Senate Bill sb0326

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    Florida Senate - 2006                                   SB 326

    By Senator Siplin





    19-192-06

  1                      A bill to be entitled

  2         An act relating to the commercial distribution

  3         of pornographic materials; defining terms

  4         relating to the commercial distribution of

  5         pornographic materials; prohibiting a person

  6         from willfully and knowingly distributing

  7         pornographic materials for commercial purposes;

  8         providing a civil penalty; providing that any

  9         person, including a church, religious

10         organization, or other representative group or

11         organization may bring an action to enforce the

12         act; providing certain exemptions; providing

13         procedures for enforcing the act; providing for

14         attorney's fees and costs; requiring that any

15         civil penalty collected be deposited into the

16         General Revenue Fund; providing for declaratory

17         and injunctive relief; authorizing a person to

18         recover actual damages and attorney's fees if

19         the person suffers a loss as a result of

20         commercial distribution of pornographic

21         materials; providing an effective date.

22  

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

24  

25         Section 1.  Florida commercial anti-pornography act.--

26         (1)  SHORT TITLE.--This section may be cited as the

27  "Florida Commercial Anti-Pornography Act."

28         (2)  LEGISLATIVE FINDINGS.--

29         (a)  The Legislature finds that pornography has a

30  deleterious effect on the health and morals of the people of

31  this state. Pornography is demeaning to the men and women of

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    Florida Senate - 2006                                   SB 326
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 1  this state and it panders to the basest desires of a minority

 2  of the residents of this state.

 3         (b)  The Legislature further finds that pornography is

 4  offensive and a nuisance and that affording the people of this

 5  state a civil remedy to enjoin the distribution of

 6  pornographic materials for profit and commercial purposes

 7  within their community, and to recover civil penalties and

 8  damages, will result in a general benefit to the health and

 9  welfare of the people of the state.

10         (c)  The Legislature further finds that extending the

11  remedies provided under this act to any church or religious

12  organization, or other representative group or organization

13  within this state, will further the purposes of this act and

14  result in a general benefit to the health and welfare of the

15  people of the state.

16         (3)  DEFINITIONS.--As used in this section, the term:

17         (a)  "Commercial" means profit-seeking production,

18  buying, selling, or distribution of any motion picture,

19  exhibition, show, representation, performance, or other

20  product.

21         (b)  "Distribute" or "distribution" means to transfer

22  possession of materials whether with or without consideration.

23         (c)  "Exhibit" means to show.

24         (d)  "Knowingly" means an awareness, whether actual or

25  constructive, of the character of material or of a

26  performance. A person has constructive knowledge if a

27  reasonable inspection or observation under the circumstances

28  would have disclosed the nature of the subject matter and if a

29  failure to inspect or observe is for the purpose of avoiding

30  the disclosure.

31  

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    Florida Senate - 2006                                   SB 326
    19-192-06




 1         (e)  "Material" means anything printed or written; any

 2  picture, drawing, photograph, motion picture, or pictorial

 3  representation; any statue or other figure; any recording or

 4  transcription; any mechanical, chemical, or electrical

 5  reproduction; or anything that is or may be used as a means of

 6  communication. Material includes undeveloped photographs,

 7  molds, printing plates, and other latent representational

 8  objects.

 9         (f)  "Performance" or "performs" means any physical

10  human bodily activity, whether engaged in alone or with other

11  persons, including, but not limited to, singing, speaking,

12  dancing, acting, simulating, or pantomiming.

13         (g)  "Pornography" or "pornographic" means a

14  specifically described or depicted sexual act or conduct that

15  a person, applying contemporary community standards, would

16  consider, taken as a whole, to appeal to the prurient

17  interest, and that the work, when taken as a whole, lacks

18  serious literary, artistic, political, or scientific value.

19         (h)  "Specifically described or depicted sexual act or

20  conduct" means a sexual act or conduct depicting:

21         1.  Rape; sexual battery; or nonconsensual intercourse,

22  sodomy, or oral sodomy;

23         2.  Incest;

24         3.  The involvement of an actual minor in sexual acts

25  or conduct;

26         4.  Bestiality;

27         5.  Multiple penetration by multiple partners of body

28  orifices;

29         6.  Visible penetration during intercourse, sodomy, or

30  oral sodomy;

31  

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    Florida Senate - 2006                                   SB 326
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 1         7.  Visible ejaculation, urination, menstruation, bowel

 2  movements, ejaculate, or feces;

 3         8.  Visible penetration of a bodily orifice with a

 4  digit, hand, foot, or inanimate object; or

 5         9.  Sexual acts or conduct involving the dead.

 6         (4)  CIVIL WRONG AND NUISANCE.--

 7         (a)  A person, or an agent or employee of a person, may

 8  not willfully and knowingly buy, sell, exhibit, or distribute

 9  for commercial use in this state pornographic materials.

10         (b)  A person, or an agent or employee of a person, who

11  willfully and knowingly buys, sells, exhibits, or distributes

12  pornographic materials in this state for commercial use is

13  liable for a civil penalty of not more than $10,000 for each

14  violation.

15         (c)  A violation occurs each time the person, or an

16  agent or employee of a person, buys, sells, exhibits, or

17  distributes pornographic material, and a violation occurs for

18  each item of pornographic material bought, sold, exhibited, or

19  distributed by the person or an agent or employee of a person.

20         (5)  ENFORCEMENT.--

21         (a)  Any person, including a church or religious

22  organization, or other representative group or organization,

23  may bring an action in the circuit court to enforce this act.

24         (b)  Civil penalties may be assessed by and at the

25  discretion of the circuit court, with due regard for the

26  purposes of this act and the nature of the offense.

27         (6)  LIMITATIONS.--This act does not apply to the

28  noncommercial distribution of materials through Internet

29  service providers, Internet users, or others, and does not

30  regulate, limit, or prohibit residents from possessing obscene

31  material for personal use in their own homes.

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    Florida Senate - 2006                                   SB 326
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 1         (7)  FREE SPEECH.--

 2         (a)  It is the intent of the Legislature to preserve,

 3  protect, and foster protected free speech, and to minimize the

 4  costs associated with defending a multiplicity of suits

 5  brought under this act.

 6         (b)  In order to ensure that the application and

 7  enforcement of this act is consistent with this intent, when a

 8  motion is filed by any party, the court may stay any other

 9  suit filed in this state which involves the same defendant,

10  pending a final determination.

11         (c)  In an action brought under this section, upon a

12  motion filed by the party against whom the action is brought

13  alleging that the action is frivolous, without legal or

14  factual merit, or brought for the purpose of harassment, the

15  court may, after hearing evidence as to the necessity

16  therefor, and after review of the alleged pornographic

17  materials, require the party instituting the action to post a

18  bond, in an amount not to exceed $10,000, which the court

19  finds reasonable to indemnify the defendant for any damages

20  incurred, including reasonable attorney's fees.

21         (8)  RELIEF.--

22         (a)  If civil penalties are assessed in any litigation,

23  the plaintiff is entitled to reasonable attorney's fees and

24  costs.

25         (b)  Any civil penalty collected accrues to the state

26  and shall be deposited as received into the General Revenue

27  Fund.

28         (9)  INJUNCTIVE PROCEEDINGS.--

29         (a)  After a complaint is filed, the court may grant a

30  temporary order restraining the person or persons complained

31  of upon an application for a temporary restraining order. A

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    Florida Senate - 2006                                   SB 326
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 1  hearing must be conducted no later than 3 days after the

 2  temporary restraining order is issued by the court. A

 3  temporary restraining order may not be issued unless it is

 4  manifest to the court, after review of the alleged

 5  pornographic material and from the allegations of a complaint

 6  or affidavit sworn to by the plaintiff or the plaintiff's

 7  representative, that the apprehended violation will be

 8  committed if an immediate remedy is not afforded.

 9         (b)  The person or persons sought to be enjoined are

10  entitled to a trial of the issues no later than 30 days after

11  the date the temporary restraining order is issued.

12         (c)  Except as otherwise provided in this section, a

13  bond or undertaking is not required of the state or other

14  plaintiff in any action brought under this act before a

15  temporary restraining order is issued. The state or other

16  plaintiff is not liable for costs or damages sustained by

17  reason of the temporary restraining order in any case in which

18  a final decree is rendered in favor of the person or persons

19  sought to be enjoined.

20         (10)  DAMAGES.--

21         (a)  Anyone aggrieved by a violation of this act may

22  bring an action for declaratory relief that a sexual act or

23  conduct violates this act or to enjoin a person who has

24  violated, is violating, or is otherwise likely to violate this

25  act, without regard to any other remedy or relief to which a

26  person is entitled.

27         (b)  A person may recover actual damages and attorney's

28  fees and court costs in any action brought by a person who has

29  suffered a loss as a result of a violation of this act.

30         Section 2.  This act shall take effect July 1, 2006.

31  

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    Florida Senate - 2006                                   SB 326
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Prohibits a person from willfully and knowingly
      distributing pornographic materials for commercial
 4    purposes. Provides a civil penalty. Provides that any
      person, including a church or religious organization, or
 5    other representative group or organization may bring an
      action to enforce the act. Provides procedures to enforce
 6    the act. Provides that if civil penalties are assessed in
      any litigation, the plaintiff is entitled to reasonable
 7    attorney's fees and costs. Provides that any civil
      penalty collected be deposited into the General Revenue
 8    Fund. Provides for declaratory and injunctive relief.
      Authorizes a person to recover actual damages and
 9    attorney's fees if the person suffers a loss as a result
      of commercial distribution of pornographic materials.
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