Senate Bill sb1738
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Florida Senate - 2007 SB 1738
By Senator Fasano
11-880A-07
1 A bill to be entitled
2 An act relating to the distribution of material
3 harmful to minors; amending s. 847.001, F.S.;
4 redefining the term "harmful to minors";
5 amending s. 847.011, F.S.; providing that it is
6 a third-degree felony for any person to sell,
7 distribute, transmit, advertise, or to possess
8 with the intent to sell, distribute, transmit,
9 or advertise certain materials to minors;
10 providing that ignorance of a minor's age or
11 the minor's consent is not a defense in a
12 prosecution for such a violation; amending s.
13 847.012, F.S.; prohibiting a person from
14 knowingly using a minor in the production of
15 certain materials, regardless of whether those
16 materials are intended for distribution to
17 minors or actually distributed to minors;
18 providing a penalty; providing that ignorance
19 of a minor's age or the minor's consent is not
20 a defense in a prosecution for such a
21 violation; amending s. 847.013, F.S.; providing
22 that it is a first-degree misdemeanor for any
23 person to knowingly use a minor in the
24 production of certain materials depicting
25 certain images, representations, or acts;
26 providing that ignorance of a minor's age or
27 the minor's consent is not a defense in a
28 prosecution for such a violation; revising
29 legislative intent concerning the enforcement
30 of such laws with respect to minors; amending
31 s. 921.0022, F.S., relating to the offense
1
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1 severity ranking chart of the Criminal
2 Punishment Code; establishing offense levels to
3 conform to changes made by the act; providing
4 an effective date.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. Subsection (6) of section 847.001, Florida
9 Statutes, is amended to read:
10 847.001 Definitions.--As used in this chapter, the
11 term:
12 (6) "Harmful to minors" means any reproduction,
13 imitation, characterization, description, exhibition,
14 presentation, or representation, of whatever kind or form,
15 depicting nudity, sexual conduct, or sexual excitement when
16 it:
17 (a) Predominantly appeals to the prurient, shameful,
18 or morbid interest of minors;
19 (b) Is patently offensive to prevailing standards in
20 the adult community as a whole with respect to what is
21 suitable material or conduct for minors; and
22 (c) Taken as a whole, is without serious literary,
23 artistic, political, or scientific value for minors.
24
25 A mother's breastfeeding of her baby is not under any
26 circumstance "harmful to minors."
27 Section 2. Subsection (1) and (2) of section 847.011,
28 Florida Statutes, are amended to read:
29 847.011 Prohibition of certain acts in connection with
30 obscene, lewd, etc., materials; penalty.--
31
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1 (1)(a) Any person who knowingly sells, lends, gives
2 away, distributes, transmits, shows, or transmutes, or offers
3 to sell, lend, give away, distribute, transmit, show, or
4 transmute, or has in his or her possession, custody, or
5 control with intent to sell, lend, give away, distribute,
6 transmit, show, transmute, or advertise in any manner, any
7 obscene book, magazine, periodical, pamphlet, newspaper, comic
8 book, story paper, written or printed story or article,
9 writing, paper, card, picture, drawing, photograph, motion
10 picture film, figure, image, phonograph record, or wire or
11 tape or other recording, or any written, printed, or recorded
12 matter of any such character which may or may not require
13 mechanical or other means to be transmuted into auditory,
14 visual, or sensory representations of such character, or any
15 article or instrument for obscene use, or purporting to be for
16 obscene use or purpose; or who knowingly designs, copies,
17 draws, photographs, poses for, writes, prints, publishes, or
18 in any manner whatsoever manufactures or prepares any such
19 material, matter, article, or thing of any such character; or
20 who knowingly writes, prints, publishes, or utters, or causes
21 to be written, printed, published, or uttered, any
22 advertisement or notice of any kind, giving information,
23 directly or indirectly, stating, or purporting to state,
24 where, how, of whom, or by what means any, or what purports to
25 be any, such material, matter, article, or thing of any such
26 character can be purchased, obtained, or had; or who in any
27 manner knowingly hires, employs, uses, or permits any person
28 knowingly to do or assist in doing any act or thing mentioned
29 above, is guilty of a misdemeanor of the first degree,
30 punishable as provided in s. 775.082 or s. 775.083. A person
31 who, after having been convicted of a violation of this
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1 subsection, thereafter violates any of its provisions, is
2 guilty of a felony of the third degree, punishable as provided
3 in s. 775.082, s. 775.083, or s. 775.084.
4 (b) The knowing possession by any person of three or
5 more identical or similar materials, matters, articles, or
6 things coming within the provisions of paragraph (a) is prima
7 facie evidence of the violation of said paragraph.
8 (c) Any person who commits a violation of paragraph
9 (a) or subsection (2) which is based on materials that depict
10 a minor engaged in any act or conduct that is harmful to
11 minors commits a felony of the third degree, punishable as
12 provided in s. 775.082, s. 775.083, or s. 775.084.
13 (d) A person's ignorance of a minor's age, a minor's
14 misrepresentation of his or her age, a bona fide belief of a
15 minor's age, or a minor's consent may not be raised as a
16 defense in a prosecution for one or more violations of
17 paragraph (a) or subsection (2).
18 (2) A person who knowingly has in his or her
19 possession, custody, or control any obscene book, magazine,
20 periodical, pamphlet, newspaper, comic book, story paper,
21 written or printed story or article, writing, paper, card,
22 picture, drawing, photograph, motion picture film, film, any
23 sticker, decal, emblem or other device attached to a motor
24 vehicle containing obscene descriptions, photographs, or
25 depictions, any figure, image, phonograph record, or wire or
26 tape or other recording, or any written, printed, or recorded
27 matter of any such character which may or may not require
28 mechanical or other means to be transmuted into auditory,
29 visual, or sensory representations of such character, or any
30 article or instrument for obscene use, or purporting to be for
31 obscene use or purpose, without intent to sell, lend, give
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1 away, distribute, transmit, show, transmute, or advertise the
2 same, commits is guilty of a misdemeanor of the second degree,
3 punishable as provided in s. 775.082 or s. 775.083. A person
4 who, after having been convicted of violating this subsection,
5 thereafter violates any of its provisions commits is guilty of
6 a misdemeanor of the first degree, punishable as provided in
7 s. 775.082 or s. 775.083. In any prosecution for such
8 possession, it is shall not be necessary to allege or prove
9 the absence of such intent.
10 Section 3. Section 847.012, Florida Statutes, is
11 amended to read:
12 847.012 Prohibition of sale or other distribution of
13 harmful materials to persons under 18 years of age; penalty.--
14 (1) As used in this section, "knowingly" means having
15 the general knowledge of, reason to know, or a belief or
16 ground for belief which warrants further inspection or inquiry
17 of both:
18 (a) The character and content of any material
19 described in this section herein which is reasonably
20 susceptible of examination by the defendant;, and
21 (b) The age of the minor; however, an honest mistake
22 shall constitute an excuse from liability hereunder if the
23 defendant made a reasonable bona fide attempt to ascertain the
24 true age of such minor.
25 (2) A person's ignorance of a minor's age, a minor's
26 misrepresentation of his or her age, a bona fide belief of a
27 minor's age, or a minor's consent may not be raised as a
28 defense in a prosecution for a violation of subsection (4).
29 (3)(2) A It is unlawful for any person may not
30 knowingly to sell, rent, or loan for monetary consideration to
31 a minor:
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1 (a) Any picture, photograph, drawing, sculpture,
2 motion picture film, videocassette, or similar visual
3 representation or image of a person or portion of the human
4 body which depicts nudity or sexual conduct, sexual
5 excitement, sexual battery, bestiality, or sadomasochistic
6 abuse and which is harmful to minors;, or
7 (b) Any book, pamphlet, magazine, printed matter
8 however reproduced, or sound recording that which contains any
9 matter defined in s. 847.001, explicit and detailed verbal
10 descriptions or narrative accounts of sexual excitement, or
11 sexual conduct and that which is harmful to minors.
12 (4) A person may not knowingly use a minor in the
13 production of any material described in paragraph (3)(a) or
14 paragraph (3)(b), regardless of whether the material is
15 intended for distribution to minors or is actually distributed
16 to minors.
17 (5)(3) Any person violating any provision of this
18 section commits is guilty of a felony of the third degree,
19 punishable as provided in s. 775.082, s. 775.083, or s.
20 775.084.
21 (6)(4) Every act, thing, or transaction forbidden by
22 this section constitutes a separate offense and is punishable
23 as such.
24 (7)(5)(a) The circuit court has jurisdiction to enjoin
25 a violation of this section upon complaint filed by the state
26 attorney in the name of the state upon the relation of such
27 state attorney.
28 (b) After the filing of such a complaint, the judge to
29 whom it is presented may grant an order restraining the person
30 complained of until final hearing or further order of the
31 court. Whenever the relator state attorney requests a judge of
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1 such court to set a hearing upon an application for such a
2 restraining order, such judge shall set such hearing for a
3 time within 3 days after the making of such request. No Such
4 order may not shall be made unless the such judge is satisfied
5 that sufficient notice of the application therefor has been
6 given to the party restrained of the time when and place where
7 the application for such restraining order is to be made.
8 (c) The person sought to be enjoined is shall be
9 entitled to a trial of the issues within 1 day after joinder
10 of issue, and a decision shall be rendered by the court within
11 2 days after of the conclusion of the trial.
12 (d) If In the event that a final decree of injunction
13 is entered, it must shall contain a provision directing the
14 defendant having the possession, custody, or control of the
15 materials, matters, articles, or things affected by the
16 injunction to surrender the same to the sheriff and requiring
17 the sheriff to seize and destroy the same. The sheriff shall
18 file a certificate of her or his compliance.
19 (e) In any action brought as provided in this section,
20 a no bond or undertaking may not shall be required of the
21 state or the state attorney before the issuance of a
22 restraining order provided for by paragraph (b), and there
23 shall be no liability on the part of the state or the state
24 attorney may not be held liable for costs or for damages
25 sustained by reason of the such restraining order in any case
26 where a final decree is rendered in favor of the person sought
27 to be enjoined.
28 (f) Every person who has possession, custody, or
29 control of, or otherwise deals with, any of the materials,
30 matters, articles, or things described in this section, after
31 the service upon her or him of a summons and complaint in an
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1 action for injunction brought under this section, is
2 chargeable with knowledge of the contents and character
3 thereof.
4 (8)(6) The several sheriffs and state attorneys shall
5 vigorously enforce this section within their respective
6 jurisdictions.
7 (9)(7) This section does not apply to the exhibition
8 of motion pictures, shows, presentations, or other
9 representations regulated under the provisions of s. 847.013.
10 Section 4. Section 847.013, Florida Statutes, is
11 amended to read:
12 847.013 Exposing minors to or using minors in the
13 production of harmful motion pictures, exhibitions, shows,
14 presentations, or representations.--
15 (1) "KNOWINGLY" DEFINED.--As used in this section
16 "knowingly" means having general knowledge of, reason to know,
17 or a belief or ground for belief which warrants further
18 inspection or inquiry of both:
19 (a) The character and content of any motion picture
20 described herein which is reasonably susceptible of
21 examination by the defendant, or the character of any
22 exhibition, presentation, representation, or show described
23 herein, other than a motion picture show, which is reasonably
24 susceptible of being ascertained by the defendant, and
25 (b) The age of the minor; however, an honest mistake
26 shall constitute an excuse from liability hereunder if the
27 defendant made a reasonable bona fide attempt to ascertain the
28 true age of such minor.
29 (2) MINOR'S AGE.--A person's ignorance of a minor's
30 age, a minor's misrepresentation of his or her age, a bona
31 fide belief of a minor's age, or a minor's consent may not be
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1 raised as a defense in a prosecution for a violation of s.
2 847.012 or s. 847.013.
3 (3)(2) OFFENSES AND PENALTIES.--
4 (a) It is unlawful for any person knowingly to exhibit
5 for a monetary consideration to a minor or knowingly to sell
6 or rent a videotape of a motion picture to a minor or
7 knowingly sell to a minor an admission ticket or pass or
8 knowingly admit a minor for a monetary consideration to
9 premises whereon there is exhibited a motion picture,
10 exhibition, show, representation, or other presentation which,
11 in whole or in part, depicts nudity, sexual conduct, sexual
12 excitement, sexual battery, bestiality, or sadomasochistic
13 abuse and which is harmful to minors.
14 (b) It is unlawful for any person knowingly to rent or
15 sell, or loan to a minor for monetary consideration, a
16 videocassette or a videotape of a motion picture, or similar
17 presentation, which, in whole or in part, depicts nudity,
18 sexual conduct, sexual excitement, sexual battery, bestiality,
19 or sadomasochistic abuse and which is harmful to minors.
20 (c) The provisions of paragraph (a) do not apply to a
21 minor when the minor is accompanied by his or her parents or
22 either of them.
23 (d) It is unlawful for any minor to falsely represent
24 to the owner of any premises mentioned in paragraph (a), or to
25 the owner's agent, or to any person mentioned in paragraph
26 (b), that such minor is 17 years of age or older, with the
27 intent to procure such minor's admission to such premises, or
28 such minor's purchase or rental of a videotape, for a monetary
29 consideration.
30 (e) It is unlawful for any person to knowingly make a
31 false representation to the owner of any premises mentioned in
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1 paragraph (a), or to the owner's agent, or to any person
2 mentioned in paragraph (b), that he or she is the parent of
3 any minor or that any minor is 17 years of age or older, with
4 intent to procure such minor's admission to such premises or
5 to aid such minor in procuring admission thereto, or to aid or
6 enable such minor's purchase or rental of a videotape, for a
7 monetary consideration.
8 (f) A person may not knowingly use a minor in the
9 production of any material whereon there is exhibited a motion
10 picture, exhibition, show, representation, or other
11 presentation that, in whole or in part, depicts nudity, sexual
12 conduct, sexual excitement, sexual battery, bestiality, or
13 sadomasochistic abuse and that is harmful to minors.
14 (g)(f) A violation of any provision of this subsection
15 constitutes a misdemeanor of the first degree, punishable as
16 provided in s. 775.082 or s. 775.083.
17 (4)(3) INJUNCTIVE PROCEEDINGS.--
18 (a) The circuit court has jurisdiction to enjoin a
19 threatened violation of subsection (2) upon complaint filed by
20 the state attorney in the name of the state upon the relation
21 of such state attorney.
22 (b) After the filing of such a complaint, the judge to
23 whom it is presented may grant an order restraining the person
24 or persons complained of until final hearing or further order
25 of the court. Whenever the relator requests a judge of such
26 court to set a hearing upon an application for such a
27 restraining order, such judge shall set such hearing for a
28 time within 3 days after the making of such request. No such
29 order shall be made unless such judge is satisfied that
30 sufficient notice of the application therefor has been given
31 to the person or persons restrained of the time when and place
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1 where the application for such restraining order is to be
2 heard. However, such notice shall be dispensed with when it
3 is manifest to such judge, from the allegations of a sworn
4 complaint or independent affidavit, sworn to by the relator or
5 by some person associated with him or her in the field of law
6 enforcement and filed by the relator, that the apprehended
7 violation will be committed if an immediate remedy is not
8 afforded.
9 (c) The person or persons sought to be enjoined shall
10 be entitled to a trial of the issues within 1 day after
11 joinder of issue, and a decision shall be rendered by the
12 court within 2 days after the conclusion of the trial.
13 (d) In any action brought as provided in this section,
14 no bond or undertaking shall be required of the state or the
15 relator state attorney before the issuance of a restraining
16 order provided for by this section, and there shall be no
17 liability on the part of the state or the relator state
18 attorney for costs or damages sustained by reason of such
19 restraining order in any case in which a final decree is
20 rendered in favor of the person or persons sought to be
21 enjoined.
22 (e) Every person who has possession, custody, or
23 control of, or otherwise deals with, any motion picture,
24 exhibition, show, representation, or presentation described in
25 this section, after the service upon him or her of a summons
26 and complaint in an action for injunction brought under this
27 section, is chargeable with knowledge of the contents or
28 character thereof.
29 (5)(4) LEGISLATIVE INTENT.--In order to make the
30 application and enforcement of this section uniform throughout
31 the state, it is the intent of the Legislature to preempt the
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1 field, to the exclusion of counties and municipalities,
2 insofar as it concerns exposing persons under 17 years of age
3 to harmful motion pictures, exhibitions, shows,
4 representations, and presentations, and commercial or sexual
5 exploitation. To that end, it is hereby declared that every
6 county ordinance and every municipal ordinance adopted prior
7 to July 1, 1969, and relating to such subject shall stand
8 abrogated and unenforceable on and after such date and that no
9 county, municipality, or consolidated county-municipal
10 government shall have the power to adopt any ordinance
11 relating to that subject on or after such effective date.
12 Section 5. Paragraph (f) of subsection (3) of section
13 921.0022, Florida Statutes, is amended to read:
14 921.0022 Criminal Punishment Code; offense severity
15 ranking chart.--
16 (3) OFFENSE SEVERITY RANKING CHART
17
18 Florida Felony
19 Statute Degree Description
20
21
22 (f) LEVEL 6
23 316.193(2)(b) 3rd Felony DUI, 4th or subsequent
24 conviction.
25 499.0051(3) 2nd Forgery of pedigree papers.
26 499.0051(4) 2nd Purchase or receipt of legend
27 drug from unauthorized person.
28 499.0051(5) 2nd Sale of legend drug to
29 unauthorized person.
30 775.0875(1) 3rd Taking firearm from law
31 enforcement officer.
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1 784.021(1)(a) 3rd Aggravated assault; deadly weapon
2 without intent to kill.
3 784.021(1)(b) 3rd Aggravated assault; intent to
4 commit felony.
5 784.041 3rd Felony battery.
6 784.048(3) 3rd Aggravated stalking; credible
7 threat.
8 784.048(5) 3rd Aggravated stalking of person
9 under 16.
10 784.07(2)(c) 2nd Aggravated assault on law
11 enforcement officer.
12 784.074(1)(b) 2nd Aggravated assault on sexually
13 violent predators facility staff.
14 784.08(2)(b) 2nd Aggravated assault on a person 65
15 years of age or older.
16 784.081(2) 2nd Aggravated assault on specified
17 official or employee.
18 784.082(2) 2nd Aggravated assault by detained
19 person on visitor or other
20 detainee.
21 784.083(2) 2nd Aggravated assault on code
22 inspector.
23 787.02(2) 3rd False imprisonment; restraining
24 with purpose other than those in
25 s. 787.01.
26 790.115(2)(d) 2nd Discharging firearm or weapon on
27 school property.
28 790.161(2) 2nd Make, possess, or throw
29 destructive device with intent to
30 do bodily harm or damage
31 property.
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1 790.164(1) 2nd False report of deadly explosive,
2 weapon of mass destruction, or
3 act of arson or violence to state
4 property.
5 790.19 2nd Shooting or throwing deadly
6 missiles into dwellings, vessels,
7 or vehicles.
8 794.011(8)(a) 3rd Solicitation of minor to
9 participate in sexual activity by
10 custodial adult.
11 794.05(1) 2nd Unlawful sexual activity with
12 specified minor.
13 800.04(5)(d) 3rd Lewd or lascivious molestation;
14 victim 12 years of age or older
15 but less than 16 years; offender
16 less than 18 years.
17 800.04(6)(b) 2nd Lewd or lascivious conduct;
18 offender 18 years of age or
19 older.
20 806.031(2) 2nd Arson resulting in great bodily
21 harm to firefighter or any other
22 person.
23 810.02(3)(c) 2nd Burglary of occupied structure;
24 unarmed; no assault or battery.
25 812.014(2)(b)1. 2nd Property stolen $20,000 or more,
26 but less than $100,000, grand
27 theft in 2nd degree.
28 812.015(9) 2nd Retail theft; property stolen
29 $300 or more; second or
30 subsequent conviction.
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1 812.13(2)(c) 2nd Robbery, no firearm or other
2 weapon (strong-arm robbery).
3 817.034(4)(a)1. 1st Communications fraud, value
4 greater than $50,000.
5 817.4821(5) 2nd Possess cloning paraphernalia
6 with intent to create cloned
7 cellular telephones.
8 825.102(1) 3rd Abuse of an elderly person or
9 disabled adult.
10 825.102(3)(c) 3rd Neglect of an elderly person or
11 disabled adult.
12 825.1025(3) 3rd Lewd or lascivious molestation of
13 an elderly person or disabled
14 adult.
15 825.103(2)(c) 3rd Exploiting an elderly person or
16 disabled adult and property is
17 valued at less than $20,000.
18 827.03(1) 3rd Abuse of a child.
19 827.03(3)(c) 3rd Neglect of a child.
20 827.071(2)&(3) 2nd Use or induce a child in a sexual
21 performance, or promote or direct
22 such performance.
23 836.05 2nd Threats; extortion.
24 836.10 2nd Written threats to kill or do
25 bodily injury.
26 843.12 3rd Aids or assists person to escape.
27 847.011 3rd Distributing, offering to
28 distribute, or possessing with
29 intent to distribute obscene
30 materials to minors or depicting
31 minors.
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1 847.012 3rd Knowingly using a minor in the
2 production of obscene or sexually
3 explicit materials.
4 847.0135(2) 3rd Facilitates sexual conduct of or
5 with a minor or the visual
6 depiction of such conduct.
7 914.23 2nd Retaliation against a witness,
8 victim, or informant, with bodily
9 injury.
10 944.35(3)(a)2. 3rd Committing malicious battery upon
11 or inflicting cruel or inhuman
12 treatment on an inmate or
13 offender on community
14 supervision, resulting in great
15 bodily harm.
16 944.40 2nd Escapes.
17 944.46 3rd Harboring, concealing, aiding
18 escaped prisoners.
19 944.47(1)(a)5. 2nd Introduction of contraband
20 (firearm, weapon, or explosive)
21 into correctional facility.
22 951.22(1) 3rd Intoxicating drug, firearm, or
23 weapon introduced into county
24 facility.
25 Section 6. This act shall take effect July 1, 2007.
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2 SENATE SUMMARY
3 Provides that it is a third-degree felony for any person
to sell, distribute, transmit, advertise, or to possess
4 with the intent to sell, distribute, transmit, or
advertise certain materials to minors. Provides that it
5 is a third-degree felony to knowingly use a minor in the
production of certain materials, regardless of whether
6 those materials are intended for distribution to minors
or actually distributed to minors. Provides that it is a
7 first-degree misdemeanor for any person to knowingly use
a minor in the production of certain materials depicting
8 certain images, representations, or acts.
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