13-004739RX Capital City Check Cashing vs. Office Of Financial Regulation Status: Closed DOAH Final Order on Tuesday, May 6, 2014.

Summary: Petitioner did not prove by a preponderance of the evidence that sections of Florida Administrative Code Rule 69V-560.704 were an invalid exercise of Respondent's delegated legislative authority pursuant to section 120.52(8), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPITAL CITY CHECK CASHING,

Petitioner,

vs. Case No. 13 - 4739RX

OFFICE OF FINANCIAL REGULATION,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal hearing in this case was held

on January 14, 2014 , before Suzanne Van Wyk, duly - appointed

Administrative Law Judge of the Division of Administrative

Hearings .

APPEARANCES

For Petitioner : John O. Williams, Esquire

Williams and Holz, P.A.

211 East Virginia Street

Tallahassee, Florida 3230 1

For Respondent: Susan Leigh Matchett , Esquire

Office of Financial Regulation

200 East Gaines Street

Fletcher Building, Suite 550

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether part of Florida Administrative Code Rule 69V -

560.704 , particularly subsections (4)(d) and (5)(a) , exceed

RespondentÓs rulemaking authority; enlarge , modif y or contravene

the specifi c provisions of law implemented; or are arbitrary or

capricious, and thus , constitute an invalid exercise of

delegated legislative authority pursuant to section 120.52(8),

Florida Statutes.

PRELIMINARY STATEMENT

On December 12, 20 13 , Capital City Check Cashing filed

a Petition for Determination of Invalidity of Two Rule s

challeng ing the validity of Florida Administrative Code

R ule s 69V - 560.704(4)(d) and (5)(a) .

This matter was set for hearing on January 14, 2014 . On

January 3, 2014 , Respondent, Office of Financial Regulation ,

filed a Motion to Dismiss , which was denied .

The final hearing commenced as scheduled on January 14,

2014 , in Tallahassee, Florida. At hearing, Petitioner

presented the testimony of Kane Fuhrman, PetitionerÓs sole

employee, and Gregory Oaks , Director of RespondentÓs Consumer

Finance Division. PetitionerÓs Exhibits P1 through P12 were

admitted into evidence.

Respondent offered the testimony of Mr. Oaks in its case -

in - chief. RespondentÓs Motion fo r Official Recognition of

applicable provisions of the Florida Statutes and Florida

Administrative Code , as well as documents from the Joint

Administrative Procedures Committee, was granted. The record

was held open through close of business , January 20, 2014, for

RespondentÓs submission of specified sections of Florida

Statutes and the United States Code . Respondent timely filed

the specified documents.

The one - volume final hearing Transcript was filed with

the Division of Administrative Hearings on January 30, 2014 .

Both parties timely filed Proposed Final Orders 1/ which have

been carefully considered in the preparation of this Final

Order.

FINDINGS OF FACT

1 . Respondent is the state agency charged with the

regulation and enforcement of c hapter 560, Florida Statutes, 2/

relating to money services businesses and their authorized

vendors. Chapter 5 60 , Part I, governs money services business

generally, which includes check cashers. Chapter 5 60 , Part

III, governs check cashers.

2 . Petitioner is a licensed check casher pursuant to

section 560.303. As a licensee, Petitioner is required to

comply with RespondentÓs duly - adopted administrative rules

governing check cashers.

3 . Petitioner challenges parts of Florida Administrative

Code Rule 69V - 560.704, ÐRecords to Be Maintained by Check

Cashers , Ñ as an invalid exercise of delegated legislative

authority.

4 . R espondent cites section 560.105 as the s pecific

authority to adopt the r ule.

5 . Section 560.105 provides as follows:

560.105 Supervisory powers; rulemaking. Ï

(1) The office shall:

(a) Supervise all money services businesses

and their authorized vendors.

(b) Have access to the books and records of

persons the office supervises as necessary

to carry out the duties an d functions of the

office under this chapter.

(c) Issue orders and declaratory

statements, disseminate information, and

otherwise administer and enforce this

chapter and all related rules in order to

effectuate the purposes, policies, and

provisions of this chapter.

(2) The commission may adopt rules pursuant

to ss. 120.536(1) and 120.54 to administer

this chapter.

(a) The commission may adopt rules

requiring electronic submission of any

forms, documents, or fees required by this

chapter, which must reasonably accommodate

technological or financial hardship and

provide procedures for obtaining an

exemption due to a technological or

financial hardship.

(b) Rules adopted to regulate money

services businesses, including deferred

presentment providers, must be responsive to

changes in economic conditions, technology,

and industry practices.

6 . Respondent cites section 560.310, as the law

implemented by the challenged r ule.

7 . S ection 560.310 provides as follows:

560.310 Records of check cashers and foreign

currency exchangers. Ï

(1) A licensee engaged in check cashing

must maintain for the period specified in

s. 560.1105 a copy of each payment

instrument cashed.

(2) If the payment instrument exceeds

$1,000, the following additional information

must be maintained or submitted:

(a) Customer files, as prescribed by rule ,

on all customers who cash corporate payment

instruments that exceed $1,000.

(b) A copy of the personal identification

that bears a photograph of the customer used

as identification and presented by the

customer. Acceptable personal

identification is limited to a valid driver

license; a state identification card issued

by any state of the United States or its

territories or the District of Columbia, and

showing a photograph and signature; a United

States Governmen t Resident Alien

Identification Card; a passport; or a United

States Military identification card.

(c) A thumbprint of the customer taken by

the licensee when the payment instrument is

presented for negotiation or payment.

(d) The office shall, at a mi nimum, require

licensees to submit the following

information to the check cashing database or

electronic log , before entering into each

check cashing transaction for each payment

instrument being cashed, in such format as

required by rule:

1. Transaction date.

2. Payor name as displayed on the payment

instrument.

3. Payee name as displayed on the payment

instrument.

4. Conductor name, if different from the

payee name.

5. Amount of the payment instrument.

6. Amount of currency provided.

7. Type of payment instrument, which may

include personal, payroll, government,

corporate, third - party, or another type of

instrument.

8. Amount of the fee charged for cashing of

the payment instrument.

9. Branch or location where the payment

instrument was a ccepted.

10. The type of identification and

identification number presented by the payee

or conductor.

11. PayeeÓs workersÓ compensation insurance

policy number or exemption certificate

number, if the payee is a business.

12. Such additional informat ion as required

by rule.

For purposes of this subsection, multiple

payment instruments accepted from any one

person on any given day which total $1,000

or more must be aggregated and reported in

the check cashing database or on the log .

(3) A licensee under this part may engage

the services of a third party that is not a

depository institution for the maintenance

and storage of records required by this

section if all the requirements of this

section are met.

(4) The office shall issue a competitive

solicitation as provided in s. 287.057 for a

statewide, real time, online c heck cashing

database to combat fraudulent check cashing

activity. After completing the competitive

solicitation process, but before executing a

contract, the office may request funds in

its 2014 - 2015 fiscal year legislative budget

request and submit necessary draft

conforming legislation, if needed, to

implement this act.

(5) The office shall ensure that the check

cashing database :

(a) Provides an interface with the

Secretary of StateÓs database for purposes

of verifying corporate registration and

articles of incorporation pursuant to this

section.

(b) Provides an interface with the

Department of Financial ServicesÓ database

for purposes of determining proof of

coverage for workersÓ compensation.

(6) The commission may adopt rules to

administer this section, require that

additional information be submitted to the

check cashing database , and ensure that the

database is used by the licensee in

accordance with this section. (emphasis

added).

Florida Control of Money Laundering in Money Transmitters Act

8 . Section 560.310 was created by the 1994 Legislature

as part of the omnibus ÐMoney Transmitters CodeÑ (the Code) ,

providing for initial regulation of payment instrument

sellers, foreign currency exchangers, check - cashers, and funds

tran smitters.

9 . The Code was enacted follow ing publication of a

r eport of FloridaÓs Eleventh Statewide Grand Jury titled

ÐCheck Cashing Stores: A Call for Regulation . Ñ See Interim

Report Number One of the Eleventh Statewide Grand Jury, Ð Check

Cashing Stores: A Call For Regulation, Ñ ( Feb. 9, 1994 ) (Ð1994

Grand Jury ReportÑ or Ð1994 ReportÑ).

10 . The 1994 Report recognized the important role of

check - cashing services for a significant number of people who

are economically disadvantaged and cannot , or do not , maintain

traditional bank accounts.

11 . However, the 1994 Re port also documented abuse of

unregulated check - cashing services by con artists, money

launderers, and other criminals. The report found that the

unregulated industry attract ed criminals because the industry

was under no obligation to keep records of the identity of

those for whom they move money. Specifically, the report

found that check - cashers did not have to : (1) verify that

their business customers were legally registered; (2) veri fy

that the person presenting the payment instrument is

authorized to cash the instrument; or (3) keep records of the

identity of the person who cashed the payment instrument. Id .

12 . The 1994 R eport found check - cashing services were

Ðnot legally obligated to maintain transaction records of any

kind that would be useful to law enforcement in the exercise

o f their investigatory duties.Ñ Id .

13 . The 1994 Report recommend ed statewide regulation of

check - cashing services to include the following rele vant

requirements:

- Maintain for a period of five years all

records of transmittals, currency

exchanges, checks cashed, payment

instruments issued, and other related

financial records.

- Obtain identification from customers when

cashing checks or money orders.

- Obtain, and maintain for five years,

documentation regarding the identity of

the payees of checks and money orders.

Id .

14 . Part I of the Code applied generally to all money

transmitters, which was specifically defined to include check

cashers. See ch. 94 - 354, § 1, Laws of Fla. (1994) .

15 . T he Code created section 560.123 ÐFlorida Control of

Money Laundering in Money Transmitters ActÑ requiring money

transmitters to comply with the money laundering, enforcement,

and reporting provisions of secti o n 655.50, Florida Statutes.

Id.

16 . Section 6 5 5.50, Florida Statutes (1993) , 3/ provided

in pertinent part, Ð[e]ach financial institution shall

maintain for a minimum of 5 calendar years full and complete

records of all financial transactions, including all records

required by 31 C.F.R. parts 103.33 and 103.34.Ñ

§ 655. 50 (8)(b), Fla. S ta t. (1993).

17 . Part III of the Code created sections 560.301 , et

seq. , titled the ÐCheck Cashing and Foreign Currency Exchange

ActÑ (the Act). See ch. 94 - 354, § 3, Laws of Fla. (1994) .

1 8 . Section 560.310, titled ÐRecords of check cashers

and foreign currency exchangers,Ñ contained no requirements

for particular types of records to be kept, but provided for

the length of time check cashers must maintain Ðbooks,

accounts, records and documen ts,Ñ and provided for the

location and de struction of said records. See § 560.310, Fla.

Stat. ( Supp. 1994 ).

19 . The Act did not directly require personal

identification of persons presenting payment instruments for

cash, but rather incentivized the presentation of personal

identification by correlating the amount of fees charged with

presentation of personal identification . Check cashers could

charge a higher transaction fee when the customer did not

present identification. 4/

2 0 . In 2008 , the Attorney GeneralÓs Office published a

Report of the Eighteenth Statewide Grand Jury titled , ÐCheck

Cashers: A Call for EnforcementÑ (2008 Report). See Second

Interim Report of the Eighteenth Statewide Grand Jury, ÐCheck

Cashers: A Call for Enforcement Ñ (March 2008). The 2008

Report was highly critical of the Money Transmitter Regulatory

Unit (MTRU), the arm of Respondent with regulatory authority

over check cashers and other money transmitters.

2 1 . The 2008 Report document ed systematic fraud

involving the check - cashing industry perpetrated particularly

by construction contractors, in the arena of workersÓ

compensation , and the health care sector, in the arena of

Medicaid and Medicaid prescription drug fraud. Id . at 7.

2 2 . According to the 2008 Report, both issues involve d

the establishment of shell corporations to launder money

obtained by fraudulent means. Id . at 9, 11.

2 3 . The 2008 Report describe d the following elaborate

scheme of workersÓ compensation fraud: A contractor, who is

required to purchase workers Ó compensation insurance based on

the amount of his or her payroll, hides the payroll by

establishing a shell corporation in the name of a nominee

owner, often a temporary resident of the United Sta tes. The

shell company buys a bare minimum workers Ó compensation

policy, and the contractor makes payments to this shell

Ðsubcontractor,Ñ who cashes the checks and returns the money

to the contractor to pay his or her employees under the table.

Id . at 10 - 12.

2 4 . Further, according to the 2008 Report, some check

cash ers actively participate d in this scheme by setting up

shell companies themselves, securing the certificate of

insurance , and seeking out contractors with which to do

business. Id . at 13.

2 5 . The 2008 Report document ed an investigation by the

Division of Insurance Fraud which revealed ten construction

companies had funneled one billion dollars through check -

cashing busine sses in the prior three years. Id . at 13.

2 6 . The 2008 Report documen t ed lack of enforcement by

the MTRU, understaffing , and underutilized resources. Id . at

19 - 24.

2 7 . Further, the Report place d blame on the MTRU for

failing to exercise rulemaking authority granted by the 1994

Legislature, especially with respect to collecting information

related to corporate customers. Id . at 38.

2 8 . T he 2008 Report also found the MTRU needed

legislative authority to require check cashers to gather and

report information in electronic format, which would make the

investigation process more efficient and allow check - cashing

businesses to detect structuring of transactions by customers

to defraud workersÓ co mpensation and other statutory

requirements. Id . at 19.

29 . The 2008 Legislature incorporated many of the

recommendations from the 2008 Report and significantly

overhauled regulation of all money services businesses

(formerly, Ðmoney transmitters Ñ ) including check cashers.

3 0 . The 2008 Legislation made the following changes - of -

note to Part I of chapter 560:

- Prohibited licensees from accepting

anything of value from a customer with

intent to deceive or defraud. See ch. 08 -

177, § 8, Laws of Fla. (2008)

- Prohibited the delivery to MTRU of any

file known by it to be fraudulent or

false. See Id .

- Increased the enforcement authority of

MTRU. See ch. 08 - 177, § 9, Laws of Fla.

- Authorize d immediate suspension of a

license for failure to provide required

records. See ch. 08 - 177, § 10, Laws of

Fla.

- R equired licensees to retain all required

records for a minimum of five years . See

ch. 08 - 177, § 1, Laws of Fla.

3 1 . The 2008 Legislature made the following c hanges to

chapter 560, Part III:

- Prohibit ed a check casher from transacting

business in any name other than the legal

name under which it is licensed;

- Requir ed disclosure of any fictitious name

as part of initial licensing;

- Required a check casher to e ndorse all

payment instruments received in the check -

casherÓs legal name under which it is

licensed; and

- Prohibit ed check cashers from accepting

multiple payment instruments from a person

who is not the original payee , unless the

person is a licensed check casher an d the

payment instruments are endorsed with the

check cas herÓs legal name.

3 2 . Further, the 2008 Legislation require d check cashers

to maintain a customer file on all customers who cash

Ðcorporate or third - party payment instruments exceeding

$1,000.Ñ Ch. 08 - 177, § 42, Laws of Fla. The 2008 Legislature

also added the requirement that, for any payment instrument

accepted having a face value of $1,000 or more, the check

casher must maintain personal identification from customers, a

thumbprint of the cust omer, and a payment instrument log in an

electronic format . See Id .

3 3 . Subsections 560.310 (4), (5), and (6), relating to

creat ion and maintenance of a statewide, real - time, online

check - cashing database , were created by the 2013 Florida

Legislature. See ch. 13 - 139, § 1 , Laws of Fla.

3 4 . Prior to the 2013 amendments, section 560.310

required check cashers to maintain an electronic payment

instrument log Ðas prescribed by rule.Ñ § 560.310 (1)(d), Fla.

Stat. (2012). The 2013 amendment require d check cashers to

Ðsubmit the following information to the check - cashing

database or electronic log, before entering into each check

cashing transaction for each payment instrument being cashed,

in such format as required by rule . . . . Ñ Id .

The Rule

3 5 . Florida Administrative Code Rule 69V - 560.704(5)(a) ,

reads as follows:

(5)(a) In addition to the records required in

subsections (1) and (2) for payment

instruments $1,000.00 or more, the check

casher shall create and maintain an

electronic log of payment instruments

accepted which includes, at a minimum, the

following information:

1. Transaction date;

2. Payor name;

3. Payee name;

4. Conductor name, if other than the payee;

5. Amount of payment instrument;

6. Amount of currency provided;

7. T ype of payment instrument;

a. Personal check;

b. Payroll check;

c. Government check;

d. Corporate check;

e. Third party check; or

f. Other payment instrument;

8. Fee charged for the cashing of the

payment instrument;

9. Branch/Location where instrument was

accepted;

10. Identification type presented by

conductor; and

11. Identification number presented by

conductor.

(b) Electronic logs shall be maintained in

an electronic format that is readily

retrievable and capa ble of being exported to

most widely available software applications

including Microsoft EXCEL.

3 6 . T he 2013 Legislature incorporated into section

560.310 , almost verbatim, the information required by the r ule

to be collect ed and maintain ed by check cashers in an

electronic log. 5/

3 7 . The only significant difference between the statute

and the r ule is that the statute additionally requires check

cashers to maintain, as part of the electronic log, the

ÐpayeeÓs workersÓ compensation insurance policy number or

exemption certificate number, if the payee is a business.Ñ

§ 560.310(2)(d)11., Fla. Stat. 6/

3 8 . Respondent has not amended t he r ule subsequent to

the 2013 amendments to section 560.310 requiring development

and maintenance of a statewide, real - time, online check -

cashing database .

39 . Respondent has not activated a statewide, real - time,

online check - cashing database , but anticipates doing so in

Fiscal Year 2015 - 2016.

Referrals to Law Enforcement

4 0 . Pursuant to section 560.109(9), Respondent is

required to annually report to the legislature the total

number of examinations and investigations of its licensees

that resulted in a referral to law enforcement, and the

disposition of those referrals by age ncy.

4 1 . Respondent refers to the Florida Department of Law

Enforcement (FDLE) results of its licensee investigations

which may reveal criminal activity within the purview of the

FDLE. For F iscal Y ear 2012 - 2013, RespondentÓs Bureau of

Enforcement referre d 78 examinations to FDLE.

4 2 . Respondent refers to the Division of Insurance Fraud

(DIF) results of its licensee examinations which may reveal

criminal activity related to workersÓ compensation insurance.

For F iscal Y ear 2012 - 2013, Respondent referred 3 3 examinations

to DIF.

4 3 . At the time of RespondentÓs 2012 - 2013 annual report

to the Legislature, FDLE had not opened any case s based on the

78 examinations referred. During that same time frame, DIF

had opened 4 cases based on 33 referrals from Respon dent.

Threshold Amount for Recordkeeping

4 4 . Petitioner first challenges the r ule as exceeding

the scope of RespondentÓs delegated legislative authority

because it requires a log be kept Ð for payment instruments

$1,000.00 or more Ñ while the statute requires a log be kept on

payment instruments Ð that exceed $1,000 .Ñ § 560.310(2)(a),

Fla. Stat.

4 5 . Section 560.310(2) further reads, as follows:

For purposes of this subsection, multiple

payment instruments accepted from any one

person on any given day which total $1,000

or more must be aggregated and reported in

the check cashing database or on the log.

(emphasis added).

4 6 . On the one hand, the statute requires a log be

created and maintained on each payment instrument that exceeds

$1,000, while on the other hand, acknowledges that payment

instruments of lesser amounts, when presented by the same

person, are Ðlog worthyÑ when, together, they reach a

threshold of $1,000.

4 7 . Petitioner argues that the 2012 Legislature repealed

RespondentÓs authority to require a log be kept on payment

instrument amounts of $1,000.

4 8 . Section 560.310, Florida Statutes (2011), read s , in

pertinent part, as foll ows:

560.310 Records of check cashers and foreign

currency exchangers. Ï

(1) In addition to the record retention

requirements specified in s. 560.1105, a

licensee engaged in check cashing must

maintain the following:

(a) Customer files, as prescribed by rule,

on all customers who cash corporate or third -

party payment instruments exceeding $1,000 .

(b) For any payment instrument accepted

having a face value of $1,000 or more :

1. A copy of the personal identification

that bears a photograph of the customer used

as identification and presented by the

customer. Acceptable personal identification

is limited to a valid driverÓs license; a

state identification card issued by any state

of the United States or its territories or

the District of Columbia, and showing a

photograph and signature; a United States

Government Resident Alien Identification

Card; a passport; or a United States Military

identification card.

2. A thumbprint of the customer taken by the

licensee.

(c) A payment instrument log that must be

maintained electronically as prescribed by

rule. For purposes of this paragraph,

multiple payment instruments accepted from

any one person on any given day which total

$1,000 or more must be aggregated and

reported on the log. (emphasis add ed).

49 . The statute contained distinct recordkeeping

requirements for payment instruments exceeding two different

threshold amounts : (1) A customer file on all customers who

cash corporate or third - party payment instruments exceeding

$1,000 , and (2) p ersonal identification information of

customers presenting payment instruments of $1,000 or more .

5 0 . T he payment instrument log requirement was not

associated with any minimum threshold amount. However, the

language of subparagraph (c) d id require aggregation of

multiple payment instruments accepted from any one person on

any given day which total $1,000 or more . As such, the log

appear ed to be required for all payment instruments of $1,000

or more.

5 1 . The 2012 Legislation struck the sep arate threshold

of $1,000 or more which triggered the requirement to keep

customerÓs personal identification information. See ch. 12 -

85, § 7, Laws of Fla. (2012). Further, the 2012 changes

collapsed the separate requirements of customer identification

information, customer thumbprint, and a payment instrument log

into one list of records required to be kept on customers who

cash payment instruments exceeding $1,000 . See Id . However,

the law retained the requirement that multiple paym ent

instruments totaling $1,000 or more accepted from any one

person on any given day be aggregated and reported on the log.

Electronic Log Requirement

5 2 . N ext, Petitioner challenges the r ule as an invalid

exercise of RespondentÓs delegated legislative authority

because the governing statute was amended in 2013 to eliminate

the requirement for check cashers to keep a n electronic log of

payment instruments.

5 3 . In 2013, the Legislature created the following new

subsections of section 560. 310 :

(4) The office shall issue a competitive

solicitation as provided in s. 287.057 for a

statewide, real time, online check cashing

database to combat fraudulent check cashing

activity. Af ter completing the competitive

solicitation process, but before executing a

contract, the office may request funds in

its 2014 - 2015 fiscal year legislative budget

request and submit necessary draft

conforming legislation, if needed, to

implement this act.

(5) The office shall ensure that the check

cashing database :

(a) Provides an interface with the

Secretary of StateÓs database for purposes

of verifying corporate registration and

articles of incorporation pursuant to this

section.

(b) Provides an int erface with the

Department of Financial ServicesÓ database

for purposes of determining proof of

coverage for workersÓ compensation.

(6) The commission may adopt rules to

administer this section, require that

additional information be submitted to the

check cashing database , and ensure that the

database is used by the licensee in

accordance with this section.

C h. 13 - 139, § 1, Laws of Fla.

5 4 . With regard to the payment instrument log, the

statute was amended as follows: 7/

(d) The office shall, at a minimum require

licensees to submit the following information

to the check cashing database or electronic

log, before entering into each check cashing

transaction for each A payment instrument

being cashed, in such format as required log

that must be maintained electronically as

prescribed by rule :

Id .

5 5 . The law also made the following c onforming changes

to existing text of section 560.310:

(2) If the payment instrument exceeds

$1,000, the following additional information

must be maintained or submitted :

* * *

For purposes of this subsection paragraph ,

multiple payment instruments accepted from

any one person on any given day which total

$1,00 0 or more must be aggregated and

reported in on the check cashing database or

on the log.

Id .

5 6 . The statute authorizes Respondent to make a 2014 -

2015 legislative budget request prior to executing the

contract for a vendor to run the database. See § 560.310(4),

Fla. Stat. Thus, the statute specifically anticipates lag

time between enactment of the legislation requiring the

statewide database and the rollout of the database.

5 7 . Contrary to PetitionerÓs assertion, the statute does

not eliminate lic ensed check cashersÓ responsibility to

maintain records in an electronic log. The statute recognizes

the licenseeÓs duty to both maintain information on an

electronic log and submit that information to the statewide

real time database.

Corporate Customer

5 8 . Next , Petitioner challenges RespondentÓs authority

to require check cashers to maintain records of corporate

customers in addition to natural persons.

59 . The section of the r ule at issue is 69V - 5 6 0 .704 (4 ),

which reads , in pertinent part, as follows:

(4) In addition to the records required in

subsections (1) and (2), for payment

instruments exceeding $1,000.00, the check

casher shall:

* * *

(d) Create and maintain a customer file for

each entity listed as the payee on corporate

payment instruments and third party payment

instruments accepted by the licensee. Each

customer file must include , at a min imum, the

following information[.] ( emphasis add ed).

6 0 . Florida Administrative Code Rule 69V - 560.704 further

defines the following relev ant terms:

(1) For purposes of this rule the term:

(a) Ò Corporate payment instrument Ó , as

referenced in Section 560.310(1), F.S., means

a payment instrument on which the payee named

on the face of the payment instrument is not

a natural person.

(b) Ò Conductor Ó means a natural person who

presents a payment instrument to a check

casher for the purpose of receiving currency.

(c) Ò Customer file Ó in regard to a

Ò corporate payment instrument Ó means the

corporate entit y shown as payee. In regard

to Ò third - party payment instruments Ó, the

term Ò customer file Ó means the individual

negotiating the payment instrument.

6 1 . Petitioner complains that Respondent is without

authority to construe the term ÐcustomerÑ as the payee on a

corporate payment instrument rather than a natural person

appearing before the licensee presenting a check to be cashed.

Petitioner argues that sec tion 560.310 defines customer as the

person presenting a check for payment, while the rule

impermissibly requires the licensee to maintain customer files

of corporate entities.

6 2 . Section 560.310 does not define the term Ðcustomer.Ñ

6 3 . The sections of the statute which predate the 2013

Legislation use d the term customer as if it applied only to a

natural person. F or example, the statute required the check

casher to maintain Ð[a] copy of the personal identification

that bears the photograph of the customer used as

identification and presented by the customer.Ñ

§ 560.310(2)(b), Fla. Stat. (2012). Further, the statute

required the license e to main tain Ð[a] thumbprint of the

customer taken by the licensee when the payment instrument is

presented for negotiation or payment.Ñ § 560.301(2)(c), Fla.

Stat. (2012).

6 4 . However, the 201 3 amendments to chapter 560 ,

specifying the items to be documented in the check casherÓs

electronic log of payment instruments, employ the terms Ðpayor

nameÑ and Ðpayee nameÑ as displayed on the payment instrument,

and ÐconductorÑ if different from the name on the payment

instrument.

6 5 . The list of items required by statu te to be logged

include Ð[t]he type of identification and identification

number presented by the payee or conductor,Ñ and Ð[p]ayeeÓs

workersÓ compensation insurance policy number or exemption

certification number, if the payee is a business.Ñ

§ 560.310(2) (d)10. and 11., Fla. Stat. (2013).

6 6 . Additionally, the legislation requires Respondent to

ensure that the anticipated statewide check - cashing database

will interface with the Secretary of StateÓs database for

verifying corporate registration and articles of

incorporation, as well as with the Department of Financial

ServicesÓ database for determining proof of coverage for

workersÓ compensation.

6 7 . If t he payeeÓs corporate information is not

maintained by check cashers, it cannot be reported to the

statewide check - cashing database for verification.

6 8 . Furthermore, the statute prohibits a licensee from

accepting or cashing a corporate payment instrument from a

person who is not an authorized officer of the corporate payee

named on the instrument. See s. 560.309(4), Fla. Stat.

Without obtaining records of the corporate payee, the check

casher would be unable to comply with this requirement.

Corporate Do cuments

69 . Next , Petitioner complains that some of the

information required by r ule to be kept on corporate customers

is beyond the RespondentÓs statutory authority. Specifically,

Petitioner objects to the obligation to maintain the following

information on corporate customers, as required by r ule 69V -

560.704(4)(d):

1. Documentation from the Secretary of State

verifying r egistration as a corporation or

fictitious entity showing the listed officers

and FEID registration number. If a sole

proprietor uses a fictitious name or is a

natural person, then the customer file shall

include the social security number of the

business owner and documentation of the

fictitious name filing with the Secretary of

State.

2. Articles of Incorpo ration or other such

documentation which establishes a legal

entity in whatever form authorized by law.

For purposes of this rule a sole proprietor

operating under a fictitious name registered

with the Secretary of State shall not have to

present such doc umentation.

3. Documentation of the occupational license

from the county where the entity is located.

4. A copy of the search results screen page

from Compliance Proof of Coverage Query Page

webpage from the Florida Department of

Financial Services Î D ivision of WorkersÓ

Compensation website

( http://www.fldfs.com/WCAPPS/Compliance

_POC/wPages/query.asp ).

5. Documentation of individuals authorized

to negotiate payment instruments on the

corporation or fictitious entityÓs behalf

including corporate resolutions or powers of

attorney. Payment instruments for insurance

claims where there are multiple payees shal l

be exempt from this provision provided that

the maker of the check is an insurance

company and the licensee has obtained and

retained documentation as to the identity of

the natural person listed as the payee on

such payment instrument.

7 0 . Section 560 .310(2) provides for the following

customer information to be kept on file:

(a) Customer files, as prescribed by rule ,

on all customers who cash corporate payment

instruments that exceed $1,000. (emphasis

added).

7 1 . Respondent clearly has statutory direction in

determining which types of documentation should be kept in

corporate customer files.

7 2 . As noted previously, licensed check cashers are

required by statute to enter into their electronic log each

corporate payeesÓ workersÓ compensation insurance policy

number or exemption certificate number before entering into

each check - cashing transaction. See § 560.310(2)(d)11 , Fla.

Stat . Likewise, licensees are required to verify that the

conductor presenting a corporate che ck is an authorized

officer of the corporate payee. See § 56 0.309(4), Fla. Stat.

7 3 . Petitioner seems to suggest that Respondent cannot

require any document to be kept on corporate payees unless

that document is specifically mentioned in the authorizing

statute. That suggestion is contrary to controlling law, as

discussed more fully below.

CONCLUSIONS OF LAW

Jurisdiction and Standing

7 4 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding. See

§§ 120.56(1)(c), 120.569 and 120.57(1), Fla. Stat.

7 5 . Section 120.56(1)(a) provides:

Any person substantially affected by a

rule or a proposed rule may seek an

adm inistrative determination of the

invalidity of the rule on the ground that

the Rule is an invalid exercise of

delegated legislative authority.

7 6 . Jurisdiction attaches when a person who is

substantially affected by a rule claims that it is an invalid

exercise of delegated legislative authority.

7 7 . The party challenging the rule has the burden , when

standing is resisted, to prove standing. Fla. Dep't of Health

& Rehab. Servs. v. Alice P. , 367 So. 2d 1045, 1052 (Fla. 1st

DCA 1979) . In order to meet the substantially - affected test,

P etitioner must establish: (1) a real and sufficiently

immediate injury - in - fact; and (2) "that the alleged interest

is arguably within the zone of interest to be protected or

regulated." All Risk Corp. v. Fla. Dep't of Labor &

Employment Sec. , 413 So. 2d 1200 , 1202 (Fla. 1st DCA

1982)(citations omitted).

7 8 . Here, Respondent concedes that Petitioner is within

the zone of interes t regulated by the subject rule .

Respondent argues, however, that Petitioner has not

established an injury - in - fact sufficient to meet the first

prong of the standing test.

79 . A real and sufficiently immediate injury - in - fact has

been recognized where the challenged rule , or its promulgating

statute , has a direct and immediate effect upon one's right to

earn a living. Ward v. Bd . of Trs . of the Int . Imp . Trust

Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995) . The clearest

example of th is is where the challenged rule directly

regulates the challenger's occupational field per se , by, for

example, setting criteria to engage in that profession.

See , e.g. , Coal . of Mental Hlth . Profs . v. Dep Ó t of Prof Ó l

Reg . , 546 So. 2d 27 (Fla. 1st DCA 1989); Prof Ó l Firefighters

of Fla., Inc. v. Dep Ó t of HRS , 396 So. 2d 1194 (Fla. 1st DCA

1981).

8 0 . As a licensed check casher, Petitioner must comply

with the recordkeeping rules which are the subject of this

challenge . Petitioner incurs costs associated with compiling

and maintaining said records , including contracting with a

Certified Public Accountant to advise the company on

compliance with the recordkeeping requirements .

8 1 . Petitioner has demonstrated standing as a licensed

check casher subject to Florida Administrative Code Rule 69V -

560.704.

Burden of Proof

8 2 . The burden is on the challenger of an existing rule

to demonstrate by a preponderance of the evidence that the

rule is an invalid exercise of delegated legislative

authority. See § 120.56(3)(a), Fla. Stat.

Invalid Exercise of Delegated Legislative Authority

8 3 . Specifically, Petitioner challenges portions of the

r ule as an Ð invalid exercise of delegated legislative

authorityÑ pursuant to sections 120.52(8) (b), (8) (c) , and

(8)(e) , which provide as follows: 8/

Ò Invalid exercise of delegated legislative

auth orityÓ means action that goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing

rule is an invalid exercise of delegated

legislative authority if any one of the

following applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1. ;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by section 120.54(3)(a)1. ;

* * *

(e) The r ule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the nec essary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational;

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by the

enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agency's class of

powers and duties, nor shall an agency have

the authority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking auth ority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

enabling statute.

8 4 . Added in 2008, section 120.52(17) provides:

Ò Rulemaking authority Ó means statutory

language that explicitly authorizes or

requires an agency to adopt, develop,

establish, or otherwise create any statement

coming wit hin the definition of the term

Ò rule Ó.

8 5 . This definition does not add new restrictions to

agency rulemaking authority, but it does emphasize the

existing restrictions cited in the definition of an "invalid

exercise of delegated legislative authority." See Fla. Elec.

CommÓ n v. Blair , 52 So. 3d 9 (Fla. 1st DCA 2010). The term

"law implemented" is also defined by Florida Statutes as "the

language of the enabling statute being carried out or

interpreted by an agency through rulemaking." See

§ 120.52(9), Fla. Stat.

Exceed s Rulemaking Authority

8 6 . First, Petitioner asserts that r ule 69V - 560.704(4)(d)

exceeds RespondentÓs grant of rulemaking authority because it

requires check cashers to obtain and maintain reco rds regarding

corporate payees. Petitioner arg ues that the statute limits a

check - cashing busine ssÓ obligation to keep records on customers

who are natural persons only .

8 7 . PetitionerÓs argument is not supported by the plain

language of the operative statute . Section 560.310(2)(d)11.

requires check cashers to obtain the payeeÓs workers Ó

compensation policy number or exemption number. Section

560.309(4) requires check cashers to determine whether a

conductor presenting a corporate payment instrument is an

authorized officer of the corporate payee. Section

560.310(2)(a) specifically requi res check cashers to maintain

customer files as prescribed by rule.

8 8 . PetitionerÓs interpretation of the statute relies

upon a very narrow reading focused only on section

560.310(2)(a), (b), and (c). That interpretation ignores all

other provisions of section 560.310 , as well as the other

sections of chapter 560, Part III , regulating check cashers .

Further, that interpretation ignores the evolution of the

stateÓs regulation of check - cashing businesses.

89 . Petitioner has not met its burden to establis h by a

preponderance of the evidence that the r ule exceeds

RespondentÓs grant of rulemaking authority by requiring

customer files on corporate payees.

9 0 . Next, Petitioner asserts that the r ule exceeds

RespondentÓs delegated rulemaking authority because the

corporate documents listed in r ule 69V - 560.704(4)(d)1. through

4. are not named in the statute. 9 /

9 1 . The Administrative Procedures Act (Act) provides

that Ð[a]n agency may adopt only rules that implement or

in terpret the specific powers and duties granted by the

enabling statute.Ñ § 120.52(8), Fla. Stat. However, as used

in the Act, the term ÐspecificÑ is not a synonym for

Ðdetailed.Ñ See S W Fla. Water Mgm t. Dist. v . Save the Manatee

Club , 773 So. 2d 594, 599 (Fla. 1st DCA 2000). ÐThe question

is whether the statute contains a specific grant of

legislative authority for the rule, not whether the grant of

authority is specific enough .Ñ Smith v. DepÓt of Corr. , 920

So. 2 d 638, 641 (Fla. 1st DCA 2005)( quotin g S W Fla. Water

M gm t. Dist. v . Save the Manatee Club , 773 So. 2d 594 (Fla. 1 st

DCA 2000) ) .

9 2 . ÐIf the enabling statute had to be as detailed as

the rules themselves, the point of rulemaking would be

defeated entirely.Ñ Consolidated - Tomoka Land Co. v. DepÓt of

Bus. and ProfÓl Reg. , 71 7 So. 2d 72 (Fla. 1st DCA 1998) ,

superseded on other grounds by statute as stated in S W Fla.

Water M gmt. Dist. v . Save the Manatee Club , 773 So. 2d 594,

597 (Fla. 1 st DCA 2000) .

9 3 . PetitionerÓs argument that Respondent may not

require check cashers to maintain documents regarding

registration with the Secretary of State, corporate articles

of incorporation, copies of occupational licenses, and

workersÓ compensation insurance, because those items are not

menti oned in the enabling statute, is rejected.

9 4 . Petitioner has not proven by a preponderance of the

evidence that r ule 69V - 560.704(4)(d) exceeds RespondentÓs

statutory authority simply because the statute does not name

those specific documents.

Contraventi on of Specific Law Implemented

9 5 . Petitioner next argues that portions of the r ule

which require check cashers to maintain an electronic log of

payment instruments cashed , and which establish recordkeeping

requirements for checks of $1,000 or more, contra vene section

560.310.

9 6 . At the outset, the u ndersigned notes that an

agencyÓ s interpretation of an operable statute, which the

agency is charged with administering, is entitled to

deference. Kessler v. DepÓ t of Mgmt. Servs. , 17 So. 3d 759,

762 (Fla. 1st DCA 2009). However, that deference is not

absolute, and will n ot be afforded where the agencyÓ s view is

contrary to the sta tuteÓ s plain meaning. See Id .

9 7 . Petitioner argues that the Legislature repealed the

requirement for check casher s to maintain an electronic log of

payment instruments in 2013 when it adopted legislation

requiring a statewide real - time database.

9 8 . PetitionerÓs argument is not supported by the plain

language of the law. The conforming changes in section 560.310

spe cifically recognize the duty of check cashers to maintain an

electronic log of information related to payment instruments .

See ch. 13 - 139, § 1, Laws of Fla.

99 . Further, the statute plainly requires check cashers

to submit payment instrument information into the statew ide

database, when developed. See § 560.310(2) , Fla. Stat. (Ð[t]he

following information must be [] submitted:Ñ); and

§ 560.310(2)(d) , Fla. Stat. (ÐThe office shall, at a minimum,

require licensees to submit the following information to the

check - cashing database . . .Ñ) . Check cashers cannot submit

information which they do not collect.

10 0 . Under PetitionerÓs interpretation of the statute,

check cashers would have cease d collecting and maintaining

information on payment instruments cashed in 2013 , and resume

when the database is activated . PetitionerÓs interpretation

would lead to an absurd result.

10 1 . ÐStatutory provisions should not be construed in a

manner that would lead to an absurd result.Ñ State v.

Presidential WomenÓs Ctr . , 937 So. 2d 114, 119 (Fla. 2006).

PetitionerÓs interpretation is not persuasive.

10 2 . Petitioner has not demonstrated by a preponderance

of the evidence that r ule 69V - 560.704(5)(a) contravenes section

560.310 by requiring check cashers to maintain a payment

instrument log.

10 3 . Next, Petitioner posits that r ule paragraph (5)(a)

contravenes the statute by requiring an electronic log be kept

on all payment instruments of $1,000 or more, while section

560.310(2)(d) requires a log of payment instruments exceeding

$1,000.

10 4 . Setting aside the obvious pedantry of PetitionerÓs

argument, the undersigned does not find that the penny

difference contraven es the statute.

10 5 . The flush left language of section 560.310(2)( d)

retains the direction that check cashers must aggregate checks

accepted from any one person on any given day Ðwhich total

$1,000 or more.Ñ Thus, Respondent has authority to require

check cashers maintain a log on payment instruments meeting a

threshold of $1,000.

10 6 . Clearly Petitioner prefers an interpretation of the

statute which would set the recordkeeping threshold at amounts

greater than $1,000.

10 7 . An ÐagencyÓs interpretation of a statute need not

be the sole possible interpretation or even the most desirable

one; it need only be within the range of possible

interpretations.Ñ Kessler v. DepÓt of Mgmt. Servs. , 17 So. 3d

759, 762 (Fla. 1st DCA 2009) ( citing Fla. DepÓt of Educ. v.

Cooper , 858 So. 2d 394, 396 (Fla. 1st DCA 2003 ) ) .

10 8 . In the case at hand, RespondentÓs interpretation is

within the permissible range of interpretations, although not

the most desirable to Petitioner.

1 09 . Petitioner has not demonstrated by a preponderance

of the evidence that r ule 69V - 560.704(5)(a) contravenes section

560.310 by requiring check cashers to maintain a log of payment

instruments $1,000 or greater, rather than those exceeding

$1,000.

Arbitrary and Capricious

11 0 . Petitioner asserts that paragraph (4)(d) of the

r ule which require s check cashers to obtain and maintain

certain corporate information on corporate customers , is

arbitrary and capricious.

11 1 . The Administrative Procedures Act defines

arbitrary and capricious as follows:

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without

thought or reason or is irrational.

§ 120.52(8)(e), Fla. Stat.

11 2 . The analysis for whether a rule is arbitrary and

capricious is (1) whether the rule is supported by logic or

the necessary facts; and (2) whether the rule was adopted

without thought , or is irrational. See Las Mercedes Home Care

Corp. v. Ag. for Hlth . Care Admin . , Cas e No. 10 - 0860RX (Fla.

DOAH July 23, 2010); affÓ d, 67 So. 3d 1262 (Fla. 1st DCA

2011).

11 3 . As explained in Agrico Chemical Co mpany v.

Dep artmen t of Environmental Prot ection , 365 So. 2d 759 (Fla.

1st DCA 1979):

A capricious action is one which is taken

without thought or reason and irrationally.

An arbitrary decision is one not supported

by facts or logic, or despotic.

Administrative discretion must be reasoned

and based upon competent substantial

evidence. Id . at 763.

11 4 . Section 560.310, Florida Statutes, specifically

authorizes Respondent to prescribe by rule requirements for

the maintenance of customer files. See § 560.310(2)(a), Fla.

Stat. (ÐCustomer files, as prescribed by rule . . .Ñ).

11 5 . Petitioner maintains the requirements are arbitrary

and capricious because (1) the documents required are already

in the possession of state and local government agencies; and

(2) use of the information maintained pursuant to the r ule has

not proven useful to law enforcement.

Petitioner introduced no evidence to support a conclusion

that RespondentÓs choice of documents to be maintained was

done without thought or reason. Based on the extensive

legislative history, the purpose of the recordkeeping

requirem ents is to detect and deter fraudulent transactions

and money laundering, overwhelmingly perpetrated by persons

establishing ÐshellÑ corporations in the name of nominal

owners. These schemes are particularly prevalent in the area

of workersÓ compensation and Medicare and Medicaid payments.

11 6 . The documents selected by Respondent are useful to

verify the legal status of a corporate entity, the persons

authorized to conduct business on behalf of a corporate

entity, whether a corporate entity has an occupational license

to conduct business in the local jurisdiction, and proof of

workersÓ compensation insurance. Rather than being selected

on a whim or without reason, the documents all relate to the

purpose of the recordkeeping requirement.

11 7 . Finally, Petitioner complains that the records

requi red to be kept are all documents in the possession of

state and local agencies. Presumably , Petitioner believes

this fact is evidence the r ule is arbitrary and capricious.

11 8 . To the contrary, the undersigned concludes that

public availability of the documents increases efficiency of

the recordkeeping process. Check cashers can print or

download the documents with just a few keystrokes.

1 19 . Additionally, the legislation mandates that the

statewide real - time database, when launched, Ðinterface with

the Secretary of StateÓs database for the purposes of

verifying corporate registration and articles of

incorporation,Ñ as well as Ðwith the Department of Financial

ServicesÓ database for purposes of determining proof of

coverage for workersÓ compensation.Ñ § 560.310(5)(a) and (b),

Fla. Stat. These sections are further evidence that

Respondent did not adopt the r ule requirements on a whim , or

without thought or reason.

12 0 . Finally, Petitioner weaves in two remaining

argument s which are creative, but not persuasive.

12 1 . As further grounds for finding the r ule arbitrary

or capricious, P etitioner points to the fact that RespondentÓs

referrals to law enforcement have resulte d in few, if any,

criminal investigations .

12 2 . Petitioner asks the undersigned to find a causal

link between the type of customer records check cashers are

required to maintain and the percentage of RespondentÓs

examinations which result in a criminal investigation by law

enforcement. It is a stretch at best.

12 3 . Finally, Petitioner argues that the r ule is

arbitrary and capricious because it has not been Ðresponsive

to chang es in economic conditions, technology, and industry

practices , Ñ as required by section 560.105(2)(b), Florida

Statutes, RespondentÓs cited Ðspecific authorityÑ for the

r ule.

12 4 . Petitioner introduced evidence of a decline in the

number of licensed check - cashing business es in the State of

Florida since 2008. Petitioner apparently places blame on the

challenged recordkeeping requirements for the decline in the

number of licensed check cashers. Without additional

evidence, that leap cannot be made. 10/

12 5 . Petitioner has not met its burden to demonstrat e by

a preponderance of the evidence that Florida Administrative

Code Rule 69V - 560.704(4)(d) is arbitrary or capricious.

Conclusion

12 6 . Petitioner has failed to meet its burden to

demonstrate that any por tion of Florida Administrative Code

Rule 69V - 560.704 is an invalid exercise of delegated

legislative authority. Based on a thorough review of the

evidence, the undersigned concludes that the challenged

portions of the r ule do not exceed RespondentÓs grant of

rulemaking authority, do not contravene the specific law

implemented, and are neither arbitrary nor capricious.

ORDER

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the Petition filed by Petitioner pursuant to

secti on 120.56(3) , Florida Statutes, seeking an administrative

determination that Florida Administrative Code Rule 69V -

560.704 constitutes an Ð invalid exercise of delegated

legislative authority ,Ñ as defined in section 120.52(8) (b),

(c), and (e) , is hereby DISMISSED .

DONE AND ORDERED this 6th day of May , 2014 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of May , 2014 .

ENDNOTES

1/ Petitioner filed a ÐProposed Recommended OrderÑ which was

taken as a proposed final order in this matter.

2 / Except as otherwise noted herein, all references to the

Florida Statutes are to the 2013 version.

3 / Section 655.50 was amended again by the 1994 Legislature only

to correct a cross - reference to section 895.02, Florida Statutes,

which was amended in the same bill. See ch. 94 - 209, § 80, Laws

of Fla. (1994).

4/ Section 560.309, Florida Statutes ( Supp. 1994) read, in

pertinent part, as follows:

(4) Exclusive of the direct costs of

verification which shall be established by

department rule, no check casher shall:

(a) Charge fees, except as otherwise

provided by this part, in excess of 5 percent

of the face amount of the payment instrument,

or 6 percent without the provision of

identification, or $5, whichever is greater;

(b) Charge fees in excess of 3 percent of

the face amount of the payment instrument, or

4 percent without the provision of

identification, or $5, whichever is greater,

if such payment instrument is the payment of

any kind of state public assistance or

federal social security benefit payable to

the be arer of such payment instrument;

* * *

(d) As used in this subsection,

ÒidentificationÓ means, and is limited to, an

unexpired and otherwise valid driver license,

a state identification card issued by any

state of the United States or its territories

or the District of Columbia, and showing a

photograph and signature, a U.S. Government

Resident Alien Identification Card, a U.S.

Passport, or a U.S . Military identification

card.

5 / There are minor formatting differences between the rule and

the statute.

6 / The statute also requires check cashers to collect and

maintain Ð[s]uch additional information as required by rule.Ñ

§ 560.310(2)(d)12., Fla. Stat.

7 / In the Laws of Florida, words stricken are deletions; words

underlined are additions.

8 / Petitioner originally alleged the r ules were also invalid

pursuant to 120.52(8)(f). However, Petitioner withdrew that

allegation at the final hearing. T.18:17 - 24.

9 / In the original Petition, Petitioner included all documents

listed in (4)(d) 1. throu gh 5. as exceeding RespondentÓs

rulemaking authority. Petitioner appears to have abandoned any

challenge to subparagraph 5. Florida Administrative Code Rule

69V - 560.704(4)(d)5. requires check cashers to maintain

Ð[d]ocumentation of individuals authorized to negotiate payment

instruments on the corporation or fictitious entityÓs behalf

including corporate resolutions or powers of attorney.Ñ

Presumably, Petitioner dropped this argument because the statute

specifically requires check cashers to determine wh ether a

conductor of a corporate payment instrument is Ðan authorized

officer of the corporate payee named on the instrumentÓs face.Ñ

§ 560.309(4), Fla. Stat. Challenging subparagraph 5. would fly

in the face of PetitionerÓs argument that Respondent is n ot

authorized to require documents not mentioned in the statute.

10 / The decline could just as easily be blamed on the nationwide

economic downturn. More likely, the decline in the number of

check cashers coincides with the overhaul of regulations to we ed

out illegitimate check - cashing businesses directly engaged in

criminal activity.

COPIES FURNISHED:

John O. Williams, Esquire

Williams and Holz, P.A.

The Cambridge Centre

211 East Virginia Street

Tallahassee, Florida 32301

Susan Leigh Matchett , Esquire

Office of Financial Regulation

Fletcher Building,

200 East Gaines Street , Suite 550

Tallahassee, Florida 32399

Drew J. Breakspear, Commissioner

Office of Financial Regulation

200 East Gaines Street

Tallahassee, Florida 32399 - 0350

Colin M. Roopnarine, General Counsel

Department of Financial Services

Division of Workers` Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(eServed)

Liz Cloud, Program Administrator

Florida Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

Ken Plante, Coordinator

Joint Administrative Proced Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68,

Florida Statutes. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

co mmenced by filing one copy of a Notice of Appeal with the

agency clerk of the Division of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law,

with the District Court of Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Appeal must be filed within 30

days of rendition of the order to be reviewed.