Finally, the Department of Banking and Finance was charged with interpreting and enforcing the Code. The following year, on February 24, 1995, the Florida Check Cashiers Association (FCCA), a group representing the Florida check cashing industry, solicited and received an informal opinion letter from the Department of Banking and Finance concerning certain deferred check cashing practices. Our conclusion is based upon a plain reading of the language of the original version of the Code enacted in 1994 and a similar reading of the 2001 version of the Code, as well as the terms of Florida's usury laws. Furthermore, “[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Id. When the Money Transmitters' Code was enacted in 1994, it defined a “money transmitter” as “any person located in or doing business in this state who acts as a payment instrument seller, foreign currency exchanger, check casher, or funds transmitter.” § 560.103(10), Fla. The term “sell” was defined as “to sell, issue, provide, or deliver.” § 560.103(19).
The Department's letter stated that “Chapter 560, Florida Statutes, does not explicitly prohibit the concept of deferred deposits” so long as the service would be offered and managed in accordance with the provisions and fee caps of the Code. 3C-560.801 (transferred to R.69V-560.801), 3C-560.803 (repealed 2001), and 3C-560.905 (transferred to R.69V-560.905). In 2001, Betts filed an administrative challenge to Department rule 3C-560.803, Fla. Code, claiming that the rule, in seeming to authorize the acceptance of postdated checks by a check casher, was an invalid exercise of delegated legislative authority; furthermore, the rule improperly enlarged, modified, or contravened specific provisions of the Code it was meant to implement. When construing the meaning of a statute, we must first look at its plain language. A “payment instrument” meant “a check, draft, warrant, money order, travelers check or other instrument or payment of money, whether or not negotiable.” § 560.103(14) (emphasis added).
In referencing deferred presentment transaction practices, the letter described the limitations on fees that can be charged by check cashers and explicitly referenced Florida's Usury Law in section 687.02, Florida Statutes (1997), stating that “it is illegal to charge a higher rate of interest than 18 percent per annum simple interest. In the absence of statutory authorization for these types of transactions, cashing a check or exchanging currency for a fee outside the scope of Chapter 560, Florida Statutes, would constitute a loan, subject to the usury provisions of Chapter 687, Florida Statutes. Therefore, we conclude the check cashing transaction contemplated by the Code is a straightforward payment of money in exchange for a check and not an authorization to process loans outside Florida's usury laws. Moreover, “rollover” was defined as “the termination or extension of an existing deferred presentment agreement by the payment of any additional fee and the continued holding of the check, or the substitution of a new check drawn by the drawer pursuant to a new deferred presentment agreement.” § 560.402(8).
Any ‘rollover,’ ‘extension’ or ‘renewal’ of a deferred deposit check for an additional fee may constitute interest.” In the final paragraph of the letter, the Department put Advance America on notice that the Department would fully enforce chapter 560 and that Advance America should “refrain from issuing payment instruments [for which it is] not properly licensed.”On May 1, 2000, the Florida Attorney General's Office issued an advisory legal opinion to the Comptroller of Florida in response to the question: “Are so-called ‘payday loans' or like transactions subject to the state laws prohibiting usurious rates of interest? As noted above, the Code was amended by the passage of the Deferred Presentment Act in 2001. Additionally, “termination of an existing deferred presentment agreement” was defined as:[T]he check that is the basis for an agreement is redeemed by the drawer by payment in full in cash, or is deposited and the deferred presentment provider has evidence that such check has cleared.
A verification of sufficient funds in the drawer's account by the deferred presentment provider shall not be sufficient evidence to deem the existing deferred deposit transaction to be terminated.§ 560.402(10).
Importantly, Part IV of chapter 560, as amended in 2001, imposes strict requirements for deferred presentment transactions.
Nor am I persuaded that the passage of the “Deferred Presentment Act” in October 2001 was intended by the legislature to confirm the prior legality of the practice.
A deferred presentment provider shall not redeem, extend, or otherwise consolidate a deferred presentment agreement with the proceeds of another deferred presentment transaction made by the same or an affiliated deferred presentment provider.Subsequently, on September 24, 1997, the Department adopted rules regulating check cashing transactions. On May 5, 1998, the Department sent a letter to Advance America, Cash Advance Centers of Florida, Inc., regarding cashing checks, fees associated with deferred deposit checks, and rollover transactions of deferred deposit checks. The opinion stated:“Payday loans” or like transactions are subject to the state laws prohibiting usurious rates of interest. After a hearing, an Administrative Law Judge (ALJ) upheld the rule, finding it did not enlarge, modify, or contravene the Code and it was a proper exercise of delegated legislative authority. Moreover, the term “cashing” was also defined in the Code as “providing currency for payment instruments, except for travelers checks and foreign-drawn payment instruments.” § 560.302(1).These rules permitted a check casher to accept a postdated check, and capped the transaction fees for such transactions at ten percent and the verification fees at five dollars. This letter stated that customers cashing checks must receive currency, not another check or other type of payment instrument. A company registered under Chapter 560, Florida Statutes, may cash personal checks for the fees prescribed in that chapter without violating the usury laws only if such transactions are concluded and are not extended, renewed or continued in any manner with the imposition of additional fees.․Thus, to the extent that a transaction comports with the provisions of this act [chapter 560], it would not violate the usury provisions in Chapter 687, Florida Statutes. The Code's language explicitly provides, by the use of “in exchange for” and “for,” that the check for cash transaction would be a contemporaneous one. For example, the statute contemplates that a person may have to pay a fee for an authorized entity to cash a check, and the entity would then give the person money in exchange for the check. In the Deferred Presentment Act, a “deferred presentment transaction” was defined as “providing currency or a payment instrument in exchange for a person's check and agreeing to hold that person's check for a period of time prior to presentment, deposit, or redemption.” § 560.402(6). We approve the holding of the Fourth District in Mc Kenzie that the Legislature did not approve or authorize such transactions when it created the Code in 1994 and that these transactions are, in effect, loans subject to Florida's usury laws. The issue before this Court is whether chapter 560, Florida Statutes (Supp.1994), which is titled the “Money Transmitters' Code” (herein referred to as “the Code”), authorized certain financial transactions referred to as deferred presentment transactions.