SB 1042 — Notaries Public

requiring a notary public to keep an electronic journal of online notarizations;

specifying the information that must be included for each online notarization;

requiring an online notary public to take certain steps regarding the maintenance and security of the electronic journal;

creating s.

117.255, F.S.;

specifying requirements for the use of electronic journals, signatures, and seals;

requiring a notary public to provide notification of the theft, vandalism, or loss of an electronic journal, signature, or seal;

authorizing an online notary public to make copies of electronic journal entries and to provide access to related recordings under certain circumstances;

authorizing an online notary public to charge a fee for making and delivering such copies;

creating s.

117.265, F.S.;

prescribing online notarization procedures;

specifying the manner by which an online notary public must verify the identity of a principal or a witness;

requiring an online notary public to take certain measures as to the security of technology used;

specifying that an electronic notarial certificate must identify the performance of an online notarization;

specifying that noncompliance does not impair the validity of a notarial act or the notarized electronic record;

providing construction;

creating s.

117.275, F.S.;

providing fees for online notarizations;

creating s.

117.285, F.S.;

specifying the manner by which an online notary public may supervise the witnessing of electronic records of online notarizations;

creating s.

117.295, F.S.;

providing standards for electronic and online notarizations;

authorizing the Department of State, in collaboration with the Agency for State Technology, to adopt certain rules;

creating s.

117.305, F.S.;

superseding certain provisions of federal law regulating electronic signatures;

amending s.

28.222, F.S.;

requiring the clerk of the circuit court to record certain instruments;

amending s.

95.231, F.S.;

providing a limitation period for certain recorded instruments;

amending s.

689.01, F.S.;

providing for witnessing of documents in connection with real estate conveyances;

providing for validation of certain recorded documents;

amending s.

694.08, F.S.;

providing for validation of certain recorded documents;

amending s.

695.03, F.S.;

providing and revising requirements for making acknowledgments, proofs, and other documents;

amending ss.

695.04 and 695.05, F.S.;

conforming provisions to changes made by the act;

amending s.

695.28, F.S.;

providing for validity of recorded documents;

conforming provisions to changes made by the act;

providing an effective date.

83 Be It Enacted by the Legislature of the State of Florida:

85 Section 1. The Division of Law Revision and Information is directed to:

(1) Create part I of chapter 117, Florida Statutes, consisting of ss.

117.01-117.108, Florida Statutes, to be entitled “General Provisions.” (2) Create part II of chapter 117, Florida Statutes, consisting of ss.

117.201-117.305, Florida Statutes, to be entitled “Online Notarizations.” Section 2. Subsection (1) of section 117.01, Florida Statutes, is amended to read:

117.01 Appointment, application, suspension, revocation, application fee, bond, and oath.— (1) The Governor may appoint as many notaries public as he or she deems necessary, each of whom must shall be at least 18 years of age and a legal resident of this the state.

A permanent resident alien may apply and be appointed and shall file with his or her application a recorded Declaration of Domicile.

The residence required for appointment must be maintained throughout the term of appointment.

A notary public Notaries public shall be appointed for 4 years and may only shall use and exercise the office of notary public if he or she is within the boundaries of this state.

An applicant must be able to read, write, and understand the English language.

Section 3. Present subsections (4) and (5) of section 117.021, Florida Statutes, are renumbered as subsections (5) and (6), respectively, a new subsection (4) and subsection (7) are added to that section, and subsection (2) and present subsection (5) of that section are amended, to read:

117.021 Electronic notarization.— (2) In performing an electronic notarial act, a notary public shall use an electronic signature that is:

(a) Unique to the notary public;

(b) Capable of independent verification;

(c) Retained under the notary public’s sole control and includes access protection through the use of passwords or codes under control of the notary public;

and (d) Attached to or logically associated with the electronic document in a manner that any subsequent alteration to the electronic document displays evidence of the alteration.

(4) A person may not require a notary public to perform a notarial act with respect to an electronic record with a form of technology that the notary public has not selected to use.

(6)(5) The Department of State, in collaboration with the Agency for State Technology, may adopt rules to ensure the security, reliability, and uniformity of signatures and seals authorized in this section.

(7) The Department of State, in collaboration with the Agency for State Technology, shall 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 and shall publish a list of technologies that satisfy those standards and are approved for use in electronic notarizations, effective January 1, 2019.

All electronic notarizations performed on or after January 1, 2019, must comply with the adopted standards and use an approved technology.

Section 4. Subsection (1), paragraph (a) of subsection (2), subsections (4) and (5), paragraph (a) of subsection (12), and subsections (13) and (14) of section 117.05, Florida Statutes, are amended, and paragraph (c) is added to subsection (12) of that section, to read:

117.05 Use of notary commission;

unlawful use;

notary fee;

seal;

duties;

employer liability;

name change;

advertising;

photocopies;

penalties.— (1) A No person may not shall obtain or use a notary public commission in other than his or her legal name, and it is unlawful for a notary public to notarize his or her own signature.

Any person applying for a notary public commission must submit proof of identity to the Department of State if so requested.

Any person who violates the provisions of this subsection commits is guilty of a felony of the third degree, punishable as provided in s.

775.082, s.

775.083, or s.

775.084.

(2)(a) The fee of a notary public may not exceed $10 for any one notarial act, except as provided in s.

117.045 or s.

117.275.

(4) When notarizing a signature, a notary public shall complete a jurat or notarial certificate in substantially the same form as those found in subsection (13).

The jurat or certificate of acknowledgment shall contain the following elements:

(a) The venue stating the location of the notary public at the time of the notarization in the format, “State of Florida, County of .............” (b) The type of notarial act performed, an oath or an acknowledgment, evidenced by the words “sworn” or “acknowledged.” (c) That the signer personally appeared before the notary public at the time of the notarization either by physical presence or by means of audio-video communication technology as authorized under part II of this chapter.

(d) The exact date of the notarial act.

(e) The name of the person whose signature is being notarized.

It is presumed, absent such specific notation by the notary public, that notarization is to all signatures.

(f) The specific type of identification the notary public is relying upon in identifying the signer, either based on personal knowledge or satisfactory evidence specified in subsection (5).

(g) The notary’s official signature.

(h) The notary’s name, typed, printed, or stamped below the signature.

(i) The notary’s official seal affixed below or to either side of the notary’s signature.

(5) A notary public may not notarize a signature on a document unless he or she personally knows, or has satisfactory evidence, that the person whose signature is to be notarized is the individual who is described in and who is executing the instrument.

A notary public shall certify in the certificate of acknowledgment or jurat the type of identification, either based on personal knowledge or other form of identification, upon which the notary public is relying.

In the case of an online notarization, the online notary public shall comply with the requirements set forth in part II of this chapter.

(a) For purposes of this subsection, the term “personally knows” means having an acquaintance, derived from association with the individual, which establishes the individual’s identity with at least a reasonable certainty.

(b) For the purposes of this subsection, the term “satisfactory evidence” means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the person whose signature is to be notarized is not the person he or she claims to be and any one of the following:

1. The sworn written statement of one credible witness personally known to the notary public or the sworn written statement of two credible witnesses whose identities are proven to the notary public upon the presentation of satisfactory evidence that each of the following is true:

a. That the person whose signature is to be notarized is the person named in the document;

b. That the person whose signature is to be notarized is personally known to the witnesses;

c. That it is the reasonable belief of the witnesses that the circumstances of the person whose signature is to be notarized are such that it would be very difficult or impossible for that person to obtain another acceptable form of identification;

d. That it is the reasonable belief of the witnesses that the person whose signature is to be notarized does not possess any of the identification documents specified in subparagraph 2.;

and e. That the witnesses do not have a financial interest in nor are parties to the underlying transaction;

or 2. Reasonable reliance on the presentation to the notary public of any one of the following forms of identification, if the document is current or has been issued within the past 5 years and bears a serial or other identifying number:

a. A Florida identification card or driver license issued by the public agency authorized to issue driver licenses;

b. A passport issued by the Department of State of the United States;

c. A passport issued by a foreign government if the document is stamped by the United States Bureau of Citizenship and Immigration Services;

d. A driver license or an identification card issued by a public agency authorized to issue driver licenses in a state other than Florida, a territory of the United States, or Canada or Mexico;

e. An identification card issued by any branch of the armed forces of the United States;

f. A veteran health identification card issued by the United States Department of Veterans Affairs;

g. An inmate identification card issued on or after January 1, 1991, by the Florida Department of Corrections for an inmate who is in the custody of the department;

h. An inmate identification card issued by the United States Department of Justice, Bureau of Prisons, for an inmate who is in the custody of the department;

i. A sworn, written statement from a sworn law enforcement officer that the forms of identification for an inmate in an institution of confinement were confiscated upon confinement and that the person named in the document is the person whose signature is to be notarized;

or j. An identification card issued by the United States Bureau of Citizenship and Immigration Services.

(12)(a) A notary public may supervise the making of a copy of a tangible or an electronic record or a printout of an electronic record, photocopy of an original document and attest to the trueness of the copy or of the printout, 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.

(c) A notary public must use a certificate in substantially the following form in notarizing a copy of a tangible or an electronic record or a printout of an electronic record:

272 STATE OF FLORIDA COUNTY OF ........

275 On this ....

day of ........, ...(year)..., I attest that the preceding or attached document is a true, exact, complete, and unaltered ...(copy of a tangible or an electronic record presented to me by the document’s custodian)...

or a ...(printout made by me from an electronic record presented to me by the document’s custodian)....

At the time of printing, no security features, if any, present on the electronic record, indicated that the record had been altered since execution.

284 ...(Signature of Notary Public — State of Florida)...

...(Print, Type, or Stamp Commissioned Name of Notary Public)...

287 (13) The following notarial certificates are sufficient for the purposes indicated, if completed with the information required by this chapter.

The specification of forms under this subsection does not preclude the use of other forms.

(a) For an oath or affirmation:

293 STATE OF FLORIDA COUNTY OF ........

296 Sworn to (or affirmed) and subscribed before me by means of [] physical presence or [] online notarization, this ....

day of ........, ...(year)..., by ...(name of person making statement)....

301 ...(Signature of Notary Public - State of Florida)...

...(Print, Type, or Stamp Commissioned Name of Notary Public)...

Personally Known ........

OR Produced Identification ........

Type of Identification Produced..........................

307 (b) For an acknowledgment in an individual capacity:

309 STATE OF FLORIDA COUNTY OF ........

312 The foregoing instrument was acknowledged before me by means of [] physical presence or [] online notarization, this ....

day of ........, ...(year)..., by ...(name of person acknowledging)....

316 ...(Signature of Notary Public - State of Florida)...

...(Print, Type, or Stamp Commissioned Name of Notary Public)...

Personally Known ........

OR Produced Identification ........

Type of Identification Produced..........................

322 (c) For an acknowledgment in a representative capacity:

324 STATE OF FLORIDA COUNTY OF ........

327 The foregoing instrument was acknowledged before me by means of [] physical presence or [] online notarization, this ....

day of ........, ...(year)..., by ...(name of person)...

as ...(type of authority, . . . e.g.

officer, trustee, attorney in fact)...

for ...(name of party on behalf of whom instrument was executed)....

333 ...(Signature of Notary Public - State of Florida)...

...(Print, Type, or Stamp Commissioned Name of Notary Public)...

Personally Known ........

OR Produced Identification ........

Type of Identification Produced..........................

339 (14) A notary public must make reasonable accommodations to provide notarial services to persons with disabilities.

(a) A notary public may notarize the signature of a person who is blind after the notary public has read the entire instrument to that person.

(b) A notary public may notarize the signature of a person who signs with a mark if:

1. The document signing is witnessed by two disinterested persons;

2. The notary public prints the person’s first name at the beginning of the designated signature line and the person’s last name at the end of the designated signature line;

and 3. The notary public prints the words “his (or her) mark” below the person’s signature mark.

(c) The following notarial certificates are sufficient for the purpose of notarizing for a person who signs with a mark:

1. For an oath or affirmation:

357 ...(First Name)... ...(Last Name)...

...His (or Her) Mark...

360 STATE OF FLORIDA COUNTY OF ........

363 Sworn to and subscribed before me by means of [] physical presence or [] online notarization, this ....

day of ........, ...(year)..., by ...(name of person making statement)..., who signed with a mark in the presence of these witnesses:

368 ...(Signature of Notary Public - State of Florida)...

...(Print, Type, or Stamp Commissioned Name of Notary Public)...

Personally Known ........

OR Produced Identification ........

Type of Identification Produced..........................

374 2. For an acknowledgment in an individual capacity:

376 ...(First Name)... ...(Last Name)...

...His (or Her) Mark...

379 STATE OF FLORIDA COUNTY OF ........

382 The foregoing instrument was acknowledged before me by means of [] physical appearance or [] online notarization, this ....

day of ........, ...(year)..., by ...(name of person acknowledging)..., who signed with a mark in the presence of these witnesses:

388 ...(Signature of Notary Public - State of Florida)...

...(Print, Type, or Stamp Commissioned Name of Notary Public)...

Personally Known ........

OR Produced Identification ........

Type of Identification Produced..........................

394 (d) A notary public may sign the name of a person whose signature is to be notarized when that person is physically unable to sign or make a signature mark on a document if:

1. The person with a disability directs the notary public to sign in his or her presence;

2. The document signing is witnessed by two disinterested persons;

3. The notary public writes below the signature the following statement:

“Signature affixed by notary, pursuant to s.

117.05(14), Florida Statutes,” and states the circumstances of the signing in the notarial certificate.

(e) The following notarial certificates are sufficient for the purpose of notarizing for a person with a disability who directs the notary public to sign his or her name:

1. For an oath or affirmation:

410 STATE OF FLORIDA COUNTY OF ........

413 Sworn to (or affirmed) before me by means of [] physical presence or [] online notarization, this ....

day of ........, ...(year)..., by ...(name of person making statement)..., and subscribed by ...(name of notary)...

at the direction of and in the presence of ...(name of person making statement)..., and in the presence of these witnesses:

420 ...(Signature of Notary Public - State of Florida)...

...(Print, Type, or Stamp Commissioned Name of Notary Public)...

Personally Known ........

OR Produced Identification ........

Type of Identification Produced..........................

426 2. For an acknowledgment in an individual capacity:

428 STATE OF FLORIDA COUNTY OF ........

431 The foregoing instrument was acknowledged before me by means of [] physical presence or [] online notarization, this ....

day of ........, ...(year)..., by ...(name of person acknowledging)...

and subscribed by ...(name of notary)...

at the direction of and in the presence of ...(name of person acknowledging)..., and in the presence of these witnesses:

438 ...(Signature of Notary Public - State of Florida)...

...(Print, Type, or Stamp Commissioned Name of Notary Public)...

Personally Known ........

OR Produced Identification ........

Type of Identification Produced..........................

444 Section 5. Subsections (2) and (9) of section 117.107, Florida Statutes, are amended to read:

117.107 Prohibited acts.— (2) A notary public may not sign notarial certificates using a facsimile signature stamp unless the notary public has a physical disability that limits or prohibits his or her ability to make a written signature and unless the notary public has first submitted written notice to the Department of State with an exemplar of the facsimile signature stamp.

This subsection does not apply to or prohibit the use of an electronic signature and seal by a notary public performing an electronic or online notarization in accordance with this chapter.

(9) A notary public may not notarize a signature on a document if the person whose signature is being notarized does not appear before the notary public either by means of physical presence or by means of audio-video communication technology as authorized under part II of this chapter is not in the presence of the notary public at the time the signature is notarized.

Any notary public who violates this subsection is guilty of a civil infraction, punishable by penalty not exceeding $5,000, and such violation constitutes malfeasance and misfeasance in the conduct of official duties.

It is no defense to the civil infraction specified in this subsection that the notary public acted without intent to defraud.

A notary public who violates this subsection with the intent to defraud is guilty of violating s.

117.105.

Section 6. Section 117.201, Florida Statutes, is created to read:

117.201 Definitions.—As used in this part, the term:

(1) “Appear before,” “before,” “appear personally before,” or “in the presence of” mean:

(a) In the same physical location as another person and close enough to see, hear, communicate with, and exchange credentials with that person;

or (b) In a different physical location from another person, but able to see, hear, and communicate with the person by means of audio-video communication technology.

(2) “Audio-video communication technology” means technology meeting the requirements of this part and of any rules adopted hereunder which enables real-time, two-way communication using electronic means in which participants are able to see, hear, and communicate with one another.

(3) “Credential analysis” means a process or service meeting the requirements of this part and of any rules adopted hereunder through which a third party affirms the validity of a government-issued identity credential or data thereon through review of public or proprietary data sources.

(4) “Errors and omissions insurance” means a type of insurance that provides coverage for potential errors or omissions in or relating to the notarial act.

(5) “Government-issued identity credential” means any approved credential for verifying identity under s.

117.05(5)(b)2.

(6) “Identity proofing” means a process or service meeting the requirements of this part and of any rules adopted hereunder through which a third party affirms the identity of an individual through use of public or proprietary data sources, which may include by means of knowledge-based authentication or biometric verification.

(7) “Knowledge-based authentication” means a form of identity proofing based on a set of questions formulated from public and proprietary data sources for which the principal has not provided a previous answer.

(8) “Online notarization” means the performance of an electronic notarization by means of audio-video communication technology and which meets the requirements of this chapter and of any rules adopted hereunder.

(9) “Online notary public” means a notary public who has registered with the Executive Office of the Governor to perform online notarizations under this part, a civil-law notary appointed under chapter 118, or a commissioner of deeds appointed under part IV of chapter 721.

(10) “Principal” means an individual whose electronic signature is acknowledged, witnessed, or attested to in an online notarization or who takes an oath or affirmation from the online notary public.

(11) “Remote presentation” means transmission of an image of a government-issued identity credential that is of sufficient quality to enable the online notary public to identify the individual seeking the notary’s services and to perform credential analysis through audio-video communication technology.

527 Except where the context otherwise requires, any term defined in s.

668.50 has the same meaning when used in this part.

Section 7. Section 117.209, Florida Statutes, is created to read:

117.209 Authority to perform online notarizations.— (1) An online notary public may perform any of the functions authorized under part I of this chapter as an online notarization, excluding solemnizing the rites of matrimony.

(2) If a notarial act requires a principal to appear before or in the presence of the online notary public, the principal may appear before the online notary public by means of audio video communication technology that meets the requirements of this chapter and any rules adopted by the Executive Office of the Governor under s.

117.295.

(3) An online notary public may perform a notarial act as an online notarization as authorized under this chapter, regardless of the physical location of the principal at the time of the notarial act, provided the notary public is physically located in this state while performing the online notarization.

(4) The validity of an online notarization performed by an online notary public appointed in this state shall be determined by applicable laws of this state regardless of the physical location of the principal at the time of the notarial act.

Section 8. Section 117.215, Florida Statutes, is created to read:

117.215 Relation to other laws.— (1) If a provision of law requires a notary public or other authorized official of this state to notarize a signature or a statement, to take an acknowledgement of an instrument, or to administer an oath or affirmation so that a document may be sworn, made under oath, or subject to penalty of perjury, an online notarization performed in accordance with the provisions of this part and any rules adopted hereunder satisfies such requirement.

(2) If a provision of law requires a signature or an act to be witnessed, compliance with the online electronic witnessing standards prescribed in s.

117.285 and any rules adopted thereunder satisfies that requirement.

Section 9. Section 117.225, Florida Statutes, is created to read:

117.225 Registration;

qualifications.—A notary public may apply to be registered as an online notary public with the Executive Office of the Governor by:

(1) Satisfying the qualification requirements for appointment as a notary public under part I of this chapter or the qualifications for appointment as a commissioner of deeds under part IV of chapter 721.

(2) Certifying that the notary public has completed a live or online course covering the duties, obligations, and technology requirements for serving as an online notary public.

(3) Paying an online notary public application fee in the amount of $25.

(4) Submitting a registration as an online notary public to the Executive Office of the Governor, signed and sworn to by the applicant.

(5) Identifying the audio-video communication technology and identity proofing methods that the online notary public intends to use in performing online notarizations.

If the Department of State and the Agency for State Technology have established standards for approval of technology pursuant to this part, the technology and methods selected by the online notary must be in conformance with such standards.

If a form of technology conforms to the standards, the Department of State and the Agency for State Technology must approve the use of the technology.

If the Department of State and the Agency for State Technology have not yet established such standards, the online notary public must identify technologies that are consistent with the requirements of s.

117.295(2).

(6) Providing evidence satisfactory to the Executive Office of the Governor that the notary public has obtained a bond, payable to any individual harmed as a result of a breach of duty by the online notary public acting in his or her official capacity, conditioned for the due discharge of the office, in the minimum amount of $25,000 and on such terms as are specified by rule by the Department of State as reasonably necessary to protect the public.

The bond shall be approved and filed with the Department of State and executed by a surety company duly authorized to transact business in this state.

Compliance by the notary public with this requirement shall satisfy the requirement of obtaining a bond under s.

117.01(7).

(7) Providing evidence satisfactory to the Executive Office of the Governor that the notary public is covered by an errors and omissions insurance policy from an insurer authorized to transact business in this state, in the minimum amount of $1 million and on such terms as are specified by rule by the Department of State as reasonably necessary to protect the public.

Section 10. Section 117.235, Florida Statutes, is created to read:

117.235 Performance of notarial acts.— (1) An online notary public is subject to part I to the same extent as a notary public appointed and commissioned only under that part, including the provisions of s.

117.021 relating to electronic notarizations.

(2) An online notary public may perform notarial acts as provided by part I in addition to performing online notarizations as authorized and pursuant to the provisions of this part.

Section 11. Section 117.245, Florida Statutes, is created to read:

117.245 Electronic journal of online notarizations.— (1) An online notary public shall keep a secure electronic journal of electronic records notarized by the online notary public.

For each online notarization, the electronic journal entry must contain all of the following:

(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 printed 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:

1. A statement that the person is personally known to the online notary public;

2. A notation of the type of government-issued identity credential provided to the online notary public;

3. A copy of the government-issued identity credential provided;

and 4. A copy of any other identity credential or information provided.

(f) An indication that the principal satisfactorily passed the identity proofing.

(g) An indication that the government-issued identity credential satisfied the credential analysis.

(h) A recording of the audio-video communication in which:

1. The principal and any witnesses appeared before the notary public.

2. The identity of each was confirmed.

3. Electronic records were signed by the principal and any witnesses.

4. The notarial act was performed.

(i) The fee, if any, charged for the notarization.

(2) The online notary public shall take reasonable steps to:

(a) Ensure the integrity, security, and authenticity of online notarizations.

(b) Maintain a backup record of the electronic journal required by subsection (1).

(c) Protect the electronic journal, the backup record, and any other records received by the online notary public from unauthorized access or use.

(3) The electronic journal required by subsection (1) shall be maintained by the online notary public, or a custodian acting on his or her behalf, for at least 10 years after the date of the notarial act.

(4) An omitted or incomplete entry in the electronic journal does not impair the validity of the notarial act or of the electronic record notarized, but may be introduced as evidence to establish violations of this chapter;

as an indication of possible fraud, forgery, or impersonation;

or for other evidentiary purposes.

Section 12. Section 117.255, Florida Statutes, is created to read:

117.255 Use of electronic journal, signature, and seal.—An online notary public shall:

(1) Take reasonable steps to ensure that any registered device used to create an electronic signature is current and has not been revoked or terminated by the device’s issuing or registering authority.

(2) Keep his or her electronic journal, electronic signature, and electronic seal secure and under his or her sole control, which includes control in the form of access protection using passwords or codes under control of the online notary public.

The online notary public may not allow another person to use or access his or her electronic journal, electronic signature, or electronic seal.

(3) Only use an electronic signature for performing online notarization.

(4) Attach or logically associate the online notary public’s 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.

(5) Immediately notify an appropriate law enforcement agency and the Executive Office of the Governor of theft or vandalism of his or her electronic journal, electronic signature, or electronic seal.

An online notary public shall immediately notify the Executive Office of the Governor of the loss or use by another person of the online notary public’s electronic journal, electronic signature, or electronic seal.

(6) Make electronic copies, upon request, of the pertinent entries in the electronic journal and provide access to the related audio-video communication technology recordings to the parties to the electronic records notarized, and to the title agent, settlement agent, or title insurer who engaged the online notary with regard to a real estate transaction.

The online notary public may charge a reasonable fee for making and delivering electronic copies of a given series of related electronic records.

The online notary public shall disclose the amount of such fee to the requester before making the electronic copies.

Section 13. Section 117.265, Florida Statutes, is created to read:

117.265 Online notarization procedures.— (1) An online notary public physically located in this state may perform an online notarization that meets the requirements of this part regardless of whether the principal or any witnesses are physically located in this state at the time of the online notarization.

An online notarial act performed in accordance with this part is deemed to have been performed within this state and is governed by the applicable laws of this state.

(2) In performing an online notarization, an online notary public shall confirm the identity of a principal at the time that the signature is taken by using audio-video communication technology and processes that meet the requirements of this part and of any rules adopted hereunder and record the entire two-way audio-video conference session between the notary public and the principal and any witnesses.

A principal may not act in the capacity of a witness for his or her own signature in an online notarization.

(3) In performing an online notarization of a principal not located within this state, an online notary public must confirm that the principal desires for the notarial act to be performed by a Florida notary public and governed by the applicable laws of this state.

(4) An online notary public shall confirm the identity of the principal or any witness by:

(a) The online notary public’s personal knowledge of each such individual;

or (b) All of the following, as the same may be refined or supplemented in rules adopted pursuant to s.

117.295:

1. Remote presentation of a government-issued identity credential by each individual;

2. Credential analysis of each government-issued identity credential;

and 3. Identity proofing of each individual which meets the requirements of this part and of any rules adopted hereunder.

758 If the online notary public is unable to satisfy subparagraphs (b)1.-3., or if the databases consulted for identity proofing do not contain sufficient information to permit authentication, the online notary public may not perform the online notarization.

(5) The online notary public shall take reasonable steps to ensure that the audio-video communication technology used in an online notarization is secure from unauthorized interception.

(6) The electronic notarial certificate for an online notarization must include a notation that the notarization is an online notarization.

(7) Except as expressly modified in this part, the requirements of part I of this chapter apply to an online notarization and an online notary public.

(8) Any failure to comply with the procedures set forth in this section 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 this chapter;

as an indication of possible fraud, forgery, or impersonation;

or for other evidentiary purposes.

This subsection may not be construed to alter the duty of an online notary public to comply with this chapter and any rules adopted hereunder.

Section 14. Section 117.275, Florida Statutes, is created to read:

117.275 Fees for online notarization.—An online notary public or the online notary public’s employer may charge a fee, not to exceed $25, for performing an online notarization in addition to any other fees authorized under part I of this chapter.

Fees for services other than the provision of notarial acts are not governed by this section.

Section 15. Section 117.285, Florida Statutes, is created to read:

117.285 Witnessing of online notarization.—An online notary public may supervise the witnessing of electronic records by the same audio-video communication technology used for online notarization, as follows:

(1) The identity of each witness must be verified in the same manner as the identity of the principal.

(2) The witness may physically be present with the principal or remote from the principal provided the witness and principal are using audio-video communication technology.

(3) The witness is present in either physical proximity to the principal or through audio-video communication technology at the time the principal affixes the electronic signature and hears the principal make a statement to the effect that the principal has signed the electronic record.

Section 16. Section 117.295, Florida Statutes, is created to read:

117.295 Standards for electronic and online notarization;

rulemaking authority.— (1) The Legislature intends that the standards applicable to electronic notarization under s.

117.021 and for online notarization under this part reflect future improvements in technology and methods of assuring the identity of principals and the security of an electronic record.

The Department of State, in collaboration with the Agency for State Technology, may adopt rules and standards necessary to implement the requirements of this chapter and such other rules and standards as may be required to facilitate the integrity, security, and reliability of online notarization, including the minimum amounts of and required terms of bonds and errors and omissions insurance to be held by an online notary public;

education requirements for online notaries public;

standards regarding identity proofing, credential analysis, unauthorized interception, remote presentation, tamper-evident technology, and audio-video communication technology;

and may publish lists of technologies that satisfy the standards and are approved for use in online notarizations.

(2) Until the Department of State adopts applicable rules, identity proofing, credential analysis, unauthorized interception, remote presentation, tamper-evident technology, and audio-video communication technology shall be governed by the following minimum standards:

(a) Identity proofing by means of knowledge-based authentication shall have, at a minimum, the following security characteristics:

1. The principal must be presented with five or more questions with a minimum of five possible answer choices per question.

2. 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.

3. Responses to all questions must be made within a 2 minute time constraint.

4. The principal must answer a minimum of 80 percent of the questions correctly.

5. The principal may be offered one additional attempt in the event of a failed attempt.

6. During the second attempt, the principal may not be presented with more than three questions from the prior attempt.

(b) Credential analysis must confirm that the credential is valid and matches the signer’s claimed identity using one or more automated processes which scan the credential, including its format features, data, barcodes, or other security features.

(c) Tamper-evident technology requirements are deemed satisfied by use of technology that renders any subsequent change or modification to the electronic record evident.

(d) Audio-video communication technology used in completing online notarizations must meet the following requirements:

1. The signal transmission must be secure from interception, access, or viewing by anyone other than the participants communicating.

2. The technology must provide sufficient audio clarity and video resolution to enable the notary to communicate with the principal and to confirm the identity of the principal using identification methods described in s.

117.265.

866 An online notary public is not responsible for the security of the systems used by the principal or others to access the online notarization session.

Section 17. Section 117.305, Florida Statutes, is created to read:

117.305 Relation to federal law.—This part supersedes the Electronic Signatures in Global and National Commerce Act as authorized under 15 U.S.C.

s.

7002, but does not modify, limit, or supersede the requirements set forth in 15 U.S.C.

s.

7001(c) or authorize the electronic delivery of any order, notice, or document described in 15 U.S.C.

s.

7003(b).

Section 18. Present paragraph (h) of subsection (3) of section 28.222, Florida Statutes, is redesignated as paragraph (i), and a new paragraph (h) is added to that subsection, to read:

28.222 Clerk to be county recorder.— (3) The clerk of the circuit court shall record the following kinds of instruments presented to him or her for recording, upon payment of the service charges prescribed by law:

(h) Copies of any instruments originally created and executed using an electronic signature, as defined in s.

695.27, and certified to be a true and correct paper printout by a notary public in accordance with chapter 117, if the county recorder is not prepared to accept electronic documents for recording electronically.

Section 19. Subsection (1) of section 95.231, Florida Statutes, is amended to read:

95.231 Limitations where deed or will on record.— (1) Five years after the recording of an instrument required to be executed in accordance with s.

689.01;

5 years after the recording of a power of attorney accompanying and used for an instrument required to be executed in accordance with s.

689.01;

or 5 years after the probate of a will purporting to convey real property, from which it appears that the person owning the property attempted to convey, affect, or devise it, the instrument, power of attorney, or will shall be held to have its purported effect to convey, affect, or devise, the title to the real property of the person signing the instrument, as if there had been no lack of seal or seals, witness or witnesses, defect in, failure of, or absence of acknowledgment or relinquishment of dower, in the absence of fraud, adverse possession, or pending litigation.

The instrument is admissible in evidence.

A power of attorney validated under this subsection shall be valid only for the purpose of effectuating the instrument with which it was recorded.

Section 20. Section 689.01, Florida Statutes, is amended to read:

689.01 How real estate conveyed.— (1) No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, or by the party’s lawfully authorized agent, unless by will and testament, or other testamentary appointment, duly made according to law;

and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law.

No seal shall be necessary to give validity to any instrument executed in conformity with this section.

Corporations may execute any and all conveyances in accordance with the provisions of this section or ss.

692.01 and 692.02.

(2) For purposes of this chapter:

(a) 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 that meets the requirements of part II of chapter 117 and any rules adopted thereunder.

(b) The act of witnessing an electronic signature is satisfied if a witness is present either in physical proximity to the principal or by audio-video communication technology at the time the principal affixes his or her electronic signature and hears the principal make a statement acknowledging that the principal has signed the electronic record.

(3) All acts of witnessing heretofore made or taken pursuant to subsection (2) are validated and, upon recording, may not be denied to have provided constructive notice based on any alleged failure to have strictly complied with this section, as currently or previously in effect, or the laws governing notarization of instruments, including online notarization, in this state.

Section 21. Section 694.08, Florida Statutes, is amended to read:

694.08 Certain instruments validated, notwithstanding lack of seals or witnesses, or defect in acknowledgment, etc.— (1) Whenever any power of attorney has been executed and delivered, or any conveyance has been executed and delivered to any grantee by the person owning the land therein described, or conveying the same in an official or representative capacity, and has, for a period of 7 years or more been spread upon the records of the county wherein the land therein described has been or was at the time situated, and one or more subsequent conveyances of said land or parts thereof have been made, executed, delivered and recorded by parties claiming under such instrument or instruments, and such power of attorney or conveyance, or the public record thereof, shows upon its face a clear purpose and intent of the person executing the same to authorize the conveyance of said land or to convey the said land, the same shall be taken and held by all the courts of this state, in the absence of any showing of fraud, adverse possession, or pending litigation, to have authorized the conveyance of, or to have conveyed, the fee simple title, or any interest therein, of the person signing such instruments, or the person in behalf of whom the same was conveyed by a person in an official or representative capacity, to the land therein described as effectively as if there had been no defect in, failure of, or absence of the acknowledgment or the certificate of acknowledgment, if acknowledged, or the relinquishment of dower, and as if there had been no lack of the word “as” preceding the title of the person conveying in an official or representative capacity, of any seal or seals, or of any witness or witnesses, and shall likewise be taken and held by all the courts of this state to have been duly recorded so as to be admissible in evidence;

(2) Provided, however, that this section shall not apply to any conveyance the validity of which shall be contested or have been contested by suit commenced heretofore or within 1 year of the effective date of this law.

Section 22. Section 695.03, Florida Statutes, is amended to read:

695.03 Acknowledgment and proof;

validation of certain acknowledgments;

legalization or authentication before foreign officials.—To entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it, or legalized or authenticated by a civil-law notary or notary public who affixes her or his official seal, before the officers and in the following form and manner following:

(1) WITHIN THIS STATE.—An acknowledgment or a proof of a person located made within this state may be made before a judge, clerk, or deputy clerk of any court;

a United States commissioner or magistrate;

or a notary public or civil-law notary of this state, and the certificate of acknowledgment or proof must be under the seal of the court or officer, as the case may be.

The affixing of the official seal, or the electronic equivalent authorized under s.

117.021 or any other state law, conclusively establishes that the acknowledgment or proof was made in full compliance with the laws of this state.

All affidavits and acknowledgments heretofore made or taken in this manner are hereby validated.

(2) OUT OF WITHOUT THIS STATE BUT WITHIN THE UNITED STATES.—An acknowledgment or a proof of a person located outside made out of this state but within the United States may be made before an online notary public, a civil-law notary, of this state or by a commissioner of deeds appointed by the Governor of this state;

a judge or clerk of any court of the United States or of any state, territory, or district;

a United States commissioner or magistrate;

or a notary public, justice of the peace, master in chancery, or registrar or recorder of deeds of any state, territory, or district having a seal, and the certificate of acknowledgment or proof must be under the seal of the court or officer, as the case may be.

If the acknowledgment or proof is made before a notary public who does not affix a seal, it is sufficient for the notary public to type, print, or write by hand on the instrument, “I am a Notary Public of the State of ...(state)..., and my commission expires on ...(date)....” (3) OUTSIDE OF THE UNITED STATES OR WITHIN FOREIGN COUNTRIES.—An If the acknowledgment, an affidavit, an oath, a legalization, an authentication, or a proof of a person located outside the United States or is made in a foreign country, it may be made before a commissioner of deeds appointed by the Governor of this state to act in such country;

before a notary public of such foreign country, an online notary public, or a civil-law notary of this state or of such foreign country who has an official seal;

before an ambassador, envoy extraordinary, minister plenipotentiary, minister, commissioner, charge d’affaires, consul general, consul, vice consul, consular agent, or other diplomatic or consular officer of the United States appointed to reside in such country;

or before a military or naval officer authorized by 10 U.S.C.

s.

1044a the Laws or Articles of War of the United States to perform the duties of notary public, and the certificate of acknowledgment, legalization, authentication, or proof must be under the seal of the officer.

A certificate legalizing or authenticating the signature of a person executing an instrument concerning real property and to which a civil-law notary or notary public of that country has affixed her or his official seal is sufficient as an acknowledgment.

For the purposes of this section, the term “civil-law notary” means a civil-law notary as defined in chapter 118 or an official of a foreign country who has an official seal and who is authorized to make legal or lawful the execution of any document in that jurisdiction, in which jurisdiction the affixing of her or his official seal is deemed proof of the execution of the document or deed in full compliance with the laws of that jurisdiction.

(4) VALIDATION.—All affidavits, oaths, acknowledgments, legalizations, authentications, or proofs made or taken in any manner as set forth in subsections (1)-(3) are validated and upon recording may not be denied to have provided constructive notice based on any alleged failure to have strictly complied with this section, as currently or previously in effect, or the laws governing notarization of instruments.

1068 All affidavits, legalizations, authentications, and acknowledgments heretofore made or taken in the manner set forth above are hereby validated.

Section 23. Section 695.04, Florida Statutes, is amended to read:

695.04 Requirements of certificate.—The certificate of the officer before whom the acknowledgment or proof is taken, except for a certificate legalizing or authenticating the signature of a person executing an instrument concerning real property pursuant to s.

695.03(3), shall contain and set forth substantially the matter required to be done or proved to make such acknowledgment or proof effectual as set forth in s.

117.05.

Section 24. Section 695.05, Florida Statutes, is amended to read:

695.05 Certain defects cured as to acknowledgments and witnesses.—All deeds, conveyances, bills of sale, mortgages or other transfers of real or personal property within the limits of this state, heretofore or hereafter made and received bona fide and upon good consideration by any corporation, and acknowledged for record by before some officer, stockholder or other person interested in the corporation, grantee, or mortgagee as a notary public or other officer authorized to take acknowledgments of instruments for record within this state, shall be held, deemed and taken as valid as if acknowledged by the proper notary public or other officer authorized to take acknowledgments of instruments for record in this state not so interested in said corporation, grantee or mortgagee;

and said instrument whenever recorded shall be deemed notice to all persons;

provided, however, that this section shall not apply to any instrument heretofore made, the validity of which shall be contested by suit commenced within 1 year of the effective date of this law.

Section 25. Section 695.28, Florida Statutes, is amended to read:

695.28 Validity of recorded electronic documents.— (1) A document that is otherwise entitled to be recorded and that was or is submitted to the clerk of the court or county recorder by electronic or other means and accepted for recordation is deemed validly recorded and provides notice to all persons notwithstanding:

(a) That the document was received and accepted for recordation before the Department of State adopted standards implementing s.

695.27;

or (b) 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;

(c) That the document was signed, witnessed, or notarized electronically or that witnessing or notarization may have been done outside the physical presence of the notary public or principal;

or (d) That the document recorded was a certified printout of a document to which one or more electronic signatures have been affixed.

(2) This section does not alter the duty of the clerk or recorder to comply with s.

28.222, s.

695.27, or any rules adopted pursuant to those sections that section.

(3) This section does not preclude a challenge to the validity or enforceability of an instrument or electronic record based upon fraud, forgery, impersonation, duress, undue influence, minority, illegality, unconscionability, or any other basis not in the nature of those matters described in subsection (1).

Section 26. This act shall take effect January 1, 2019.