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The Florida Senate

2011 Florida Statutes

Title XLV TORTS
Chapter 772
CIVIL REMEDIES FOR CRIMINAL PRACTICES
CHAPTER 772
CHAPTER 772
CIVIL REMEDIES FOR CRIMINAL PRACTICES
772.101 Short title.
772.102 Definitions.
772.103 Prohibited activities.
772.104 Civil cause of action.
772.11 Civil remedy for theft or exploitation.
772.12 Drug Dealer Liability Act.
772.14 Estoppel of defendant.
772.15 Admissibility of not guilty verdict.
772.17 Limitation of actions.
772.18 Cumulative remedy.
772.185 Attorney’s fees taxed as costs.
772.19 Exemption.
772.101 Short title.—This chapter shall be known as the “Civil Remedies for Criminal Practices Act.”
History.—s. 3, ch. 86-277.
772.102 Definitions.—As used in this chapter, the term:
(1) “Criminal activity” means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit:
(a) Any crime that is chargeable by indictment or information under the following provisions:
1. Section 210.18, relating to evasion of payment of cigarette taxes.
2. Section 414.39, relating to public assistance fraud.
3. Section 440.105 or s. 440.106, relating to workers’ compensation.
4. Part IV of chapter 501, relating to telemarketing.
5. Chapter 517, relating to securities transactions.
6. Section 550.235 or s. 550.3551, relating to dogracing and horseracing.
7. Chapter 550, relating to jai alai frontons.
8. Chapter 552, relating to the manufacture, distribution, and use of explosives.
9. Chapter 562, relating to beverage law enforcement.
10. Section 624.401, relating to transacting insurance without a certificate of authority, s. 624.437(4)(c)1., relating to operating an unauthorized multiple-employer welfare arrangement, or s. 626.902(1)(b), relating to representing or aiding an unauthorized insurer.
11. Chapter 687, relating to interest and usurious practices.
12. Section 721.08, s. 721.09, or s. 721.13, relating to real estate timeshare plans.
13. Chapter 782, relating to homicide.
14. Chapter 784, relating to assault and battery.
15. Chapter 787, relating to kidnapping or human trafficking.
16. Chapter 790, relating to weapons and firearms.
17. Section 796.03, s. 796.04, s. 796.045, s. 796.05, or s. 796.07, relating to prostitution.
18. Chapter 806, relating to arson.
19. Section 810.02(2)(c), relating to specified burglary of a dwelling or structure.
20. Chapter 812, relating to theft, robbery, and related crimes.
21. Chapter 815, relating to computer-related crimes.
22. Chapter 817, relating to fraudulent practices, false pretenses, fraud generally, and credit card crimes.
23. Section 827.071, relating to commercial sexual exploitation of children.
24. Chapter 831, relating to forgery and counterfeiting.
25. Chapter 832, relating to issuance of worthless checks and drafts.
26. Section 836.05, relating to extortion.
27. Chapter 837, relating to perjury.
28. Chapter 838, relating to bribery and misuse of public office.
29. Chapter 843, relating to obstruction of justice.
30. Section 847.011, s. 847.012, s. 847.013, s. 847.06, or s. 847.07, relating to obscene literature and profanity.
31. Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s. 849.25, relating to gambling.
32. Chapter 893, relating to drug abuse prevention and control.
33. Section 914.22 or s. 914.23, relating to witnesses, victims, or informants.
34. Section 918.12 or s. 918.13, relating to tampering with jurors and evidence.
(b) Any conduct which is subject to indictment or information as a criminal offense and listed in 18 U.S.C. s. 1961(1) (A), (B), (C), or (D).
(2) “Unlawful debt” means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in this state in whole or in part because the debt was incurred or contracted:
(a) In violation of any one of the following provisions of law:
1. Section 550.235 or s. 550.3551, relating to dogracing and horseracing.
2. Chapter 550, relating to jai alai frontons.
3. Section 687.071, relating to criminal usury and loan sharking.
4. Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s. 849.25, relating to gambling.
(b) In gambling activity in violation of federal law or in the business of lending money at a rate usurious if punishable as a crime under state or federal law.
(3) “Enterprise” means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and the term includes illicit as well as licit enterprises and governmental, as well as other, entities.
(4) “Pattern of criminal activity” means engaging in at least two incidents of criminal activity that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents; provided that the last of such incidents occurred within 5 years after a prior incident of criminal activity. For the purposes of this chapter, the term “pattern of criminal activity” shall not include two or more incidents of fraudulent conduct arising out of a single contract or transaction against one or more related persons.
(5) “Real property” means any real property or any direct or indirect interest in such real property. An interest in any lease of or mortgage upon real property shall be considered an interest in such real property.
(6) “Related persons” means, as to natural persons, persons who are related by blood within the second degree or who are married and, as to other persons, persons which are substantially under the same direction, ownership, or control, either directly or indirectly.
History.—s. 3, ch. 86-277; s. 3, ch. 90-301; s. 12, ch. 91-33; s. 66, ch. 91-110; s. 4, ch. 92-125; s. 3, ch. 92-281; s. 63, ch. 92-348; s. 2, ch. 93-227; s. 104, ch. 93-415; s. 7, ch. 95-340; s. 106, ch. 96-175; s. 6, ch. 96-252; s. 4, ch. 96-260; s. 92, ch. 99-3; s. 2, ch. 99-335; s. 12, ch. 2005-228; s. 2, ch. 2006-168; s. 2, ch. 2009-22; s. 23, ch. 2009-170; ss. 4, 5, ch. 2010-29.
772.103 Prohibited activities.—It is unlawful for any person:
(1) Who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of criminal activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise.
(2) Through a pattern of criminal activity or through the collection of an unlawful debt, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.
(3) Employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of criminal activity or the collection of an unlawful debt.
(4) To conspire or endeavor to violate any of the provisions of subsection (1), subsection (2), or subsection (3).
History.—s. 3, ch. 86-277.
772.104 Civil cause of action.—
(1) Any person who proves by clear and convincing evidence that he or she has been injured by reason of any violation of the provisions of s. 772.103 shall have a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts.
(2) As an alternative to recovery under subsection (1), any person who proves by clear and convincing evidence that he or she has been injured by reason of any violation of the provisions of s. 772.103 due to sex trafficking or human trafficking shall have a cause of action for threefold the amount gained from the sex trafficking or human trafficking and in any such action is entitled to minimum damages in the amount of $200 and reasonable attorney’s fees and court costs in the trial and appellate courts.
(3) In no event shall punitive damages be awarded under this section. The defendant shall be entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim which was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court shall not consider the ability of the opposing party to pay such fees and costs. Nothing under this section shall be interpreted as limiting any right to recover attorney’s fees or costs provided under other provisions of law.
History.—s. 3, ch. 86-277; s. 1180, ch. 97-102; s. 3, ch. 2006-168.
772.11 Civil remedy for theft or exploitation.—
(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.
(2) For purposes of a cause of action arising under this section, the term “property” does not include the rights of a patient or a resident or a claim for a violation of such rights.
(3) This section does not impose civil liability regarding the provision of health care, residential care, long-term care, or custodial care at a licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice.
(4) The death of an elderly or disabled person does not cause the court to lose jurisdiction of any claim for relief for theft or exploitation when the victim of the theft or exploitation is an elderly or disabled person.
(5) In a civil action under this section in which an elderly or disabled person is a party, the elderly or disabled person may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the civil complaint or at any time thereafter.
History.—s. 3, ch. 86-277; s. 47, ch. 88-381; s. 5, ch. 89-303; s. 1181, ch. 97-102; s. 2, ch. 2002-195.
772.12 Drug Dealer Liability Act.—
(1) This section may be cited as the “Hugh O’Connor Memorial Act.”
(2) A person, including any governmental entity, has a cause of action for threefold the actual damages sustained and is entitled to minimum damages in the amount of $1,000 and reasonable attorney’s fees and court costs in the trial and appellate courts, if the person proves by the greater weight of the evidence that:
(a) The person was injured because of the defendant’s actions that resulted in the defendant’s conviction for:
1. A violation of s. 893.13, except for a violation of s. 893.13(2)(a) or (b), (3), (5), (6)(a), (b), or (c), (7); or
2. A violation of s. 893.135; and
(b) The person was not injured by reason of his or her participation in the same act or transaction that resulted in the defendant’s conviction for any offense described in subparagraph (a)1.
(3) For purposes of this section, the term “conviction” means a finding of guilt, with or without adjudication of guilt, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere.
(4) A person who has a cause of action under this section may recover the damages allowed under this section from the parent or legal guardian of an unemancipated minor who is liable for the damages and who lives with his or her parent or legal guardian, if the person proves by clear and convincing evidence that the parent or legal guardian was aware of or recklessly disregarded facts demonstrating that the minor intended to commit the act giving rise to a cause of action under this section. The parent or legal guardian of an unemancipated minor is not liable under this section, under any circumstance, for the actions of the minor, if the court finds that the parent or legal guardian made a good faith effort to prevent the minor from engaging in the act giving rise to a cause of action under this section.
(5) A defendant may recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that there is a complete absence of a justiciable issue of either law or fact raised by the complaint.
History.—s. 1, ch. 97-80; s. 15, ch. 2000-320; s. 10, ch. 2005-128.
772.14 Estoppel of defendant.—A final judgment or decree rendered in favor of the state in any criminal proceeding concerning the conduct of the defendant which forms the basis for a civil cause of action under this chapter, or in any criminal proceeding under chapter 895, shall estop the defendant in any action brought pursuant to this chapter as to all matters as to which such judgment or decree would be an estoppel as if the plaintiff had been a party in the criminal action.
History.—s. 3, ch. 86-277.
772.15 Admissibility of not guilty verdict.—A verdict or adjudication of not guilty rendered in favor of the defendant or in favor of any other person whose conduct forms the basis for a claim under this chapter shall be admissible in evidence, but shall not act as an estoppel against the plaintiff.
History.—s. 3, ch. 86-277.
772.17 Limitation of actions.—Notwithstanding any other provision of law, a civil action or proceeding under this chapter may be commenced at any time within 5 years after the conduct in violation of a provision of this act terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought or intervened in by the state or by the United States to punish, prevent, or restrain any criminal activity or criminal conduct which forms the basis for a civil action under this chapter, the running of the period of limitations prescribed by this section shall be suspended during the pendency of such prosecution, action, or proceeding and for 2 years following its termination.
History.—s. 3, ch. 86-277.
772.18 Cumulative remedy.—The application of one civil remedy under this chapter does not preclude the application of any other remedy, civil or criminal, under this chapter or any other provision of law. Civil remedies under this act are supplemental, and not mutually exclusive.
History.—s. 3, ch. 86-277.
772.185 Attorney’s fees taxed as costs.—Attorney’s fees awarded under this chapter shall be taxed as costs.
History.—s. 3, ch. 86-277.
772.19 Exemption.—No damages shall be recoverable under this chapter against the state or its agencies, instrumentalities, subdivisions, or municipalities.
History.—s. 3, ch. 86-277.