Bill Text: FL S0228 | 2021 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Notaries Public
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2021-04-08 - Laid on Table, companion bill(s) passed, see CS/HB 121 (Ch. 2021-137) [S0228 Detail]
Download: Florida-2021-S0228-Introduced.html
Bill Title: Notaries Public
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2021-04-08 - Laid on Table, companion bill(s) passed, see CS/HB 121 (Ch. 2021-137) [S0228 Detail]
Download: Florida-2021-S0228-Introduced.html
Florida Senate - 2021 SB 228 By Senator Bradley 5-00405B-21 2021228__ 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. 50 51 Be It Enacted by the Legislature of the State of Florida: 52 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 thea59 notary public to use a particularperform a notarial act with60respect to an electronic record with a form oftechnology 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 actsthat the notary65public 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 documentfor 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 withthe online electronic witnessing 101 standards prescribed in s. 117.285 and any rules adopted 102 thereunder must be complied with in order to satisfysatisfies103 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 submittinga copy of such115commission orproof 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, and121confirming that such technology and processes satisfy the122requirements of this chapter and any rules adopted by the123Department 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 eitheranyof 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 identification149credential satisfied the credential analysis.150 (f)(h)The fee, if any, charged for the notarization. 151 (2) The RON service provideronline notary publicshall 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 187and 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 providemake238 electronic copies, upon request,ofthepertinent 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 whose250services were used by the online notary public to notarize the251electronic 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;and256 (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;or276 (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. 284 285 If the online notary public or RON service provider chargesdoes286chargea fee, the online notary public or RON service provider 287 mustshalldisclose 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 2 years from the date of filing, and it must also be 339 updated and refiled within 60 days after the effective date of 340 any amendment to this chapter or to the rules adopted by the 341 Department of State pursuant to this chapter. The Department of 342 State must publish on its website a list of all RON service 343 providers that are the subject of an active self-certification. 344 (b) A RON service provider is deemed to have satisfied 345 tamper-evident technology requirements by use of technology that 346 renders any subsequent change or modification to the electronic 347 record evident. 348 (8) A RON service provider may not use, sell, or offer to 349 sell or transfer to another person for use or sale any personal 350 information obtained under this part which identifies a 351 principal, a witness, or a person named in a record presented 352 for online notarization, except: 353 (a) As necessary to facilitate performance of a notarial 354 act; 355 (b) To effect, administer, enforce, service, or process a 356 record provided by or on behalf of a principal or the 357 transaction of which the record is a part; 358 (c) In accordance with this part and the rules adopted 359 pursuant to this part or any other applicable federal, state, or 360 local law, or to comply with a lawful subpoena or court order; 361 or 362 (d) In connection with a proposed or actual sale, merger, 363 transfer, or exchange of all or a portion of a business or 364 operating unit of the RON service provider, if the personal 365 information concerns only customers of the business or unit and 366 the transferee agrees to comply with the restrictions set forth 367 in this subsection. 368 Section 11. This act shall take effect October 1, 2021.