Florida Senate - 2008 CS for CS for SB 1128
By the Committees on Judiciary; Criminal Justice; and Senator Fasano
590-08223-08 20081128c2
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A bill to be entitled
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An act relating to material harmful to minors; amending s.
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847.001, F.S.; redefining the term "harmful to minors";
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amending s. 847.011, F.S.; providing that it is a third-
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degree felony for any person to sell, distribute,
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transmit, advertise, or possess with the intent to sell,
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distribute, transmit, or advertise certain materials to
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minors; providing that ignorance of a minor's age or the
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minor's consent is not a defense in a prosecution for such
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a violation if the minor is younger than 12 years of age;
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providing penalties; amending s. 847.012, F.S.;
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prohibiting a person from knowingly using a minor in the
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production of certain materials, regardless of whether
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those materials are intended for distribution to minors or
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actually distributed to minors; providing a penalty;
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providing that ignorance of a minor's age or the minor's
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consent is not a defense in a prosecution for specified
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violations if the minor is younger than 12 years of age;
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amending s. 847.013, F.S.; providing that ignorance of a
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minor's age or the minor's consent is not a defense in a
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prosecution for specified violations if the minor is
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younger than 12 years of age; revising legislative intent
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concerning the enforcement of such laws with respect to
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minors; amending s. 847.0133, F.S.; revising terminology;
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amending s. 921.0022, F.S., relating to the offense
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severity ranking chart of the Criminal Punishment Code;
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establishing offense levels to conform to changes made by
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the act; providing an exemption to laws amended by the act
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for providers of communications services and providers of
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information services in certain circumstances; providing
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an effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Subsection (6) of section 847.001, Florida
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Statutes, is amended to read:
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847.001 Definitions.--As used in this chapter, the term:
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(6) "Harmful to minors" means any reproduction, imitation,
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characterization, description, exhibition, presentation, or
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representation, of whatever kind or form, depicting nudity,
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sexual conduct, or sexual excitement when it:
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(a) Predominantly appeals to a the prurient, shameful, or
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morbid interest of minors;
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(b) Is patently offensive to prevailing standards in the
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adult community as a whole with respect to what is suitable
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material or conduct for minors; and
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(c) Taken as a whole, is without serious literary,
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artistic, political, or scientific value for minors.
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A mother's breastfeeding of her baby is not under any
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circumstance "harmful to minors."
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Section 2. Subsections (1) and (2) of section 847.011,
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Florida Statutes, are amended to read:
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847.011 Prohibition of certain acts in connection with
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obscene, lewd, etc., materials; penalty.--
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(1)(a) Except as provided in paragraph (c), any person who
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knowingly sells, lends, gives away, distributes, transmits,
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shows, or transmutes, or offers to sell, lend, give away,
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distribute, transmit, show, or transmute, or has in his or her
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possession, custody, or control with intent to sell, lend, give
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away, distribute, transmit, show, transmute, or advertise in any
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manner, any obscene book, magazine, periodical, pamphlet,
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newspaper, comic book, story paper, written or printed story or
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article, writing, paper, card, picture, drawing, photograph,
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motion picture film, figure, image, phonograph record, or wire or
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tape or other recording, or any written, printed, or recorded
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matter of any such character which may or may not require
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mechanical or other means to be transmuted into auditory, visual,
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or sensory representations of such character, or any article or
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instrument for obscene use, or purporting to be for obscene use
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or purpose; or who knowingly designs, copies, draws, photographs,
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poses for, writes, prints, publishes, or in any manner whatsoever
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manufactures or prepares any such material, matter, article, or
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thing of any such character; or who knowingly writes, prints,
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publishes, or utters, or causes to be written, printed,
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published, or uttered, any advertisement or notice of any kind,
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giving information, directly or indirectly, stating, or
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purporting to state, where, how, of whom, or by what means any,
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or what purports to be any, such material, matter, article, or
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thing of any such character can be purchased, obtained, or had;
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or who in any manner knowingly hires, employs, uses, or permits
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any person knowingly to do or assist in doing any act or thing
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mentioned above, commits is guilty of a misdemeanor of the first
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person who, after having been convicted of a violation of this
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subsection, thereafter violates any of its provisions, commits is
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guilty of a felony of the third degree, punishable as provided in
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(b) The knowing possession by any person of three or more
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identical or similar materials, matters, articles, or things
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coming within the provisions of paragraph (a) is prima facie
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evidence of the violation of that said paragraph.
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(c) A person who commits a violation of paragraph (a) or
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subsection (2) which is based on materials that depict a minor
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engaged in any act or conduct that is harmful to minors commits a
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felony of the third degree, punishable as provided in s. 775.082,
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(d) A person's ignorance of a minor's age, a minor's
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misrepresentation of his or her age, a bona fide belief of a
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minor's age, or a minor's consent may not be raised as a defense
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in a prosecution for one or more violations of paragraph (a) or
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subsection (2) if the minor is younger than 12 years of age.
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(2) Except as provided in paragraph (1)(c), a person who
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knowingly has in his or her possession, custody, or control any
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obscene book, magazine, periodical, pamphlet, newspaper, comic
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book, story paper, written or printed story or article, writing,
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paper, card, picture, drawing, photograph, motion picture film,
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film, any sticker, decal, emblem or other device attached to a
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motor vehicle containing obscene descriptions, photographs, or
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depictions, any figure, image, phonograph record, or wire or tape
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or other recording, or any written, printed, or recorded matter
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of any such character which may or may not require mechanical or
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other means to be transmuted into auditory, visual, or sensory
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representations of such character, or any article or instrument
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for obscene use, or purporting to be for obscene use or purpose,
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without intent to sell, lend, give away, distribute, transmit,
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show, transmute, or advertise the same, commits is guilty of a
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misdemeanor of the second degree, punishable as provided in s.
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of violating this subsection, thereafter violates any of its
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provisions commits is guilty of a misdemeanor of the first
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any prosecution for such possession, it is shall not be necessary
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to allege or prove the absence of such intent.
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Section 3. Section 847.012, Florida Statutes, is amended to
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read:
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847.012 Harmful materials; Prohibition of sale or other
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distribution of harmful materials to minors or using minors in
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production prohibited persons under 18 years of age; penalty.--
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(1) As used in this section, "knowingly" means having the
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general knowledge of, reason to know, or a belief or ground for
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belief which warrants further inspection or inquiry of both:
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(a) The character and content of any material described in
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this section herein which is reasonably susceptible of
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examination by the defendant;, and
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(b) The age of the minor; however, an honest mistake shall
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constitute an excuse from liability hereunder if the defendant
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made a reasonable bona fide attempt to ascertain the true age of
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such minor.
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(2) A person's ignorance of a minor's age, a minor's
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misrepresentation of his or her age, a bona fide belief of a
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minor's age, or a minor's consent may not be raised as a defense
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in a prosecution for a violation of this section if the minor is
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younger than 12 years of age.
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(3)(2) A It is unlawful for any person may not knowingly to
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sell, rent, or loan for monetary consideration to a minor:
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(a) Any picture, photograph, drawing, sculpture, motion
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picture film, videocassette, or similar visual representation or
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image of a person or portion of the human body which depicts
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nudity or sexual conduct, sexual excitement, sexual battery,
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bestiality, or sadomasochistic abuse and which is harmful to
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minors;, or
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(b) Any book, pamphlet, magazine, printed matter however
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reproduced, or sound recording that which contains any matter
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defined in s. 847.001, explicit and detailed verbal descriptions
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or narrative accounts of sexual excitement, or sexual conduct and
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that which is harmful to minors.
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(4) A person may not knowingly use a minor in the
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production of any material described in subsection (3),
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regardless of whether the material is intended for distribution
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to minors or is actually distributed to minors.
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(5)(3) Any person violating any provision of this section
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commits is guilty of a felony of the third degree, punishable as
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(6)(4) Every act, thing, or transaction forbidden by this
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section constitutes a separate offense and is punishable as such.
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(7)(5)(a) The circuit court has jurisdiction to enjoin a
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violation of this section upon complaint filed by the state
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attorney in the name of the state upon the relation of such state
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attorney.
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(b) After the filing of the such a complaint, the judge to
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whom it is presented may grant an order restraining the person
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complained of until final hearing or further order of the court.
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If Whenever the relator state attorney requests a judge of such
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court to set a hearing upon an application for such a restraining
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order, the such judge shall set the such hearing for a time
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within 3 days after the making of the such request. The No such
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order may not shall be made unless the such judge is satisfied
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that sufficient notice of the application therefor has been given
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to the party restrained of the time when and place where the
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application for the such restraining order is to be made.
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(c) The person sought to be enjoined is shall be entitled
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to a trial of the issues within 1 day after joinder of issue, and
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a decision shall be rendered by the court within 2 days after of
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the conclusion of the trial.
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(d) If In the event that a final decree of injunction is
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entered, it must shall contain a provision directing the
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defendant having the possession, custody, or control of the
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materials, matters, articles, or things affected by the
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injunction to surrender the same to the sheriff and requiring the
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sheriff to seize and destroy the same. The sheriff shall file a
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certificate of her or his compliance.
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(e) In any action brought under as provided in this
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section, a no bond or undertaking may not shall be required of
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the state or the state attorney before the issuance of a
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restraining order provided for by paragraph (b), and there shall
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be no liability on the part of the state or the state attorney is
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not liable for costs or for damages sustained by reason of the
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such restraining order in any case where a final decree is
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rendered in favor of the person sought to be enjoined.
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(f) Every person who has possession, custody, or control
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of, or otherwise deals with, any of the materials, matters,
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articles, or things described in this section, after the service
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upon her or him of a summons and complaint in an action for
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injunction brought under this section, is chargeable with
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knowledge of the contents and character thereof.
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(8)(6) The several sheriffs and state attorneys shall
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vigorously enforce this section within their respective
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jurisdictions.
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(9)(7) This section does not apply to the exhibition of
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motion pictures, shows, presentations, or other representations
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regulated under the provisions of s. 847.013.
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Section 4. Section 847.013, Florida Statutes, is amended to
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read:
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847.013 Exposing minors to harmful motion pictures,
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exhibitions, shows, presentations, or representations.--
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(1) "KNOWINGLY" DEFINED.--As used in this section
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"knowingly" means having general knowledge of, reason to know, or
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a belief or ground for belief which warrants further inspection
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or inquiry of both:
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(a) The character and content of any motion picture
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described herein which is reasonably susceptible of examination
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by the defendant, or the character of any exhibition,
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presentation, representation, or show described herein, other
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than a motion picture show, which is reasonably susceptible of
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being ascertained by the defendant;, and
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(b) The age of the minor; however, an honest mistake shall
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constitute an excuse from liability hereunder if the defendant
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made a reasonable bona fide attempt to ascertain the true age of
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such minor.
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(2) MINOR'S AGE.--A person's ignorance of a minor's age, a
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minor's misrepresentation of his or her age, a bona fide belief
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of a minor's age, or a minor's consent may not be raised as a
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defense in a prosecution for a violation of this section if the
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minor is younger than 12 years of age.
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(3)(2) OFFENSES AND PENALTIES.--
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(a) A It is unlawful for any person may not knowingly to
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exhibit for a monetary consideration to a minor or knowingly to
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sell or rent a videotape of a motion picture to a minor or
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knowingly sell to a minor an admission ticket or pass or
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knowingly admit a minor for a monetary consideration to premises
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whereon there is exhibited a motion picture, exhibition, show,
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representation, or other presentation which, in whole or in part,
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depicts nudity, sexual conduct, sexual excitement, sexual
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battery, bestiality, or sadomasochistic abuse and which is
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harmful to minors.
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(b) A It is unlawful for any person may not knowingly to
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rent or sell, or loan to a minor for monetary consideration, a
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videocassette or a videotape of a motion picture, or similar
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presentation, which, in whole or in part, depicts nudity, sexual
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conduct, sexual excitement, sexual battery, bestiality, or
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sadomasochistic abuse and which is harmful to minors.
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(c) The provisions of paragraph (a) do not apply to a minor
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when the minor is accompanied by his or her parents or either of
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them.
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(d) A It is unlawful for any minor may not to falsely
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represent to the owner of any premises mentioned in paragraph
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(a), or to the owner's agent, or to any person mentioned in
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paragraph (b), that the such minor is 17 years of age or older,
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with the intent to procure the such minor's admission to the such
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premises, or the such minor's purchase or rental of a videotape,
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for a monetary consideration.
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(e) A It is unlawful for any person may not to knowingly
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make a false representation to the owner of any premises
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mentioned in paragraph (a), or to the owner's agent, or to any
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person mentioned in paragraph (b), that he or she is the parent
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of any minor or that any minor is 17 years of age or older, with
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intent to procure the such minor's admission to the such premises
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or to aid the such minor in procuring admission thereto, or to
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aid or enable the such minor's purchase or rental of a videotape,
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for a monetary consideration.
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(f) A violation of any provision of this subsection
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constitutes a misdemeanor of the first degree, punishable as
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(4)(3) INJUNCTIVE PROCEEDINGS.--
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(a) The circuit court has jurisdiction to enjoin a
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threatened violation of subsection (2) upon complaint filed by
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the state attorney in the name of the state upon the relation of
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such state attorney.
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(b) After the filing of the such a complaint, the judge to
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whom it is presented may grant an order restraining the person or
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persons complained of until final hearing or further order of the
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court. Whenever the relator requests a judge of the such court to
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set a hearing upon an application for such a restraining order,
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the such judge shall set the such hearing for a time within 3
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days after the making of the such request. An No such order may
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not shall be made unless the such judge is satisfied that
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sufficient notice of the application therefor has been given to
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the person or persons restrained of the time when and place where
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the application for the such restraining order is to be heard.
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However, the such notice shall be dispensed with when it is
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manifest to the such judge, from the allegations of a sworn
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complaint or independent affidavit, sworn to by the relator or by
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some person associated with him or her in the field of law
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enforcement and filed by the relator, that the apprehended
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violation will be committed if an immediate remedy is not
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afforded.
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(c) The person or persons sought to be enjoined are shall
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be entitled to a trial of the issues within 1 day after joinder
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of issue, and a decision shall be rendered by the court within 2
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days after the conclusion of the trial.
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(d) In any action brought as provided in this section, a no
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bond or undertaking is not shall be required of the state or the
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relator state attorney before the issuance of a restraining order
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provided for by this section, and there is shall be no liability
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on the part of the state or the relator state attorney for costs
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or damages sustained by reason of such restraining order in any
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case in which a final decree is rendered in favor of the person
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or persons sought to be enjoined.
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(e) Every person who has possession, custody, or control
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of, or otherwise deals with, any motion picture, exhibition,
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show, representation, or presentation described in this section,
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after the service upon him or her of a summons and complaint in
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an action for injunction brought under this section, is
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chargeable with knowledge of the contents or character thereof.
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(5)(4) LEGISLATIVE INTENT.--In order to make the
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application and enforcement of this section uniform throughout
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the state, it is the intent of the Legislature to preempt the
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field, to the exclusion of counties and municipalities, insofar
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as it concerns exposing persons under 17 years of age to harmful
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motion pictures, exhibitions, shows, representations, and
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presentations, and commercial or sexual exploitation. To that
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end, it is hereby declared that every county ordinance and every
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municipal ordinance adopted prior to July 1, 1969, and relating
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to such subject shall stand abrogated and unenforceable on and
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after such date and that no county, municipality, or consolidated
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county-municipal government shall have the power to adopt any
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ordinance relating to that subject on or after such effective
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date.
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Section 5. Subsection (1) of section 847.0133, Florida
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Statutes, is amended to read:
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847.0133 Protection of minors; prohibition of certain acts
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in connection with obscenity; penalty.--
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(1) A It is unlawful for any person may not knowingly to
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sell, rent, loan, give away, distribute, transmit, or show any
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obscene material to a minor. For purposes of this section
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"obscene material" means any obscene book, magazine, periodical,
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pamphlet, newspaper, comic book, story paper, written or printed
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story or article, writing paper, card, picture, drawing,
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photograph, motion picture film, figure, image, videotape,
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videocassette, phonograph record, or wire or tape or other
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recording, or any written, printed, or recorded matter of any
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such character which may or may not require mechanical or other
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means to be transmuted into auditory, visual, or sensory
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representations of such character, or any article or instrument
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for obscene use, or purporting to be for obscene use or purpose.
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The term "obscene" has shall have the same meaning as set forth
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in s. 847.001.
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Section 6. Paragraph (f) of subsection (3) of section
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921.0022, Florida Statutes, is amended to read:
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921.0022 Criminal Punishment Code; offense severity ranking
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chart.--
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(3) OFFENSE SEVERITY RANKING CHART
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(f) LEVEL 6
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| FloridaStatute | FelonyDegree | Description |
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| 316.193(2)(b) | 3rd | Felony DUI, 4th or subsequent conviction. |
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| 499.0051(3) | 2nd | Forgery of pedigree papers. |
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| 499.0051(4) | 2nd | Purchase or receipt of legend drug from unauthorized person. |
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| 499.0051(5) | 2nd | Sale of legend drug to unauthorized person. |
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| 775.0875(1) | 3rd | Taking firearm from law enforcement officer. |
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| 784.021(1)(a) | 3rd | Aggravated assault; deadly weapon without intent to kill. |
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| 784.021(1)(b) | 3rd | Aggravated assault; intent to commit felony. |
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| 784.041 | 3rd | Felony battery; domestic battery by strangulation. |
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| 784.048(3) | 3rd | Aggravated stalking; credible threat. |
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| 784.048(5) | 3rd | Aggravated stalking of person under 16. |
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| 784.07(2)(c) | 2nd | Aggravated assault on law enforcement officer. |
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| 784.074(1)(b) | 2nd | Aggravated assault on sexually violent predators facility staff. |
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| 784.08(2)(b) | 2nd | Aggravated assault on a person 65 years of age or older. |
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| 784.081(2) | 2nd | Aggravated assault on specified official or employee. |
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| 784.082(2) | 2nd | Aggravated assault by detained person on visitor or other detainee. |
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| 784.083(2) | 2nd | Aggravated assault on code inspector. |
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| 790.115(2)(d) | 2nd | Discharging firearm or weapon on school property. |
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| 790.161(2) | 2nd | Make, possess, or throw destructive device with intent to do bodily harm or damage property. |
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| 790.164(1) | 2nd | False report of deadly explosive, weapon of mass destruction, or act of arson or violence to state property. |
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| 790.19 | 2nd | Shooting or throwing deadly missiles into dwellings, vessels, or vehicles. |
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| 794.011(8)(a) | 3rd | Solicitation of minor to participate in sexual activity by custodial adult. |
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| 794.05(1) | 2nd | Unlawful sexual activity with specified minor. |
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| 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. |
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| 800.04(6)(b) | 2nd | Lewd or lascivious conduct; offender 18 years of age or older. |
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| 806.031(2) | 2nd | Arson resulting in great bodily harm to firefighter or any other person. |
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| 810.02(3)(c) | 2nd | Burglary of occupied structure; unarmed; no assault or battery. |
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| 812.014(2)(b)1. | 2nd | Property stolen $20,000 or more, but less than $100,000, grand theft in 2nd degree. |
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| 812.014(6) | 2nd | Theft; property stolen $3,000 or more; coordination of others. |
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| 812.015(9)(a) | 2nd | Retail theft; property stolen $300 or more; second or subsequent conviction. |
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| 812.015(9)(b) | 2nd | Retail theft; property stolen $3,000 or more; coordination of others. |
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| 812.13(2)(c) | 2nd | Robbery, no firearm or other weapon (strong-arm robbery). |
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| 817.034(4)(a)1. | 1st | Communications fraud, value greater than $50,000. |
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| 817.4821(5) | 2nd | Possess cloning paraphernalia with intent to create cloned cellular telephones. |
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| 825.102(1) | 3rd | Abuse of an elderly person or disabled adult. |
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| 825.102(3)(c) | 3rd | Neglect of an elderly person or disabled adult. |
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| 825.1025(3) | 3rd | Lewd or lascivious molestation of an elderly person or disabled adult. |
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| 825.103(2)(c) | 3rd | Exploiting an elderly person or disabled adult and property is valued at less than $20,000. |
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| 827.03(1) | 3rd | Abuse of a child. |
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| 827.03(3)(c) | 3rd | Neglect of a child. |
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| 827.071(2)&(3) | 2nd | Use or induce a child in a sexual performance, or promote or direct such performance. |
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| 836.05 | 2nd | Threats; extortion. |
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| 836.10 | 2nd | Written threats to kill or do bodily injury. |
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| 843.12 | 3rd | Aids or assists person to escape. |
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| 847.011 | 3rd | Distributing, offering to distribute, or possessing with intent to distribute obscene materials depicting minors. |
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| 847.012 | 3rd | Knowingly using a minor in the production of materials harmful to minors. |
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| 847.0135(2) | 3rd | Facilitates sexual conduct of or with a minor or the visual depiction of such conduct. |
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| 914.23 | 2nd | Retaliation against a witness, victim, or informant, with bodily injury. |
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| 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. |
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| 944.40 | 2nd | Escapes. |
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| 944.46 | 3rd | Harboring, concealing, aiding escaped prisoners. |
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| 944.47(1)(a)5. | 2nd | Introduction of contraband (firearm, weapon, or explosive) into correctional facility. |
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| 951.22(1) | 3rd | Intoxicating drug, firearm, or weapon introduced into county facility. |
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and 847.0133, Florida Statutes, made by this act do not apply to
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providers of communications services as defined in s. 202.11,
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Florida Statutes, or to providers of information services,
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including, but not limited to, Internet access service providers
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and hosting service providers, when they provide only the
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transmission, storage, or caching of electronic communications or
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messages of others or provide other related communications or
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information services used by others in violation of such amended
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provisions. This exemption does not apply to providers of
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communications services as defined in s. 202.11, Florida
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Statutes, or providers of information services that knowingly for
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commercial advantage or private financial gain facilitate the
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specific violation of such amended provisions by others.
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Section 8. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.