Senate Bill 2558

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 2000                                  SB 2558

    By Senator Grant





    13-1638-00                                          See HB 605

  1                      A bill to be entitled

  2         An act relating to injunctions for protection;

  3         creating s. 784.049, F.S.; providing

  4         definitions; establishing a cause of action

  5         through which a parent or legal guardian may

  6         obtain an injunction for protection against an

  7         adult whose actions threaten the well-being of

  8         a minor child; providing guidelines and

  9         limitations; requiring the clerk of the court

10         to provide assistance under certain

11         circumstances; requiring waiver of fees under

12         certain circumstances; providing a form for a

13         sworn petition; permitting the court to grant a

14         temporary injunction under certain

15         circumstances; providing for an ex parte

16         hearing; restricting the introduction of

17         evidence during an ex parte hearing; limiting

18         the duration of temporary injunctions;

19         providing for a hearing; requiring the court to

20         conduct the hearing within a specific time

21         limit; requiring service on the respondent;

22         providing for a continuance upon a showing of

23         good cause; providing evidentiary guidelines;

24         permitting the court to grant such relief as

25         the court deems proper; permitting the court to

26         enjoin specific activities; providing

27         guidelines for modifying or dissolving an

28         injunction for protection; permitting the court

29         to summarily dismiss a respondent's motion to

30         dissolve an injunction for protection under

31         certain circumstances; providing for

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1         termination of an injunction for protection;

  2         requiring that specific items appear on an

  3         injunction for protection; requiring the clerk

  4         of the court to provide certain information to

  5         the sheriff or a law enforcement agency;

  6         providing for service upon the respondent;

  7         establishing time limitations; permitting the

  8         chief judge, in consultation with the sheriff,

  9         to authorize a law enforcement agency to effect

10         service and receive a portion of the service

11         fee; requiring the clerk of the court to

12         forward a copy of the injunction to the sheriff

13         within a specific time period; requiring the

14         law enforcement officer who served the

15         respondent to forward written proof of service

16         to the sheriff within a specific time period;

17         requiring the sheriff to make information

18         relating to the injunction available to other

19         law enforcement agencies within a specific time

20         period; requiring the clerk of the court to

21         notify the sheriff or local law enforcement

22         agency within a specific time period following

23         certain occurrences; requiring the law

24         enforcement agency to notify the Department of

25         Law Enforcement within a specific time period

26         following certain occurrences; requiring the

27         court to enforce injunctions for protection

28         through contempt proceedings; permitting

29         monetary assessments; requiring the clerk of

30         the court to transfer monetary assessments to

31         the State Treasury for deposit in the Crimes

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1         Compensation Trust Fund; providing that the

  2         respondent shall be held in custody for

  3         violating an injunction for protection;

  4         providing immunity for law enforcement officers

  5         under certain circumstances; amending s.

  6         901.15(10), F.S.; permitting law enforcement

  7         officers to make an arrest without a warrant

  8         under certain circumstances; providing an

  9         effective date.

10

11         WHEREAS, the State of Florida has criminalized sexual

12  activity between adults and minor children under various

13  circumstances, and

14         WHEREAS, the Supreme Court of the State of Florida, in

15  Jones v. State, 619 So.2d 418, 424 (Fla. 1994), noted

16  that:  "Florida has an obligation and a compelling interest in

17  protecting children from sexual activity and exploitation

18  before their minds and bodies have sufficiently matured to

19  make it appropriate, safe, and healthy for them," and

20         WHEREAS, the Supreme Court of the United States in

21  Bellotti v. Baird, 443 U.S. 622, 635 (1979), noted that,

22  "during the formative years of childhood and adolescence,

23  minors often lack the experience, perspective, and judgment to

24  recognize and avoid choices that could be detrimental to

25  them," and

26         WHEREAS, sexual activity between adults and minor

27  children may result in the spread of sexually transmitted

28  disease, unwanted pregnancy, and a diminution in the self

29  worth of the minor child, and

30         WHEREAS, the right of parents to raise their children

31  and to make fundamental decisions regarding the welfare of

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1  their children is protected by the Federal Constitution and by

  2  s. 23, Art. I of the State Constitution, NOW THEREFORE,

  3

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

  5

  6         Section 1.  Section 784.049, Florida Statutes, is

  7  created to read:

  8         784.049  Action by parent or guardian of unemancipated

  9  minor child for protective injunction against adult.--

10         (1)  Definitions.--As used in this section, the term:

11         (a)  "Minor child" means any person under 18 years of

12  age who has not been emancipated by a court order.

13         (b)  "Adult" means any person who is 21 years of age or

14  older and who is not a parent or legal guardian of the minor

15  child.

16         (c)  "Credible threat" means that the minor has engaged

17  in or is on the threshold of engaging in sexual activity with

18  the adult.

19         (d)  "Sexual activity" means oral, anal, or vaginal

20  penetration by, or union with, the sexual organ of another.

21  However, sexual activity does not include an act done for a

22  bona fide medical purpose.

23         (2)  Cause of action.--A parent or legal guardian of a

24  minor child has a cause of action for an injunction for

25  protection against an adult whose actions present a credible

26  threat to the well-being of the minor child.  The parent or

27  legal guardian may seek such injunction with or without

28  representation by an attorney and notwithstanding the

29  availability or pendency of any other petition, complaint, or

30  cause of action between the parties.  In addition, the parent

31  or legal guardian may seek such injunction with or without the

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1  cooperation of the minor child on whose behalf the injunction

  2  is sought.  Only a credible threat to the well-being of the

  3  minor child whose parent or legal guardian seeks an injunction

  4  for protection gives rise to a cause of action under this

  5  section.  An abstract or generalized threat to minor children

  6  within the community, standing alone, does not give rise to a

  7  cause of action under this section.

  8         (3)  Assistance.--If the parent or legal guardian of a

  9  minor child is not represented by an attorney, the clerk of

10  the court shall provide a copy of this section, simplified

11  forms, and clerical assistance for the preparation and filing

12  of a petition against an adult whose actions present a

13  credible threat to the well-being of the minor child.  The

14  clerk of the court shall provide the parent or legal guardian

15  with a certified copy of any injunction entered by the court

16  pursuant to this section.

17         (4)  Waiver of fees.--If the parent or legal guardian

18  lacks the ability to pay filing fees to the clerk of the court

19  or service fees to the sheriff or law enforcement agency and

20  signs an affidavit so stating, such fees shall be waived to

21  the extent necessary to process the petition and serve the

22  injunction, subject to a subsequent order of the court

23  relative to the payment of such fees.  The court shall not

24  require any bond for the entry of an injunction pursuant to

25  this section.

26         (5)  Form of petition.--The sworn petition shall be in

27  substantially the following form:

28                    PETITION FOR AN INJUNCTION

29                     FOR PROTECTION AGAINST A

30                         CREDIBLE THREAT

31                  TO A MINOR CHILD'S WELL-BEING

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1         Before me, the undersigned authority, personally

  2  appeared Petitioner ...(name)..., who has been sworn and says

  3  that the following statements are true:

  4         1.  Petitioner resides at ...(address)....

  5         2.  Respondent ...(name)... resides at ...(address, if

  6  known)....

  7         3.  Physical description of Respondent ...(include

  8  race, sex, age, height, weight, eye color, hair color, and

  9  distinguishing marks or scars, if known)....

10         4.  Petitioner is the parent or legal guardian of

11  ...(name of minor child)....

12         5.  Petitioner genuinely fears that the Respondent's

13  actions present a credible threat of harm to the minor child

14  on whose behalf this injunction is sought, as demonstrated by:

15  ...(enumerate incidents between the Respondent and the minor

16  child and other factors supporting the issuance of an

17  injunction)....

18         6.  Petitioner seeks:  an immediate injunction against

19  the Respondent, enjoining the Respondent from engaging in

20  sexual activity with the minor child or from pursuing the

21  minor child for the purpose of engaging in sexual activity.

22  The injunction may provide any terms the court deems necessary

23  for the protection of the minor child, including directives to

24  law enforcement agencies and no-contact orders.

25         (6)  Temporary injunction.--Upon the filing of the

26  petition, if the court determines the existence of an

27  immediate credible threat to the well-being of the minor

28  child, the court may grant a temporary injunction through an

29  ex parte hearing, pending a full hearing.  In such an ex parte

30  hearing the court shall not allow the introduction of

31  evidence, other than the verified pleading or affidavit,

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1  unless the respondent appears at the hearing or has received

  2  reasonable notice of the hearing.  A temporary injunction

  3  granted pursuant to this section shall be effective for a

  4  fixed period not to exceed 15 days.

  5         (7)  Hearing.--Upon the filing of the petition, the

  6  court shall set a hearing to be held at the earliest possible

  7  time and no later than the expiration of a temporary

  8  injunction, if a temporary injunction has been granted.  The

  9  respondent shall be personally served with a copy of the

10  petition, notice of hearing, and temporary injunction, if any,

11  prior to the hearing.  The court may grant a continuance of

12  the hearing for good cause shown by any party.  When

13  considering whether to issue an injunction, the court shall

14  consider evidence related to the overall course of conduct

15  between the adult and the minor, including:

16         (a)  Whether contacts, including meetings, telephone

17  conversations, Internet communications, written

18  correspondence, and other forms of association between the

19  adult and the minor, have been frequent, numerous, intimate in

20  nature, or have persisted over time;

21         (b)  Whether the minor has met with, or has been

22  invited to meet with, the adult in the adult's home or in

23  other unsupervised locations;

24         (c)  Whether the adult has exhibited a pattern of

25  pursuing, stalking, or molesting other minors;

26         (d)  Whether the adult has ever been convicted of

27  stalking under s. 784.048, kidnapping under s. 787.01, luring

28  or enticing a child under s. 787.025, removing minors from the

29  state or concealing minors under s. 787.04, exposure of sexual

30  organs under s. 800.03, lewd or lascivious offenses committed

31  upon or in the presence of persons less than 16 years of age

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1  under s. 800.04, sexual battery under s. 794.011, unlawful

  2  sexual activity with certain minors under s. 794.05, exposing

  3  a child to obscene material under s. 847.013 or s. 847.0133,

  4  or any other criminal offense which could indicate that the

  5  adult represents a threat to the well-being of the minor

  6  child;

  7         (e)  Whether the adult and the minor have been observed

  8  kissing, embracing, making other displays of physical

  9  affection, or simulating an act involving sexual activity;

10         (f)  Whether the adult has disregarded a request by the

11  minor's parent or legal guardian to terminate the relationship

12  between the adult and the minor child;

13         (g)  Whether the minor has undergone a change in

14  personality, a decline in self esteem, a decline in academic

15  performance, or has begun using alcohol or illegal drugs; and

16         (h)  Whether the minor has used birth control, has been

17  treated for a sexually transmitted disease, has become

18  pregnant, or has exhibited other signs of sexual activity.

19         (8)  Remedy.--Upon notice and hearing, the court may

20  grant such relief as the court deems proper, including an

21  injunction for protection, if the court determines that a

22  credible threat exists to the well-being of the minor child.

23  The injunction for protection may enjoin the respondent from

24  engaging in sexual activity with the minor child, enjoin the

25  respondent from pursuing the minor for the purpose of engaging

26  in sexual activity, include a no-contact order, and provide

27  such other terms as the court deems necessary for the

28  protection of the minor child, including directives to law

29  enforcement agencies. The terms of an injunction granted under

30  this section shall remain in full force and effect unless

31  modified or dissolved. The petitioner or respondent may move

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1  the court to modify or dissolve an injunction granted under

  2  this section due to a change in circumstances.  The court may

  3  summarily deny the respondent's motion to dissolve an

  4  injunction granted under this section upon determining that

  5  such motion is facially insufficient.  Unless the court

  6  dissolves an injunction for protection granted under this

  7  section or, unless the injunction specifies a date for

  8  termination, the injunction shall dissolve when the minor

  9  child reaches 18 years of age or is emancipated by a court

10  order.  A temporary or final judgement on an injunction for

11  protection granted pursuant to this section shall, on its

12  face, indicate that:

13         (a)  The injunction is valid and enforceable in all

14  counties of the state.

15         (b)  Law enforcement officers may use their arrest

16  powers pursuant to s. 901.15(10) to enforce the terms of the

17  injunction.

18         (c)  The court had jurisdiction over the parties and

19  the matter under the laws of Florida and that the respondent's

20  due process rights were protected through reasonable notice

21  and an opportunity to be heard.

22         (d)  The date that the respondent was served with the

23  temporary or final order, if reasonably obtainable.

24         (9)  Service and execution.--The clerk of the court

25  shall furnish a copy of the petition, notice of hearing, and

26  temporary injunction, if any, to the sheriff or a law

27  enforcement agency of the county where the respondent resides

28  or can be found, who shall serve it upon the respondent as

29  soon thereafter as possible on any day of the week and at any

30  time of the day or night. The clerk of the court shall be

31  responsible for furnishing to the sheriff such information

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1  related to the respondent's physical description and location

  2  as is required by the Department of Law Enforcement to comply

  3  with verification procedures. Notwithstanding any other

  4  provision of law, the chief judge of each circuit, in

  5  consultation with the appropriate sheriff, may authorize a law

  6  enforcement agency within the chief judge's jurisdiction to

  7  affect this type of service and to receive a portion of the

  8  service fee. No person shall be authorized or permitted to

  9  serve or execute an injunction issued under this section

10  unless the person is a law enforcement officer as defined in

11  chapter 943.  When an injunction is issued, if the petitioner

12  requests the assistance of a law enforcement agency, the court

13  may order that an officer from the appropriate law enforcement

14  agency accompany the petitioner and assist in the execution or

15  service of the injunction. A law enforcement officer shall

16  accept a copy of an injunction for protection from the

17  petitioner, which has been certified by the clerk of the

18  court.  The law enforcement officer shall immediately serve

19  the injunction upon a respondent who has been located but not

20  yet served.

21         (a)  Within 24 hours after the court issues an

22  injunction for protection pursuant to this section or changes

23  or vacates an injunction for protection pursuant to this

24  section, the clerk of the court must forward a copy of the

25  injunction to the sheriff with jurisdiction over the residence

26  of the petitioner.

27         (b)  Within 24 hours after service of process of an

28  injunction for protection upon a respondent, the law

29  enforcement officer must forward the written proof of service

30  of process to the sheriff with jurisdiction over the residence

31  of the petitioner.

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1         (c)  Within 24 hours after the sheriff receives a

  2  certified copy of the injunction for protection, the sheriff

  3  must make information relating to the injunction available to

  4  other law enforcement agencies by electronically transmitting

  5  such information to the Department of Law Enforcement.

  6         (d)  Within 24 hours after the sheriff or other law

  7  enforcement officer has made service upon the respondent and

  8  the sheriff has been so notified, the sheriff must make

  9  information relating to the service available to other law

10  enforcement agencies by electronically transmitting such

11  information to the Department of Law Enforcement.

12         (e)  Within 24 hours after an injunction for protection

13  is lifted, terminated, or otherwise rendered no longer

14  effective by ruling of the court, the clerk of the court must

15  notify the sheriff or local law enforcement agency receiving

16  original notification of the injunction. That agency shall,

17  within 24 hours after receiving such notification from the

18  clerk of the court, notify the Department of Law Enforcement

19  of such action of the court.

20         (10)  Enforcement.--

21         (a)  The court shall enforce, through a civil or

22  criminal contempt proceeding, a violation of an injunction for

23  protection granted pursuant to this section.  The court may

24  enforce the respondent's compliance with the injunction by

25  imposing a monetary assessment. The clerk of the court shall

26  collect and receive such assessments. On a monthly basis, the

27  clerk shall transfer the moneys collected pursuant to this

28  paragraph to the State Treasury for deposit in the Crimes

29  Compensation Trust Fund established in s. 960.21.

30         (b)  If the respondent is arrested by a law enforcement

31  officer under s. 901.15(10) for violating an injunction for

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1  protection granted pursuant to this section, the respondent

  2  shall be held in custody until brought before the court as

  3  expeditiously as possible for the purpose of enforcing the

  4  injunction and for admittance to bail in accordance with

  5  chapter 903 and the applicable rules of criminal procedure,

  6  pending a hearing.

  7         (c)  A law enforcement officer acting in good faith

  8  under this section and the officer's employing agency shall be

  9  immune from all liability, civil or criminal, that might

10  otherwise be incurred or imposed by reason of the officer's or

11  agency's actions in carrying out the provisions of this

12  section. 

13         Section 2.  Subsection (10) of section 901.15, Florida

14  Statutes, is amended to read:

15         901.15  When arrest by officer without warrant is

16  lawful.--A law enforcement officer may arrest a person without

17  a warrant when:

18         (10)  The officer has probable cause to believe that

19  the person has knowingly committed an act of repeat violence

20  in violation of an injunction for protection from repeat

21  violence entered pursuant to s. 784.046 or a foreign

22  protection order accorded full faith and credit pursuant to s.

23  741.315, or if the officer has probable cause to believe that

24  the person has knowingly violated an injunction for protection

25  against a credible threat to a minor child's well-being

26  entered pursuant to s. 784.049.

27         Section 3.  This act shall take effect upon becoming

28  law.

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    Florida Senate - 2000                                  SB 2558
    13-1638-00                                          See HB 605




  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Establishes a cause of action through which a parent or
  4    legal guardian may obtain an injunction for protection
      against an adult whose actions threaten the well-being of
  5    a minor child. See bill for details.

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