Bill Text: FL S0356 | 2024 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Notaries Public

Spectrum: Bipartisan Bill

Status: (Failed) 2024-03-08 - Died in Messages [S0356 Detail]

Download: Florida-2024-S0356-Introduced.html

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       Florida Senate - 2024                                     SB 356
       
       
        
       By Senator Avila
       
       
       
       
       
       39-00547-24                                            2024356__
    1                        A bill to be entitled                      
    2         An act relating to notaries public; amending s.
    3         117.05, F.S.; requiring that certain notarial
    4         certificates contain the printed names of specified
    5         individuals; amending s. 117.105, F.S.; prohibiting a
    6         notary public from falsely notarizing the signature of
    7         a person who is not in that notary public’s presence,
    8         either in person or online; defining terms; providing
    9         criminal penalties; making technical changes; amending
   10         s. 117.107, F.S.; deleting a provision that prohibits
   11         a notary public from notarizing a signature on a
   12         document of a person who is not, at the time of the
   13         notarial act, physically present or present by means
   14         of audio-video communication technology and that
   15         provides civil penalties; providing criminal
   16         penalties; creating s. 117.109, F.S.; requiring a
   17         notary public to keep at least one electronic journal;
   18         requiring a journal entry for each notarization;
   19         providing requirements for such entries; requiring the
   20         notary public to take reasonable steps to maintain a
   21         backup record and to protect the journal, the backup
   22         record, and other records from unauthorized access;
   23         requiring the Department of State to retain
   24         jurisdiction over the journal records for a specified
   25         timeframe for a certain purpose; requiring the notary
   26         public to maintain the journal for a specified
   27         timeframe; authorizing the notary public or specified
   28         individuals on his or her behalf to contract with a
   29         secure repository to maintain the journal; providing
   30         that such repository must fulfill specified duties of
   31         the notary public with respect to the journal;
   32         requiring the notary public to send, within a
   33         specified timeframe, a certain notification to the
   34         department of such delegation of retention duties;
   35         requiring the notary public to make an entry
   36         identifying the repository and providing notice to the
   37         department; requiring the secure repository to fulfill
   38         certain responsibilities of the notary public during
   39         any delegation; providing that an omitted or
   40         incomplete entry in the journal does not invalidate
   41         the notarial act, but may be used for specified
   42         evidentiary purposes; creating s. 117.111, F.S.;
   43         requiring a notary public to keep the electronic
   44         journal secure and notify, within a specified
   45         timeframe, the appropriate law enforcement agency and
   46         the department of any unauthorized use of or
   47         compromise to the security of the journal; prohibiting
   48         the notary public from allowing another person to use
   49         the notary public’s electronic journal or from
   50         allowing another person who is providing services to a
   51         notary public to facilitate the performance of
   52         notarizations; requiring the notary public to provide
   53         electronic copies of pertinent entries upon the
   54         request of specified entities; providing construction;
   55         amending s. 28.47, F.S.; authorizing a property
   56         appraiser to refuse to update an owner of record on
   57         the county’s tax rolls under specified circumstances;
   58         requiring the property appraiser to make a certain
   59         notation in the records in the event such refusal is
   60         made; providing an effective date.
   61          
   62  Be It Enacted by the Legislature of the State of Florida:
   63  
   64         Section 1. Paragraph (e) of subsection (4) and subsection
   65  (13) of section 117.05, Florida Statutes, are amended to read:
   66         117.05 Use of notary commission; unlawful use; notary fee;
   67  seal; duties; employer liability; name change; advertising;
   68  photocopies; penalties.—
   69         (4) When notarizing a signature, a notary public shall
   70  complete a jurat or notarial certificate in substantially the
   71  same form as those found in subsection (13). The jurat or
   72  certificate of acknowledgment shall contain the following
   73  elements:
   74         (e) The printed name of the person whose signature is being
   75  notarized. It is presumed, absent such specific notation by the
   76  notary public, that notarization is to all signatures.
   77         (13) The following notarial certificates are sufficient for
   78  the purposes indicated, if completed with the information
   79  required by this chapter. The specification of forms under this
   80  subsection does not preclude the use of other forms. However,
   81  the notarial certificate must contain the printed names of all
   82  signatories, including principals and witnesses.
   83         (a) For an oath or affirmation:
   84  
   85  STATE OF FLORIDA
   86  COUNTY OF ........
   87  
   88  Sworn to (or affirmed) and subscribed before me by means of ☐
   89  physical presence or ☐ online notarization, this .... day of
   90  ........, ...(year)..., by ...(name of person making
   91  statement)....
   92  
   93  ...(Signature of Notary Public - State of Florida)...
   94  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
   95         Personally Known........ OR Produced Identification........
   96         Type of Identification Produced..........................
   97  
   98         (b) For an acknowledgment in an individual capacity:
   99  
  100  STATE OF FLORIDA
  101  COUNTY OF ........
  102  
  103  The foregoing instrument was acknowledged before me by means of
  104  ☐ physical presence or ☐ online notarization, this .... day of
  105  ........, ...(year)..., by ...(name of person acknowledging)....
  106  
  107  ...(Signature of Notary Public - State of Florida)...
  108  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  109         Personally Known........ OR Produced Identification........
  110         Type of Identification Produced..........................
  111  
  112         (c) For an acknowledgment in a representative capacity:
  113  
  114  STATE OF FLORIDA
  115  COUNTY OF ........
  116  
  117  The foregoing instrument was acknowledged before me by means of
  118  ☐ physical presence or ☐ online notarization, this .... day of
  119  ........, ...(year)..., by ...(name of person)... as ...(type of
  120  authority, . . . e.g. officer, trustee, attorney in fact)... for
  121  ...(name of party on behalf of whom instrument was executed)....
  122  
  123  ...(Signature of Notary Public - State of Florida)...
  124  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  125         Personally Known........ OR Produced Identification........
  126         Type of Identification Produced..........................
  127  
  128         Section 2. Section 117.105, Florida Statutes, is amended to
  129  read:
  130         117.105 False or fraudulent acknowledgments; penalties for
  131  prohibited acts penalty.—
  132         (1) A notary public may not do any of the following: who
  133         (a) Falsely notarize a signature on a written or electronic
  134  document of a person who is not in the presence of the notary
  135  public, either in person or online, at the time the signature is
  136  notarized. For the purposes of this paragraph, the terms “in the
  137  presence of” and “electronic” have the same meaning as provided
  138  in s. 117.201.
  139         (b) Falsely or fraudulently take takes an acknowledgment of
  140  an instrument as a notary public. or
  141         (c) Who Falsely or fraudulently make makes a certificate as
  142  a notary public. or
  143         (d) Who Falsely or fraudulently take or receive takes or
  144  receives an acknowledgment of the signature on a written or
  145  electronic document instrument is guilty of a felony of the
  146  third degree, punishable as provided in s. 775.082, s. 775.083,
  147  or s. 775.084.
  148         (2) A notary public who violates subsection (1) commits a
  149  felony of the third degree, punishable as provided in s.
  150  775.082, s. 775.083, or s. 775.084. If the document notarized
  151  under these circumstances pertains to a real estate transaction
  152  or any other transfer of real property, the notary public
  153  commits a felony of the second degree, punishable as provided in
  154  s. 775.082, s. 775.083, or s. 775.084.
  155         Section 3. Section 117.107, Florida Statutes, is amended to
  156  read:
  157         117.107 Prohibited acts; penalty.—
  158         (1) A notary public may not use a name or initial in
  159  signing certificates other than that by which the notary public
  160  is commissioned.
  161         (2) A notary public may not sign notarial certificates
  162  using a facsimile signature stamp unless the notary public has a
  163  physical disability that limits or prohibits his or her ability
  164  to make a written signature and unless the notary public has
  165  first submitted written notice to the Department of State with
  166  an exemplar of the facsimile signature stamp. This subsection
  167  does not apply to or prohibit the use of an electronic signature
  168  and seal by a notary public who is registered as an online
  169  notary public to perform an electronic or online notarization in
  170  accordance with this chapter.
  171         (3) A notary public may not affix his or her signature to a
  172  blank form of affidavit or certificate of acknowledgment and
  173  deliver that form to another person with the intent that it be
  174  used as an affidavit or acknowledgment.
  175         (4) A notary public may not take the acknowledgment of or
  176  administer an oath to a person whom the notary public actually
  177  knows to have been adjudicated mentally incapacitated by a court
  178  of competent jurisdiction, where the acknowledgment or oath
  179  necessitates the exercise of a right that has been removed
  180  pursuant to s. 744.3215(2) or (3), and where the person has not
  181  been restored to capacity as a matter of record.
  182         (5) A notary public may not notarize a signature on a
  183  document if it appears that the person is mentally incapable of
  184  understanding the nature and effect of the document at the time
  185  of notarization.
  186         (6) A notary public may not take the acknowledgment of a
  187  person who does not speak or understand the English language,
  188  unless the nature and effect of the instrument to be notarized
  189  is translated into a language which the person does understand.
  190         (7) A notary public may not change anything in a written
  191  instrument after it has been signed by anyone.
  192         (8) A notary public may not amend a notarial certificate
  193  after the notarization is complete.
  194         (9) A notary public may not notarize a signature on a
  195  document if the person whose signature is being notarized does
  196  not appear before the notary public either by means of physical
  197  presence or by means of audio-video communication technology as
  198  authorized under part II of this chapter at the time the
  199  signature is notarized. Any notary public who violates this
  200  subsection is guilty of a civil infraction, punishable by
  201  penalty not exceeding $5,000, and such violation constitutes
  202  malfeasance and misfeasance in the conduct of official duties.
  203  It is no defense to the civil infraction specified in this
  204  subsection that the notary public acted without intent to
  205  defraud. A notary public who violates this subsection with the
  206  intent to defraud is guilty of violating s. 117.105.
  207         (10) A notary public may not notarize a signature on a
  208  document if the document is incomplete or blank. However, an
  209  endorsement or assignment in blank of a negotiable or
  210  nonnegotiable note and the assignment in blank of any instrument
  211  given as security for such note is not deemed incomplete.
  212         (10)(11) A notary public may not notarize a signature on a
  213  document if the person whose signature is to be notarized is the
  214  spouse, son, daughter, mother, or father of the notary public.
  215         (11)(12) A notary public may not notarize a signature on a
  216  document if the notary public has a financial interest in or is
  217  a party to the underlying transaction; however, a notary public
  218  who is an employee may notarize a signature for his or her
  219  employer, and this employment does not constitute a financial
  220  interest in the transaction nor make the notary a party to the
  221  transaction under this subsection as long as he or she does not
  222  receive a benefit other than his or her salary and the fee for
  223  services as a notary public authorized by law. For purposes of
  224  this subsection, a notary public who is an attorney does not
  225  have a financial interest in and is not a party to the
  226  underlying transaction evidenced by a notarized document if he
  227  or she notarizes a signature on that document for a client for
  228  whom he or she serves as an attorney of record and he or she has
  229  no interest in the document other than the fee paid to him or
  230  her for legal services and the fee authorized by law for
  231  services as a notary public.
  232         (12) A notary public who commits a violation of this
  233  section commits a misdemeanor of the first degree, punishable as
  234  provided in s. 775.082 or s. 775.083. A notary public who
  235  commits a violation of this section with the intent to defraud
  236  commits a felony of the third degree, punishable as provided in
  237  s. 775.082, s. 775.083, or s. 775.084. If the violation of this
  238  section pertains to a real estate transaction or any other
  239  transfer of real property, the notary public commits a felony of
  240  the second degree, punishable as provided in s. 775.082, s.
  241  775.083, or s. 775.084.
  242         Section 4. Section 117.109, Florida Statutes, is created to
  243  read:
  244         117.109 Electronic journal of notarizations.—
  245         (1) A notary public shall keep one or more secure
  246  electronic journals of all notarizations performed by the notary
  247  public. For each notarization, the electronic journal entry must
  248  contain all of the following:
  249         (a) The date and time of the notarization.
  250         (b) The type of notarial act performed, whether an oath or
  251  acknowledgment.
  252         (c) The type, the title, or a description of the electronic
  253  recording or proceeding.
  254         (d) The name and address of each principal or witness
  255  involved in the transaction or proceeding.
  256         (e) Evidence of identity of each principal involved in the
  257  transaction or proceeding in either of the following forms:
  258         1. A statement that the person is personally known to the
  259  notary public; or
  260         2.a. A notation of the type of government-issued
  261  identification credential the person provided to the notary
  262  public;
  263         b. An indication that the government-issued identification
  264  credential satisfied the credential analysis; and
  265         c. An indication that the principal satisfactorily passed
  266  the identity proofing.
  267         (f) The fee, if any, charged for the notarization.
  268         (2) The notary public shall take reasonable steps to:
  269         (a) Maintain a backup record of the electronic journal
  270  required by subsection (1).
  271         (b) Protect from unauthorized access the electronic
  272  journal, the backup record, and any other records the notary
  273  public receives.
  274         (3) The Department of State shall retain jurisdiction over
  275  the electronic journal records for a period of 10 years after
  276  the date of the notarial acts for the purpose of investigating
  277  possible notarial misconduct.
  278         (a) A notary public shall maintain the electronic journal
  279  required under subsection (1) for at least 10 years after the
  280  date of the notarial act.
  281         (b) A notary public, a guardian of an incapacitated notary
  282  public, or the personal representative of a notary public may
  283  contract with a secure repository, in accordance with any rules
  284  established under this chapter, and delegate to the repository
  285  the notary public’s duty to maintain the electronic journal,
  286  provided that the department is notified of such delegation of
  287  retention duties within 30 days thereafter, including the
  288  effective date of the delegation and the address and contact
  289  information for the repository.
  290         (c) If a notary public delegates to a secure repository his
  291  or her duty to maintain the electronic journal under this
  292  section, the notary public must make an entry in his or her
  293  electronic journal identifying such repository and notify the
  294  department as required in this subsection. During any delegation
  295  under this subsection, the secure repository shall fulfill the
  296  responsibilities of the notary public to provide copies or
  297  access under s. 117.111.
  298         (4) An omitted or incomplete entry in the electronic
  299  journal does not invalidate the notarial act performed, but may
  300  be introduced as evidence to establish violations of this
  301  chapter; as evidence of possible fraud, forgery, impersonation,
  302  duress, incapacity, undue influence, minority, illegality, or
  303  unconscionability; or for other evidentiary purposes.
  304         Section 5. Section 117.111, Florida Statutes, is created to
  305  read:
  306         117.111 Use of electronic journal.—
  307         (1) A notary public shall do all of the following:
  308         (a) Keep the electronic journal secure and under his or her
  309  sole control, which includes access protection using passwords
  310  or codes under the control of the notary public. The notary
  311  public may not allow another person to use the notary public’s
  312  electronic journal or allow another person who is providing
  313  services to a notary public to facilitate the performance of
  314  notarizations.
  315         (b) Notify an appropriate law enforcement agency and the
  316  Department of State of any unauthorized use of or compromise to
  317  the security of the electronic journal within 7 days after the
  318  discovery of the unauthorized use or compromise to security.
  319         (2) A notary public shall provide electronic copies of
  320  pertinent entries in the electronic journal upon the request of
  321  any of the following:
  322         (a) The department, pursuant to a notary misconduct
  323  investigation.
  324         (b) Any other persons or entities, pursuant to a subpoena,
  325  a court order, a law enforcement investigation, or any other
  326  lawful inspection demand.
  327         (3) This section may not be construed to prevent a notary
  328  public from designating a secure repository under s. 117.109.
  329         Section 6. Subsection (6) of section 28.47, Florida
  330  Statutes, is amended to read:
  331         28.47 Recording notification service.—
  332         (6) This section also applies to county property appraisers
  333  who have adopted an electronic land record notification service
  334  before July 1, 2023.
  335         (a)1. The property appraiser may use a verification process
  336  for persons wishing to register for the electronic land record
  337  notification service to ensure the integrity of the process.
  338         2. If the property appraiser receives notice from the
  339  property owner or clerk of the circuit court and reasonably
  340  determines that the recorded deed is fraudulent, the property
  341  appraiser may refuse to update the owner of record on the
  342  county’s tax rolls. However, the property appraiser shall make a
  343  notation in his or her records that a possible conveyance has
  344  been recorded.
  345         (b) For purposes of this subsection only, and
  346  notwithstanding paragraph (1)(a) and subsection (3):
  347         1. “Land record” means a deed or other document purporting
  348  to convey real property.
  349         2. When a land record is recorded for a monitored identity,
  350  the property appraiser must send a recording notification to
  351  each registrant who is subscribed to receive recording
  352  notifications for that monitored identity within 24 hours after
  353  the instrument being reflected on the county tax roll.
  354         Section 7. This act shall take effect July 1, 2024.