Senate Bill sb0698

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    Florida Senate - 2007                                   SB 698

    By Senator Siplin





    19-269-07

  1                      A bill to be entitled

  2         An act relating to the commercial distribution

  3         of pornographic materials; providing a short

  4         title; providing legislative findings; defining

  5         terms relating to the commercial distribution

  6         of pornographic materials; prohibiting a person

  7         from willfully and knowingly distributing

  8         pornographic materials for commercial purposes;

  9         providing a civil penalty; providing that any

10         person, including a church, religious

11         organization, or other representative group or

12         organization, may bring an action to enforce

13         the act; providing certain exemptions;

14         providing procedures for enforcing the act;

15         providing for attorney's fees and costs;

16         requiring that any civil penalty collected be

17         deposited into the General Revenue Fund;

18         providing for declaratory and injunctive

19         relief; authorizing a person to recover actual

20         damages and attorney's fees if the person

21         suffers a loss as a result of commercial

22         distribution of pornographic materials;

23         providing an effective date.

24  

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

26  

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

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

29  "Florida Commercial Anti-Pornography Act."

30         (2)  LEGISLATIVE FINDINGS.--

31  

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    Florida Senate - 2007                                   SB 698
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 1         (a)  The Legislature finds that pornography has a

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

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

 4  this state and it panders to the basest desires of a minority

 5  of the residents of this state.

 6         (b)  The Legislature further finds that pornography is

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

 8  state a civil remedy to enjoin the distribution of

 9  pornographic materials for profit and commercial purposes

10  within their community, and to recover civil penalties and

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

12  welfare of the people of the state.

13         (c)  The Legislature further finds that extending the

14  remedies provided under this act to any church or religious

15  organization, or other representative group or organization

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

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

18  people of the state.

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

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

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

22  exhibition, show, representation, performance, or other

23  product.

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

25  possession of materials whether with or without consideration.

26         (c)  "Exhibit" means to show.

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

28  constructive, of the character of material or of a

29  performance. A person has constructive knowledge if a

30  reasonable inspection or observation under the circumstances

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

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    Florida Senate - 2007                                   SB 698
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 1  failure to inspect or observe is for the purpose of avoiding

 2  the disclosure.

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

 4  picture, drawing, photograph, motion picture, or pictorial

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

 6  transcription; any mechanical, chemical, or electrical

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

 8  communication. The term includes undeveloped photographs,

 9  molds, printing plates, and other latent representational

10  objects.

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

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

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

14  dancing, acting, simulating, or pantomiming.

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

16  specifically described or depicted sexual act or conduct that

17  a person, applying contemporary community standards, would

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

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

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

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

22  conduct" means a sexual act or conduct depicting:

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

24  sodomy, or oral sodomy;

25         2.  Incest;

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

27  or conduct;

28         4.  Bestiality;

29         5.  Multiple penetration by multiple partners of body

30  orifices;

31  

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    Florida Senate - 2007                                   SB 698
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 1         6.  Visible penetration during intercourse, sodomy, or

 2  oral sodomy;

 3         7.  Visible ejaculation, urination, menstruation, bowel

 4  movements, ejaculate, or feces;

 5         8.  Visible penetration of a bodily orifice with a

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

 7         9.  Sexual acts or conduct involving the dead.

 8         (4)  CIVIL PENALTY.--

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

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

11  for commercial use in this state pornographic materials.

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

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

14  pornographic materials in this state for commercial use is

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

16  violation.

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

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

19  distributes pornographic material, and a violation occurs for

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

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

22         (5)  ENFORCEMENT.--

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

24  organization, or other representative group or organization,

25  may bring an action in the circuit court to enforce this

26  section.

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

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

29  purposes of this section and the nature of the offense.

30         (6)  LIMITATIONS.--This section does not apply to the

31  noncommercial distribution of materials through Internet

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

 2  regulate, limit, or prohibit residents from possessing obscene

 3  material for personal use in their own homes.

 4         (7)  FREE SPEECH.--

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

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

 7  costs associated with defending a multiplicity of suits

 8  brought under this section.

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

10  enforcement of this section is consistent with this intent,

11  when a motion is filed by any party, the court may stay any

12  other suit filed in this state which involves the same

13  defendant, pending a final determination.

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

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

16  alleging that the action is frivolous, without legal or

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

18  court may, after hearing evidence as to the necessity

19  therefor, and after review of the alleged pornographic

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

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

22  finds reasonable to indemnify the defendant for any damages

23  incurred, including reasonable attorney's fees.

24         (8)  RELIEF.--

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

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

27  costs.

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

29  and shall be deposited as received into the General Revenue

30  Fund.

31         (9)  INJUNCTIVE PROCEEDINGS.--

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    Florida Senate - 2007                                   SB 698
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 1         (a)  After a complaint is filed, the court may grant a

 2  temporary order restraining the person or persons complained

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

 4  hearing must be conducted no later than 3 days after the

 5  temporary restraining order is issued by the court. A

 6  temporary restraining order may not be issued unless it is

 7  manifest to the court, after review of the alleged

 8  pornographic material and from the allegations of a complaint

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

10  representative, that the apprehended violation will be

11  committed if an immediate remedy is not afforded.

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

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

14  the date the temporary restraining order is issued.

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

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

17  plaintiff in any action brought under this section before a

18  temporary restraining order is issued. The state or other

19  plaintiff is not liable for costs or damages sustained by

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

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

22  sought to be enjoined.

23         (10)  DAMAGES.--

24         (a)  Anyone aggrieved by a violation of this section

25  may bring an action for declaratory relief that a sexual act

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

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

28  section, without regard to any other remedy or relief to which

29  a person is entitled.

30  

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    Florida Senate - 2007                                   SB 698
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 1         (b)  A person may recover actual damages and attorney's

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

 3  suffered a loss as a result of a violation of this section.

 4         Section 2.  This act shall take effect July 1, 2007.

 5  

 6            *****************************************

 7                          SENATE SUMMARY

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

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