Bill Text: FL S0228 | 2021 | Regular Session | Comm Sub

Bill Title: Notaries Public

Spectrum: Slight Partisan Bill (Republican 2-1)

Status: (Introduced) 2021-01-26 - Pending reference review under Rule 4.7(2) - (Committee Substitute) [S0228 Detail]

Download: Florida-2021-S0228-Comm_Sub.html
       Florida Senate - 2021                              CS for SB 228
       By the Committee on Commerce and Tourism; and Senators Bradley
       and Burgess
       577-01231-21                                           2021228c1
    1                        A bill to be entitled                      
    2         An act relating to notaries public; amending s.
    3         117.021, F.S.; authorizing an employer of a notary
    4         public to require the use of a particular technology
    5         and provider in performing a notarial act with respect
    6         to an electronic record; amending s. 117.05, F.S.;
    7         revising limitations on notary public fees; amending
    8         s. 117.201, F.S.; revising definitions; amending s.
    9         117.215, F.S.; clarifying application of online
   10         electronic witnessing standards when a witness is not
   11         in the physical presence of the principal; amending s.
   12         117.225, F.S.; revising certain registration
   13         requirements for online notaries public; amending s.
   14         117.245, F.S.; modifying requirements for entries in
   15         the electronic journal maintained by an online notary
   16         public; requiring a remote online notarization service
   17         provider, rather than an online notary public, to
   18         maintain audio-video communication recordings of
   19         online notarizations; conforming provisions to changes
   20         made by the act; amending s. 117.255, F.S.; revising
   21         provisions governing access to audio-video
   22         communication recordings to conform to changes made by
   23         the act; authorizing a remote online notarization
   24         service provider to charge a fee for access to such
   25         recordings, subject to specified limitations; amending
   26         s. 117.265, F.S.; clarifying that an online notary
   27         public is entitled to select his or her remote online
   28         notarization service provider; authorizing an employer
   29         of an online notary public to require the use of a
   30         particular remote online notarization service provider
   31         in performing online notarizations; requiring an
   32         online notary public to notify the Department of State
   33         of the effective date of a change in the remote online
   34         notarization service provider used; amending s.
   35         117.275, F.S.; clarifying limitations on fees charged
   36         for online notarizations; amending s. 117.295, F.S.;
   37         requiring the department to publish on its website a
   38         list containing certain information on online notaries
   39         public; requiring a remote online notarization service
   40         provider to file a self-certification with the
   41         department; specifying the duration of a self
   42         certification; requiring the department to publish on
   43         its website a list of self-certified remote online
   44         notarization service providers; prohibiting a remote
   45         online notarization service provider from using,
   46         selling, or offering to sell or transfer personal
   47         information obtained in the course of performing
   48         online notarizations; providing exceptions; providing
   49         an effective date.
   51  Be It Enacted by the Legislature of the State of Florida:
   53         Section 1. Subsection (4) of section 117.021, Florida
   54  Statutes, is amended to read:
   55         117.021 Electronic notarization.—
   56         (4) A notary public performing a notarial act with respect
   57  to an electronic record shall select the technology and provider
   58  to be used for such notarial act. A person may not require the a
   59  notary public to use a particular perform a notarial act with
   60  respect to an electronic record with a form of technology or
   61  provider; however, if the notary public is required by his or
   62  her employer to perform notarial acts with respect to electronic
   63  records, the employer may require the use of a particular
   64  technology and provider for those notarial acts that the notary
   65  public has not selected to use.
   66         Section 2. Paragraph (a) of subsection (2) of section
   67  117.05, Florida Statutes, is amended to read:
   68         117.05 Use of notary commission; unlawful use; notary fee;
   69  seal; duties; employer liability; name change; advertising;
   70  photocopies; penalties.—
   71         (2)(a) The fee of a notary public may not exceed $10 per
   72  signature per document for any one notarial act, except as
   73  provided in s. 117.045 or s. 117.275, for performing a
   74  notarization under this part.
   75         Section 3. Subsections (6) and (14) of section 117.201,
   76  Florida Statutes, are amended to read:
   77         117.201 Definitions.—As used in this part, the term:
   78         (6) “Government-issued identification credential” means any
   79  approved credential for verifying identity under s.
   80  117.05(5)(b)2. However, for an online notarization of a
   81  principal not located within the United States, a passport
   82  issued by a foreign government not including the stamp of the
   83  United States Bureau of Citizenship and Immigration Services may
   84  be used as a government-issued identification credential to
   85  verify the principal’s identity.
   86         (14) “Remote Online Notarization service provider” or “RON
   87  service provider” means a person that provides audio-video
   88  communication technology and related processes, services,
   89  software, data storage, or other services to online notaries
   90  public for the purpose of directly facilitating their
   91  performance of online notarizations, in compliance with the
   92  requirements of this chapter and any rules adopted by the
   93  Department of State pursuant to s. 117.295.
   94         Section 4. Subsection (2) of section 117.215, Florida
   95  Statutes, is amended to read:
   96         117.215 Relation to other laws.—
   97         (2) If a provision of law requires a signature or an act of
   98  a principal to be witnessed and the witness is not in the
   99  physical presence of the principal at the time of the signature
  100  or act, compliance with the online electronic witnessing
  101  standards prescribed in s. 117.285 and any rules adopted
  102  thereunder must be complied with in order to satisfy satisfies
  103  that requirement.
  104         Section 5. Subsections (1) and (5) of section 117.225,
  105  Florida Statutes, are amended to read:
  106         117.225 Registration; qualifications.—A notary public, a
  107  civil-law notary appointed under chapter 118, or a commissioner
  108  of deeds appointed under part IV of chapter 721 may complete
  109  registration as an online notary public with the Department of
  110  State by:
  111         (1) Holding a current commission as a notary public under
  112  part I of this chapter, an appointment as a civil-law notary
  113  under chapter 118, or an appointment as a commissioner of deeds
  114  under part IV of chapter 721, and submitting a copy of such
  115  commission or proof of such commission or appointment with his
  116  or her registration.
  117         (5) Identifying the RON service provider or providers whose
  118  audio-video communication technology and processes for
  119  credential analysis and identity-proofing technologies the
  120  registrant intends to use for online notarizations, and
  121  confirming that such technology and processes satisfy the
  122  requirements of this chapter and any rules adopted by the
  123  Department of State pursuant to s. 117.295.
  124         Section 6. Subsections (1), (2), (4), and (5) of section
  125  117.245, Florida Statutes, are amended to read:
  126         117.245 Electronic journal of online notarizations.—
  127         (1) An online notary public shall keep one or more secure
  128  electronic journals of online notarizations performed by the
  129  online notary public. For each online notarization, the
  130  electronic journal entry must contain all of the following:
  131         (a) The date and time of the notarization.
  132         (b) The type of notarial act performed, whether an oath or
  133  an acknowledgment.
  134         (c) The type, the title, or a description of the electronic
  135  record or proceeding.
  136         (d) The name and address of each principal involved in the
  137  transaction or proceeding.
  138         (e) Evidence of identity of each principal involved in the
  139  transaction or proceeding in either any of the following forms:
  140         1. A statement that the person is personally known to the
  141  online notary public; or.
  142         2.a. A notation of the type of government-issued
  143  identification credential provided to the online notary public;
  144         b. An indication that the government-issued identification
  145  credential satisfied the credential analysis; and.
  146         c.(f) An indication that the principal satisfactorily
  147  passed the identity proofing.
  148         (g) An indication that the government-issued identification
  149  credential satisfied the credential analysis.
  150         (f)(h) The fee, if any, charged for the notarization.
  151         (2) The RON service provider online notary public shall
  152  retain an uninterrupted and unedited copy of the recording of
  153  the audio-video communication in which an online notarization is
  154  performed. The recording must include all of the following:
  155         (a) Appearance by the principal and any witness before the
  156  online notary public.
  157         (b) Confirmation of the identity of the principal and any
  158  witness.
  159         (c) A general description or identification of the records
  160  to be signed.
  161         (d) At the commencement of the recording, recitation by the
  162  online notary public of information sufficient to identify the
  163  notarial act.
  164         (e) A declaration by the principal that his or her
  165  signature on the record is knowingly and voluntarily made.
  166         (f) All of the actions and spoken words of the principal,
  167  notary public, and any required witness during the entire online
  168  notarization, including the signing of any records before the
  169  online notary public.
  170         (4) The electronic journal required under subsection (1)
  171  and the recordings of audio-video communications required under
  172  subsection (2) shall be maintained for at least 10 years after
  173  the date of the notarial act. However, a full copy of the
  174  recording of the audio-video communication required under
  175  subsection (2) relating to an online notarization session that
  176  involves the signing of an electronic will must be maintained by
  177  a qualified custodian in accordance with chapters 731 and 732.
  178  The Department of State maintains jurisdiction over the
  179  electronic journal and audio-video communication recordings to
  180  investigate notarial misconduct for a period of 10 years after
  181  the date of the notarial act. The online notary public, a
  182  guardian of an incapacitated online notary public, or the
  183  personal representative of a deceased online notary public may,
  184  by contract with a secure repository in accordance with any
  185  rules established under this chapter, delegate to the repository
  186  the online notary public’s duty to retain the electronic journal
  187  and the required recordings of audio-video communications,
  188  provided that the Department of State is notified of such
  189  delegation of retention duties to the repository within 30 days
  190  thereafter, including the address and contact information for
  191  the repository. If an online notary public delegates to a secure
  192  repository under this section, the online notary public shall
  193  make an entry in his or her electronic journal identifying such
  194  repository, and provide notice to the Department of State as
  195  required in this subsection.
  196         (5) An omitted or incomplete entry in the electronic
  197  journal does not impair the validity of the notarial act or of
  198  the electronic record which was notarized, but may be introduced
  199  as evidence to establish violations of this chapter; as evidence
  200  of possible fraud, forgery, impersonation, duress, incapacity,
  201  undue influence, minority, illegality, or unconscionability; or
  202  for other evidentiary purposes. However, if the recording of the
  203  audio-video communication required under subsection (2) relating
  204  to the online notarization of the execution of an electronic
  205  will cannot be produced by the RON service provider, the online
  206  notary public, or the qualified custodian, the electronic will
  207  shall be treated as a lost or destroyed will subject to s.
  208  733.207.
  209         Section 7. Section 117.255, Florida Statutes, is amended to
  210  read:
  211         117.255 Use of electronic journal, signature, and seal.—
  212         (1) An online notary public shall:
  213         (a)(1) Take reasonable steps to ensure that any registered
  214  device used to create an electronic seal is current and has not
  215  been revoked or terminated by the issuing or registering
  216  authority of the device.
  217         (b)(2) Keep the electronic journal and electronic seal
  218  secure and under his or her sole control, which includes access
  219  protection using passwords or codes under control of the online
  220  notary public. The online notary public may not allow another
  221  person to use the online notary public’s electronic journal,
  222  electronic signature, or electronic seal, other than a RON
  223  service provider or other authorized person providing services
  224  to an online notary public to facilitate performance of online
  225  notarizations.
  226         (c)(3) Attach or logically associate the electronic
  227  signature and seal to the electronic notarial certificate of an
  228  electronic record in a manner that is capable of independent
  229  verification using tamper-evident technology that renders any
  230  subsequent change or modification to the electronic record
  231  evident.
  232         (d)(4) Notify an appropriate law enforcement agency and the
  233  Department of State of any unauthorized use of or compromise to
  234  the security of the electronic journal, official electronic
  235  signature, or electronic seal within 7 days after discovery of
  236  such unauthorized use or compromise to security.
  237         (2)(5)An online notary public shall provide make
  238  electronic copies, upon request, of the pertinent entries in the
  239  electronic journal, and a RON service provider shall provide
  240  access to the related audio-video communication recordings, or a
  241  copy thereof, to the following persons upon request:
  242         (a) The parties to an electronic record notarized by the
  243  online notary public;
  244         (b) The qualified custodian of an electronic will notarized
  245  by the online notary public;
  246         (c) The title agent, settlement agent, or title insurer who
  247  insured the electronic record or engaged the online notary
  248  public with regard to a real estate transaction;
  249         (d) The online notary public’s RON service provider whose
  250  services were used by the online notary public to notarize the
  251  electronic record;
  252         (e) Any person who is asked to accept a power of attorney
  253  that was notarized by the online notary public;
  254         (e)(f) The Department of State pursuant to a notary
  255  misconduct investigation; and
  256         (f)(g) Any other persons pursuant to a subpoena, court
  257  order, law enforcement investigation, or other lawful inspection
  258  demand;
  259         (g) With respect to audio-video communication recordings of
  260  an online notarization, the online notary public performing that
  261  notarization; and
  262         (h) With respect to electronic copies of pertinent entries
  263  in the electronic journal, the RON service provider used for the
  264  online notarizations associated with those entries.
  265         (3)(6) The online notary public may charge a fee not to
  266  exceed $20 per transaction record for making and delivering
  267  electronic copies of a given series of related electronic
  268  records, and a RON service provider may charge a fee not to
  269  exceed $20 for providing access to, or a copy of, the related
  270  audio-video communication recordings, except if requested by:
  271         (a) A party to the electronic record;
  272         (b) In a real estate transaction, the title agent,
  273  settlement agent, or title insurer who insured the electronic
  274  record or engaged the online notary public with regard to such
  275  transaction; or
  276         (c) The Department of State pursuant to an investigation
  277  relating to the official misconduct of an online notary public;
  278         (d) With respect to audio-video communication recordings of
  279  an online notarization, the online notary public performing that
  280  notarization; or
  281         (e) With respect to electronic copies of a given series of
  282  related electronic records, the RON service provider used for
  283  the online notarization of those records.
  285  If the online notary public or RON service provider charges does
  286  charge a fee, the online notary public or RON service provider
  287  must shall disclose the amount of such fee to the requester
  288  before making the electronic copies or providing access to, or
  289  making a copy of, the requested audio-video communication
  290  recordings.
  291         Section 8. Subsection (5) of section 117.265, Florida
  292  Statutes, is amended to read:
  293         117.265 Online notarization procedures.—
  294         (5)(a) An online notary public shall select the RON service
  295  provider to be used to perform an online notarization, and a
  296  person may not require the online notary public to use a
  297  particular RON service provider; however, if the online notary
  298  public is required by his or her employer to perform online
  299  notarizations, the employer may require the use of a particular
  300  RON service provider for those online notarizations.
  301         (b) An online notary public may change his or her RON
  302  service provider or providers from time to time, but shall
  303  notify the Department of State of such change, and its effective
  304  date, within 30 days thereafter.
  305         Section 9. Section 117.275, Florida Statutes, is amended to
  306  read:
  307         117.275 Fees for online notarization.—An online notary
  308  public or the employer of such online notary public may charge a
  309  fee, not to exceed $25 per signature per document, for
  310  performing an online notarization under this part. Fees for
  311  services other than notarial acts, including any fees charged by
  312  a RON service provider, are not governed by this section, and
  313  such services are not considered closing services, as defined in
  314  s. 627.7711.
  315         Section 10. Subsections (2) and (4) of section 117.295,
  316  Florida Statutes, are amended, and subsection (8) is added to
  317  that section, to read:
  318         117.295 Standards for electronic and online notarization;
  319  rulemaking authority.—
  320         (2) By January 1, 2020, The Department of State shall:
  321         (a) Adopt forms, processes, and interim or emergency rules
  322  necessary to accept applications from and register online
  323  notaries public pursuant to s. 117.225.
  324         (b) Publish on its website a list containing each online
  325  notary public, the online notary public’s past and present RON
  326  service providers, and the effective dates during which the
  327  online notary public used each RON service provider, as
  328  identified pursuant to ss. 117.225(5) and 117.265(5)(b).
  329         (4)(a)A RON service provider must file a self
  330  certification with the Department of State on a form adopted by
  331  department rule confirming that its audio-video communication
  332  technology and related processes, services, software, data
  333  storage, or other services provided to online notaries public
  334  for the purpose of directly facilitating their performance of
  335  online notarizations satisfy the requirements of this chapter
  336  and any rules adopted by the Department of State pursuant to
  337  this section. Each certification shall remain active for a
  338  period of 1 year from the date of filing. The Department of
  339  State must publish on its website a list of all RON service
  340  providers that are the subject of an active self-certification.
  341         (b) A RON service provider is deemed to have satisfied
  342  tamper-evident technology requirements by use of technology that
  343  renders any subsequent change or modification to the electronic
  344  record evident.
  345         (8) A RON service provider may not use, sell, or offer to
  346  sell or transfer to another person for use or sale any personal
  347  information obtained under this part which identifies a
  348  principal, a witness, or a person named in a record presented
  349  for online notarization, except:
  350         (a) As necessary to facilitate performance of a notarial
  351  act;
  352         (b) To effect, administer, enforce, service, or process a
  353  record provided by or on behalf of a principal or the
  354  transaction of which the record is a part;
  355         (c) In accordance with this part and the rules adopted
  356  pursuant to this part or any other applicable federal, state, or
  357  local law, or to comply with a lawful subpoena or court order;
  358  or
  359         (d) In connection with a proposed or actual sale, merger,
  360  transfer, or exchange of all or a portion of a business or
  361  operating unit of the RON service provider, if the personal
  362  information concerns only customers of the business or unit and
  363  the transferee agrees to comply with the restrictions set forth
  364  in this subsection.
  365         Section 11. This act shall take effect October 1, 2021.