Florida Senate - 2018 SB 546
By Senator Garcia
36-00520-18 2018546__
1 A bill to be entitled
2 An act relating to transmission of disease through
3 bodily fluids; providing a short title; amending s.
4 381.0041, F.S.; providing an exception to allow the
5 donation of blood, plasma, organs, skin, or other
6 human tissue by certain persons when deemed medically
7 appropriate by a licensed physician; reclassifying a
8 criminal offense relating to such donations; amending
9 s. 384.23, F.S.; defining the terms “sexual conduct”
10 and “substantial risk of transmission”; amending s.
11 384.24, F.S.; expanding the scope of unlawful acts by
12 a person infected with a sexually transmissible
13 disease; expanding the list of sexually transmissible
14 diseases to include human immunodeficiency virus
15 infections; specifying that a certain act is unlawful
16 if the person committing the offense acts with the
17 intent to transmit a specified disease, engages in
18 conduct that poses a substantial risk of transmission
19 of that disease to another person who is unaware that
20 the person who transmits the disease is a carrier of
21 the disease, and actually transmits the disease;
22 providing that certain actions are not sufficient to
23 establish intent on the part of the person who
24 transmits the disease; defining the term “behavioral
25 recommendations”; amending s. 384.34, F.S.;
26 reclassifying specified criminal offenses; eliminating
27 a fine for specified rule violations; amending ss.
28 775.0877 and 921.0022, F.S.; conforming provisions to
29 changes made by the act; providing an effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
32
33 Section 1. This act shall be known as the “HIV Prevention
34 Justice Act.”
35 Section 2. Paragraph (b) of subsection (11) of section
36 381.0041, Florida Statutes, is amended to read:
37 381.0041 Donation and transfer of human tissue; testing
38 requirements.—
39 (11)
40 (b) Except when the donation is deemed medically
41 appropriate by a licensed physician, any person who has human
42 immunodeficiency virus infection, who knows he or she is
43 infected with human immunodeficiency virus, and who has been
44 informed that he or she may communicate this disease by donating
45 blood, plasma, organs, skin, or other human tissue who donates
46 blood, plasma, organs, skin, or other human tissue commits is
47 guilty of a misdemeanor felony of the first third degree,
48 punishable as provided in s. 775.082 or, s. 775.083, or s.
49 775.084.
50 Section 3. Present subsection (3) of section 384.23,
51 Florida Statutes, is redesignated as subsection (4) and a new
52 subsection (3) and subsection (5) are added to that section, to
53 read:
54 384.23 Definitions.—
55 (3) “Sexual conduct” means conduct between persons,
56 regardless of gender, which is capable of transmitting a
57 sexually transmissible disease, including, but not limited to,
58 contact between a:
59 (a) Penis and a vulva or an anus; or
60 (b) Mouth and a penis, a vulva, or an anus.
61 (5) “Substantial risk of transmission” means a reasonable
62 probability of disease transmission as proven by competent
63 medical or epidemiological evidence.
64 Section 4. Section 384.24, Florida Statutes, is amended to
65 read:
66 384.24 Unlawful acts.—
67 (1) It is unlawful for any person who has chancroid,
68 gonorrhea, granuloma inguinale, lymphogranuloma venereum,
69 genital herpes simplex, chlamydia, nongonococcal urethritis
70 (NGU), pelvic inflammatory disease (PID)/acute salpingitis, or
71 syphilis, or human immunodeficiency virus infection, when such
72 person knows he or she is infected with one or more of these
73 diseases and when such person has been informed that he or she
74 may communicate this disease to another person through sexual
75 conduct intercourse, to act with the intent to transmit the
76 disease, to engage in have sexual conduct that poses a
77 substantial risk of transmission to another person when the
78 intercourse with any other person is unaware that the person is
79 a carrier of the disease, and to transmit the disease to the,
80 unless such other person has been informed of the presence of
81 the sexually transmissible disease and has consented to the
82 sexual intercourse.
83 (2) A person does not act with the intent required in
84 subsection (1) if he or she in good faith complies with a
85 treatment regimen prescribed by his or her health care provider
86 or with the behavioral recommendations of his or her health care
87 provider or public health officials to limit the risk of
88 transmission, or if he or she offers to comply with such
89 behavioral recommendations, but that offer is rejected by the
90 other person. For purposes of this section, the term “behavioral
91 recommendations” includes, but is not limited to, the use of a
92 prophylactic device to limit the risk of transmission of the
93 disease. Evidence of the person’s failure to comply with such a
94 treatment regimen or such behavioral recommendations is not, in
95 and of itself, sufficient to establish that he or she acted with
96 the intent required under subsection (1) It is unlawful for any
97 person who has human immunodeficiency virus infection, when such
98 person knows he or she is infected with this disease and when
99 such person has been informed that he or she may communicate
100 this disease to another person through sexual intercourse, to
101 have sexual intercourse with any other person, unless such other
102 person has been informed of the presence of the sexually
103 transmissible disease and has consented to the sexual
104 intercourse.
105 Section 5. Section 384.34, Florida Statutes, is amended to
106 read:
107 384.34 Penalties.—
108 (1) Any person who violates s. 384.24 the provisions of s.
109 384.24(1) commits a misdemeanor of the first degree, punishable
110 as provided in s. 775.082 or s. 775.083.
111 (2) Any person who violates the provisions of s. 384.26 or
112 s. 384.29 commits a misdemeanor of the first degree, punishable
113 as provided in s. 775.082 or s. 775.083.
114 (3) Any person who maliciously disseminates any false
115 information or report concerning the existence of any sexually
116 transmissible disease commits a misdemeanor felony of the first
117 third degree, punishable as provided in s. 775.082 or s. 775.083
118 ss. 775.082, 775.083, and 775.084.
119 (4) Any person who violates the provisions of the
120 department’s rules pertaining to sexually transmissible diseases
121 may be punished by a fine not to exceed $500 for each violation.
122 Any penalties enforced under this subsection shall be in
123 addition to other penalties provided by this chapter. The
124 department may enforce this section and adopt rules necessary to
125 administer this section.
126 (5) Any person who violates s. 384.24(2) commits a felony
127 of the third degree, punishable as provided in s. 775.082, s.
128 775.083, or s. 775.084. Any person who commits multiple
129 violations of s. 384.24(2) commits a felony of the first degree,
130 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
131 (6) Any person who obtains information that identifies an
132 individual who has a sexually transmissible disease, who knew or
133 should have known the nature of the information and maliciously,
134 or for monetary gain, disseminates this information or otherwise
135 makes this information known to any other person, except by
136 providing it either to a physician or nurse employed by the
137 Department of Health or to a law enforcement agency, commits a
138 misdemeanor felony of the first third degree, punishable as
139 provided in s. 775.082 or, s. 775.083, or s. 775.084.
140 Section 6. Subsections (1) and (3) of section 775.0877,
141 Florida Statutes, are amended to read:
142 775.0877 Criminal transmission of HIV; procedures;
143 penalties.—
144 (1) In any case in which a person has been convicted of or
145 has pled nolo contendere or guilty to, regardless of whether
146 adjudication is withheld, any of the following offenses, or the
147 attempt thereof, which offense or attempted offense involves the
148 transmission of body fluids from one person to another:
149 (a) Section 794.011, relating to sexual battery;
150 (b) Section 826.04, relating to incest;
151 (c) Section 800.04, relating to lewd or lascivious offenses
152 committed upon or in the presence of persons less than 16 years
153 of age;
154 (d) Sections 784.011, 784.07(2)(a), and 784.08(2)(d),
155 relating to assault;
156 (e) Sections 784.021, 784.07(2)(c), and 784.08(2)(b),
157 relating to aggravated assault;
158 (f) Sections 784.03, 784.07(2)(b), and 784.08(2)(c),
159 relating to battery;
160 (g) Sections 784.045, 784.07(2)(d), and 784.08(2)(a),
161 relating to aggravated battery;
162 (h) Section 827.03(2)(c), relating to child abuse;
163 (i) Section 827.03(2)(a), relating to aggravated child
164 abuse;
165 (j) Section 825.102(1), relating to abuse of an elderly
166 person or disabled adult;
167 (k) Section 825.102(2), relating to aggravated abuse of an
168 elderly person or disabled adult;
169 (l) Section 827.071, relating to sexual performance by
170 person less than 18 years of age;
171 (m) Sections 796.07 and 796.08, relating to prostitution;
172 or
173 (n) Section 381.0041(11)(b), relating to donation of blood,
174 plasma, organs, skin, or other human tissue; or
175 (o) Sections 787.06(3)(b), (d), (f), and (g), relating to
176 human trafficking,
177
178 the court shall order the offender to undergo HIV testing, to be
179 performed under the direction of the Department of Health in
180 accordance with s. 381.004, unless the offender has undergone
181 HIV testing voluntarily or pursuant to procedures established in
182 s. 381.004(2)(h)6. or s. 951.27, or any other applicable law or
183 rule providing for HIV testing of criminal offenders or inmates,
184 subsequent to her or his arrest for an offense enumerated in
185 paragraphs (a)-(n) for which she or he was convicted or to which
186 she or he pled nolo contendere or guilty. The results of an HIV
187 test performed on an offender pursuant to this subsection are
188 not admissible in any criminal proceeding arising out of the
189 alleged offense.
190 (3) An offender who has undergone HIV testing pursuant to
191 subsection (1), and to whom positive test results have been
192 disclosed pursuant to subsection (2), who commits a second or
193 subsequent offense enumerated in paragraphs (1)(a)-(n), commits
194 criminal transmission of HIV, a misdemeanor felony of the first
195 third degree, punishable as provided in s. 775.082 or, s.
196 775.083, or s. 775.084. A person may be convicted and sentenced
197 separately for a violation of this subsection and for the
198 underlying crime enumerated in paragraphs (1)(a)-(n).
199 Section 7. Paragraph (e) of subsection (3) of section
200 921.0022, Florida Statutes, is amended to read:
201 921.0022 Criminal Punishment Code; offense severity ranking
202 chart.—
203 (3) OFFENSE SEVERITY RANKING CHART
204 (e) LEVEL 5
205
206 FloridaStatute FelonyDegree Description
207 316.027(2)(a) 3rd Accidents involving personal injuries other than serious bodily injury, failure to stop; leaving scene.
208 316.1935(4)(a) 2nd Aggravated fleeing or eluding.
209 316.80(2) 2nd Unlawful conveyance of fuel; obtaining fuel fraudulently.
210 322.34(6) 3rd Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
211 327.30(5) 3rd Vessel accidents involving personal injury; leaving scene.
212 379.365(2)(c)1. 3rd Violation of rules relating to: willful molestation of stone crab traps, lines, or buoys; illegal bartering, trading, or sale, conspiring or aiding in such barter, trade, or sale, or supplying, agreeing to supply, aiding in supplying, or giving away stone crab trap tags or certificates; making, altering, forging, counterfeiting, or reproducing stone crab trap tags; possession of forged, counterfeit, or imitation stone crab trap tags; and engaging in the commercial harvest of stone crabs while license is suspended or revoked.
213 379.367(4) 3rd Willful molestation of a commercial harvester’s spiny lobster trap, line, or buoy.
214 379.407(5)(b)3. 3rd Possession of 100 or more undersized spiny lobsters.
215 381.0041(11)(b) 3rd Donate blood, plasma, or organs knowing HIV positive.
216 440.10(1)(g) 2nd Failure to obtain workers’ compensation coverage.
217 440.105(5) 2nd Unlawful solicitation for the purpose of making workers’ compensation claims.
218 440.381(2) 2nd Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
219 624.401(4)(b)2. 2nd Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
220 626.902(1)(c) 2nd Representing an unauthorized insurer; repeat offender.
221 790.01(2) 3rd Carrying a concealed firearm.
222 790.162 2nd Threat to throw or discharge destructive device.
223 790.163(1) 2nd False report of bomb, explosive, weapon of mass destruction, or use of firearms in violent manner.
224 790.221(1) 2nd Possession of short-barreled shotgun or machine gun.
225 790.23 2nd Felons in possession of firearms, ammunition, or electronic weapons or devices.
226 796.05(1) 2nd Live on earnings of a prostitute; 1st offense.
227 800.04(6)(c) 3rd Lewd or lascivious conduct; offender less than 18 years of age.
228 800.04(7)(b) 2nd Lewd or lascivious exhibition; offender 18 years of age or older.
229 806.111(1) 3rd Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
230 812.0145(2)(b) 2nd Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
231 812.015(8) 3rd Retail theft; property stolen is valued at $300 or more and one or more specified acts.
232 812.019(1) 2nd Stolen property; dealing in or trafficking in.
233 812.131(2)(b) 3rd Robbery by sudden snatching.
234 812.16(2) 3rd Owning, operating, or conducting a chop shop.
235 817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000.
236 817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000.
237 817.2341(1), (2)(a) & (3)(a) 3rd Filing false financial statements, making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity.
238 817.568(2)(b) 2nd Fraudulent use of personal identification information; value of benefit, services received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more persons.
239 817.611(2)(a) 2nd Traffic in or possess 5 to 14 counterfeit credit cards or related documents.
240 817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device, skimming device, or reencoder.
241 825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
242 827.071(4) 2nd Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
243 827.071(5) 3rd Possess, control, or intentionally view any photographic material, motion picture, etc., which includes sexual conduct by a child.
244 839.13(2)(b) 2nd Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
245 843.01 3rd Resist officer with violence to person; resist arrest with violence.
246 847.0135(5)(b) 2nd Lewd or lascivious exhibition using computer; offender 18 years or older.
247 847.0137 (2) & (3) 3rd Transmission of pornography by electronic device or equipment.
248 847.0138 (2) & (3) 3rd Transmission of material harmful to minors to a minor by electronic device or equipment.
249 874.05(1)(b) 2nd Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
250 874.05(2)(a) 2nd Encouraging or recruiting person under 13 years of age to join a criminal gang.
251 893.13(1)(a)1. 2nd Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs).
252 893.13(1)(c)2. 2nd Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center.
253 893.13(1)(d)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of university.
254 893.13(1)(e)2. 2nd Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) within 1,000 feet of property used for religious services or a specified business site.
255 893.13(1)(f)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of public housing facility.
256 893.13(4)(b) 2nd Use or hire of minor; deliver to minor other controlled substance.
257 893.1351(1) 3rd Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
258 Section 8. This act shall take effect July 1, 2018.