a. Registration Requirements
Florida Statute sections 117.201 to 117.305 went into effect on January 1, 2020. These provisions authorize Florida notaries to perform online remote notarizations after they complete an application and training course. It is essential for existing notaries to familiarize themselves with the following statutory requirements:2
- The individual must be an existing notary public.3 Importantly, the remote online notary commission expires with the traditional notary public commission.
- Prior to registering to become an online notary, the notary must register with a third-party vendor to provide the technological support necessary to become an online notary.
- The notary must complete an online education-training course and receive a certificate to be submitted with the registration.
- The notary must then proceed to complete the registration.
Once the notary completes the registration requirements, they may begin to remotely perform notarial acts.
b. Remote Online Notarizations4
The statute allows for remote online notarizations – that is, the notary and the person verifying the content of a document are not required to be in the same room. The statute defines “online notarization” as “the performance of a notarial act using electronic means in which the principal appears before the notary public by means of audio-video communication technology.”5 The person whose signature the online notary is electronically verifying is the “principal,”6 while the individual performing the notarial act is referred to as the “online notary public.”7
1. Electronic Signatures Allowed
Wet signatures are not required under the statute. An online notary may notarize an electronic signature.8 The statute incorporates the definition of electronic signature under the Uniform Electronic Transaction Act (UETA).9 The UETA, defines “electronic signature” as an “electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”10
2. Audio-Video Communication Technology
As noted, a remote notarial act under the statute must be performed via “audio-video communication technology.” This is defined as “technology in compliance with applicable law which enables real-time, two-way communication using electronic means in which participants are able to see, hear, and communicate with one another.”11 This is likely to encompass FaceTime, Zoom, and Skype as falling squarely within the definition of audio-video communication.12
3. Performing Notarial Acts for Out-Of-State Principals
Of further relevance in the wake of COVID-19 is the online notary’s ability to perform notarial acts even when the principal is not located in Florida. Specifically, an online notary may perform a remote notarization regardless of the location of the principal or witness (when required by law), and Florida law would govern the validity of the notarization.13
c. COVID-19 and Remote Online Notarization Is a Useful Tool
Working remotely is a new normal in the wake of the COVID-19 pandemic. As the government continues to impose business, social, and travel restrictions to battle the pandemic, the statute is a welcome convenience for businesses that notarize documents as a routine part of their operations.
- Florida Statute sections 117.201 to 117.305.
- Florida department of State, “Remote Online Notary Public,” sunbiz.org. The statute itself also provides procedural details on becoming a notary public.
- An online notary public must be an existing notary public prior to applying to become an online notary public; therefore, an online notary public must comply with the rules and regulations applicable to traditional notaries, along with those imposed by the newly enacted remote online notarization statute. For example, the online notary is still required to confirm the identity of the principal and any witnesses present. See Florida Statute section 117.209.
- This section only provides an overview of the most prominent statutory provisions based on questions that have been posed by clients. It does not provide an overview of the entire statute. This section must be read in conjunction with the statute.
- Florida Statute section 117.201(9).
- Florida Statute section 117.201(12) (Principal means “an individual whose electronic signature is acknowledged, witnessed, or attested to in an online notarization or who makes an oath or affirmation administered by the online notary public”)(emphasis added).
- Florida Statute section 117.201(10).
- See Florida Statute section 117.201(12); Florida Statute section 117.201(4); Florida Statute section 668.50(2)(h).
- Id.
- Florida Statute section 668.50(2)(h).
- Florida Statute section 117.201(2).
- Florida courts have yet to interpret the statute; therefore, whether FaceTime, Zoom, or Skype qualify as audio-video communication technology is still up for interpretation.
- Florida Statute section 117.209(3)-(4). However, section 117.265(3), requires an online notary performing an online notarization of a principal not located in Florida to confirm, either verbally or through the principal’s written consent, that the principal desires the notarial act to be performed by a Florida notary under Florida law.
Client Alert 2020-178
