One of the less publicized bills of the 2019 Florida session is House Bill (HB) 409. As yet, it has not been signed by the Governor. If signed, it will put Florida among 21 states that have adopted this process. (ed. note June 7, 2019, bill signed by Governor DeSantis).
It is worthy of discussion even though it is not a workers' compensation bill. In 2017, I penned What is a Signature. That post discussed the electronic signature and mentioned the developing practice of "notary and signing authentication services over the Internet." In those instances, the person signing has her or his identity confirmed in a video conference. It also mentioned the Uniform Electronic Transaction Act (UETA), Section 668.50, Florida Statutes, and Rule 60Q6.102(6).
HB409 is specific to the function of notary public services. Notary public are mentioned in Section 440.30, Fla. Stat. That is the only mention in Chapter 440. However, there are various instances in which "sworn" or "verified" are used. These include 440.25(5)(b)("sworn" and "verified"), 440.381(4)("sworn"), 440.525(3)("sworn"). There are also mentions of "sworn" or "verified" in the 60Q Rules of Procedure for Workers’ Compensation Adjudications. These include Rule 60Q6.123(1)(a)7.("sworn"), Rule 60Q6.123(2)(a)6.("sworn"), Rule 60Q6.105(4)("verified"), Rule 60Q6.124(3)(a) and (b)("verified"), Rule 60Q6.124(4)("verified"), Rule 60Q6.124(5)(a) and (b)("verified").
Thus, there are occasions when involvement of a notary may be necessary. There is also a practice of using a notary with joint petitions for lump-sum resolution. Those are most often accompanied by an affidavit of the injured worker, and those joint petitions are regularly notarized. Therefore, there is a probability that the changes to Chapter 117 in HB409 will impact some aspects of the workers' compensation process in Florida.
The bill clarifies that a notary must be "within the boundaries of this state" (L159). All notaries "shall use an electronic signature" if "performing an electronic notary act." That electronic signature must be secured "through the use of passwords or codes." (L170-172). But, whether to perform such services electronically is strictly up to the notary, who cannot be "required" "to perform a notarial act" "with a form of technology that the notary public has not selected." (L176-178). The notary must complete a "jurat" attesting to the signature on the document. The bill adds to that jurat requirement that the signatory appeared "by physical presence or by means of audio-video communication technology." (L-217-219). There is clear stress on the video requirement. Section 117.107(9)(L513-515). Telephonic notarization is not authorized by this bill.
The statute provides forms for attestations as well as delineating questions that must be "asked by the online notary," "in substantially" the form stated in the statute." There are also various definitions provided by the statute. Of particular note, Section 117.201(4) synchronizes with the UETA:
"'Electronic,' 'electronic record,' or 'electronic signature' has the same meaning as provided in s. 668.50." (L544-545).
The law will also require the Department of State 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." (L180-183).
It also empowers the Department of State to adopt rules pursuant to Section 117.295 regarding what "audio-video communication technology . . . meets the requirements" of the statute. (L590-591).
The statute has provided for the notary to make photocopies of documents and to provide a certificate attesting that the copy is a true copy. The bill expands that authority, allowing the notary to make a copy "of a tangible or an electronic record or the printing of an electronic record." (L306-308). This may have an impact in the trial of workers' compensation matters, and otherwise, where printed copies of an Internet website are desired as evidence.
Location may be important. The bill clarifies that a notary in Florida can perform these functions electronically regardless of whether the signatory is "physically located in this state at the time of the online notarization." And, the validity of such notary services is determined by Florida law, similarly regardless of the signatory's location. (L622-626).
The ability to perform services electronically is not automatic. The notary must complete training and be registered as an "online notary public." (L657-659). And, the notary must keep an "electronic journal" of those occasions in which electronic methods were used. Furthermore, the journal and the recordings of the video conference for such notarization must be kept for 10 years (L-753-755).
In time, the use of online notaries is likely to become ubiquitous. The Florida bill has not been signed yet by the Governor. However, in the event that it is, the law will be effective January 1, 2020. (L1926).
