The Florida Senate

847.001  Definitions.

847.011  Prohibition of certain acts in connection with obscene, lewd, etc., materials; penalty.

847.012  Prohibition of sale or other distribution of harmful materials to persons under 18 years of age; penalty.

847.0125  Retail display of materials harmful to minors prohibited.

847.013  Exposing minors to harmful motion pictures, exhibitions, shows, presentations, or representations.

847.0133  Protection of minors; prohibition of certain acts in connection with obscenity; penalty.

847.0134  Prohibition of adult entertainment establishment that displays, sells, or distributes materials harmful to minors within 2,500 feet of a school.

847.0135  Computer pornography; penalties.

847.0137  Transmission of pornography by electronic device or equipment prohibited; penalties.

847.0138  Transmission of material harmful to minors to a minor by electronic device or equipment prohibited; penalties.

847.0139  Immunity from civil liability for reporting child pornography, transmission of child pornography, or any image, information, or data harmful to minors to a minor in this state.

847.0145  Selling or buying of minors; penalties.

847.0147  Obscene telephone service prohibited; penalty.

847.02  Confiscation of obscene material.

847.03  Officer to seize obscene material.

847.06  Obscene matter; transportation into state prohibited; penalty.

847.07  Wholesale promotion of obscene materials; penalties.

847.08  Hearings for determination of probable cause.

847.09  Legislative intent.

847.201  Obscene programming on cable television during promotional period unlawful; penalty; applicability.

847.202  Video movie; official rating of motion picture.

847.001  Definitions.--As used in this chapter, the term:

(1)  "Adult" means a person 18 years of age or older.

(2)  "Adult entertainment establishment" means the following terms as defined:

(a)  "Adult bookstore" means any corporation, partnership, or business of any kind which restricts or purports to restrict admission only to adults, which has as part of its stock books, magazines, other periodicals, videos, discs, or other graphic media and which offers, sells, provides, or rents for a fee any sexually oriented material.

(b)  "Adult theater" means an enclosed building or an enclosed space within a building used for presenting either films, live plays, dances, or other performances that are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specific sexual activities for observation by patrons, and which restricts or purports to restrict admission only to adults.

(c)  "Special Cabaret" means any business that features persons who engage in specific sexual activities for observation by patrons, and which restricts or purports to restrict admission only to adults.

(d)  "Unlicensed massage establishment" means any business or enterprise that offers, sells, or provides, or that holds itself out as offering, selling, or providing, massages that include bathing, physical massage, rubbing, kneading, anointing, stroking, manipulating, or other tactile stimulation of the human body by either male or female employees or attendants, by hand or by any electrical or mechanical device, on or off the premises. The term "unlicensed massage establishment" does not include an establishment licensed under s. 480.43 which routinely provides medical services by state-licensed health care practitioners and massage therapists licensed under s. 480.041.

(3)  "Child pornography" means any image depicting a minor engaged in sexual conduct.

(4)  "Computer" means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions and includes any data storage facility or communications facility directly related to or operating in conjunction with such device. The term also includes: any on-line service, Internet service, or local bulletin board; any electronic storage device, including a floppy disk or other magnetic storage device; or any compact disc that has read-only memory and the capacity to store audio, video, or written materials.

(5)  "Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

(6)  "Harmful to minors" means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:

(a)  Predominantly appeals to the prurient, shameful, or morbid interest of minors;

(b)  Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(c)  Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.

A mother's breastfeeding of her baby is not under any circumstance "harmful to minors."

(7)  "Masochism" means sexual gratification achieved by a person through, or the association of sexual activity with, submission or subjection to physical pain, suffering, humiliation, torture, or death.

(8)  "Minor" means any person under the age of 18 years.

(9)  "Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state. A mother's breastfeeding of her baby does not under any circumstance constitute "nudity," irrespective of whether or not the nipple is covered during or incidental to feeding.

(10)  "Obscene" means the status of material which:

(a)  The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

(b)  Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

(c)  Taken as a whole, lacks serious literary, artistic, political, or scientific value.

A mother's breastfeeding of her baby is not under any circumstance "obscene."

(11)  "Person" includes individuals, children, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

(12)  "Sadism" means sexual gratification achieved through, or the association of sexual activity with, the infliction of physical pain, suffering, humiliation, torture, or death upon another person or an animal.

(13)  "Sadomasochistic abuse" means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.

(14)  "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, "sexual battery" does not include an act done for a bona fide medical purpose.

(15)  "Sexual bestiality" means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

(16)  "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother's breastfeeding of her baby does not under any circumstance constitute "sexual conduct."

(17)  "Sexual excitement" means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.

(18)  "Sexually oriented material" means any book, article, magazine, publication, or written matter of any kind or any drawing, etching, painting, photograph, motion picture film, or sound recording that depicts sexual activity, actual or simulated, involving human beings or human beings and animals, that exhibits uncovered human genitals or the pubic region in a lewd or lascivious manner, or that exhibits human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(19)  "Simulated" means the explicit depiction of conduct described in subsection (16) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

(20)  "Specific sexual activities" includes the following sexual activities and the exhibition of the following anatomical areas:

(a)  Human genitals in the state of sexual stimulation or arousal.

(b)  Acts of human masturbation, sexual intercourse, sodomy, cunnilingus, fellatio, or any excretory function, or representation thereof.

(c)  The fondling or erotic touching of human genitals, the pubic region, the buttocks, or the female breasts.

(d)  Less than completely and opaquely covered:

1.  Human genitals or the pubic region.

2.  Buttocks.

3.  Female breasts below the top of the areola.

4.  Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

History.--s. 1, ch. 86-238; s. 4, ch. 88-283; s. 6, ch. 93-4; s. 70, ch. 96-388; s. 2, ch. 2001-54; s. 1, ch. 2001-177.

847.011  Prohibition of certain acts in connection with obscene, lewd, etc., materials; penalty.--

(1)(a)  Any person who knowingly sells, lends, gives away, distributes, transmits, shows, or transmutes, or offers to sell, lend, give away, distribute, transmit, show, or transmute, or has in his or her possession, custody, or control with intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise in any manner, any obscene book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion picture film, figure, image, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument for obscene use, or purporting to be for obscene use or purpose; or who knowingly designs, copies, draws, photographs, poses for, writes, prints, publishes, or in any manner whatsoever manufactures or prepares any such material, matter, article, or thing of any such character; or who knowingly writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered, any advertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting to state, where, how, of whom, or by what means any, or what purports to be any, such material, matter, article, or thing of any such character can be purchased, obtained, or had; or who in any manner knowingly hires, employs, uses, or permits any person knowingly to do or assist in doing any act or thing mentioned above, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A person who, after having been convicted of a violation of this subsection, thereafter violates any of its provisions, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b)  The knowing possession by any person of three or more identical or similar materials, matters, articles, or things coming within the provisions of paragraph (a) is prima facie evidence of the violation of said paragraph.

(2)  A person who knowingly has in his or her possession, custody, or control any obscene book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion picture film, film, any sticker, decal, emblem or other device attached to a motor vehicle containing obscene descriptions, photographs, or depictions, any figure, image, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument for obscene use, or purporting to be for obscene use or purpose, without intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise the same, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A person who, after having been convicted of violating this subsection, thereafter violates any of its provisions is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. In any prosecution for such possession, it shall not be necessary to allege or prove the absence of such intent.

(3)  No person shall as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, or publication require that the purchaser or consignee receive for resale any other article, paper, magazine, book, periodical, or publication reasonably believed by the purchaser or consignee to be obscene, and no person shall deny or threaten to deny or revoke any franchise or impose or threaten to impose any penalty, financial or otherwise, by reason of the failure of any person to accept any such article, paper, magazine, book, periodical, or publication, or by reason of the return thereof. Whoever violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4)  Any person who knowingly promotes, conducts, performs, or participates in an obscene show, exhibition, or performance by live persons or a live person before an audience is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who, after having been convicted of violating this subsection, thereafter violates any of its provisions and is convicted thereof is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5)  Every act, thing, or transaction forbidden by this section shall constitute a separate offense and shall be punishable as such.

(6)  Proof that a defendant knowingly committed any act or engaged in any conduct referred to in this section may be made by showing that at the time such act was committed or conduct engaged in the defendant had actual knowledge of the contents or character of the material, matter, article, or thing possessed or otherwise dealt with, by showing facts and circumstances from which it may fairly be inferred that he or she had such knowledge, or by showing that he or she had knowledge of such facts and circumstances as would put a person of ordinary intelligence and caution on inquiry as to such contents or character.

(7)  There shall be no right of property in any of the materials, matters, articles, or things possessed or otherwise dealt with in violation of this section; and, upon the seizure of any such material, matter, article, or thing by any authorized law enforcement officer, the same shall be held by the arresting agency. When the same is no longer required as evidence, the prosecuting officer or any claimant may move the court in writing for the disposition of the same and, after notice and hearing, the court, if it finds the same to have been possessed or otherwise dealt with in violation of this section, shall order the sheriff to destroy the same in the presence of the clerk; otherwise, the court shall order the same returned to the claimant if the claimant shows that he or she is entitled to possession. If destruction is ordered, the sheriff and clerk shall file a certificate of compliance.

(8)(a)  The circuit court has jurisdiction to enjoin a threatened violation of this section upon complaint filed by the state attorney or attorney for a municipality in the name of the state upon the relation of such state attorney or attorney for a municipality.

(b)  After the filing of such a complaint, the judge to whom it is presented may grant an order restraining the person complained of until final hearing or further order of the court. Whenever the relator state attorney or attorney for a municipality requests a judge of such court to set a hearing upon an application for such a restraining order, such judge shall set such hearing for a time within 3 days after the making of such request. No such order shall be made unless such judge is satisfied that sufficient notice of the application therefor has been given to the party restrained of the time when and place where the application for such restraining order is to be made; however, such notice shall be dispensed with when it is manifest to such judge, from the sworn allegations of the complaint or the affidavit of the plaintiff or other competent person, that the apprehended violation will be committed if an immediate remedy is not afforded.

(c)  The person sought to be enjoined shall be entitled to a trial of the issues within 1 day after joinder of issue, and a decision shall be rendered by the court within 2 days of the conclusion of the trial.

(d)  In any action brought as provided in this subsection, no bond or undertaking shall be required of the state attorney or the municipality or its attorney before the issuance of a restraining order provided for by paragraph (b), and there shall be no liability on the part of the state or the state attorney or the municipality or its attorney for costs or for damages sustained by reason of such restraining order in any case where a final decree is rendered in favor of the person sought to be enjoined.

(e)  Every person who has possession, custody, or control of, or otherwise deals with, any of the materials, matters, articles, or things described in this section, after the service upon him or her of a summons and complaint in an action for injunction brought under this subsection, is chargeable with knowledge of the contents and character thereof.

(9)  The several sheriffs and state attorneys shall vigorously enforce this section within their respective jurisdictions.

(10)  This section shall not apply to the exhibition of motion picture films permitted by s. 847.013.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 61-7; s. 1053, ch. 71-136; ss. 1A, 2A, 3A, 4, 5A, 6, ch. 71-337; s. 171, ch. 71-355; s. 34, ch. 73-334; s. 2, ch. 86-238; s. 68, ch. 88-381; s. 1, ch. 89-44; s. 211, ch. 91-224; s. 1348, ch. 97-102.

847.012  Prohibition of sale or other distribution of harmful materials to persons under 18 years of age; penalty.--

(1)  As used in this section, "knowingly" means having the general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

(a)  The character and content of any material described herein which is reasonably susceptible of examination by the defendant, and

(b)  The age of the minor; however, an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

(2)  It is unlawful for any person knowingly to sell, rent, or loan for monetary consideration to a minor:

(a)  Any picture, photograph, drawing, sculpture, motion picture film, videocassette, or similar visual representation or image of a person or portion of the human body which depicts nudity or sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse and which is harmful to minors, or

(b)  Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter defined in s. 847.001, explicit and detailed verbal descriptions or narrative accounts of sexual excitement, or sexual conduct and which is harmful to minors.

(3)  Any person violating any provision of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4)  Every act, thing, or transaction forbidden by this section constitutes a separate offense and is punishable as such.

(5)(a)  The circuit court has jurisdiction to enjoin a violation of this section upon complaint filed by the state attorney in the name of the state upon the relation of such state attorney.

(b)  After the filing of such a complaint, the judge to whom it is presented may grant an order restraining the person complained of until final hearing or further order of the court. Whenever the relator state attorney requests a judge of such court to set a hearing upon an application for such a restraining order, such judge shall set such hearing for a time within 3 days after the making of such request. No such order shall be made unless such judge is satisfied that sufficient notice of the application therefor has been given to the party restrained of the time when and place where the application for such restraining order is to be made.

(c)  The person sought to be enjoined shall be entitled to a trial of the issues within 1 day after joinder of issue, and a decision shall be rendered by the court within 2 days of the conclusion of the trial.

(d)  In the event that a final decree of injunction is entered, it shall contain a provision directing the defendant having the possession, custody, or control of the materials, matters, articles, or things affected by the injunction to surrender the same to the sheriff and requiring the sheriff to seize and destroy the same. The sheriff shall file a certificate of her or his compliance.

(e)  In any action brought as provided in this section, no bond or undertaking shall be required of the state or the state attorney before the issuance of a restraining order provided for by paragraph (b), and there shall be no liability on the part of the state or the state attorney for costs or for damages sustained by reason of such restraining order in any case where a final decree is rendered in favor of the person sought to be enjoined.

(f)  Every person who has possession, custody, or control of, or otherwise deals with, any of the materials, matters, articles, or things described in this section, after the service upon her or him of a summons and complaint in an action for injunction brought under this section, is chargeable with knowledge of the contents and character thereof.

(6)  The several sheriffs and state attorneys shall vigorously enforce this section within their respective jurisdictions.

(7)  This section does not apply to the exhibition of motion pictures, shows, presentations, or other representations regulated under the provisions of s. 847.013.

History.--ss. 1, 2, 3, 4, 5, 6, 7, ch. 67-153; ss. 1, 2, ch. 69-41; s. 1054, ch. 71-136; s. 171, ch. 71-355; s. 34, ch. 73-334; s. 1, ch. 83-77; s. 2, ch. 86-38; s. 3, ch. 86-238; s. 5, ch. 88-283; s. 1349, ch. 97-102.

¹847.0125  Retail display of materials harmful to minors prohibited.--

(1)  "KNOWINGLY" DEFINED.--As used in this section, "knowingly" means having general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

(a)  The character and content of any material described herein which is reasonably susceptible of examination by the defendant, and

(b)  The age of the minor; however, an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

(2)  OFFENSES AND PENALTIES.--

(a)  It is unlawful for anyone offering for sale in a retail establishment open to the general public any book, magazine, or other printed material, the cover of which depicts material which is harmful to minors, to knowingly exhibit such book, magazine, or material in such establishment in such a way that it is on open display to, or within the convenient reach of, minors who may frequent the retail establishment. Such items shall, however, be displayed, either individually or collectively, behind an opaque covering which conceals the book, magazine, or other printed material.

(b)  It is unlawful for anyone offering for sale in a retail establishment open to the general public any book, magazine, or other printed material, the content of which exploits, is devoted to, or is principally made up of descriptions or depictions of material which is harmful to minors, to knowingly exhibit such book, magazine, or material in such establishment in such a way that it is within the convenient reach of minors who may frequent the retail establishment.

(c)  A violation of any provision of this section constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 1, ch. 78-273; s. 1, ch. 79-96; s. 2, ch. 83-77; s. 3, ch. 86-38; s. 4, ch. 86-238; s. 212, ch. 91-224.

¹Note.--This section as published incorporates amendments from s. 4, ch. 86-238; this section was also amended by s. 3, ch. 86-38, and, as amended by that act, would read:

847.0125  Retail display of materials harmful to minors prohibited.--

(1)  DEFINITIONS.--As used in this section:

(a)  "Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

(b)  "Minor" means any person under the age of 18 years.

(c)  "Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state.

(d)  "Sadomasochistic abuse" means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.

(e)  "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, "sexual battery" does not include an act done for a bona fide medical purpose.

(f)  "Sexual bestiality" means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

(g)  "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

(h)  "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(i)  "Simulated" means the explicit depiction of any of the conduct set forth in paragraph (g) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

(j)  "Harmful to minors" means that quality of any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, or sexual excitement when it:

1.  Predominantly appeals to the prurient, shameful, or morbid interest of minors;

2.  Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

3.  Is without serious literary, artistic, political, or scientific value for minors.

(k)  "Knowingly" means having general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

1.  The character and content of any material described herein which is reasonably susceptible of examination by the defendant, and

2.  The age of the minor; however, an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

(2)  OFFENSES AND PENALTIES.--

(a)  It is unlawful for anyone offering for sale in a retail establishment open to the general public any book, magazine, or other printed material, the cover of which depicts nudity which is harmful to minors, to knowingly exhibit such book, magazine, or material in such establishment in such a way that it is on open display to, or within the convenient reach of, minors who may frequent the retail establishment. Such items may, however, be displayed behind an opaque covering which conceals the nudity, provided such items are not within the convenient reach of minors who may frequent the retail establishment.

(b)  It is unlawful for anyone offering for sale in a retail establishment open to the general public any book, magazine, or other printed material, the content of which exploits, is devoted to, or is principally made up of descriptions or depictions of nudity which are harmful to minors, to knowingly exhibit such book, magazine, or material in such establishment in such a way that it is within the convenient reach of minors who may frequent the retail establishment.

(c)  A violation of any provision of this section constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

847.013  Exposing minors to harmful motion pictures, exhibitions, shows, presentations, or representations.--

(1)  "KNOWINGLY" DEFINED.--As used in this section "knowingly" means having general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

(a)  The character and content of any motion picture described herein which is reasonably susceptible of examination by the defendant, or the character of any exhibition, presentation, representation, or show described herein, other than a motion picture show, which is reasonably susceptible of being ascertained by the defendant, and

(b)  The age of the minor; however, an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

(2)  OFFENSES AND PENALTIES.--

(a)  It is unlawful for any person knowingly to exhibit for a monetary consideration to a minor or knowingly to sell or rent a videotape of a motion picture to a minor or knowingly sell to a minor an admission ticket or pass or knowingly admit a minor for a monetary consideration to premises whereon there is exhibited a motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts nudity, sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse and which is harmful to minors.

(b)  It is unlawful for any person knowingly to rent or sell, or loan to a minor for monetary consideration, a videocassette or a videotape of a motion picture, or similar presentation, which, in whole or in part, depicts nudity, sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse and which is harmful to minors.

(c)  The provisions of paragraph (a) do not apply to a minor when the minor is accompanied by his or her parents or either of them.

(d)  It is unlawful for any minor to falsely represent to the owner of any premises mentioned in paragraph (a), or to the owner's agent, or to any person mentioned in paragraph (b), that such minor is 17 years of age or older, with the intent to procure such minor's admission to such premises, or such minor's purchase or rental of a videotape, for a monetary consideration.

(e)  It is unlawful for any person to knowingly make a false representation to the owner of any premises mentioned in paragraph (a), or to the owner's agent, or to any person mentioned in paragraph (b), that he or she is the parent of any minor or that any minor is 17 years of age or older, with intent to procure such minor's admission to such premises or to aid such minor in procuring admission thereto, or to aid or enable such minor's purchase or rental of a videotape, for a monetary consideration.

(f)  A violation of any provision of this subsection constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3)  INJUNCTIVE PROCEEDINGS.--

(a)  The circuit court has jurisdiction to enjoin a threatened violation of subsection (2) upon complaint filed by the state attorney in the name of the state upon the relation of such state attorney.

(b)  After the filing of such a complaint, the judge to whom it is presented may grant an order restraining the person or persons complained of until final hearing or further order of the court. Whenever the relator requests a judge of such court to set a hearing upon an application for such a restraining order, such judge shall set such hearing for a time within 3 days after the making of such request. No such order shall be made unless such judge is satisfied that sufficient notice of the application therefor has been given to the person or persons restrained of the time when and place where the application for such restraining order is to be heard. However, such notice shall be dispensed with when it is manifest to such judge, from the allegations of a sworn complaint or independent affidavit, sworn to by the relator or by some person associated with him or her in the field of law enforcement and filed by the relator, that the apprehended violation will be committed if an immediate remedy is not afforded.

(c)  The person or persons sought to be enjoined shall be entitled to a trial of the issues within 1 day after joinder of issue, and a decision shall be rendered by the court within 2 days after the conclusion of the trial.

(d)  In any action brought as provided in this section, no bond or undertaking shall be required of the state or the relator state attorney before the issuance of a restraining order provided for by this section, and there shall be no liability on the part of the state or the relator state attorney for costs or damages sustained by reason of such restraining order in any case in which a final decree is rendered in favor of the person or persons sought to be enjoined.

(e)  Every person who has possession, custody, or control of, or otherwise deals with, any motion picture, exhibition, show, representation, or presentation described in this section, after the service upon him or her of a summons and complaint in an action for injunction brought under this section, is chargeable with knowledge of the contents or character thereof.

(4)  LEGISLATIVE INTENT.--In order to make the application and enforcement of this section uniform throughout the state, it is the intent of the Legislature to preempt the field, to the exclusion of counties and municipalities, insofar as it concerns exposing persons under 17 years of age to harmful motion pictures, exhibitions, shows, representations, and presentations. To that end, it is hereby declared that every county ordinance and every municipal ordinance adopted prior to July 1, 1969, and relating to such subject shall stand abrogated and unenforceable on and after such date and that no county, municipality, or consolidated county-municipal government shall have the power to adopt any ordinance relating to that subject on or after such effective date.

History.--ss. 1, 2, 3, 4, ch. 69-10; s. 1055, ch. 71-136; s. 34, ch. 73-334; s. 3, ch. 83-77; s. 4, ch. 86-38; s. 5, ch. 86-238; s. 6, ch. 88-283; s. 1350, ch. 97-102.

847.0133  Protection of minors; prohibition of certain acts in connection with obscenity; penalty.--

(1)  It is unlawful for any person knowingly to sell, rent, loan, give away, distribute, transmit, or show any obscene material to a minor. For purposes of this section "obscene material" means any obscene book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing paper, card, picture, drawing, photograph, motion picture film, figure, image, videotape, videocassette, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument for obscene use, or purporting to be for obscene use or purpose. The term "obscene" shall have the same meaning as set forth in s. 847.001.

(2)  As used in this section "knowingly" has the same meaning set forth in s. 847.012(1). A "minor" is any person under the age of 18 years.

(3)  A violation of the provisions of this section constitutes a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 63, ch. 90-306; s. 7, ch. 93-4.

847.0134  Prohibition of adult entertainment establishment that displays, sells, or distributes materials harmful to minors within 2,500 feet of a school.--

(1)  Except for those establishments that are legally operating or have been granted a permit from a local government to operate as adult entertainment establishments on or before July 1, 2001, an adult entertainment establishment that sells, rents, loans, distributes, transmits, shows, or exhibits any obscene material, as described in s. 847.0133, or presents live entertainment or a motion picture, slide, or other exhibit that, in whole or in part, depicts nudity, sexual conduct, sexual excitement, sexual battery, sexual bestiality, or sadomasochistic abuse and that is harmful to minors, as described in s. 847.001, may not be located within 2,500 feet of the real property that comprises a public or private elementary school, middle school, or secondary school unless the county or municipality approves the location under proceedings as provided in s. 125.66(4) for counties or s. 166.041(3)(c) for municipalities.

(2)  A violation of this section constitutes a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 2, ch. 2001-177.

847.0135  Computer pornography; penalties.--

(1)  SHORT TITLE.--This section shall be known and may be cited as the "Computer Pornography and Child Exploitation Prevention Act of 1986."

(2)  COMPUTER PORNOGRAPHY.--A person who:

(a)  Knowingly compiles, enters into, or transmits by use of computer;

(b)  Makes, prints, publishes, or reproduces by other computerized means;

(c)  Knowingly causes or allows to be entered into or transmitted by use of computer; or

(d)  Buys, sells, receives, exchanges, or disseminates,

any notice, statement, or advertisement of any minor's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this section shall not constitute a defense to a prosecution under this section.

(3)  CERTAIN USES OF COMPUTER SERVICES PROHIBITED.--Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4)  OWNERS OR OPERATORS OF COMPUTER SERVICES LIABLE.--It is unlawful for any owner or operator of a computer on-line service, Internet service, or local bulletin board service knowingly to permit a subscriber to utilize the service to commit a violation of this section. Any person who violates this section commits a misdemeanor of the first degree, punishable by a fine not exceeding $2,000.

(5)  STATE CRIMINAL JURISDICTION.--A person is subject to prosecution in this state pursuant to chapter 910 for any conduct proscribed by this section which the person engages in, while either within or outside this state, if by such conduct the person commits a violation of this section involving a child residing in this state, or another person believed by the person to be a child residing in this state.

History.--s. 11, ch. 86-238; s. 213, ch. 91-224; s. 71, ch. 96-388; s. 3, ch. 2001-54.

847.0137  Transmission of pornography by electronic device or equipment prohibited; penalties.--

(1)  For purposes of this section:

(a)  "Minor" means any person less than 18 years of age.

(b)  "Transmit" means the act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment or device.

(2)  Notwithstanding ss. 847.012 and 847.0133, any person in this state who knew or reasonably should have known that he or she was transmitting child pornography, as defined in s. 847.001, to another person in this state or in another jurisdiction commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)  Notwithstanding ss. 847.012 and 847.0133, any person in any jurisdiction other than this state who knew or reasonably should have known that he or she was transmitting child pornography, as defined in s. 847.001, to any person in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4)  This section shall not be construed to prohibit prosecution of a person in this state or another jurisdiction for a violation of any law of this state, including a law providing for greater penalties than prescribed in this section, for the transmission of child pornography, as defined in s. 847.001, to any person in this state.

(5)  A person is subject to prosecution in this state pursuant to chapter 910 for any act or conduct proscribed by this section, including a person in a jurisdiction other than this state, if the act or conduct violates subsection (3).

The provisions of this section do not apply to subscription-based transmissions such as list servers.

History.--s. 4, ch. 2001-54.

847.0138  Transmission of material harmful to minors to a minor by electronic device or equipment prohibited; penalties.--

(1)  For purposes of this section:

(a)  "Known by the defendant to be a minor" means that the defendant had actual knowledge or believed that the recipient of the communication was a minor.

(b)  "Transmit" means to send to a specific individual known by the defendant to be a minor via electronic mail.

(2)  Notwithstanding ss. 847.012 and 847.0133, any person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)  Notwithstanding ss. 847.012 and 847.0133, any person in any jurisdiction other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The provisions of this section do not apply to subscription-based transmissions such as list servers.

History.--s. 5, ch. 2001-54.

847.0139  Immunity from civil liability for reporting child pornography, transmission of child pornography, or any image, information, or data harmful to minors to a minor in this state.--Any person who reports to a law enforcement officer what the person reasonably believes to be child pornography, transmission of child pornography, or any image, information, or data that is harmful to minors to a minor in this state may not be held civilly liable for such reporting. For purposes of this section, such reporting may include furnishing the law enforcement officer with any image, information, or data that the person reasonably believes to be evidence of child pornography, transmission of child pornography, or an image, information, or data that is harmful to minors to a minor in this state.

History.--s. 6, ch. 2001-54.

847.0145  Selling or buying of minors; penalties.--

(1)  Any parent, legal guardian, or other person having custody or control of a minor who sells or otherwise transfers custody or control of such minor, or offers to sell or otherwise transfer custody of such minor, either:

(a)  With knowledge that, as a consequence of the sale or transfer, the minor will be portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct; or

(b)  With intent to promote either:

1.  The engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct; or

2.  The rendering of assistance by the minor to any other person to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct;

shall be guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  Whoever purchases or otherwise obtains custody or control of a minor, or offers to purchase or otherwise obtain custody or control of a minor, either:

(a)  With knowledge that, as a consequence of the purchase or obtaining of custody, the minor will be portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct;

(b)  With intent to promote either:

1.  The engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct; or

2.  The rendering of assistance by the minor to any other person to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct;

shall be guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 2, ch. 88-283.

847.0147  Obscene telephone service prohibited; penalty.--

(1)  It is unlawful for any telephone subscriber to sell, offer for sale, or transmit, over telephone lines, any obscene material or message described and promoted as "adult" and of a nature which is commonly understood to be for the purposes of sexually oriented entertainment.

(2)  Any person who violates the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 3, ch. 88-283; s. 214, ch. 91-224.

847.02  Confiscation of obscene material.--Whenever anyone is convicted under s. 847.011, the court in awarding sentence shall make an order confiscating said obscene material and authorize the sheriff of the county in which the material is held to destroy the same. The sheriff shall file with the court a certificate of his or her compliance.

History.--s. 2, ch. 7359, 1917; RGS 5439; CGL 7582; s. 6, ch. 86-238; s. 1351, ch. 97-102.

847.03  Officer to seize obscene material.--Whenever any officer arrests any person charged with any offense under s. 847.011, the officer shall seize said obscene material and take the same into his or her custody to await the sentence of the court upon the trial of the offender.

History.--s. 3, ch. 7359, 1917; RGS 5440; CGL 7583; s. 7, ch. 86-238; s. 1352, ch. 97-102.

847.06  Obscene matter; transportation into state prohibited; penalty.--

(1)  Whoever knowingly transports into the state or within the state for the purpose of sale or distribution any obscene book; magazine; periodical; pamphlet; newspaper; comic book; story; paper; written or printed story or article; writing; paper; card; picture; drawing; photograph; motion picture film; figure; image; phonograph record, or wire or tape or other recording, or other article capable of producing sound; or any other matter of obscene character shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2)  When any person is convicted of a violation of this section, the court in its judgment of conviction may, in addition to the penalty prescribed, order the confiscation and disposal of such items described herein which were found in the possession or under the immediate control of such person at the time of his or her arrest.

History.--s. 1, ch. 29849, 1955; s. 1058, ch. 71-136; s. 1, ch. 79-134; s. 8, ch. 86-238; s. 1353, ch. 97-102.

847.07  Wholesale promotion of obscene materials; penalties.--

(1)  As used in this section, "wholesale promote" means to manufacture, issue, sell, provide, deliver, transfer, transmit, publish, distribute, circulate, or disseminate, or offer or agree to do the same, with or without consideration, for purposes of resale or redistribution.

(2)  Any person who knowingly wholesale promotes any obscene matter or performance, or in any manner knowingly hires, employs, uses, or permits any person to wholesale promote or assist in wholesale promoting any obscene matter or performance, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)  No person shall, as a condition to sale, allocation, consignment, or delivery for resale of any matter or performance, require that the purchaser or consignee receive for resale any other matter or performance reasonably believed by the purchaser or consignee to be obscene; and no person shall deny or revoke any franchise, or threaten to do so, or impose or threaten to impose any penalty, financial or otherwise, by reason of the refusal or failure of any person to accept any such matter or by reason of the return thereof. Whoever violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 1, ch. 73-120; s. 4, ch. 83-77; s. 9, ch. 86-238.

847.08  Hearings for determination of probable cause.--Whenever an indictment, information, or affidavit is filed under the provisions of ss. 847.07-847.09, the state attorney or his or her duly appointed assistant may apply to the court for the issuance of an order directing the defendant or his or her principal agent or bailee or other like person to produce the allegedly obscene materials at a time and place so designated by the court for the purpose of determining whether there is probable cause to believe said material is obscene. After hearing the parties on the issue, if the court determines probable cause exists, it may order the material held by the clerk of the court pending further order of the court. This section shall not be construed to prohibit the seizure of obscene materials by any other lawful means.

History.--s. 2, ch. 73-120; s. 10, ch. 86-238; s. 1354, ch. 97-102.

847.09  Legislative intent.--

(1)  In order to make the application and enforcement of ss. 847.07-847.09 uniform throughout the state, it is the intent of the Legislature to preempt the field, to the exclusion of counties and municipalities, insofar as it concerns exposing persons over 17 years of age to harmful motion pictures, exhibitions, shows, representations, and presentations. To that end, it is hereby declared that every county ordinance and every municipal ordinance adopted prior to July 1, 1973, and relating to said subject shall stand abrogated and unenforceable on and after such date and that no county, municipality, or consolidated county-municipal government shall have the power to adopt any ordinance relating to the subject on or after such effective date. If ss. 847.07-847.09 are declared to be illegal, unconstitutional, or otherwise unenforceable, any county or municipal ordinance abrogated before ss. 847.07-847.09 were declared unconstitutional shall be in full force and effect, and each county, municipality, and consolidated county-municipal government shall have the power to adopt ordinances relating to this subject.

(2)  Nothing in ss. 847.07-847.09 shall be construed to repeal or in any way supersede the provisions of s. 847.011, s. 847.012, or s. 847.013.

(3)  Nothing herein shall be construed to limit the free exercise of free speech or picketing by any organization, group, or individual for the purpose of upholding community standards.

History.--ss. 3, 4, 6, ch. 73-120.

847.201  Obscene programming on cable television during promotional period unlawful; penalty; applicability.--

(1)  It is unlawful for any owner or operator of any cable television service to provide on any basic cable channel during a promotional "free weekend" or other advertising period obscene programming or programming otherwise unprotected by the Constitution of the United States.

(2)  Any person who violates the provisions of subsection (1) is guilty of a misdemeanor of the first degree, punishable by a fine of up to $2,000.

(3)  This section shall not apply to any owner or operator of any cable television service who:

(a)  Provides to its subscribers of basic cable channels at least once annually, and to its new subscribers of basic cable channels at the time of subscription, at least 30 days' advance written notice that such aforesaid programming may be shown, which notice shall include the dates and times such programming may be shown; and

(b)  Upon request of the subscribers of basic cable channels and during such promotional period, electronically "locks out" the aforesaid programming from the basic cable channels so that it is not received in the television receivers of such subscribers requesting not to receive such programming, or makes available at no cost to the subscribers of basic cable channels parental control devices, sometimes known as "lock boxes," which devices shall have the capability of "locking out" or denying reception to the television receivers of such aforesaid subscribers requesting same.

History.--s. 1, ch. 87-215.

847.202  Video movie; official rating of motion picture.--

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

(a)  "Official rating" means an official rating of the Motion Picture Association of America, and the Film Advisory Board, Inc., or any other official rating organization.

(b)  "Person" means an individual, corporation, partnership, or any other legal or commercial entity.

(c)  "Video movie" means a videotape or video disc copy of a motion picture film.

(2)  It is unlawful for a person to sell at retail, rent to another, attempt to sell at retail, or attempt to rent to another, a video movie in this state unless the official rating of the motion picture from which it is copied is clearly displayed on the outside of its cassette, case, jacket, or other covering. If the motion picture from which the video movie is copied has no official rating or if the video movie has been altered so that its content materially differs from the motion picture, such video movie shall be clearly and prominently marked as "N.R." or "Not Rated." Any person who violates the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 7, ch. 88-283.