Senate Bill 1136c2

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    Florida Senate - 2000                    CS for CS for SB 1136

    By the Committees on Judiciary; Children and Families; and
    Senator Carlton




    308-2072-00

  1                      A bill to be entitled

  2         An act relating to the exploitation of elderly

  3         persons or disabled adults; amending s.

  4         825.101, F.S.; defining the term "position of

  5         trust and confidence"; amending s. 772.11,

  6         F.S.; prescribing civil remedies for theft for

  7         certain offenses in which the victim is an

  8         elderly person; providing for continuation of

  9         such a cause of action on the death of such

10         person; providing an effective date.

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

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14         Section 1.  Subsection (11) of section 825.101, Florida

15  Statutes, is amended to read:

16         825.101  Definitions.--As used in this chapter:

17         (11)  "Position of trust and confidence" with respect

18  to an elderly person or a disabled adult means the position of

19  a person who:

20         (a)  Is a parent, spouse, adult child, or other

21  relative by blood or marriage of the elderly person or

22  disabled adult;

23         (b)  Is a joint tenant or tenant in common with the

24  elderly person or disabled adult;

25         (c)  Has a legal or fiduciary relationship with the

26  elderly person or disabled adult, including, but not limited

27  to, a court-appointed or voluntary guardian, trustee,

28  attorney, or conservator; or

29         (d)  Is a caregiver of the elderly person or disabled

30  adult; or

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    Florida Senate - 2000                    CS for CS for SB 1136
    308-2072-00




  1         (e)  Is any other person who has been entrusted with or

  2  has assumed responsibility for the use or management of the

  3  elderly person's or disabled adult's funds, assets, or

  4  property.

  5         Section 2.  Section 772.11, Florida Statutes, is

  6  amended to read:

  7         772.11  Civil remedy for theft.--

  8         (1)  Any person who proves by clear and convincing

  9  evidence that he or she has been injured in any fashion by

10  reason of any violation of the provisions of ss.

11  812.012-812.037 or s. 825.103(1) has a cause of action for

12  threefold the actual damages sustained and, in any such

13  action, is entitled to minimum damages in the amount of $200,

14  and reasonable attorney's fees and court costs in the trial

15  and appellate courts. Before filing an action for damages

16  under this section, the person claiming injury must make a

17  written demand for $200 or the treble damage amount of the

18  person liable for damages under this section. If the person to

19  whom a written demand is made complies with such demand within

20  30 days after receipt of the demand, that person shall be

21  given a written release from further civil liability for the

22  specific act of theft by the person making the written demand.

23  Any person who has a cause of action under this section may

24  recover the damages allowed under this section from the

25  parents or legal guardian of any unemancipated minor who lives

26  with his or her parents or legal guardian and who is liable

27  for damages under this section. In no event shall punitive

28  damages be awarded under this section.  The defendant shall be

29  entitled to recover reasonable attorney's fees and court costs

30  in the trial and appellate courts upon a finding that the

31  claimant raised a claim which was without substantial fact or

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    Florida Senate - 2000                    CS for CS for SB 1136
    308-2072-00




  1  legal support. In awarding attorney's fees and costs under

  2  this section, the court shall not consider the ability of the

  3  opposing party to pay such fees and costs. Nothing under this

  4  section shall be interpreted as limiting any right to recover

  5  attorney's fees or costs provided under other provisions of

  6  law.

  7         (2)  For purposes of the causes of action arising from

  8  this section, the term "property" does not include patients'

  9  or residents' rights or claims for violations of such rights.

10         (3)  This section does not impose civil liability

11  regarding the provision of health care, residential care,

12  long-term care, or custodial care at licensed facilities or

13  care provided by appropriately licensed personnel in any

14  setting in which such personnel are authorized to practice.

15         (4)  The death of an elderly person or disabled adult

16  does not cause the court to lose jurisdiction of any claim for

17  relief for theft when the victim of the theft is an elderly

18  person or disabled adult.

19         (5)  Upon petition, after the death of an elderly

20  person or disabled adult, the right of the decedent to

21  maintain an action under this section shall be transferred to

22  the personal representative of the decedent or, if there is no

23  personal representative, to the person or persons entitled to

24  succeed to the decedent's estate.

25         (6)  In a civil action under this section in which an

26  elderly person or disabled adult is a party, the elderly

27  person or disabled adult may move the court to advance the

28  trial on the docket. The presiding judge, after consideration

29  of the age and health of the party, may advance the trial on

30  the docket. The motion may be filed and served with the civil

31  complaint or at any time thereafter.

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    Florida Senate - 2000                    CS for CS for SB 1136
    308-2072-00




  1         Section 3.  This act shall take effect July 1, 2000.

  2

  3          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  4                            CS/SB 1136

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  6  Clarifies that, after the death of an elderly person or
    disabled adult, the personal representative of the decedent's
  7  estate has the right to maintain the action provided by this
    section.
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