory evidence, that the person whose signature is to be notarized is the individual who is described in
and who is executing the instrument. A notary public must produce a notarial certificate for each notarial act
performed, and must certify in the notarial certificate the type of identification, either based on personal
knowledge or other form of identification, upon which the notary public is relying to verify the principal’s identity.
In the case of an online notarization, the online notary public must also comply with the requirements set forth
in ch. 117, part II, F.S.
A notary public who falsely or fraudulently takes an acknowledgment of an instrument as a notary public; who
falsely or fraudulently makes a notarial certificate as a notary public; or who falsely takes or receives an
acknowledgment of the signature on a written instrument commits a third-degree felony. A notary public is also
prohibited from engaging in specified conduct, including notarizing a signature on a document if the person
whose signature is being notarized does not appear before the notary public either in person or by means of
audio-video communication technology at the time the signature is notarized. Any notary public who violates
this prohibition commits a civil infraction, punishable by a fine of up to $5,000, and such violation constitutes
malfeasance and misfeasance in the conduct of official duties. Further, it is no defense to the civil infraction
that the notary public acted without intent to defraud; however, a notary public who commits such infraction
with the intent to defraud makes a false or fraudulent acknowledgement and commits a third-degree felony.
CS/HB 1255:
Increases the criminal penalties associated with a false or fraudulent acknowledgement by a notary
public where the document notarized pertains to a real estate transaction or other real property
transfer.
Creates criminal penalties for the commission of a prohibited act by a notary public, which penalties
are increased where the document notarized is committed with an intent to defraud or pertains to a real
estate transaction or other real property transfer.
Removes a provision providing a civil penalty for the commission of a specified prohibited act by a
notary public.
The bill may have an indeterminate fiscal impact on state and local governments. See Fiscal Comments.
The bill provides an effective date of July 1, 2024.
STORAGE NAME: h1255b.JUA PAGE: 2
DATE: 2/5/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Notary Public: General Provisions
The law considers many documents to be of such importance that they must be signed in the presence
of a notary public to prevent fraud. A notary public is a public officer appointed and commissioned by
the Governor whose function is to take acknowledgements, administer oaths or affirmations, attest to
the trueness of photocopies of certain documents, and perform other duties specified by Florida law.
1
Appointment
The Governor is authorized to appoint as many notaries public as he deems necessary; however, a
person so appointed must be at least 18 years of age, a legal Florida resident, and have the ability to
read, write, and understand English.
2
An application for appointment as a notary public must be signed
and sworn to by the applicant and accompanied by specified fees.
3
An applicant must also, before executing the duties of the office and throughout the term of office, give
bond, payable to any individual harmed as a result of the notary’s breach of duty while acting in his or
her official capacity, in the amount of $7,500, conditioned for the due discharge of the office.
4
The bond
must be approved and filed with the Department of State (DOS) and executed by a surety company
authorized to do business in Florida.
5
Further, an applicant must take an oath that he or she will
honestly, diligently, and faithfully discharge the duties of the notary public; as part of the oath, the
applicant must also swear that he or she has read ch. 117, F.S., and knows the duties, responsibilities,
limitations, and powers of a notary public.
6
Once appointed, a notary may serve for four years, and no person may be automatically reappointed
as a notary; instead, the application process must be completed regardless of whether an applicant has
previously served as a notary.
7
Further, the Governor may suspend a notary public on the grounds of
any malfeasance, misfeasance, or neglect of duty, which grounds include, but are not limited to:
8
A material false statement on the application.
A complaint found to have merit by the Governor.
Failure to cooperate in or respond to an investigation regarding a complaint about a notary.
Official misconduct.
False or misleading advertising of notary public services.
Unauthorized practice of law.
Failure to timely report a change in business or home address or telephone number, or failure to
timely submit documentation to request an amended commission after a lawful name change.
Commission of fraud, misrepresentation, or any intentional violation of ch. 117, F.S.
Charging fees in excess of the statutorily-authorized fees.
Failure to maintain the required bond.
Duties of a Notary Public
1
Executive Office of the Governor, Governor’s Reference Manual for Notaries Public, https://www.flgov.com/wp-
content/uploads/Notary_Reference_Manual_12.13.16.pdf (last visited Jan. 29, 2024).
2
S. 117.01, F.S.
3
S. 117.01, F.S.
4
Id.
5
Id.
6
Id.
7
Id.
8
Id. STORAGE NAME: h1255b.JUA PAGE: 3
DATE: 2/5/2024
Florida law specifies the duties of a notary public. Specifically, a notary public may:
Administer oaths and affirmations;
Take acknowledgments;
Attest to photocopies of certain documents;
Solemnize marriages;
Verify vehicle identification numbers; and
Certify the contents of a safe-deposit box.
9
However, a notary public may not charge a fee of more than $10 for any one notarial act.
10
Notarial Certificates
When notarizing a signature, a notary public must complete a notarial certificate.
11
Such certificate
must identify:
The location of the notarization;
The type of notarial act performed;
A statement that the signer personally appeared physically before the notary public or by online
notarization at the time of the notarization;
The exact date of the notarial act;
The name of the person whose signature is being notarized;
The type of identification the notary public relied upon;
The notary’s official signature;
The notary’s name, which must be typed, printed, or stamped below the signature; and
The notary’s official seal
12
affixed below or to either side of the notary’s signature.
13
A notary public may not notarize a signature on a document unless he or she personally knows, or has
satisfactory evidence, that the person whose signature is to be notarized is the individual who is
described in and who is executing the instrument.
14
A notary public must certify in the notarial certificate
the type of identification, either based on personal knowledge or other form of identification, upon which
the notary public is relying to verify the signatory’s identity, and, in the case of an online notarization,
the online notary public must comply with the requirements set forth in ch. 117, part II, F.S.
15
Electronic Notarizations
Any document requiring notarization may be notarized electronically.
16
When notarizing a document
electronically, a notary public must use an electronic signature that is:
Unique to the notary public;
Capable of independent verification;
Retained under the notary public's sole control; and
Attached to or logically associated with the electronic document so that any subsequent
alteration to the electronic document displays alteration evidence.
17
When a signature must be accompanied by a notary public’s seal, the seal requirement is satisfied
when the electronic signature of the notary public contains the minimum information required.
18
An
electronic signature may be any letters, characters, or symbols, manifested by electronic means,
9
Executive Office of the Governor, supra note 1; ch. 117, F.S.
10
S. 117.05(2), F.S.
11
S. 117.05(4), F.S.
12
The notary seal must be a rubber stamp that includes the words "Notary Public – State of Florida." It must also include the name of
the notary public, the date of expiration of the notary’s commission, and the notary’s commission number. S. 117.05(3), F.S.
13
S. 117.05(12), F.S.
14
Id.
15
Id.
16
S. 117.021, F.S.
17
Id.
18
Id. STORAGE NAME: h1255b.JUA PAGE: 4
DATE: 2/5/2024
executed or adopted by a party with an intent to authenticate a writing; and a writing is electronically
signed if an electronic signature is logically associated with such writing.
19
However, in performing electronic notarizations, a notary must reasonably ensure the security,
reliability, and uniformity of such notarizations.
20
To this end, the notary may use an authentication
procedure (such as a password, token, card, or biometric) to protect access to the notary's electronic
signature or the means for affixing the signature.
21
False or Fraudulent Acknowledgements
A notary public who falsely or fraudulently takes an acknowledgment of an instrument as a notary
public; who falsely or fraudulently makes a certificate as a notary public; or who falsely takes or
receives an acknowledgment of the signature on a written instrument commits a third-degree felony.
22
Prohibited Acts
Florida law prohibits a notary public from:
23
Using a name or initial in signing certificates other than that by which the notary public is
commissioned.
Signing notarial certificates using a facsimile signature stamp unless the notary public has a
physical disability that limits or prohibits his or her ability to make a written signature and unless
the notary public has first submitted written notice to DOS with an exemplar of the facsimile
signature stamp.
Affixing his or her signature to a blank form of affidavit or certificate of acknowledgment and
delivering that form to another person with the intent that it be used as an affidavit or
acknowledgment.
Taking the acknowledgment of or administering an oath to a person whom the notary public
actually knows to have been adjudicated mentally incapacitated by a court of competent
jurisdiction, where the acknowledgment or oath necessitates the exercise of a right that has
been removed pursuant to s. 744.3215(2) or (3), F.S., pertaining to the rights of persons deems
incapacitated, and where the person has not been restored to capacity as a matter of record.
Notarizing a signature on a document if it appears that the person is mentally incapable of
understanding the nature and effect of the document at the time of notarization.
Taking the acknowledgment of a person who does not speak or understand the English
language, unless the nature and effect of the instrument to be notarized is translated into a
language which the person does understand.
Changing anything in a written instrument after it has been signed by anyone.
Amending a notarial certificate after the notarization is complete.
Notarizing a signature on a document if the document is incomplete or blank.
Notarizing a signature on a document if the person whose signature is to be notarized is the
spouse, son, daughter, mother, or father of the notary public.
Notarizing a signature on a document if the notary public has a financial interest in or is a party
to the underlying transaction.
Further, Florida law prohibits a notary from notarizing a signature on a document if the person whose
signature is being notarized does not appear before the notary public either in person or by means of
audio-video communication technology at the time the signature is notarized.
24
Any notary public who
violates this prohibition commits a civil infraction, punishable by penalty not exceeding $5,000, and
such violation constitutes malfeasance and misfeasance in the conduct of official duties.
25
Further, it is
19
Id.
20
Id.
21
Id.
22
A third-degree felony is punishable by up to five years imprisonment and a $5,000 fine. Ss. 775.082, 775.083, or 775.084, F.S.;
S. 117.105, F.S.
23
S. 117.107, F.S.
24
Id.
25
Id. STORAGE NAME: h1255b.JUA PAGE: 5
DATE: 2/5/2024
no defense to the civil infraction that the notary public acted without intent to defraud.
26
However, a
notary public who violates this prohibition with the intent to defraud makes a false or fraudulent
acknowledgement and commits a third-degree felony.
27
Online Notarization
Registration
A notary public may register as an online notary public with DOS if he or she:
Holds a current commission as a notary public;
Submits a copy of such commission with the registration;
Certifies that the notary public registering as an online notary public has completed a course
covering the online notary public duties, obligations, and technology requirements;
Pays a notary public registration fee;
28
Identifies the Remote Online Notary (RON) service provider
29
whose audio-video
communication and identity proofing technologies the registrant intends to use for online
notarizations, and confirms that such technology and processes satisfy statutory requirements;
Provides evidence that the registrant has obtained a $25,000 bond, payable to any individual
harmed as a result of the registrant’s breach of duty as an online notary public; and
Provides evidence that the registrant acting in his or her capacity as an online notary public is
covered by a minimum $25,000 errors and omissions insurance policy.
30
Once registered, an online notary public may perform an online notarization, regardless of the physical
location of the principal at the time of the notarial act, as long as the notary public is physically located
in Florida while performing the online notarization and the online notary public complies with both the
general notarization and electronic notarization requirements provided in law.
31
Further, an online
notary public may perform any function as an online notarization authorized under ch. 117, F.S., with
the exception of solemnizing matrimony rites,
32
and if a notarization requires a principal
33
to appear
before the online notary public, the principal may appear by means of audio-video communication
technology.
Technology Standards for Online Notarization
Florida law establishes minimum requirements for online notarization technology standards, as follows:
Identity proofing.
34
The security characteristics, at a minimum, must present the principal with
five or more questions with a minimum of five possible answer choices per question. Each
question must be:
o Drawn from a third-party provider of public and proprietary data sources;
o Identifiable to the principal; and
o Subjected to a two-minute time constraint, with the principal answering at least 80
percent correct.
35
Credential analysis.
36
An online notary must use commercially available credential analysis
automated software or a hardware process that:
26
Id.
27
Id.; s. 117.105, F.S.
28
S. 113.01, F.S.
29
A RON service provider is a person that provides audio-video communication technology and related processes, services, software,
data storage, or other services to online notaries public for the purpose of directly facilitating their performance of online notarizations.
30
S. 117.225, F.S.
31
S. 117.209, F.S.
32
S. 117.209, F.S.
33
A principal is an individual whose electronic signature is acknowledged, witnessed, or attested to in an online notarization or who
takes an oath or affirmation from the online notary public.
34
Identity proofing is a process by which a third party confirms the identity of an individual through use of public or proprietary data
sources, which may include knowledge-based authentication or biometric verification. S. 117.201, F.S.
35
S. 117.295, F.S.
36
Credential analysis is a process by which a third party aids a public notary in affirming the validity of a government-issued
identification credential and data thereon through review of public or proprietary data sources. S. 117.201, F.S. STORAGE NAME: h1255b.JUA PAGE: 6
DATE: 2/5/2024
o Is consistent with sound commercial practices;
o Aids the notary public in verifying the authenticity of the credential to ensure it is not
fraudulent or inappropriately modified; and
o Uses information held by the issuing or authoritative agency to confirm the validity of
credential details.
37
Audio-video communication technology.
38
The technology must:
o Be secure from interception or access by anyone other than the participants
communicating; and
o Provide sufficient audio clarity and video resolution to enable the notary to communicate
with the principal and to confirm the identity of the principal.
39
With respect to online notarization, a notary must protect an electronic signature through the use of
passwords or codes under the notary’s control.
40
The notary may not allow another person to use the
notary’s electronic journal, seal, or signature, and notaries must also reasonably ensure that any device
used to create their electronic signature is current and secure.
41
Online Notarization Procedures
In performing an online notarization, an online notary public must verify the identity of a principal at the
time the signature is taken through the use of audio-video communication technology.
42
The notary
must record the entire audio-video conference session between the notary public and the principal and
any subscribing witnesses, and a principal may not serve as a witness for an online notarization.
43
In performing an online notarization for a principal not located in Florida, an online notary public must
confirm that the principal desires for the notarial act to be performed by a Florida notary public and
under Florida law. An online notary public must confirm the identity of the principal and any witness by
personal knowledge, or by:
Remote presentation of a government-issued identification credential by each individual;
Credential analysis of each government-issued identification credential; and
The identity proofing of each individual, in the form of knowledge-based authentication or
another legal method of identity proofing.
44
If an online notary fails to comply with the online notarization procedures, such failure does not
automatically impair the validity of the notarial act or the electronic record.
45
However, such failure may
be introduced as evidence to establish violations of ch. 117, F.S., or as an indication of possible fraud,
forgery, or impersonation or for other evidentiary purposes.
46
Electronic Journal and Electronic Records
An online notary public must keep a secure electronic journal of electronic records he or she has
notarized.
47
For each online notarization, the electronic journal entry must contain the:
Date and time of the notarization;
Type of notarial act;
Type, title, or description of the electronic record or proceeding;
Identity evidence for each principal involved in the transaction or proceeding;
Indication that the principal passed the identity proofing;
37
S. 117.295, F.S.
38
Audio-video communication technology is technology in compliance with applicable law which enables real-time, two-way
communication using electronic means in which participants are able to see, hear, and communicate with one another. S. 117.201, F.S.
39
S. 117.295, F.S.
40
S. 117.021, F.S.
41
Id.; s. 117.225, F.S.
42
S. 117.265, F.S.
43
Id.
44
Id.
45
Id.
46
Id.
47
S. 117.245, F.S. STORAGE NAME: h1255b.JUA PAGE: 7
DATE: 2/5/2024
Indication that the government-issued identity credential satisfied the credential analysis; and
Fee charged for the online notarization.
48
Identity evidence for each principal may be a:
Statement that the person is personally known to the online notary public; or
Notation of the type of identification document provided to the online notary public.
49
An online notary public must also retain an unedited and uninterrupted recording of a remote
notarization audio-video communication, which recording must include:
Appearances by the principal and each witness before the online notary public;
Identity confirmation of the principal and each witness;
A general description of the records to be signed;
A principal’s declaration that his or her signature is knowingly and voluntarily made; and
All of the actions and spoken words of the principal, notary public, and each required witness
during the entire online notarization.
50
The notary must attach or logically associate the electronic signature and seal to the electronic notarial
certificate of an electronic record in a manner capable of independent verification using tamper-evident
technology.
51
The electronic journal and a backup record thereof must be maintained for at least ten
years after the date of the notarial act, and a notary must immediately notify an appropriate law
enforcement agency and DOS of the electronic journal’s, electronic signature’s, or electronic seal’s
unauthorized use.
52
Effect of Proposed Changes
False or Fraudulent Acknowledgements
CS/HB 1255 amends s. 117.105, F.S., to make any false or fraudulent acknowledgement under this
section a second-degree felony
53
where the document notarized pertains to a real estate transaction or
any other real property transfer.
48
Id.
49
Id.
50
Id.
51
S. 117.255, F.S.
52
Id.
53
A second-degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. Ss. 775.082, 775.083, or 775.084, F.S. STORAGE NAME: h1255b.JUA PAGE: 8
DATE: 2/5/2024
Prohibited Acts
The bill amends s. 117.07, F.S., to provide that a notary public who knowingly and willfully commits a
prohibited act under this section commits a first-degree misdemeanor;
54
or, if the act is committed
knowingly and willfully and with an intent to defraud, a third-degree felony. However, if the act is
committed knowingly and willfully and with an intent to defraud, and pertains to a real estate transaction
or any other real property transfer, the bill provides that the notary public commits a second-degree
felony.
The bill also removes language providing a civil penalty for one of the prohibited acts, which under the
bill is now at least a misdemeanor.
The bill provides an effective date of July 1, 2024.
B. SECTION DIRECTORY:
Section 1: Amends s. 117.105, F.S., relating to false or fraudulent acknowledgement; penalty.
Section 2: Amends s. 117.07, F.S., relating to prohibited acts.
Section 3: Provides an effective date of July 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive economic impact on the private sector to the extent that it may reduce
fraudulent real estate transactions or other fraudulent real estate transfers.
D. FISCAL COMMENTS:
The bill may have a positive indeterminate impact on jail and prison beds by creating new
misdemeanor and felony offenses, and enhancing criminal penalties under specified circumstances.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. The 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
54
A first-degree misdemeanor is punishable by up to one year in county jail and a $1,000 fine. Ss. 775.082 and 775.083, F.S. STORAGE NAME: h1255b.JUA PAGE: 9
DATE: 2/5/2024
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:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On January 25, 2024, the Civil Justice Subcommittee passed a proposed committee substitute (“PCS”) and
reported the bill favorably. The PCS differed from the original bill in that it:
Removed a provision modifying the notarial certificate requirements.
Removed a provision requiring a notary to keep a tangible journal, and provisions related thereto.
Restored to current law what constitutes a false or fraudulent acknowledgement or a prohibited
notarial act.
Provided an intent element for the crimes created by the bill.
This analysis is drafted to the PCS as passed by the Civil Justice Subcommittee.