Florida § 560.109 - Examinations and investigations.

§ 560.109. Examinations and investigations.

The office may conduct examinations and investigations, within or outside this state to determine whether a person has violated any provision of this chapter and related rules, or of any practice or conduct that creates the likelihood of material loss, insolvency, or dissipation of the assets of a money services business or otherwise materially prejudices the interests of their customers. 1 (1) The office may, without advance notice, examine or investigate each licensee as often as is warranted for the protection of customers and in the public interest. However, the office must examine each licensee at least once every 5 years, except that a custodian of gold coin or silver coin must be examined at least annually. The office may, without advance notice, examine or investigate a money services business, authorized vendor, affiliated party, or license applicant at any time if the office suspects that the money services business, authorized vendor, affiliated party, or license applicant has violated or is about to violate any provision of this chapter or any criminal law of this state or of the United States. (2) The office may conduct a joint or concurrent examination with any state or federal regulatory agency and may furnish a copy of all examinations to an appropriate regulator if the regulator agrees to abide by the confidentiality provisions in chapter 119 and this chapter. The office may also accept an examination from any appropriate regulator or, pursuant to s. 560.1091, from an independent third party that has been approved by the office. (3) Persons subject to this chapter who are examined or investigated shall make available to the office all books, accounts, documents, files, information, assets, and matters that are in their immediate possession or control and that relate to the subject of the examination or investigation. (a) Records not in their immediate possession must be made available to the office within 3 days after actual notice is served. (b) Upon notice, the office may require that records written in a language other than English be accompanied by a certified translation at the expense of the licensee. For purposes of this section, the term “certified translation” means a document translated by a person who is currently certified as a translator by the American Translators Association or other organization designated by rule. (4) In the course of or in connection with any examination or investigation conducted by the office: (a) An employee of the office holding the title and position of a financial examiner or analyst, financial investigator, attorney at law, or higher may: 1. Administer oaths and affirmations. 2. Take or cause to be taken testimony and depositions. (b) The office, or any of its employees holding a title of attorney, area financial manager, or higher may issue, revoke, quash, or modify subpoenas and subpoenas duces tecum under the seal of the office or cause any such subpoena or subpoena duces tecum to be issued by any county court judge or clerk of the circuit court or county court to require persons to appear before the office at a reasonable time and place to be named and to bring such books, records, and documents for inspection as may be designated. Such subpoenas may be served by a representative of the office or as otherwise provided by law for the service of subpoenas. (c) The office may allow a person to file a statement in writing, under oath, or otherwise as to facts and circumstances specified by the office. (5) If a person does not comply with a subpoena issued or caused to be issued by the office pursuant to this section, the office may petition a court of competent jurisdiction for an order requiring the subpoenaed person to appear and testify and to produce such records as specified in the subpoena duces tecum. The office is entitled to the summary procedure provided in s. 51.011, and the court shall advance the cause on its calendar. (a) A copy of the petition shall be served upon the person subpoenaed by any person authorized by this section to serve subpoenas, who shall make and file with the court an affidavit showing the time, place, and date of service. (b) At a hearing on the petition, the person subpoenaed, or any person whose interests are substantially affected by the investigation, examination, or subpoena, may appear and object to the subpoena and to the granting of the petition. The court may make any order that justice requires to protect a party or other person and her or his personal and property rights, including, but not limited to, protection from oppression, undue burden, or expense. (c) Failure to comply with an order granting, in whole or in part, a petition for enforcement of a subpoena is a contempt of the court. (6) Witnesses are entitled to the same fees and mileage as witnesses in the circuit court, except that fees or mileage is not allowed for the testimony of a person taken at the person’s principal office or residence. (7) Reasonable and necessary costs incurred by the office or third parties authorized by the office in connection with examinations or investigations may be assessed against any person subject to this chapter on the basis of actual costs incurred. Assessable expenses include, but are not limited to, expenses for: interpreters; certified translations of documents into the English language required by this chapter or related rules; communications; legal representation; economic, legal, or other research, analyses, and testimony; and fees and expenses for witnesses. The failure to reimburse the office is a ground for denial of a license application, denial of a license renewal, or for revocation of any approval thereof. Except for examinations authorized under this section, costs may not be assessed against a person unless the office determines that the person has operated or is operating in violation of this chapter. (8) The office shall provide a written report of any violation of law that may be a felony to the appropriate criminal investigatory agency having jurisdiction with respect to such violation.