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Law

FL House Bill 409

Notary Law Update: FL House Bill 409

State: Florida

Summary:

House Bill 409 makes changes to Florida's Notary Public statutes and adds new provisions for remote online notarization.

Signed:  June 07, 2019

Effective:  January 01, 2020

Chapter: 71

Affects:

Amends Sections 28.222, 92.50, 95.231, 117.01, 117.021, 117.05, 117.107, 689.01, 694.08, 695.03, 695.04, 695.25, 695.28, 709.2119, 709.2120, 709.2202, 731.201, 732.506, 732.521, 732.522, 732.523, 732.524, 732.525, 732.526, 733.201, 740.11 of and adds Sections 117.201, 117.209, 117.215, 117.225, 117.235, 117.245, 117.255, 117.265, 117.275, 117.285, 117.295, 117.305 to the Florida Statutes.

Changes:

Changes to Notary Public Statutes

  1. Provides that the Notary’s electronic signature that must be retained under the Notary’s sole control includes access protection with passwords or codes under the control of the Notary.
  2. Prohibits a person from requiring a Notary to perform a notarial act with respect to an electronic record with a form of technology that the Notary has not selected to use.
  3. Requires the Department of State, in collaboration with the Agency for State Technology, to adopt rules establishing standards for tamper-evident technologies that will indicate any alteration or change to an electronic record after completion of an electronic notarial act.
  4. Provides that all electronic notarizations performed on or after January 1, 2020, must comply with the standards adopted by the Department of State.
  5. Clarifies that the venue of a notarial certificate must state the location of the Notary at the time of notarization.
  6. Clarifies that a notarial certificate must specify whether the signer personally appeared before the Notary at the time of the notarization by physical presence or by means of audio-video communication technology.
  7. Authorizes a Notary to supervise the making of a copy of a tangible or an electronic record or the printing of an electronic record and attest to the trueness of the copy, provided the document is neither a vital record in this state, another state, a territory of the United States, or another country, nor a public record, if a copy can be made by the custodian of the public record.
  8. Requires a Notary to use a certificate in substantially the form provided in the new law for notarizing a copy of a tangible or an electronic record or a printout of an electronic record.
  9. Modifies the statutory notarial certificate forms in F.S. 117.05 and F.S. 695.25 to include a notation of whether the signer appeared before the Notary physically or by audio-video communication.
  10. Adds a certificate of acknowledgment for a limited liability company in F.S. 695.25.
  11. Clarifies that in the procedure of a Notary signing the name of a person who is physically unable to sign or make a signature by mark, the person with a disability must direct the Notary to sign in his or her presence by verbal, written, or other means, and the Notary must write below the signature the means by which the Notary was directed to sign the notarial certificate.
  12. Requires a Notary to maintain the proof of direction and authorization to sign on behalf of the person with a disability for 10 years from the date of the notarial act.
  13. Modifies the statutory notarial certificate forms for an oath or affirmation of a person with a disability to indicate whether the signer appeared before the Notary physically or by audio-visual communication and the means by which the Notary was directed to sign the person’s name.
  14. Clarifies that the prohibition against a Notary signing a notarial certificate using a facsimile signature stamp unless the Notary has a physical disability that limits or prohibits the Notary’s ability to make a written signature and unless the Notary has first submitted written notice to the Department of State with an exemplar of the facsimile signature stamp does not apply to or prohibit a Notary who is registered as an online Notary to perform an electronic or online notarizations from using an electronic signature and seal.
  15. Prohibits a Notary from notarizing a signature on a document if the person whose signature is being notarized does not appear before the Notary either by means of physical presence or by means of audio-video communication technology.
  16. Clarifies that the fee of a Notary may exceed $10 for any one notarial act, except as provided in F.S. 117.045 (marriages) or 117.275 (online notarizations).

Authority to Perform Remote Online Notarizations

  1. Defines “appear before,” “before,” or “in the presence of”, “audio-video communication,” “credential “analysis,” “electronic,” “electronic record,” “electronic signature,” “errors and omissions insurance,” “government-issued identification credential,” “identity proofing,” “knowledge-based authentication,” “online notarization,” “online Notary public,” “physical presence,” “principal,” “record,” “remote online notarization service provider,” and “remote presentation.”
  2. Authorizes an online Notary physically located in Florida to perform an online notarization that meets the requirements of the new remote online notarization laws regardless of whether the principal or any witnesses are physically located in Florida at the time of the online notarization.
  3. Authorizes an online Notary to perform any of the functions of a Notary Public as an online notarization, excluding solemnizing the rites of matrimony.
  4. Authorizes an online Notary or the employer of such online Notary to charge a fee, not to exceed $25, for performing an online notarization.
  5. Clarifies that fees for services other than notarial acts are not governed by F.S. 117.275.
  6. Authorizes a commissioner of deeds registered as an online Notary to perform an online notarization while physically located within or outside of Florida in accordance with the territorial limits of its jurisdiction and other limitations and requirements otherwise applicable to notarial acts by commissioners of deeds.
  7. Provides that an online notarization performed in accordance with F.S. chapter 117 is deemed to have been performed within Florida and is governed by the applicable laws of Florida.
  8. Provides that if a notarial act requires a principal to appear before or in the presence of the online Notary, the principal may appear before the online Notary by means of audio-video communication technology that meets the requirements of the Florida statute and any rules adopted by the Department of State.
  9. Clarifies that an online Notary physically located in Florida may perform an online notarization, regardless of whether the principal or any witnesses are physically located in Florida at the time of the online notarization.
  10. Clarifies that a commissioner of deeds registered as an online Notary may perform an online notarization while physically located within or outside Florida in accordance with the territorial limits of its jurisdiction and other limitations and requirements otherwise applicable to notarial acts by commissioners of deeds.
  11. Provides that the validity of an online notarization performed by a Florida online Notary will be determined by applicable Florida laws regardless of the physical location of the principal or any witnesses at the time of the notarial act.
  12. Clarifies that an online notarization satisfies any law requiring a Notary to notarize a signature or a statement, take an acknowledgment, or administer an oath or affirmation.
  13. Clarifies that online witnessing standards prescribed in F.S. 117.285 satisfies any law that requires a signature or an act to be witnessed.
  14. Clarifies that except where otherwise expressly provided the new remote online notarization statutes, the provisions of these statutes apply to an online notarization and an online Notary.
  15. Clarifies that any failure to comply with the online notarization procedures set forth in F.S. 117.265 does not impair the validity of the notarial act or the electronic record that was notarized, but may be introduced as evidence to establish violations of F.S. chapter 117 or as an indication of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or for other evidentiary purposes.
  16. Clarifies that F.S. 117.265(9) may not be construed to alter the duty of an online Notary to comply with F.S. chapter 117 and any rules adopted under it.

Online Notarization Registration

  1. Requires a Notary, civil law Notary or commissioner of deeds who wants to register as an online Notary to: (a) hold a current Notary or civil law Notary commission or appointment as a commissioner of deeds and submit proof of commissioning or appointment; (b) certify that he or she has completed a classroom or online course covering the duties, obligations and technology requirements for serving as an online Notary; (c) pay the registration fee; (d) submit a signed and sworn registration as an online Notary to the Department of State; (e) Identify the RON service provider for audio-video communication technology, identity proofing and credential analysis the applicant intends to use and confirming that these technologies satisfy the requirements of the new law and rules adopted by the Department of State; and (f) provide evidence satisfactory to the Department of State that the applicant obtained a $25,000 bond as an online Notary and a minimum $25,000 errors and omissions policy on such terms as are specified by the Department of State by rule.
  2. Provides that an online Notary is subject to the Notary Public statutes to the same extent as a Notary appointed and commissioned only under those statutes, including F.S. 117.021.
  3. Clarifies that an online Notary may perform notarial acts as provided under the Notary Public statutes in addition to performing online notarizations.
  4. Provides that a 2-hour in-person or online course addressing the duties, obligations, and technology requirements for serving as an online Notary offered by the Florida Land Title Association; the Real Property, Probate and Trust Law Section of the Florida Bar; the Florida Legal Education Association, Inc.; the Department of State; or a vendor approved by the Department of State shall satisfy the education requirements of F.S. 117.225(2).
  5. Requires each education provider to make the in-person or online course generally available to all applicants.
  6. Requires that regardless of membership in the education provider's organization, the provider must charge each attendee the same cost for the course unless the course is provided in conjunction with a regularly scheduled meeting of the provider's membership.

Remote Online Notarization Procedures

  1. Requires an online Notary to confirm the identity of a principal and any witness appearing online, at the time that the signature is taken, by using audio-video communication technology and processes that meet the requirements the new remote online notarization laws and any rules adopted and record the two-way audio-video conference session between the Notary and the principal and any witnesses.
  2. Prohibits a principal from acting in the capacity of a witness for his or her own signature in an online notarization.
  3. Requires an online Notary performing an online notarization of a principal not located within Florida to confirm, either verbally or through the principal's written consent, that the principal desires for the notarial act to be performed by a Florida Notary and under the general law of Florida.
  4. Requires an online Notary to confirm the identity of the principal by: (a) personal knowledge of each principal; or (b) all of the following, as such criteria may be modified or supplemented in rules adopted by the Department of State: (i) remote presentation of a government-issued identification credential by each principal; (ii) credential analysis of each government-issued identification credential and (iii) identity proofing of each principal in the form of knowledge-based authentication or another method of identity proofing that conforms to the standards of F.S. chapter 117.
  5. Prohibits an online Notary from performing an online notarization if the online Notary is unable to verify identity of a principal through remote presentation of an ID credential, credential analysis of the ID credential and identity proofing, or if the databases consulted for identity proofing do not contain sufficient information to permit authentication.
  6. Provides that until such time as the Department of State adopts rules setting standards that are equally or more protective, the following minimum standards shall apply to identity proofing by means of knowledge-based authentication used for any online notarization performed by an online Notary or his or her RON service provider: (a) The principal must be presented with five or more questions with a minimum of five possible answer choices per question. (b) Each question must be drawn from a third-party provider of public and proprietary data sources and be identifiable to the principal's social security number or other identification information, or the principal's identity and historical events records. (c) Responses to all questions must be made within a 2-minute time constraint. (d) The principal must answer a minimum of 80 percent of the questions correctly. (e) The principal may be offered one additional attempt in the event of a failed attempt. (f) During the second attempt, the principal may not be presented with more than three questions from the prior attempt.
  7. Provides that until such time as the Department of State adopts rules setting standards that are equally or more protective, the following minimum standards shall apply to credential analysis used for any online notarization performed by an online Notary or his or her RON service provider: (a) Credential analysis must use one or more commercially available automated software or hardware processes that are consistent with sound commercial practices; (b) Credential analysis must aid the Notary in verifying the authenticity of the credential by analyzing the integrity of visual, physical, or cryptographic security features to indicate that the credential is not fraudulent or inappropriately modified; (c) Credential analysis must use information held or published by the issuing source or authoritative source, as available, to confirm the validity of credential details; and (d) The output of the credential analysis process must be provided to the online Notary performing the notarial act.
  8. Provides that until such time as the Department of State adopts rules setting standards that are equally or more protective, the following minimum standards shall apply to the audio-video communication technology used for any online notarization performed by an online Notary or his or her RON service provider: (a) The signal transmission must be reasonably secure from interception, access, or viewing by anyone other than the participants communicating. (b) The technology must provide sufficient audio clarity and video resolution to enable the Notary to communicate with the principal and any witness, and to confirm the identity of the principal and any witness, as required, using the identification methods described in F.S. 117.265.
  9. Authorizes an online Notary to change his or her RON service provider or providers from time to time but must notify the Department of State of such change within 30 days thereafter.
  10. Requires the electronic notarial certificate for an online notarization to include a notation that the notarization is an online notarization which may be satisfied by placing the term "online Notary" in or adjacent to the online Notary's seal.

Electronic Journal of Online Notarizations

  1. Requires an online Notary to keep one or more electronic journals of online notarizations.
  2. Requires the electronic journal entry to include all of the following for each online notarization: (a) the date and time of the notarization; (b) the type of notarial act; (c) the type, the title, or a description of the electronic record or proceeding; (d) the name and address of each principal involved in the transaction or proceeding; (e) evidence of identity of each principal involved in the transaction or proceeding in the form of a statement that the person is personally known to the online Notary or a notation of the type of government-issued identification credential provided to the online Notary; (f) an indication that the principal satisfactorily passed the identity proofing; (g) an indication that the government-issued identification credential satisfied the credential analysis; and (h) the fee, if any, charged for the notarization.
  3. Requires the online Notary to retain an uninterrupted and unedited copy of the recording of the audio-video communication in which an online notarization is performed. The recording must include all of the following: (a) appearance by the principal and any witness before the online Notary; (b) confirmation of the identity of the principal and any witness; (c) a general description or identification of the records to be signed; (d) at the commencement of the recording, recitation by the online Notary of information sufficient to identify the notarial act; (e) a declaration by the principal that his or her signature on the record is knowingly and voluntarily made; and (f) all of the actions and spoken words of the principal, Notary, and any required witness during the entire online notarization, including the signing of any records before the online Notary.
  4. Requires the electronic journal and the recordings of audio-video communications to be maintained for at least 10 years after the date of the notarial act.
  5. Clarifies, however, that a full copy of the recording of the audio-video communication relating to an online notarization session that involves the signing of an electronic will must be maintained by a qualified custodian in accordance with F.S. chapters 731 and 732.
  6. Provides that the Department of State maintains jurisdiction over the electronic journal and audio-video communication recordings to investigate notarial misconduct for a period of 10 years after the date of the notarial act.
  7. Authorizes an online Notary, a guardian of an incapacitated online Notary, or the personal representative of a deceased online Notary to, by contract with a secure repository in accordance with any rules established under F.S. chapter 117, delegate to the repository the online Notary's duty to retain the electronic journal and the recordings of audio-video communications, provided that the Department of State is notified of such delegation of retention duties to the repository within 30 days thereafter, including the address and contact information for the repository.
  8. Provides that if an online Notary delegates the electronic journal and recordings of audio-video communications to a secure repository, the online Notary must make an entry in his or her electronic journal identifying such repository and provide notice to the Department of State.
  9. Clarifies that an omitted or incomplete entry in the electronic journal does not impair the validity of the notarial act or of the electronic record which was notarized, but may be introduced as evidence to establish violations of F.S. chapter 117; as evidence of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability; or for other evidentiary purposes.
  10. Provides that if the recording of the audio-video communication relating to the online notarization of the execution of an electronic will cannot be produced by the online Notary or the qualified custodian, the electronic will must be treated as a lost or destroyed will subject to F.S. 733.207.
  11. Requires an online Notary to make electronic copies, upon request, of the pertinent entries in the electronic journal and provide access to the related audio-video communication recordings to the following persons: (a) the parties to an electronic record notarized by the online Notary; (b) the qualified custodian of an electronic will notarized by the online Notary; (c) the title agent, settlement agent, or title insurer who insured the electronic record or engaged the online Notary with regard to a real estate transaction; (d) the online Notary's RON service provider whose services were used by the online Notary to notarize the electronic record; (e) any person who is asked to accept a power of attorney that was notarized by the online Notary; (f) the Department of State pursuant to a Notary misconduct investigation; and (g) any other persons pursuant to a subpoena, court order, law enforcement investigation, or other lawful inspection
  12. Authorizes an online Notary may charge a fee not to exceed $20 per transaction record for making and delivering electronic copies of a given series of related electronic records, except if requested by: (a) a party to the electronic record; (b) in a real estate transaction, the title agent, settlement agent, or title insurer who insured the electronic record or engaged the online Notary with regard to such transaction; or (c) the Department of State pursuant to an investigation relating to the official misconduct of an online Notary.
  13. Provides that if the online Notary charges a fee, the online Notary must disclose the amount of such fee to the requester before making the electronic copies.

Remote Online Notarization Service Providers

  1. Provides that a RON service provider is deemed to have satisfied tamper-evident technology requirements by use of technology that renders any subsequent change or modification to the electronic record evident.
  2. Provides that in addition to any coverage it elects to provide for individual online Notaries, a RON service provider must maintain errors and omissions insurance coverage in a total amount of at least $250,000 in the annual aggregate with respect to potential errors or omissions in or relating to the technology or processes provided by the RON service provider.
  3. Clarifies that an online Notary is not responsible for the security of the systems used by the principal or others to access the online notarization session.

Security of Remote Online Notarizations

  1. Requires an online Notary to take reasonable steps to: (a) ensure the integrity, security, and authenticity of online notarizations; (b) maintain a backup record of the electronic journal; and (c) protect the electronic journal, the backup record, and any other records received by the online Notary from unauthorized access or use.
  2. Requires an online Notary to take reasonable steps to ensure that any registered device used to create an electronic seal is current and has not been revoked or terminated by the issuing or registering authority of the device.
  3. Requires an online Notary to keep the electronic journal and electronic seal secure and under his or her sole control, which includes access protection using passwords or codes.
  4. Prohibits an online Notary from allowing another person to use the online Notary's electronic journal, electronic signature, or electronic seal, other than a RON service provider or other authorized person providing services to an online Notary to facilitate performance of online notarizations.
  5. Requires an online Notary to attach or logically associate the electronic signature and seal to the electronic notarial certificate of an electronic record in a manner that is capable of independent verification using tamper-evident technology that renders any subsequent change or modification to the electronic record evident.
  6. Requires an online Notary to notify an appropriate law enforcement agency and the Department of State of any unauthorized use of or compromise to the security of the electronic journal, official electronic signature, or electronic seal within 7 days after discovery of such unauthorized use or compromise to security.
  7. Requires an online Notary or his or her RON service provider to take reasonable steps to ensure that the audio-video communication technology used in an online notarization is secure from unauthorized interception.

Witnessing of Electronic Records

  1. Authorizes an online Notary to supervise the witnessing of electronic records by the same audio-video communication technology used for online notarization.
  2. Clarifies that under F.S. chapter 689, any requirement that an instrument be signed in the presence of two subscribing witnesses may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology, as defined in F.S. 117.201. 
  3. Clarifies that under F.S. chapter 689, the act of witnessing an electronic signature is satisfied if a witness is in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes his or her electronic signature and the witness hears the principal make a statement acknowledging that the principal has signed the electronic record.
  4. Clarifies that the act of witnessing an electronic signature means the witness is either in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes the electronic signature and the witness hears the principal make a statement to the effect that the principal has signed the electronic record.
  5. Authorizes the witness of an electronic record to be in the physical presence of the principal or remote from the principal provided the witness and principal are using audio-video communication technology.
  6. Provides that if the witness is remote from the principal and viewing and communicating with the principal by means of audio-video communication technology, the witness's identity must be verified in accordance with the procedures for identifying a principal as set forth in F.S. 117.265(4).
  7. Provides that if the witness is in the physical presence of the principal, the witness must confirm his or her identity by stating his or her name and current address on the audio-video recording as part of the act of witnessing.
  8. Requires a witness remote from the principal and appearing through audio-video communication technology to verbally confirm that he or she is a resident of and physically located within the United States or a territory of the United States at the time of witnessing.
  9. Provides that if an electronic record to be signed is a last will under F.S. chapter 732, a trust with testamentary aspects under F.S. chapter 736, a health care advance directive, a waiver of spousal rights under F.S. 732.701 or F.S. 732.702, or a power of attorney authorizing any of the transactions enumerated in F.S. 709.2208, the following must apply: (a) Prior to facilitating witnessing of an instrument by means of audio-video communication technology, a RON service provider must require the principal to answer the following questions in substantially the following form: (i) Are you under the influence of any drug or alcohol today that impairs your ability to make decisions? (ii) Do you have any physical or mental condition or long-term disability that impairs your ability to perform the normal activities of daily living? and (iii) Do you require assistance with daily care?             
  10. Provides that if any of the three questions that a RON service provider must ask relative to a will, a trust, a health care directive, a waiver of spousal rights or a power of attorney are answered in the affirmative, the principal's signature on the instrument may only be validly witnessed by witnesses in the physical presence of the principal at the time of signing.
  11. Provides that subsequent to submission of the answers to the three questions that a RON service provider must ask relative to a will, a trust, a health care directive, a waiver of spousal rights or a power of attorney, the RON service provider must give the principal written notice in substantially the following form: “NOTICE:  If you are a vulnerable adult as defined in s. 415.102, Florida Statutes, the documents you are about to sign are not valid if witnessed by means of audio-video communication technology. If you suspect you may be a vulnerable adult, you should have witnesses physically present with you before signing.”
  12. Provides that the presence of a witness with the principal at the time of signing by means of audio-video communication technology is not effective for witnessing the signature of a principal who is a vulnerable adult as defined in F.S. 415.102.
  13. Provides that the contestant of an electronic record has the burden of proving that the principal was a vulnerable adult at the time of executing the electronic record.
  14. Provides that the act of witnessing an electronic signature through the witness's presence by audio-video communication technology is valid only if, during the audio-video communication, the online Notary asks the following questions in substantially the following form and the principal provides verbal answers to all of the questions: (a) Are you currently married? If so, name your spouse. (b) Please state the names of anyone who assisted you in accessing this video conference today. (c) Please state the names of anyone who assisted you in preparing the documents you are signing today. (d) Where are you currently located? (e) Who is in the room with you?
  15. Requires an online Notary to consider the responses to the five questions for a witness whose presence is by means of audio-video communication in carrying out of the duties of a Notary as set forth in F.S. 117.107(5).
  16. Provides that a principal's responses to the questions to the five questions for a witness whose presence is by means of audio-video communication may be offered as evidence regarding the validity of the instrument, but an incorrect answer may not serve as the sole basis to invalidate an instrument.
  17. Provides that nothing in F.S. 117.285(5) shall preclude a power of attorney, which includes banking or investment powers enumerated in F.S. 709.2208, from being effective with respect to any other authority granted therein or with respect to the agent's authority in connection with a real property, commercial, or consumer transaction or loan, to exercise any power specified therein or to execute and deliver instruments obligating the principal or to draw upon the proceeds of such transaction or loan.
  18. Requires an electronic record containing an instrument signed by witnesses who were present with the principal by means of audio-video communication technology to contain a perceptible indication of their presence by such means.                 
  19. Provides that nothing in F.S. 117.285(5) shall affect the application of F.S. 709.2119.
  20. Requires a RON service provider or online Notary to provide the following pursuant to subpoena, court order, an authorized law enforcement inquiry, or other lawful request: (a) the last known address of each witness who witnessed the signing of an electronic record using audio-video communication technology under F.S. 117.285; (b) a principal's responses to the questions in F.S. 117.285(5)(a) or (b), as applicable; and (c) an uninterrupted and unedited copy of the recording of the audio-video communication in which an online notarization is performed.
  21. Provides that except as set forth in F.S. 709.2202, an act of witnessing performed pursuant to F.S. 117.285 satisfies any requirement that the witness must be a subscribing or attesting witness or must be in the presence of the principal at the time of signing.
  22. Clarifies that the law of Florida governs the validity of witnessing supervised by an online Notary pursuant to F.S. 117.285, regardless of the physical location of the witness at the time of witnessing.
  23. Clarifies that state and federal courts in Florida have subject matter jurisdiction over any dispute arising out of an act of witnessing pursuant to F.S. 117.285 and may issue subpoenas for records or to require the appearance of witnesses in relation thereto in accordance with applicable law.

Rules for Electronic and Remote Online Notarizations

  1. Authorizes the Department of State to adopt rules necessary to implement the requirements F.S. 117 and to set standards for online notarization which include, but are not limited to: (a) improvements in technology and methods of assuring the identity of principals and the security of an electronic record, including tamper-evident technologies in compliance with the standards adopted pursuant to s. 117.021 which apply to online notarizations; (b) education requirements for online Notaries and the required terms of bonds and errors and omissions insurance, but not including the amounts of such bonds and insurance policies; (c) identity proofing, credential analysis, unauthorized interception, remote presentation, audio-video communication technology, and retention of electronic journals and copies of audio-video communications recordings in a secure repository.              
  2. Requires the Department of State to adopt forms, processes, and interim or emergency rules necessary to accept applications from and register online Notaries public pursuant to F.S. 117.225 by January 1, 2020.
  3. Clarifies that the rulemaking required under F.S. 117.295 is exempt from F.S. 120.541(3).

Electronic Wills

  1. Clarifies that an electronic will may be signed with an electronic signature.
  2. Allows an electronic will to be self-proved and admitted to probate.
  3. Clarifies that any requirement that individuals sign an instrument in the presence of one another may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology that meets the requirements of Part II of F.S. chapter 117 and any rules adopted under it, if: (a) the individuals are supervised by a notary public in accordance with F.S. 117.285; (b) the individuals are authenticated and signing as part of an online notarization session in accordance with F.S. 117.265; (c) the witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and (c) the signing and witnessing of the instrument complies with the requirements of F.S. 117.285.

Miscellaneous

  1. Clarifies that the new remote online notarization statutes supersede the Electronic Signatures in Global and National Commerce Act as authorized under 15 U.S.C. s. 7001 et seq., but does not modify, limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), or authorize the electronic delivery of the notices described in 15 U.S.C. s. 7003(b).
  2. Clarifies that a document that is recorded with a recorder is validly recorded and provides notice notwithstanding any defects in, deviations from, or the inability to demonstrate strict compliance with any statute, rule, or procedure relating to electronic signatures, electronic witnesses, electronic notarization, or online notarization, or for submitting or recording to submit or record an electronic document in effect at the time the electronic document was executed or was submitted for recording.
  3. Clarifies that a document that is recorded with a recorder is validly recorded and provides notice notwithstanding that the document was signed, witnessed, or notarized electronically, and that the document was notarized by an online Notary outside the physical presence of the signer through audio-video communication technology, as defined in F.S. 117.201, or that witnessing may have been done outside the physical presence of the notary public or principal through such audio-visual communication.
  4. Clarifies that a document that is recorded with a recorder is validly recorded and provides notice notwithstanding that the document recorded was a certified printout of a document to which one or more electronic signatures have been affixed.
  5. Makes technical changes.
Analysis:

House Bill 409 is a massive new law that modifies Florida's existing Notary statutes and adds new provisions for online notarization. One notable change to the Notary statutes is the new requirement that a certificate of acknowledgment or jurat specify whether the principal appeared physically before the Notary or by means of audio-video communicaiton. But most of the bill deals with the requirements for registration as an online Notary, standards for performing online notarial acts, witnessing certain types of documents, keeping an electronic journal of online notarial acts, and creating and preserving a recording of the audio-video online notarial act. With many of these online notarization provisions, House Bill 409 replicates the law in states that have already enacted remote notarization. One departure, however, is in the matter of witnessing the signing of electronic last wills, trusts, health care directives, powers of attorney and spousal waivers. An online Notary is authorized to witness the signatures of individuals to these records, but there are new requirements for both remote online notarization service providers and online Notaries. Specifically, the emote online notarization service provider and online Notary is responsible for asking cerain questions of the witnesses to these particular records.

Read the bill text.

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