1998 Regular Session
To: Business and Financial Institutions
By: Senator(s) Woodfield
Senate Bill 2854
(As Sent to Governor)
AN ACT TO REQUIRE LICENSURE BY THE DEPARTMENT OF BANKING AND CONSUMER FINANCE OF CERTAIN PERSONS ENGAGING IN THE BUSINESS OF CASHING CHECKS FOR A FEE; TO PROVIDE QUALIFICATIONS AND BONDING REQUIREMENTS OF THE APPLICANT FOR LICENSURE; TO PROVIDE THAT THE APPLICATION FOR A LICENSE SHALL BE IN WRITING AND UNDER OATH IN A FORM PRESCRIBED BY THE COMMISSIONER; TO PROVIDE REASONS AND METHODS BY WHICH A LICENSE MAY BE REVOKED; TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Check Cashers Act."
SECTION 2. The following words and phrases used in this act shall have the following meanings unless the context clearly indicates otherwise:
(a) "Appropriate law enforcement agency" means the sheriff of each county in which the licensee maintains an office, or the police chief of the municipality in which the licensee maintains an office, or law enforcement officers of the Department of Public Safety.
(b) "Attorney General" means the Attorney General of the State of Mississippi.
(c) "Check" means any check, draft, money order, personal money order, or other instrument for the transmission or payment of money as determined by the Commissioner of Banking and Consumer Finance, but shall not include travelers checks or foreign drawn payment instruments.
(d) A "check casher" means any individual, partnership, association, joint stock association, trust or corporation, excluding the United States government and the government of this state, who exchanges cash or other value for any check, draft, money order, personal money order, or other instrument for the transmission or payment of money, except travelers checks and foreign drawn payment instruments, and who charges a fee therefor.
(e) "Commissioner" means the Mississippi Commissioner of Banking and Consumer Finance, or his designee, as the designated official for the purpose of enforcing this act.
(f) "Consideration" includes any premium charged for the sale of goods or services in excess of the cash price of the goods or services.
(g) "Department" means the Department of Banking and Consumer Finance.
(h) "Licensee" means any individual, partnership, association or corporation duly licensed by the Department of Banking and Consumer Finance to engage in the business of cashing checks under this act.
(i) "Person" means an individual, partnership, corporation, joint venture, trust, association or any legal entity however organized.
(j) "Personal money order" means any instrument for the transmission or payment of money in relation to which the purchaser or remitter appoints or purports to appoint the seller thereof as his agent for the receipt, transmission or handling of money, whether such instrument is signed by the seller or by the purchaser or remitter or some other person.
SECTION 3. (1) A person may not engage in business as a check casher or otherwise portray himself as a check casher unless the person has a valid license authorizing engagement in the business. A separate license is required for each place of business under this act and each business must be independent of, and not a part of, any other business operation. A check cashing business shall not be a part of, or located at the same business address with, a pawnshop, title pledge office and small loan company. However, a licensed check casher may, as a part of his business, sell money orders and operate a processing center where utility bills are collected from the general public and governmental payments are distributed. The commissioner may issue more than one (1) license to a person if that person complies with this act for each license. A new license or application to transfer an existing license is required upon a change, directly or beneficially, in the ownership of any licensed check casher business and an application shall be made to the commissioner in accordance with this act.
(2) When a licensee wishes to move a check casher business to another location, the licensee shall give thirty (30) days' prior written notice to the commissioner who shall amend the license accordingly.
(3) Each license shall remain in full force and effect until relinquished, suspended, revoked or expired. Every licensee, on or before each September 1, shall complete and file with the tax assessor of the county or city clerk of the municipality in which the check casher business is located, an annual renewal application for each license held by him. If the annual renewal application is not filed for twenty-nine (29) days after September 1, the license shall thereupon expire, but not before the thirtieth day of September of any year for which the prior application has been filed.
(4) Notwithstanding other provisions of this act, the commissioner may issue a temporary license authorizing the operator of a check casher business on the receipt of an application for a license involving principals and owners that are substantially identical to those of an existing licensed check casher. The temporary license is effective until the permanent license is issued or denied.
(5) Notwithstanding other provisions of this act, neither a new license nor an application to transfer an existing license shall be required upon any change, directly or beneficially, in the ownership of any licensed check casher business incorporated under the laws of this state or any other state as long as the licensee continues to operate as a corporation doing a check casher business under the license. However, the commissioner may require the licensee to provide such information as he deems reasonable and appropriate concerning the officers and directors of the corporation and persons owning in excess of twenty-five percent (25%) of the outstanding shares of the corporation.
SECTION 4. The provisions of this act shall not apply to:
(a) Any bank, trust company, savings association, savings and loan association, savings bank or credit union which is chartered under the laws of this state or under federal law and domiciled in this state.
(b) Any person who cashes checks at their face value and does not charge the consumer a fee or otherwise receive any consideration from the consumer.
(c) Any person principally engaged in the retail sale of goods or services who, either as an incident to or independently of a retail sale, may from time to time cash checks for a fee or other consideration, not exceeding three percent (3%) of the face amount of the check or Ten Dollars ($10.00), whichever is greater.
SECTION 5. To be eligible for a check casher license, an applicant shall:
(a) Operate lawfully and fairly within the purposes of this act.
(b) Not have been convicted of a felony in the last ten (10) years or be active as a beneficial owner for someone who has been convicted of a felony in the last ten (10) years.
(c) File with the sheriff of the county or the mayor of the municipality in which the check casher business is to be located, a bond with good security in the penal sum of Ten Thousand Dollars ($10,000.00), payable to the mayor of the municipality or the sheriff of the county in which the check casher business is to be located, and their successors in office, for the faithful performance by the licensee of the duties and obligations pertaining to the business so licensed and the prompt payment of any judgment which may be recovered against the licensee on account of charges or other claims arising directly or collectively from any violation of the provisions of this act. The bond shall not be valid until it is approved by the mayor of the municipality or by the sheriff of the county. The applicant may file, in lieu of the bond, cash, a certificate of deposit or government bonds in the amount of Ten Thousand Dollars ($10,000.00). Those deposits shall be filed with the mayor of the municipality or the sheriff of the county in which the check casher is located, and is subject to the same terms and conditions as are provided for in the surety bond required in this paragraph. Any interest or earnings on those deposits are payable to the depositor.
(d) File with the tax assessor of the county or the city clerk of the municipality in which the check casher business is to be located, an application for a license. Upon completion of an investigation of the applicant, the tax assessor or city clerk shall send a copy of the filed application along with his recommendation for the commissioner's approval or disapproval of the application. If applicant's application is approved, a check casher license will be issued within thirty (30) days.
(e) Submit a set of fingerprints from any local law enforcement agency.
(f) Complete and file with the tax assessor of the county or city clerk of the municipality in which the check casher business is located, an annual renewal application for a license.
SECTION 6. Each application for a license shall be in a form prescribed by the commissioner, signed under oath, and shall include the following:
(a) The legal name, residence and business address of the applicant and, if the applicant is a partnership, association or corporation, of every member, officer and director thereof. However, the application need not state the full name and address of each shareholder, if the applicant is owned directly or beneficially by a person which as an issuer has a class of securities registered under Section 12 of the Securities and Exchange Act of 1934 or is an issuer of securities which is required to file reports with the Securities and Exchange Commission under Section 15(d) of the Securities and Exchange Act, provided that the person files with the commissioner such information, documents and reports as are required by the provisions of the Securities and Exchange Act to be filed by the issuer with the Securities and Exchange Commission.
(b) The complete address of the location at which the applicant proposes to engage in the business of cashing checks.
(c) Other data and information the department may require with respect to the applicant, its directors, trustees, officers, members or agents.
(d) Sworn financial statements of the applicant showing a net worth of at least Twenty Thousand Dollars ($20,000.00).
SECTION 7. (1) Upon filing of an application in a form prescribed by the commissioner, accompanied by the documents required in this act, the department shall investigate to ascertain whether the qualifications prescribed by Sections 5 and 6 of this act have been satisfied. If the commissioner finds that the qualifications have been satisfied and, if he approves the documents so filed by the applicant, he shall issue to the applicant a license to engage in the business of check cashing in this state.
(2) The license shall be kept conspicuously posted in the place of business of the licensee.
SECTION 8. (1) The department may adopt reasonable administrative regulations, not inconsistent with law, for the enforcement of this act.
(2) To assure compliance with the provisions of this act, the department may examine the books and records of any licensee without notice during normal business hours.
(3) Each licensee shall keep and use in its business any books, accounts and records the department may require to carry into effect the provisions of this act and the administrative regulations issued under this act. Every licensee shall preserve the books, accounts and records of its business for at least two (2) years.
(4) Any fee charged by a licensee for cashing a check shall be posted conspicuously to the bearer of the check before cashing the check, and the fee shall be a service fee and not interest.
(5) Before a licensee deposits with any bank or other depository institution a check cashed by the licensee, the check shall be endorsed with the actual name under which the licensee is doing business.
(6) All personal checks cashed for a customer by a licensee shall be dated on the actual date the cash is tendered to the customer.
(7) No licensee shall cash a check payable to a payee unless the licensee has previously obtained appropriate identification of the payee clearly indicating the authority of the person cashing the check, draft or money order on behalf of the payee.
(8) No licensee shall indicate through advertising, signs, billboards or otherwise that checks may be cashed without identification of the bearer of the check; and any person seeking to cash a check shall be required to submit reasonable identification as prescribed by the department. The provisions of this subsection shall not prohibit a licensee from cashing a check simultaneously with the verification and establishment of the identity of the presenter by means other than presentation of identification.
(9) Within five (5) business days after being advised by the payor financial institution that a check has been altered, forged, stolen, obtained through fraudulent or illegal means, negotiated without proper legal authority or represents the proceeds of illegal activity, the licensee shall notify the department and the district attorney for the judicial district in which the check was received. If a check is returned to the licensee by the payor financial institution for any of these reasons, the licensee may not release the check without consent of the district attorney or other investigating law enforcement authority.
(10) If a check is returned to a licensee from a payor financial institution because there are insufficient funds in or on deposit with the financial institution to pay the check, the licensee or any other person on behalf of the licensee shall not institute or initiate any criminal prosecution against the maker or drawer of the personal check with the intent and purpose of aiding in the collection of or enforcing the payment of the amount owed to the check casher by the maker or drawer of the check.
SECTION 9. Notwithstanding any other provision of law, no check cashing business licensed under this act shall directly or indirectly charge or collect fees or other consideration for check cashing services in excess of the following:
(a) Three percent (3%) of the face amount of the check or Five Dollars ($5.00), whichever is greater, for checks issued by the federal government, state government, or any agency of the state or agency of the state or federal government, or any county or municipality of this state.
(b) Ten percent (10%) of the face amount of the check or Five Dollars ($5.00), whichever is greater, for personal checks.
(c) Five percent (5%) of the face amount of the check or Five Dollars ($5.00), whichever is greater, for all other checks, or for money orders.
A licensee may not advance monies on the security of any personal check unless the presenter attests that the check being presented is drawn on a legitimate, open and active account. Except as provided by Section 10 of this act, any licensee who cashes a check for a fee shall deposit the check not later than three (3) business days from the date the check is cashed.
SECTION 10. (1) A licensee may defer the deposit of a personal check cashed for a customer for up to thirty (30) days under the provisions of this section.
(2) The face amount of any delayed deposit check cashed under the provisions of this section shall not exceed Four Hundred Dollars ($400.00).
(3) Each delayed deposit check cashed by a licensee shall be documented by a written agreement that has been signed by the customer and the licensee. The written agreement shall contain a statement of the total amount of any fees charged, expressed as a dollar amount and as an annual percentage rate. The written agreement shall authorize the licensee to defer deposit of the personal check until a specific date not later than thirty (30) days from the date the check is cashed.
(4) A licensee shall not directly or indirectly charge any fee or other consideration for cashing a delayed deposit check in excess of eighteen percent (18%) of the face amount of the check.
(5) No check cashed under the provisions of this section shall be repaid by the proceeds of another check cashed by the same licensee or any affiliate of the licensee. A licensee shall not, for any consideration, renew or otherwise extend any delayed deposit check.
SECTION 11. (1) The commissioner may, after notice and hearing, suspend or revoke a license if he finds that:
(a) The licensee, either knowingly, or without the exercise of due care to prevent the same, has violated any provision of this act;
(b) Any fact or condition exists which, if it had existed or had been known to exist at the time of the original application for the license, clearly would have justified the commissioner in refusing the license;
(c) The licensee has aided, abetted or conspired with an individual or person to circumvent or violate the requirement of this act;
(d) The licensee, or a legal or beneficial owner of the license, has been convicted of a felony, or has been convicted of a misdemeanor that the commissioner finds directly relates to the duties and responsibilities of the business of check cashing.
(2) The commissioner may conditionally license or place on probation a person whose license has been suspended or may reprimand a licensee for a violation of this act.
(3) The manner of giving notice and conducting a hearing as required by subsection (1) of this section shall be performed in accordance with procedures prescribed by the commissioner in rules or regulations adopted under Mississippi Administrative Procedures Law, Section 25-43-1 et seq.
(4) Any licensee may surrender any license by delivering it to the commissioner with written notice of its surrender, but that surrender shall not affect the licensee's civil or criminal liability for acts committed prior thereto.
(5) The commissioner may reinstate suspended licenses or issue new licenses to a person whose license or licenses have been revoked if no fact or condition then exists which clearly would have justified the commissioner in refusing originally to issue a license under this act.
(6) The appropriate local law enforcement agency shall be notified of any licensee who has his license suspended or revoked as provided by this act.
(7) The commissioner shall enforce the provisions of this section.
SECTION 12. The commissioner, or his duly authorized representative, for the purpose of discovering violations of this act and for the purpose of determining whether persons are subject to the provisions of this act, may examine persons licensed under this act and persons reasonably suspected by the commissioner of conducting business which requires a license under this act, including all relevant books, records and papers employed by those persons in the transaction of their business, and may summon witnesses and examine them under oath concerning matters relating to the business of those persons, or such other matters as may be relevant to the discovery of violations of this act, including without limiting the conduct of business without a license as required under this act.
SECTION 13. Any person who engages in the business of check cashing without first securing a license prescribed by this act shall be guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine not in excess of One Thousand Dollars ($1,000.00) or by confinement in the county jail for not more than one (1) year, or both.
SECTION 14. (1) In addition to any other penalty which may be applicable, any licensee or employee who willfully violates any provision of this act, or who willfully makes a false entry in any record specifically required by this act, shall be guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine not in excess of One Thousand Dollars ($1,000.00) per violation or false entry.
(2) Compliance with the criminal provisions of this act shall be enforced by the appropriate law enforcement agency, which may exercise for that purpose any authority conferred upon the agency by law.
(3) When the commissioner has reasonable cause to believe that a person is violating any provision of this act, the commissioner, in addition to and without prejudice to the authority provided elsewhere in this act, may enter an order requiring the person to stop or to refrain from the violation. The commissioner may sue in any circuit court of the state having jurisdiction and venue to enjoin the person from engaging in or continuing the violation or from doing any act in furtherance of the violation. In such an action, the court may enter an order or judgment awarding a preliminary or permanent injunction.
(4) The commissioner may impose a civil penalty against any licensee adjudged by the commissioner to be in violation of the provisions of this act. The civil penalty shall not exceed Five Hundred Dollars ($500.00) per violation and shall be deposited into the Department of Banking and Consumer Finance, "Consumer Finance Fund."
(5) Any licensee convicted in the manner provided in this act shall forfeit the surety bond or deposit required in Section 5(c) of this act and the amount of the bond or deposit shall be credited to the budget of the state or local agency which directly participated in the prosecution of the licensee, for the specific purpose of increasing law enforcement resources for that specific state or local agency. The bond or deposit shall be used to augment existing state and local law enforcement budgets and not to supplant them.
SECTION 15. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the parts which remain.
SECTION 16. Check cashers operating check cashing locations in business as of July 1, 1998, shall have until September 30, 1998, to apply for a license under this act, and upon the approval of the application, the commissioner shall grant a license under this act.
SECTION 17. The commissioner shall develop and provide any necessary forms to carry out the provisions of this act.
SECTION 18. Municipalities in this state may enact ordinances which are in compliance with, but not more restrictive than, the provisions of this act. Any existing or future order, ordinance or regulation which conflicts with this provision shall be null and void.
SECTION 19. The commissioner may employ the necessary full-time employees above the number of permanent full-time employees authorized for the department for Fiscal Year 1999, to carry out and enforce the provisions of this act. The commissioner may also expend the necessary funds to equip and provide necessary travel expenses for those employees.
SECTION 20. The provisions of this act shall stand repealed from and after July 1, 1999.
SECTION 21. This act shall take effect and be in force from and after July 1, 1998.