HB 963

1	A bill to be entitled
2	An act relating to protection of minors; amending s.
3	847.001, F.S.; revising the definition of the term
4	"harmful to minors"; amending s. 847.011, F.S.;
5	prohibiting certain actions involving depictions of minors
6	engaged in certain conduct; providing criminal penalties;
7	precluding certain defenses; amending s. 847.012, F.S.;
8	deleting a provision providing a defense as to age of a
9	minor following a bona fide attempt to ascertain a minor's
10	age; precluding certain defenses; prohibiting the use of
11	minors in the production of specified material; providing
12	penalties; amending s. 847.013, F.S.; deleting a provision
13	providing a defense as to age of a minor following a bona
14	fide attempt to ascertain a minor's age; precluding
15	certain defenses; prohibiting use of minors in the
16	production of specified material; providing penalties;
17	providing legislative intent; amending s. 921.0022, F.S.;
18	conforming the Offense Severity Ranking Chart of the
19	Criminal Punishment Code; providing an effective date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1.  Subsection (6) of section 847.001, Florida
24	Statutes, is amended to read:
25	847.001  Definitions.--As used in this chapter, the term:
26	(6)  "Harmful to minors" means any reproduction, imitation,
27	characterization, description, exhibition, presentation, or
28	representation, of whatever kind or form, depicting nudity,
29	sexual conduct, or sexual excitement when it:
30	(a)  Predominantly appeals to a the prurient, shameful, or
31	morbid interest of minors;
32	(b)  Is patently offensive to prevailing standards in the
33	adult community as a whole with respect to what is suitable
34	material or conduct for minors; and
35	(c)  Taken as a whole, is without serious literary,
36	artistic, political, or scientific value for minors.
37
38	A mother's breastfeeding of her baby is not under any
39	circumstance "harmful to minors."
40	Section 2.  Paragraphs (c)  and (d) are added to subsection
41	(1) of section 847.011, Florida Statutes, to read:
42	847.011  Prohibition of certain acts in connection with
43	obscene, lewd, etc., materials; penalty.--
44	(1)
45	(c)  Any person who violates subsection (1) or subsection
46	(2) where the violation is based on material that depicts a
47	minor, whether his or her identity is known or unknown, engaged
48	in any act or conduct that is harmful to minors commits a felony
49	of the third degree, punishable as provided in s. 775.082, s.
50	775.083, or s. 775.084.
51	(d)  A person's ignorance of a minor's age, a minor's
52	misrepresentation of his or her age, a bona fide belief of a
53	minor's age, or a minor's consent cannot be raised as a defense
54	in a prosecution for violation of this section.
55	Section 3.  Subsections (2) through (7) of section 847.012,
56	Florida Statutes, are renumbered as subsections (3) through (9),
57	respectively, new subsections (2) and (4) are added to that
58	section, and present subsections (1), (2), and (3) of that
59	section are amended, to read:
60	847.012  Prohibition of Sale or other distribution of
61	harmful materials to minors persons under 18 years of age; use
62	of minors in production; penalty.--
63	(1)  As used in this section, "knowingly" means having the
64	general knowledge of, reason to know, or a belief or ground for
65	belief which warrants further inspection or inquiry of both:
66	(a)  The character and content of any material described in
67	this section herein which is reasonably susceptible of
68	examination by the defendant;, and
69	(b)  The age of the minor; however, an honest mistake shall
70	constitute an excuse from liability hereunder if the defendant
71	made a reasonable bona fide attempt to ascertain the true age of
72	such minor.
73	(2)  A person's ignorance of a minor's age, a minor's
74	misrepresentation of his or her age, a bona fide belief as to a
75	minor's age, or a minor's consent cannot be raised as a defense
76	in a prosecution for violation of subsection (4).
77	(3)(2)  It is unlawful for any person knowingly to sell,
78	rent, or loan for monetary consideration to a minor:
79	(a)  Any picture, photograph, drawing, sculpture, motion
80	picture film, videocassette, or similar visual representation or
81	image of a person or portion of the human body which depicts
82	nudity or sexual conduct, sexual excitement, sexual battery,
83	bestiality, or sadomasochistic abuse and which is harmful to
84	minors, or
85	(b)  Any book, pamphlet, magazine, printed matter however
86	reproduced, or sound recording which contains any matter defined
87	in s. 847.001, explicit and detailed verbal descriptions or
88	narrative accounts of sexual excitement, or sexual conduct and
89	which is harmful to minors.
90	(4)  It is unlawful for any person knowingly to use a minor
91	in the production of any material described in paragraph (3)(a)
92	or paragraph (3)(b), regardless of whether the material is
93	intended for distribution to minors or is actually distributed
94	to minors.
95	(5)(3)  Any person violating any provision of this section
96	commits is guilty of a felony of the third degree, punishable as
97	provided in s. 775.082, s. 775.083, or s. 775.084.
98	Section 4.  Section 847.013, Florida Statutes, is amended
99	to read:
100	847.013  Exposing minors to, or using minors in the
101	production of, harmful motion pictures, exhibitions, shows,
102	presentations, or representations.--
103	(1)  "KNOWINGLY" DEFINED.--As used in this section
104	"knowingly" means having general knowledge of, reason to know,
105	or a belief or ground for belief which warrants further
106	inspection or inquiry of both:
107	(a)  The character and content of any motion picture
108	described in this section herein which is reasonably susceptible
109	of examination by the defendant, or the character of any
110	exhibition, presentation, representation, or show described in
111	this section herein, other than a motion picture show, which is
112	reasonably susceptible of being ascertained by the defendant;,
113	and
114	(b)  The age of the minor; however, an honest mistake shall
115	constitute an excuse from liability hereunder if the defendant
116	made a reasonable bona fide attempt to ascertain the true age of
117	such minor.
118	(2)  A person's ignorance of a minor's age, a minor's
119	misrepresentation of his or her age, a bona fide belief as to a
120	minor's age, or a minor's consent cannot be raised as a defense
121	in a prosecution for violation of subsection (3).
122	(3)(2)  OFFENSES AND PENALTIES.--
123	(a)  It is unlawful for any person knowingly to exhibit for
124	a monetary consideration to a minor or knowingly to sell or rent
125	a videotape of a motion picture to a minor or knowingly sell to
126	a minor an admission ticket or pass or knowingly admit a minor
127	for a monetary consideration to premises whereon there is
128	exhibited a motion picture, exhibition, show, representation, or
129	other presentation which, in whole or in part, depicts nudity,
130	sexual conduct, sexual excitement, sexual battery, bestiality,
131	or sadomasochistic abuse and which is harmful to minors.
132	(b)  It is unlawful for any person knowingly to rent or
133	sell, or loan to a minor for monetary consideration, a
134	videocassette or a videotape of a motion picture, or similar
135	presentation, which, in whole or in part, depicts nudity, sexual
136	conduct, sexual excitement, sexual battery, bestiality, or
137	sadomasochistic abuse and which is harmful to minors.
138	(c)  The provisions of paragraph (a) do not apply to a
139	minor when the minor is accompanied by his or her parents or
140	either of them.
141	(d)  It is unlawful for any minor to falsely represent to
142	the owner of any premises mentioned in paragraph (a), or to the
143	owner's agent, or to any person mentioned in paragraph (b), that
144	such minor is 17 years of age or older, with the intent to
145	procure such minor's admission to such premises, or such minor's
146	purchase or rental of a videotape, for a monetary consideration.
147	(e)  It is unlawful for any person to knowingly make a
148	false representation to the owner of any premises mentioned in
149	paragraph (a), or to the owner's agent, or to any person
150	mentioned in paragraph (b), that he or she is the parent of any
151	minor or that any minor is 17 years of age or older, with intent
152	to procure such minor's admission to such premises or to aid
153	such minor in procuring admission thereto, or to aid or enable
154	such minor's purchase or rental of a videotape, for a monetary
155	consideration.
156	(f)  It is unlawful for any person knowingly to use a minor
157	in the production of any material whereon there is exhibited a
158	motion picture, exhibition, show, representation, or other
159	presentation which, in whole or in part, depicts a minor,
160	whether his or her identity is known or unknown, engaged in
161	nudity, sexual conduct, sexual excitement, sexual battery,
162	bestiality, or sadomasochistic abuse and which is harmful to
163	minors.
164	(g)(f)  A violation of any provision of this subsection
165	constitutes a misdemeanor of the first degree, punishable as
166	provided in s. 775.082 or s. 775.083.
167	(4)(3)  INJUNCTIVE PROCEEDINGS.--
168	(a)  The circuit court has jurisdiction to enjoin a
169	threatened violation of subsection (3) (2) upon complaint filed
170	by the state attorney in the name of the state upon the relation
171	of such state attorney.
172	(b)  After the filing of such a complaint, the judge to
173	whom it is presented may grant an order restraining the person
174	or persons complained of until final hearing or further order of
175	the court. Whenever the relator requests a judge of such court
176	to set a hearing upon an application for such a restraining
177	order, such judge shall set such hearing for a time within 3
178	days after the making of such request. No such order shall be
179	made unless such judge is satisfied that sufficient notice of
180	the application therefor has been given to the person or persons
181	restrained of the time when and place where the application for
182	such restraining order is to be heard. However, such notice
183	shall be dispensed with when it is manifest to such judge, from
184	the allegations of a sworn complaint or independent affidavit,
185	sworn to by the relator or by some person associated with him or
186	her in the field of law enforcement and filed by the relator,
187	that the apprehended violation will be committed if an immediate
188	remedy is not afforded.
189	(c)  The person or persons sought to be enjoined shall be
190	entitled to a trial of the issues within 1 day after joinder of
191	issue, and a decision shall be rendered by the court within 2
192	days after the conclusion of the trial.
193	(d)  In any action brought as provided in this section, no
194	bond or undertaking shall be required of the state or the
195	relator state attorney before the issuance of a restraining
196	order provided for by this section, and there shall be no
197	liability on the part of the state or the relator state attorney
198	for costs or damages sustained by reason of such restraining
199	order in any case in which a final decree is rendered in favor
200	of the person or persons sought to be enjoined.
201	(e)  Every person who has possession, custody, or control
202	of, or otherwise deals with, any motion picture, exhibition,
203	show, representation, or presentation described in this section,
204	after the service upon him or her of a summons and complaint in
205	an action for injunction brought under this section, is
206	chargeable with knowledge of the contents or character thereof.
207	(5)(4)  LEGISLATIVE INTENT.--In order to make the
208	application and enforcement of this section uniform throughout
209	the state, it is the intent of the Legislature to preempt the
210	field, to the exclusion of counties and municipalities, insofar
211	as it concerns exposing persons under 17 years of age to harmful
212	motion pictures, exhibitions, shows, representations, and
213	presentations, and commercial or sexual exploitation. To that
214	end, it is hereby declared that every county ordinance and every
215	municipal ordinance adopted prior to July 1, 1969, and relating
216	to such subject shall stand abrogated and unenforceable on and
217	after such date and that no county, municipality, or
218	consolidated county-municipal government shall have the power to
219	adopt any ordinance relating to that subject on or after such
220	effective date.
221	Section 5.  Paragraph (f) of subsection (3) of section
222	921.0022, Florida Statutes, is amended to read:
223	921.0022  Criminal Punishment Code; offense severity
224	ranking chart.--
225	(3)  OFFENSE SEVERITY RANKING CHART
	FloridaStatute FelonyDegree Description
226
	(f)  LEVEL 6
227
	316.193(2)(b) 3rd Felony DUI, 4th or subsequent conviction.
228
	499.0051(3) 2nd Forgery of pedigree papers.
229
	499.0051(4) 2nd Purchase or receipt of legend drug from unauthorized person.
230
	499.0051(5) 2nd Sale of legend drug to unauthorized person.
231
	775.0875(1) 3rd Taking firearm from law enforcement officer.
232
	784.021(1)(a) 3rd Aggravated assault; deadly weapon without intent to kill.
233
	784.021(1)(b) 3rd Aggravated assault; intent to commit felony.
234
	784.041 3rd Felony battery.
235
	784.048(3) 3rd Aggravated stalking; credible threat.
236
	784.048(5) 3rd Aggravated stalking of person under 16.
237
	784.07(2)(c) 2nd Aggravated assault on law enforcement officer.
238
	784.074(1)(b) 2nd Aggravated assault on sexually violent predators facility staff.
239
	784.08(2)(b) 2nd Aggravated assault on a person 65 years of age or older.
240
	784.081(2) 2nd Aggravated assault on specified official or employee.
241
	784.082(2) 2nd Aggravated assault by detained person on visitor or other detainee.
242
	784.083(2) 2nd Aggravated assault on code inspector.
243
	787.02(2) 3rd False imprisonment; restraining with purpose other than those in s. 787.01.
244
	790.115(2)(d) 2nd Discharging firearm or weapon on school property.
245
	790.161(2) 2nd Make, possess, or throw destructive device with intent to do bodily harm or damage property.
246
	790.164(1) 2nd False report of deadly explosive, weapon of mass destruction, or act of arson or violence to state property.
247
	790.19 2nd Shooting or throwing deadly missiles into dwellings, vessels, or vehicles.
248
	794.011(8)(a) 3rd Solicitation of minor to participate in sexual activity by custodial adult.
249
	794.05(1) 2nd Unlawful sexual activity with specified minor.
250
	800.04(5)(d) 3rd Lewd or lascivious molestation; victim 12 years of age or older but less than 16 years; offender less than 18 years.
251
	800.04(6)(b) 2nd Lewd or lascivious conduct; offender 18 years of age or older.
252
	806.031(2) 2nd Arson resulting in great bodily harm to firefighter or any other person.
253
	810.02(3)(c) 2nd Burglary of occupied structure; unarmed; no assault or battery.
254
	812.014(2)(b)1. 2nd Property stolen $20,000 or more, but less than $100,000, grand theft in 2nd degree.
255
	812.015(9) 2nd Retail theft; property stolen $300 or more; second or subsequent conviction.
256
	812.13(2)(c) 2nd Robbery, no firearm or other weapon (strong-arm robbery).
257
	817.034(4)(a)1. 1st Communications fraud, value greater than $50,000.
258
	817.4821(5) 2nd Possess cloning paraphernalia with intent to create cloned cellular telephones.
259
	825.102(1) 3rd Abuse of an elderly person or disabled adult.
260
	825.102(3)(c) 3rd Neglect of an elderly person or disabled adult.
261
	825.1025(3) 3rd Lewd or lascivious molestation of an elderly person or disabled adult.
262
	825.103(2)(c) 3rd Exploiting an elderly person or disabled adult and property is valued at less than $20,000.
263
	827.03(1) 3rd Abuse of a child.
264
	827.03(3)(c) 3rd Neglect of a child.
265
	827.071(2) & (3) 2nd Use or induce a child in a sexual performance, or promote or direct such performance.
266
	836.05 2nd Threats; extortion.
267
	836.10 2nd Written threats to kill or do bodily injury.
268
	843.12 3rd Aids or assists person to escape.
269
	847.011(1)(c) 3rd Violations involving obscene or lewd materials depicting minors in certain conduct.
270
	847.012(4) 3rd Knowingly using minor in production of certain material.
271
	847.0135(2) 3rd Facilitates sexual conduct of or with a minor or the visual depiction of such conduct.
272
	914.23 2nd Retaliation against a witness, victim, or informant, with bodily injury.
273
	944.35(3)(a)2. 3rd Committing malicious battery upon or inflicting cruel or inhuman treatment on an inmate or offender on community supervision, resulting in great bodily harm.
274
	944.40 2nd Escapes.
275
	944.46 3rd Harboring, concealing, aiding escaped prisoners.
276
	944.47(1)(a)5. 2nd Introduction of contraband (firearm, weapon, or explosive) into correctional facility.
277
	951.22(1) 3rd Intoxicating drug, firearm, or weapon introduced into county facility.
278
279	Section 6.  This act shall take effect October 1, 2007.

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