The purpose of the proposed new rule is to implement statutory requirements under sections 559.554 and 559.730, Florida Statutes. The effect of the proposed new rule is to specify the procedures to be followed and the documents to be provided to ...

 

DEPARTMENT OF FINANCIAL SERVICES

Finance

RULE NO.:                            RULE TITLE:

69V-180.032                            Effect of Law Enforcement Records on Applications for Consumer Collection Agency Registration

PURPOSE AND EFFECT: The purpose of the proposed new rule is to implement statutory requirements under Sections 559.554 and 559.730, Florida Statutes. The effect of the proposed new rule is to specify the procedures to be followed and the documents to be provided to the Office by an applicant for Consumer Collection Agency Registration in disclosing any pending criminal charges and all criminal matters in which a control person of the applicant has pled guilty or nolo contendere, or was convicted or found guilty. The proposed new rule also specifies the classification of crimes by the Office, the specification of time periods for which an applicant is disqualified from registration with the Office based upon the classification of crimes, the effect of multiple crimes on the disqualifying period, and the aggravating and mitigating factors to be considered by the Office in determining the period of disqualification from registration.

SUMMARY: Subsection (1) of the new rule provides definitions. Subsection (2) of the new rule specifies the general procedures regarding law enforcement records. Subsection (3) of the new rule states the effect of the failure to fully disclose a law enforcement record on an application. Subsection (4) of the new rule states the classifications of crimes. Subsection (5) states the effect that a single crime has on registration. Subsection (6)states provisions regarding control persons with multiple crimes. Subsection (7) states the mitigating factors that may be considered. Subsection (8) states circumstances that do not constitute mitigation. Subsection (9) states the effect of a pending appeal in criminal proceedings, including reversal on appeal. Subsection (10) addresses the effect of pre-trial intervention. Subsection (11) states the effect of sealing or expunging a criminal record. Subsection (12) states the effect of varying terminology related to law enforcement records. Subsection (13) addresses imprisoned persons and community supervision. Subsection (14) states the effect of disqualifying periods on an application. Subsection (15) lists the crimes considered Class “A” crimes. Subsection (16) lists the crimes considered Class “B” crimes. Subsection (17) lists the crimes considered Class “C” crimes. Subsection (18) states the effect of foreign law enforcement records.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Agency expressly relies on an analysis of potential economic impact conducted by persons with subject matter knowledge of this rule.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 559.554, 559.555, 559.5551 FS.

LAW IMPLEMENTED: 559.554(2)(b), 559.730 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: C. Michael Marschall, Division of Consumer Finance,[phone], [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

69V-180.032 Effect of Law Enforcement Records on Applications for Consumer Collection Agency Registration.

(1) Definitions. For purposes of this rule:

(a) “Control person” has the same meaning as provided in Section 559.55(4), F.S.

(a) “Trigger date” means the date on which a control person was found guilty, or pled guilty, or pled nolo contendere to a crime.

(2) General Procedure Regarding Law Enforcement Records. At the time of submitting an Application for Registration as a Consumer Collection Agency, Form OFR-559-101, which is incorporated by reference in Rule 69V-180.002(1)(b)1, F.A.C., the applicant shall disclose on the application form any pending criminal charges and all criminal matters in which a control person has pled guilty or nolo contendere to, or has been convicted or found guilty, regardless of whether adjudication was withheld, of any crime. The applicant shall supply the Office with required documentation for each control person, as specified in this rule, relating to: 1) all criminal matters in which the control person has pled guilty or nolo contendere to, or has been convicted or found guilty, regardless of whether adjudication was withheld, of a class “A”, “B”, or “C” crime as described in paragraphs 16, 17, and 18 of this rule, 2) any pending criminal charges for a control person relating to a class “A”, “B”, or “C” crime as described in this rule, or 3) evidence that such documentation cannot be obtained. Evidence that documentation cannot be obtained shall consist of a written statement on the letterhead of the agency that would be the custodian of the documents, signed by a representative of that agency, stating that they have no record of such matter, or that the record is lost or was damaged or destroyed, or otherwise stating why the document cannot be produced. The required documentation must be legible. Required documentation includes:

(a) A copy of the police arrest affidavit, arrest report or similar document.

(b) A certified copy of the charges.

(c) A certified copy of the plea, judgment, and sentence where applicable.

(d) A certified copy of an order of entry into pre-trial intervention, and the order of termination of pre-trial intervention showing dismissal of charges where applicable.

(e) A certified copy of an order of termination of probation or supervised release, if applicable.

(3) Effect of Failure to Fully Disclose Law Enforcement Record on Application.

(a) The Office shall not deny an application for failure to provide documentation listed in subsection (2) when the crime is not a class “A”, “B”, or “C” crime and the applicant has disclosed the crime on the application form.

(b) If the Office discovers the applicant’s failure to disclose after a registration has been granted, the Office will suspend or revoke each registration currently held by the applicant as follows:

1. Suspension for 12 months if, had the registration application been accurate, the application would have been granted, based on the statutes and rules applicable to the application at the time the Office issued the registration, and the documentation in the applicant’s file at the time the Office issued the registration.

2. Revocation if, had the registration application been accurate, the application would have been denied, based on the statutes and rules applicable to the application at the time the Office issued the registration.

(4) Classification of Crimes.

(a) The Office makes a general classification of crimes into three classes: A, B and C, as listed in subsections (16), (17) and (18) of this rule.

(b) These classifications reflect the Office’s evaluation of various crimes in terms of moral turpitude and the seriousness of the crime as such factors relate to the prospective threat to public welfare typically posed by a person who would commit such a crime.

(c) The names or descriptions of crimes, as set out in the classification of crimes, are intended to serve only as generic names or descriptions of crimes and shall not be read as legal titles of crimes, or as limiting the included crimes to crimes bearing the exact name or description stated.

(d) A charge in the nature of attempt or intent to commit a crime, or conspiracy to commit a crime, is classified the same as the crime itself.

(5) Effect on Registration of Commitment of Single Crime. The Office finds it necessary to implement the following standards for applicants with control persons whose law enforcement record includes a single crime, subject to the mitigating factors set forth elsewhere in this rule before registration. All disqualifying periods referenced in this rule run from the trigger date.

(a) Class A Crime. The applicant will not be granted a registration until 15 years have passed since the trigger date.

(b) Class B Crime. The applicant will not be granted a registration until 7 years have passed since the trigger date.

(c) Class C Crime. The applicant will not be granted registration until 5 years have passed since the trigger date.

(6) Control persons With Multiple Crimes.

(a) The Office construes Section 559.554(2), F.S. to require that an applicant with control persons whose law enforcement record includes multiple class “A”, “B” or C crimes, or any combination thereof, wait longer than those whose law enforcement record includes only a single crime before becoming eligible for registration in order to assure that such control person’s greater inability or unwillingness to abide by the law has been overcome. Therefore, the Office finds it necessary that a longer disqualifying period be utilized in such instances, before registration can safely be granted. Accordingly, where the control person has been found guilty or pled guilty or pled nolo contendere to more than one crime, the Office shall add 5 years to the disqualifying period for each additional crime.

(b) The additional periods are added to the basic disqualifying period for the one most serious crime, and the combined total disqualifying period then runs from the trigger date of the most recent crime.

(c) Classification as “Single Crime” versus “Multiple Crimes.” For purposes of this rule, two (2) or more offenses are considered a single crime if they are triable in the same court and are based on the same act or transaction or on two (2) or more connected acts or transactions.

(7) Mitigating Factors.

(a) The disqualifying period for a crime or crimes shall be shortened upon proof of one or more of the following factors. Where more than one factor is present the applicant is entitled to add together all the applicable mitigation amounts and deduct that total from the usual disqualifying period, provided that an applicant shall not be permitted an aggregate mitigation of more than three (3) years for the following factors:

1. One year is deducted if the probation officer or prosecuting attorney in the most recent crime states in a signed writing that the probation officer or prosecuting attorney believes the applicant would pose no significant threat to public welfare if registered as a Consumer Collection Agency.

2. One year is deducted if restitution or settlement has been made for all crimes in which restitution or settlement was ordered by the court, and proof of such restitution or settlement is shown in official court documents or as verified in a signed writing by the prosecuting attorney or probation officer.

3. One year will be deducted if the control person was under age 21 when the crime was committed and there is only one crime in the control person’s law enforcement record.

4. One year is deducted if the applicant furnishes proof that the control person was at the time of the crime addicted to drugs or suffering active alcoholism. The proof must be accompanied by a written letter from a properly licensed doctor, psychologist, or therapist licensed by a duly constituted state licensing body stating that the licensed person has examined or treated the control person and that in his or her professional opinion the addiction or alcoholism is currently in remission and has been in remission for the previous 12 months. The professional opinion shall be dated within 45 days of the time of application.

5. Other Mitigating Factors. An applicant is permitted to submit any other evidence of facts that the control person believes should decrease the disqualifying period before registration is allowed and one additional year shall be deducted if the Office agrees the facts have a mitigating effect on the registration decision.

(b) In no event shall the aggregate mitigation result in less than a seven (7) year disqualifying period where the underlying crime committed was a felony.

(c) The burden is upon the applicant to establish these mitigating factors. Where the mitigating factor relates to or requires evidence of government agency or court action, it must be proved by a certified true copy of the agency or court document.

(8) Circumstances Not Constituting Mitigation. The Office finds that no mitigating weight exists, and none will be given, for the following factors:

(a) Type of Plea. The Office draws no distinction among types of pleas, i.e., found guilty; pled guilty; pled nolo contendere.

(b) Collateral Attack on Criminal Proceedings. The Office will not allow or give any weight to an attempt to re-litigate, impeach, or collaterally attack judicial criminal proceedings or their results in which the control person was found guilty or pled guilty or nolo contendere. Thus the Office will not hear or consider arguments such as: the criminal proceedings were unfair; the judge was biased; the witnesses or prosecutor lied or acted improperly; the defendant only pled guilty due to financial or mental stress; the defendant was temporarily insane at the time of the crime; or the defendant had ineffective counsel.

(c) The Office finds that subjective factors involving state of mind have no mitigating weight.

(9) Effect of Pending Appeal in Criminal Proceedings; Reversal on Appeal.

(a) The Office interprets the statutory grounds for denial of registration as arising immediately upon a finding of guilt, or a plea of guilty or nolo contendere, regardless of whether an appeal is or is not allowed to be taken. The Office will not wait for the outcome of an appeal to deny registration, unless a Florida court specifically stays the Office’s adverse action.

(b) If on appeal the conviction is reversed, the Office shall immediately drop the said crime as grounds for denial of registration.

(10) Pre-Trial Intervention. The Office considers participation in a pre-trial intervention program to be a pending criminal enforcement action and will not grant registration to any applicant with a control person who, at the time of application, is participating in a pre-trial intervention program. The Office finds it necessary to the public welfare to wait until the pre-trial intervention is successfully completed before registration may be considered.

(11) Effect of Sealing or Expunging of Criminal Record.

(a) An applicant is not required to disclose or acknowledge, and is permitted in fact to affirmatively deny, any arrest or criminal proceeding for a control person, the record of which has been legally and properly expunged or sealed by order of a court of competent jurisdiction prior to the time of application, and such denial or failure to disclose is not grounds for adverse action by the Office.

(b) Matters Sealed or Expunged Subsequent to Application. Occasionally a control person will have a matter sealed or expunged after the applicant submits an application, but before a registration decision is made by the Office. In such situations the Office policy is as follows:

1. If the applicant’s control person properly revealed the matter on the application, and thereafter has the record sealed or expunged, the Office will not consider the matter in the application decision.

2. However, if the applicant’s control person did not reveal the matter on the application and the matter had not been sealed or expunged at the time of making the application, the Office will construe the failure to disclose the matter on the application as a material misrepresentation or material misstatement, and the application shall be denied pursuant to Section 559.730(1)(d), F.S.

(12) Effect of Varying Terminology.

(a) With regard to the following six subparagraphs, the Office treats each phrase in a particular subparagraph as having the same effect as the other phrases in that same subparagraph:

1. Adjudicated guilty; convicted.

2. Found guilty; entered a finding of guilt.

3. Pled guilty; entered a plea of guilty; admitted guilt; admitted the charges.

4. Nolo contendere; no contest; did not contest; did not deny; no denial.

5. Adjudication of guilt withheld; adjudication withheld; no adjudication entered; entry of findings withheld; no official record to be entered; judgment withheld; judgment not entered.

6. Nolle prosse; nolle prosequi; charges withdrawn; charges dismissed; charges dropped.

(b) In all other instances the Office will look to the substantive meaning of the terminology used in the context in which it was used under the law of the jurisdiction where it was used.

(13) Imprisoned Persons and Community Supervision.

(a) Imprisonment. Notwithstanding any provision to the contrary in this rule, the Office shall not register any applicant  under Chapter 559 Part VI, F.S., while any control person of the applicant is imprisoned or serving a sentence for any crime. Further, the Office shall not register any applicant with a control person who has been released from imprisonment until the later of the period otherwise set out in these rules or 5 years after the date of release. The Office finds it necessary that the person be released from imprisonment and thereafter demonstrate an ability to abide by the law by passage of at least 5 years on good behavior, before registration can be granted without undue risk to the public welfare.

(b) Community Supervision. The Office shall not grant registration to any person who at the time of application or at any time during the pendency of the application is serving term on community supervision for any felony crime involving fraud, dishonest dealing, moral turpitude, misappropriation, conversion, or unlawful withholding of moneys belonging to others; or any misdemeanor crime involving misappropriation, conversion, or unlawful withholding of moneys belonging to others. The Office shall not substantively consider an application until the control person has successfully completed his or her probationary term.

(14) Effect of Disqualifying Periods. The disqualifying periods established in this rule do not give an applicant a right to registration after any set period of time. Regardless of the expiration of any disqualifying period imposed by these rules, the burden to prove entitlement to registration remains on the applicant.

(15) Class “A” Crimes include the following felonies involving financially related or white collar crime, or crimes involving violence, and the Office finds that such crimes involve an act of fraud, dishonest dealing, moral turpitude, misappropriation, conversion, or unlawful withholding of moneys belong to others regardless of adjudication. This list is representative only and shall not be construed to constitute a complete or exclusive list of all crimes that are Class “A” crimes. Crimes similar to the crimes on this list may also be considered Class “A” crimes, and no inference should be drawn from the absence of any crime from this list.

(a) Any type of fraud, including but not limited to Fraud, Postal Fraud, Wire Fraud, Securities Fraud, Welfare Fraud, Defrauding the Government, Credit Card Fraud, Defrauding an Innkeeper, Passing worthless check(s) with intent to defraud.

(b) Perjury.

(c) Armed robbery.

(d) Robbery.

(e) Extortion.

(f) Bribery.

(g) Embezzlement.

(h) Grand theft.

(i) Larceny.

(j) Burglary.

(k) Breaking and entering.

(l) Identity Theft.

(m) Any type of forgery or uttering a forged instrument.

(n) Misuse of public office.

(o) Racketeering.

(p) Buying, receiving, concealing, possessing or otherwise dealing in stolen property.

(q) Treason against the United States, or a state, district, or territory thereof.

(r) Altering public documents.

(s) Witness tampering.

(t) Tax evasion.

(u) Impersonating or attempting to impersonate a law enforcement officer.

(v) Money laundering.

(w) Murder in all degrees.

(x) Arson.

(y) Sale, importation, or distribution of controlled substances (drugs); or possession for sale, importation or distribution.

(z) Aggravated Assault (e.g., as with a deadly weapon).

(aa) Aggravated Battery (e.g., as with a deadly weapon).

(bb) Rape.

(cc) Sexually molesting any minor.

(dd) Sexual battery.

(ee) Battery of or threatening a law enforcement officer or public official in the performance of his/her duties.

(ff) Kidnapping.

(16) Class “B” Crimes include all felonies not Class “A” crimes.

(17) Class “C” Crimes include any misdemeanor that involves fraud, dishonesty, or any other act of moral turpitude.

(18) Foreign Law Enforcement Records. If a law enforcement record includes convictions, charges, or arrests outside the United States, the Office shall consider the following factors to reduce, eliminate, or apply a disqualifying period:

(a) Whether the crime in the criminal record would be a crime under the laws of the United States or any state within the United States;

(b) The degree of penalty associated with the same or similar crimes in the United States; and

(c) The extent to which the foreign justice system provided safeguards similar to those provided criminal defendants under the Constitution of the United States; for example, the right of a defendant to a public trial, the right against self-incrimination, the right of notice of the charges, the right to confront witnesses, the right to call witnesses, and the right to counsel.

Rulemaking Authority 559.554, 559.555, 559.5551, FS. Law Implemented 559.554(2)(b), 559.730 FS. History – New ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Gregory C. Oaks, Director, Division of Consumer Finance

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Financial Services Commission

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 13, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 17, 2014