Senate Bill sb0498c1

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    Florida Senate - 2006                            CS for SB 498

    By the Committee on Commerce and Consumer Services; and
    Senator Aronberg




    577-2053-06

  1                      A bill to be entitled

  2         An act relating to domestic violence; amending

  3         s. 741.30, F.S.; providing for law enforcement

  4         officers to obtain verbal emergency protection

  5         orders immediately following incidents of

  6         domestic violence; providing for officers to

  7         reduce such orders to writing; providing for

  8         expiration of such orders; specifying

  9         procedures relating to such orders; creating s.

10         741.313, F.S.; defining the terms "domestic

11         violence," "employer," "family or household

12         member," and "victim"; requiring that an

13         employer permit an employee to take leave from

14         work to undertake activities resulting from an

15         act of domestic violence; specifying the

16         activities for which the employee may take

17         leave; requiring the employee to notify the

18         employer of the leave; providing exceptions;

19         requiring that an employer keep information

20         relating to the employee's leave confidential;

21         prohibiting an employer from taking certain

22         actions against the employee for exercising

23         rights specified in the act; providing a

24         recourse for violation of the act; amending s.

25         943.1702, F.S.; requiring collection of

26         statistics on noncriminal judicial actions

27         concerning domestic violence; providing an

28         effective date.

29  

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

31  

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    Florida Senate - 2006                            CS for SB 498
    577-2053-06




 1         Section 1.  Subsection (5) of section 741.30, Florida

 2  Statutes, is amended to read:

 3         741.30  Domestic violence injunctions; injunction;

 4  powers and duties of court and clerk; petition; notice and

 5  hearing; temporary injunction; issuance of injunction;

 6  statewide verification system; enforcement.--

 7         (5)(a)1.a.  In an emergency situation immediately

 8  following an incident of domestic violence by a household

 9  member, an emergency protection order may be issued if a law

10  enforcement officer states under oath to the court in person,

11  by telephone, in writing, or via facsimile the facts he or she

12  believes show that an emergency protection order is needed and

13  the court finds reasonable grounds to believe that the victim

14  or the victim's child is in immediate danger of domestic

15  violence. Such an emergency protection order expires 72 hours

16  after issuance or at the end of the next judicial day,

17  whichever time is later, or upon request of the victim. The

18  time of expiration shall be clearly stated on the emergency

19  protection order.

20         b.  Following the judge's issuance of the emergency

21  protection order, the law enforcement officer shall:

22         (I)  If the order is verbal, reduce the emergency

23  protection order to writing on an approved form provided by

24  the court, outline the grounds justifying issuance, and sign

25  and date the order.

26         (II)  If possible, serve a signed copy of the order on

27  the offender and victim at the scene of the domestic violence

28  dispute.

29         (III)  Complete the appropriate affidavit of service

30  and file the affidavit with the issuing court by the close of

31  business on the next judicial day.

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    Florida Senate - 2006                            CS for SB 498
    577-2053-06




 1         (IV)  If the order was reduced to writing and signed by

 2  the officer, file the original, signed emergency order with

 3  the issuing court by the close of business on the next

 4  judicial day.

 5         2.  In a nonemergency situation, but when it appears to

 6  the court that an immediate and present danger of domestic

 7  violence exists, the court may grant a temporary injunction ex

 8  parte, pending a full hearing.

 9         (b)  In either an emergency protection order or an ex

10  parte temporary injunction order, the court, and may grant

11  such relief as it the court deems proper, including an

12  injunction:

13         1.  Restraining the respondent from committing any acts

14  of domestic violence.

15         2.  Awarding to the petitioner the temporary exclusive

16  use and possession of the dwelling that the parties share or

17  excluding the respondent from the residence of the petitioner.

18         3.  On the same basis as provided in s. 61.13, granting

19  to the petitioner temporary custody of a minor child. An order

20  of temporary custody remains in effect until the order expires

21  or an order is entered by a court of competent jurisdiction in

22  a pending or subsequent civil action or proceeding affecting

23  the placement of, access to, parental time with, adoption of,

24  or parental rights and responsibilities for the minor child.

25         (c)(b)  In a hearing ex parte for the purpose of

26  obtaining an such ex parte temporary injunction, no evidence

27  other than verified pleadings or affidavits shall be used as

28  evidence, unless the respondent appears at the hearing or has

29  received reasonable notice of the hearing. A denial of a

30  petition for an ex parte injunction shall be by written order

31  noting the legal grounds for denial. When the only ground for

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    Florida Senate - 2006                            CS for SB 498
    577-2053-06




 1  denial is no appearance of an immediate and present danger of

 2  domestic violence, the court shall set a full hearing on the

 3  petition for injunction with notice at the earliest possible

 4  time. Nothing herein affects a petitioner's right to promptly

 5  amend any petition, or otherwise be heard in person on any

 6  petition consistent with the Florida Rules of Civil Procedure.

 7         (d)(c)  Except for emergency protection orders issued

 8  under subparagraph (a)1., an Any such ex parte temporary

 9  injunction shall be effective for a fixed period not to exceed

10  15 days. A full hearing, as provided by this section, shall be

11  set for a date no later than the date when the emergency

12  protection order or ex parte temporary injunction ceases to be

13  effective. The court may grant a continuance of the hearing

14  before or during a hearing for good cause shown by any party,

15  which shall include a continuance to obtain service of

16  process. Any emergency protection order or ex parte temporary

17  injunction shall be extended if necessary to remain in full

18  force and effect during any period of continuance.

19         Section 2.  Section 741.313, Florida Statutes, is

20  created to read:

21         741.313  Unlawful action against employees seeking

22  protection.--

23         (1)  As used in this section, the term:

24         (a)  "Domestic violence" means domestic violence, as

25  defined in s. 741.28(2), or any crime the underlying factual

26  basis of which has been found by a court to include an act of

27  domestic violence.

28         (b)  "Employer" has the same meaning as in s.

29  440.02(16)(a).

30         (c)  "Family or household member" has the same meaning

31  as in s. 741.28.

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    Florida Senate - 2006                            CS for SB 498
    577-2053-06




 1         (d)  "Victim" means an individual who has been

 2  subjected to domestic violence.

 3         (2)(a)  An employer shall permit an employee to request

 4  or take up to 3 working days of leave from work in any 90-day

 5  period if the employee or a family or household member of an

 6  employee is the victim of domestic violence. This leave may be

 7  with or without pay, at the discretion of the employer.

 8         (b)  This section applies if an employee uses the leave

 9  from work to:

10         1.  Seek an injunction for protection against domestic

11  violence or an injunction for protection in cases of repeat

12  violence, dating violence, or sexual violence;

13         2.  Obtain medical care or mental health counseling, or

14  both, for the employee or a family or household member to

15  address physical or psychological injuries resulting from the

16  act of domestic violence;

17         3.  Obtain services from a victim-services

18  organization, including, but not limited to, a domestic

19  violence shelter, program, or a rape crisis center as a result

20  of the act of domestic violence;

21         4.  Make the employee's home secure from the

22  perpetrator of the domestic violence or to seek new housing to

23  escape the perpetrator; or

24         5.  Seek legal assistance to address issues arising

25  from the act of domestic violence and to attend and prepare

26  for court-related proceedings arising from the act of domestic

27  violence.

28         (3)  This section applies to an employer who employs 50

29  or more employees and to an employee who has been employed by

30  the employer for 12 or more months.

31  

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    Florida Senate - 2006                            CS for SB 498
    577-2053-06




 1         (4)(a)  Except in cases of imminent danger to the

 2  health or safety of the employee, or to the health or safety

 3  of a family or household member, an employee seeking leave

 4  from work under this section must provide his or her employer

 5  with appropriate advance notice of the leave as may be

 6  required by the employer's policy and with sufficient

 7  documentation of the act of domestic violence as may be

 8  required by the employer.

 9         (b)  An employee seeking leave under this section must,

10  before receiving the leave, exhaust all annual or vacation

11  leave, personal leave, and sick leave, if applicable, which is

12  available to the employee, unless the employer waives this

13  requirement.

14         (c)1.  A private employer must keep all information

15  relating to the employee's leave under this section

16  confidential.

17         2.  An agency, as defined in s. 119.011, must keep all

18  information relating to the employee's leave under this

19  section confidential and exempt pursuant to this section.

20         (5)(a)  An employer may not interfere with, restrain,

21  or deny the exercise of or any attempt by an employee to

22  exercise any right provided under this section.

23         (b)  An employer may not discharge, demote, suspend,

24  retaliate, or in any other manner discriminate against an

25  employee for exercising his or her rights under this section.

26         (c)  An employee has no greater rights to continued

27  employment or to other benefits and conditions of employment

28  than if the employee was not entitled to leave under this

29  section. This section does not limit the employer's right to

30  discipline or terminate any employee for any reason,

31  including, but not limited to, reductions in work force or

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    Florida Senate - 2006                            CS for SB 498
    577-2053-06




 1  termination for cause or for no reason at all, other than

 2  exercising his or her rights under this section.

 3         (6)  Notwithstanding any other law to the contrary, the

 4  sole remedy for any person claiming to be aggrieved by a

 5  violation of this section is to bring a civil suit for damages

 6  or equitable relief, or both, in circuit court. The person may

 7  claim as damages all wages and benefits that would have been

 8  due the person up to and including the date of the judgment

 9  had the act violating this section not occurred, but the

10  person may not claim wages or benefits for a period of leave

11  granted without pay as provided in paragraph (2)(a). However,

12  this section does not relieve the person from the obligation

13  to mitigate his or her damages.

14         Section 3.  Subsection (2) of section 943.1702, Florida

15  Statutes, is amended to read:

16         943.1702  Collection of statistics on domestic

17  violence.--

18         (2)  Each agency in the state which is involved with

19  the enforcement, monitoring, or prosecution of crimes of

20  domestic violence or, as to noncriminal actions related to

21  domestic violence, including petitions seeking injunctions for

22  protection, the judicial branch shall collect and maintain

23  records of each domestic violence incident for access by

24  investigators preparing for bond hearings and prosecutions for

25  acts of domestic violence. This information shall be provided

26  to the court at first appearance hearings and all subsequent

27  hearings.

28         Section 4.  This act shall take effect July 1, 2006.

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    Florida Senate - 2006                            CS for SB 498
    577-2053-06




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 498

 3                                 

 4  This committee substitute differs from the bill as filed in
    the following manner:
 5  
    -    Permits a court to issue an emergency protection order
 6       immediately following an incident of domestic violence
         based on a law enforcement officer's attestation of facts
 7       demonstrating a need for the order and a court's finding
         of reasonable grounds for the order;
 8  
    -    Gives courts the discretion to grant the same relief as
 9       currently provided through temporary injunctions;

10  -    Provides that emergency protection orders expire 72 hours
         after issuance or at the end of the next judicial day,
11       whichever is later, or at the request of the victim;

12  -    Requires employers to allow employees to take up to three
         working days of leave, with or without pay, within a
13       90-day period rather than 12 months; and

14  -    Requires the judicial branch to collect and maintain
         records regarding noncriminal actions related to domestic
15       violence, including petitions seeking injunctions for
         protection, for access by investigators preparing for
16       bond hearings and prosecutions for acts of domestic
         violence.
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