717.1322 Administrative and civil enforcement.—
(1) The following acts are violations of this chapter and constitute grounds for an administrative enforcement action by the department in accordance with the requirements of chapter 120 and for civil enforcement by the department in a court of competent jurisdiction:
(a) Failure to comply with any provision of this chapter, any rule or order adopted under this chapter, or any written agreement entered into with the department.
(b) Fraud, misrepresentation, deceit, or gross negligence in any matter within the scope of this chapter.
(c) Fraudulent misrepresentation, circumvention, or concealment of any matter required to be stated or furnished to an owner or apparent owner under this chapter, regardless of reliance by or damage to the owner or apparent owner.
(d) Willful imposition of illegal or excessive charges in any unclaimed property transaction.
(e) False, deceptive, or misleading solicitation or advertising within the scope of this chapter.
(f) Failure to maintain, preserve, and keep available for examination all books, accounts, or other documents required by this chapter, by any rule or order adopted under this chapter, or by any agreement entered into with the department under this chapter.
(g) Refusal to permit inspection of books and records in an investigation or examination by the department or refusal to comply with a subpoena issued by the department under this chapter.
(h) Criminal conduct in the course of a person’s business.
(i) Failure to timely pay any fine imposed or assessed under this chapter or any rule adopted under this chapter.
(j) Requesting or receiving compensation for notifying a person of his or her unclaimed property or assisting another person in filing a claim for unclaimed property, unless the person is an attorney licensed to practice law in this state, a Florida-certified public accountant, or a private investigator licensed under chapter 493, or entering into, or making a solicitation to enter into, a power of attorney to file a claim for unclaimed property owned by another, or a contract or agreement to purchase unclaimed property, unless such person is registered with the department pursuant to this chapter and an attorney licensed to practice law in this state in the regular practice of her or his profession, a Florida-certified public accountant who is acting within the scope of the practice of public accounting as defined in chapter 473, or a private investigator licensed under chapter 493. This subsection does not apply to a person who has been granted a durable power of attorney to convey and receive all of the real and personal property of the owner, is the court-appointed guardian of the owner, has been employed as an attorney or qualified representative to contest the department’s denial of a claim, or has been employed as an attorney to probate the estate of the owner or an heir or legatee of the owner.
(k) Failure to authorize the release of records in the possession of a third party after being requested to do so by the department regarding a pending examination or investigation.
(l) Receipt or solicitation of consideration to be paid in advance of the approval of a claim under this chapter.
(2) Upon a finding by the department that any person has committed any of the acts set forth in subsection (1), the department may enter an order:
(a) Revoking for a minimum of 5 years or suspending for a maximum of 5 years a registration previously granted under this chapter during which time the registrant may not reapply for a registration under this chapter;
(b) Placing a registrant or an applicant for a registration on probation for a period of time and subject to such conditions as the department may specify;
(c) Placing permanent restrictions or conditions upon issuance or maintenance of a registration under this chapter;
(d) Issuing a reprimand;
(e) Imposing an administrative fine not to exceed $2,000 for each such act; or
(f) Prohibiting any person from being a director, officer, agent, employee, or ultimate equitable owner of a 10-percent or greater interest in an employer of a registrant.
(3) A registrant is subject to civil enforcement and the disciplinary actions specified in subsection (2) for violations of subsection (1) by an agent or employee of the registrant’s employer if the registrant knew or should have known that such agent or employee was violating any provision of this chapter.
(4)(a) The department shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the department under this chapter.
(b) The disciplinary guidelines shall specify a meaningful range of designated penalties based upon the severity or repetition of specific offenses, or both. It is the legislative intent that minor violations be distinguished from more serious violations; that such guidelines consider the amount of the claim involved, the complexity of locating the owner, the steps taken to ensure the accuracy of the claim by the person filing the claim, the acts of commission and omission of the ultimate owners in establishing themselves as rightful owners of the funds, the acts of commission or omission of the agent or employee of an employer in the filing of the claim, the actual knowledge of the agent, employee, employer, or owner in the filing of the claim, the departure, if any, by the agent or employee from the internal controls and procedures established by the employer with regard to the filing of a claim, the number of defective claims previously filed by the agent, employee, employer, or owner; that such guidelines provide reasonable and meaningful notice of likely penalties that may be imposed for proscribed conduct; and that such penalties be consistently applied by the department.
(c) A specific finding of mitigating or aggravating circumstances shall allow the department to impose a penalty other than that provided for in such guidelines. The department shall adopt by rule disciplinary guidelines to designate possible mitigating and aggravating circumstances and the variation and range of penalties permitted for such circumstances. Such mitigating and aggravating circumstances shall also provide for consideration of, and be consistent with, the legislative intent expressed in paragraph (b).
(d) In any proceeding brought under this chapter, the administrative law judge, in recommending penalties in any recommended order, shall follow the penalty guidelines established by the department and shall state in writing any mitigating or aggravating circumstances upon which the recommended penalty is based.
(5) The department may seek any appropriate civil legal remedy available to it by filing a civil action in a court of competent jurisdiction against any person who has, directly or through a claimant’s representative, wrongfully submitted a claim as the ultimate owner of property and improperly received funds from the department in violation of this chapter.
History.—s. 134, ch. 2004-390; s. 18, ch. 2005-163.
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