HB 173

1	A bill to be entitled
2	An act relating to controlled substances; amending s.
3	893.02, F.S.; defining the term "cultivation" for
4	specified purposes; amending s. 893.1351, F.S.;
5	prohibiting a person from owning or actually or
6	constructively possessing a place, structure, trailer, or
7	other described place with knowledge that the place will
8	be used to manufacture, sell, or traffic in a controlled
9	substance; providing that possession of a specified number
10	or more of cannabis plants constitutes prima facie
11	evidence of intent to sell or distribute; providing
12	criminal penalties; creating s. 893.1352, F.S.; defining
13	terms; providing that a person with actual or constructive
14	possession of a place, structure, trailer, or conveyance
15	being used to manufacture a controlled substance for sale
16	and distribution commits a felony of the first degree if a
17	minor is present or resides in the place, structure,
18	trailer, or conveyance; providing that a person who allows
19	an infant or toddler to be in close proximity to a
20	controlled substance commits a felony of the first degree;
21	providing criminal penalties; amending s. 893.10, F.S.;
22	providing that equipment used in the cultivation or
23	manufacture of controlled substances may be photographed
24	or video recorded and the photograph or video recording
25	used as evidence for later use at trial; providing for the
26	destruction of the equipment; amending s. 921.0022, F.S.;
27	ranking specified offenses in the offense severity ranking
28	chart of the Criminal Punishment Code; amending ss.
29	465.016, , 465.023, and 893.135, F.S.; conforming cross-
30	references; providing an effective date.
31
32	Be It Enacted by the Legislature of the State of Florida:
33
34	Section 1.  Subsections (5) through (21) of section 893.02,
35	Florida Statutes, are renumbered as subsections (6) through
36	(22), respectively, and a new subsection (5) is added to that
37	section to read:
38	893.02  Definitions.--The following words and phrases as
39	used in this chapter shall have the following meanings, unless
40	the context otherwise requires:
41	(5)  "Cultivation" means the preparation of any soil or
42	hydroponic medium for the planting of cannabis plants, the
43	tending and caring of cannabis plants, or the harvesting of
44	mature cannabis plants.
45	Section 2.  Section 893.1351, Florida Statutes, is amended
46	to read:
47	893.1351  Ownership, lease, rental, or possession or rent
48	for the purpose of trafficking in or manufacturing a controlled
49	substance.--
50	(1)  A person may not own, lease, or rent any place,
51	structure, or part thereof, trailer, or other conveyance, with
52	the knowledge that the such place, structure, trailer, or
53	conveyance will be used for the purpose of trafficking in a
54	controlled substance, as provided in s. 893.135; for, or the
55	sale of a controlled substance, as provided in s. 893.13; or for
56	the manufacture of a controlled substance intended for sale or
57	distribution to another.
58	(2)  A person may not knowingly be in actual or
59	constructive possession of any place, structure, or part
60	thereof, trailer, or other conveyance with the knowledge that
61	the place, structure, or part thereof, trailer, or conveyance
62	will be used for the purpose of trafficking in a controlled
63	substance, as provided in s. 893.135; for the sale of a
64	controlled substance, as provided in s. 893.13; or for the
65	manufacture of a controlled substance intended for sale or
66	distribution to another.
67	(3)  Proof of the possession of 25 or more cannabis plants
68	constitutes prima facie evidence that the cannabis is intended
69	for sale or distribution.
70	(4)(2)  A person who violates any provision of this section
71	commits subsection (1) is guilty of a felony of the third
72	degree, punishable as provided in s. 775.082, s. 775.083, or s.
73	775.084.
74	Section 3.  Section 893.1352, Florida Statutes, is created
75	to read:
76	893.1352  Unlawful possession of a controlled substance in
77	the presence of a minor.--
78	(1)  As used in this section, the term:
79	(a)  "Close proximity" means the item is so close to the
80	infant or toddler as to be within his or her reach without
81	regard to whether the infant or toddler is likely to attempt to
82	reach for the item.
83	(b)  "Infant or toddler" means any child from birth until
84	the child's third birthday.
85	(2)  A person who is found to be in actual or constructive
86	possession of a place, structure, trailer, or conveyance with
87	the knowledge that the place, structure, trailer, or conveyance
88	is being used to manufacture a controlled substance intended for
89	sale or distribution to another and who knew or should have
90	known that a minor is present or resides in the place,
91	structure, trailer, or conveyance commits a felony of the first
92	degree, punishable as provided in s. 775.082, s. 775.083, or s.
93	775.084.
94	(3)  A person may not possess any amount of a controlled
95	substance in close proximity to an infant or toddler. A person
96	who violates this subsection commits a felony of the first
97	degree, punishable as provided in s. 775.082, s. 775.083, or s.
98	775.084.
99	Section 4.  Section 893.10, Florida Statutes, is amended to
100	read:
101	893.10  Burden of proof; photograph or video recording of
102	evidence.--
103	(1)  It is shall not be necessary for the state to negative
104	any exemption or exception set forth in this chapter in any
105	indictment, information, or other pleading or in any trial,
106	hearing, or other proceeding under this chapter, and the burden
107	of going forward with the evidence with respect to any such
108	exemption or exception is shall be upon the person claiming its
109	benefit.
110	(2)  In the case of a person charged under s. 893.14(1)
111	with the possession of a controlled substance, the label
112	required under s. 893.04(1) or s. 893.05(2) is shall be
113	admissible in evidence and shall be prima facie evidence that
114	such substance was obtained pursuant to a valid prescription
115	form or dispensed by a practitioner while acting in the course
116	of his or her professional practice.
117	(3)  In the prosecution of an offense involving the
118	cultivation or manufacture of a controlled substance, a
119	photograph or video recording of the manufacturing or
120	cultivation equipment used in committing the offense, including,
121	but not limited to, grow lights, growing trays, and chemical
122	fertilizers, may be introduced as competent evidence of the
123	existence and use of the equipment and is admissible in the
124	prosecution of the offense to the same extent as if the property
125	were introduced as evidence.
126	(4)  After a law enforcement agency documents the
127	manufacturing and cultivation equipment by photography or video
128	recording, the manufacturing and cultivation equipment may be
129	destroyed on site and left in disrepair. The law enforcement
130	agency destroying the equipment is immune from civil liability
131	for the destruction of the equipment. The destruction of the
132	equipment must be recorded by the supervising law enforcement
133	officer in the manner described in s. 893.12(1)(a) and records
134	must be maintained for 12 months.
135	Section 5.  Paragraphs (e) and (h) of subsection (3) of
136	section 921.0022, Florida Statutes, are amended to read:
137	921.0022  Criminal Punishment Code; offense severity
138	ranking chart.--
139	(3)  OFFENSE SEVERITY RANKING CHART
140	(e)  LEVEL 5
141
	FloridaStatute FelonyDegree Description
142
	316.027(1)(a) 3rd Accidents involving personal injuries, failure to stop; leaving scene.
143
	316.1935(4)(a) 2nd Aggravated fleeing or eluding.
144
	322.34(6) 3rd Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
145
	327.30(5) 3rd Vessel accidents involving personal injury; leaving scene.
146
	381.0041(11)(b) 3rd Donate blood, plasma, or organs knowing HIV positive.
147
	440.10(1)(g) 2nd Failure to obtain workers' compensation coverage.
148
	440.105(5) 2nd Unlawful solicitation for the purpose of making workers' compensation claims.
149
	440.381(2) 2nd Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers' compensation premiums.
150
	624.401(4)(b)2. 2nd Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
151
	626.902(1)(c) 2nd Representing an unauthorized insurer; repeat offender.
152
	790.01(2) 3rd Carrying a concealed firearm.
153
	790.162 2nd Threat to throw or discharge destructive device.
154
	790.163(1) 2nd False report of deadly explosive or weapon of mass destruction.
155
	790.221(1) 2nd Possession of short-barreled shotgun or machine gun.
156
	790.23 2nd Felons in possession of firearms, ammunition, or electronic weapons or devices.
157
	800.04(6)(c) 3rd Lewd or lascivious conduct; offender less than 18 years.
158
	800.04(7)(c) 2nd Lewd or lascivious exhibition; offender 18 years or older.
159
	806.111(1) 3rd Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
160
	812.0145(2)(b) 2nd Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
161
	812.015(8) 3rd Retail theft; property stolen is valued at $300 or more and one or more specified acts.
162
	812.019(1) 2nd Stolen property; dealing in or trafficking in.
163
	812.131(2)(b) 3rd Robbery by sudden snatching.
164
	812.16(2) 3rd Owning, operating, or conducting a chop shop.
165
	817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000.
166
	817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000.
167
	817.2341(1),(2)(a)& (3)(a) 3rd Filing false financial statements, making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity.
168
	817.568(2)(b) 2nd Fraudulent use of personal identification information; value of benefit, services received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more individuals.
169
	817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device or reencoder.
170
	825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
171
	827.071(4) 2nd Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
172
	827.071(5) 3rd Possess any photographic material, motion picture, etc., which includes sexual conduct by a child.
173
	839.13(2)(b) 2nd Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
174
	843.01 3rd Resist officer with violence to person; resist arrest with violence.
175
	847.0137(2)&(3) 3rd Transmission of pornography by electronic device or equipment.
176
	847.0138(2)&(3) 3rd Transmission of material harmful to minors to a minor by electronic device or equipment.
177
	874.05(2) 2nd Encouraging or recruiting another to join a criminal street gang; second or subsequent offense.
178
	893.13(1)(a)1. 2nd Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs).
179
	893.13(1)(c)2. 2nd Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center.
180
	893.13(1)(d)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of university.
181
	893.13(1)(e)2. 2nd Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) within 1,000 feet of property used for religious services or a specified business site.
182
	893.13(1)(f)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of public housing facility.
183
	893.13(4)(b) 2nd Deliver to minor cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs).
184
	893.1351 3rd Ownership, lease, rental, or possession for trafficking in or manufacturing of controlled substance.
185
186	(h)  LEVEL 8
187
	FloridaStatute FelonyDegree Description
188
	316.193(3)(c)3.a. 2nd DUI manslaughter.
189
	316.1935(4)(b) 1st Aggravated fleeing or attempted eluding with serious bodily injury or death.
190
	327.35(3)(c)3. 2nd Vessel BUI manslaughter.
191
	499.0051(7) 1st Forgery of prescription or legend drug labels.
192
	499.0052 1st Trafficking in contraband legend drugs.
193
	560.123(8)(b)2. 2nd Failure to report currency or payment instruments totaling or exceeding $20,000, but less than $100,000 by money transmitter.
194
	560.125(5)(b) 2nd Money transmitter business by unauthorized person, currency or payment instruments totaling or exceeding $20,000, but less than $100,000.
195
	655.50(10)(b)2. 2nd Failure to report financial transactions totaling or exceeding $20,000, but less than $100,000 by financial institutions.
196
	777.03(2)(a) 1st Accessory after the fact, capital felony.
197
	782.04(4) 2nd Killing of human without design when engaged in act or attempt of any felony other than arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawfully discharging bomb.
198
	782.051(2) 1st Attempted felony murder while perpetrating or attempting to perpetrate a felony not enumerated in s. 782.04(3).
199
	782.071(1)(b) 1st Committing vehicular homicide and failing to render aid or give information.
200
	782.072(2) 1st Committing vessel homicide and failing to render aid or give information.
201
	790.161(3) 1st Discharging a destructive device which results in bodily harm or property damage.
202
	794.011(5) 2nd Sexual battery, victim 12 years or over, offender does not use physical force likely to cause serious injury.
203
	794.08(3) 2nd Female genital mutilation, removal of a victim younger than 18 years of age from this state.
204
	800.04(4) 2nd Lewd or lascivious battery.
205
	806.01(1) 1st Maliciously damage dwelling or structure by fire or explosive, believing person in structure.
206
	810.02(2)(a) 1st,PBL Burglary with assault or battery.
207
	810.02(2)(b) 1st,PBL Burglary; armed with explosives or dangerous weapon.
208
	810.02(2)(c) 1st Burglary of a dwelling or structure causing structural damage or $1,000 or more property damage.
209
	812.014(2)(a)2. 1st Property stolen; cargo valued at $50,000 or more, grand theft in 1st degree.
210
	812.13(2)(b) 1st Robbery with a weapon.
211
	812.135(2)(c) 1st Home-invasion robbery, no firearm, deadly weapon, or other weapon.
212
	817.568(6) 2nd Fraudulent use of personal identification information of an individual under the age of 18.
213
	825.102(2) 2nd Aggravated abuse of an elderly person or disabled adult.
214
	825.1025(2) 2nd Lewd or lascivious battery upon an elderly person or disabled adult.
215
	825.103(2)(a) 1st Exploiting an elderly person or disabled adult and property is valued at $100,000 or more.
216
	837.02(2) 2nd Perjury in official proceedings relating to prosecution of a capital felony.
217
	837.021(2) 2nd Making contradictory statements in official proceedings relating to prosecution of a capital felony.
218
	860.121(2)(c) 1st Shooting at or throwing any object in path of railroad vehicle resulting in great bodily harm.
219
	860.16 1st Aircraft piracy.
220
	893.13(1)(b) 1st Sell or deliver in excess of 10 grams of any substance specified in s. 893.03(1)(a) or (b).
221
	893.13(2)(b) 1st Purchase in excess of 10 grams of any substance specified in s. 893.03(1)(a) or (b).
222
	893.13(6)(c) 1st Possess in excess of 10 grams of any substance specified in s. 893.03(1)(a) or (b).
223
	893.135(1)(a)2. 1st Trafficking in cannabis, more than 2,000 lbs., less than 10,000 lbs.
224
	893.135(1)(b)1.b. 1st Trafficking in cocaine, more than 200 grams, less than 400 grams.
225
	893.135(1)(c)1.b. 1st Trafficking in illegal drugs, more than 14 grams, less than 28 grams.
226
	893.135(1)(d)1.b. 1st Trafficking in phencyclidine, more than 200 grams, less than 400 grams.
227
	893.135(1)(e)1.b. 1st Trafficking in methaqualone, more than 5 kilograms, less than 25 kilograms.
228
	893.135(1)(f)1.b. 1st Trafficking in amphetamine, more than 28 grams, less than 200 grams.
229
	893.135(1)(g)1.b. 1st Trafficking in flunitrazepam, 14 grams or more, less than 28 grams.
230
	893.135(1)(h)1.b. 1st Trafficking in gamma-hydroxybutyric acid (GHB), 5 kilograms or more, less than 10 kilograms.
231
	893.135(1)(j)1.b. 1st Trafficking in 1,4-Butanediol, 5 kilograms or more, less than 10 kilograms.
232
	893.135(1)(k)2.b. 1st Trafficking in Phenethylamines, 200 grams or more, less than 400 grams.
233
	893.1352(2) 1st Possession of a place used to manufacture or cultivate controlled substance when minor is present or resides there.
234
	893.1352(3) 1st Possession of controlled substance in proximity to infant or toddler.
235
	895.03(1) 1st Use or invest proceeds derived from pattern of racketeering activity.
236
	895.03(2) 1st Acquire or maintain through racketeering activity any interest in or control of any enterprise or real property.
237
	895.03(3) 1st Conduct or participate in any enterprise through pattern of racketeering activity.
238
	896.101(5)(b) 2nd Money laundering, financial transactions totaling or exceeding $20,000, but less than $100,000.
239
	896.104(4)(a)2. 2nd Structuring transactions to evade reporting or registration requirements, financial transactions totaling or exceeding $20,000 but less than $100,000.
240
241	Section 6.  Paragraph (s) of subsection (1) of section
242	465.016, Florida Statutes, is amended to read:
243	465.016  Disciplinary actions.--
244	(1)  The following acts constitute grounds for denial of a
245	license or disciplinary action, as specified in s. 456.072(2):
246	(s)  Dispensing any medicinal drug based upon a
247	communication that purports to be a prescription as defined by
248	s. 465.003(14) or s. 893.02 893.02(20) when the pharmacist knows
249	or has reason to believe that the purported prescription is not
250	based upon a valid practitioner-patient relationship.
251	Section 7.  Paragraph (e) of subsection (1) of section
252	465.023, Florida Statutes, is amended to read:
253	465.023  Pharmacy permittee; disciplinary action.--
254	(1)  The department or the board may revoke or suspend the
255	permit of any pharmacy permittee, and may fine, place on
256	probation, or otherwise discipline any pharmacy permittee who
257	has:
258	(e)  Dispensed any medicinal drug based upon a
259	communication that purports to be a prescription as defined by
260	s. 465.003(14) or s. 893.02 893.02(20) when the pharmacist knows
261	or has reason to believe that the purported prescription is not
262	based upon a valid practitioner-patient relationship that
263	includes a documented patient evaluation, including history and
264	a physical examination adequate to establish the diagnosis for
265	which any drug is prescribed and any other requirement
266	established by board rule under chapter 458, chapter 459,
267	chapter 461, chapter 463, chapter 464, or chapter 466.
268	Section 8.  Subsection (6) of section 893.135, Florida
269	Statutes, is amended to read:
270	893.135  Trafficking; mandatory sentences; suspension or
271	reduction of sentences; conspiracy to engage in trafficking.--
272	(6)  A mixture, as defined in s. 893.02 893.02(14),
273	containing any controlled substance described in this section
274	includes, but is not limited to, a solution or a dosage unit,
275	including but not limited to, a pill or tablet, containing a
276	controlled substance. For the purpose of clarifying legislative
277	intent regarding the weighing of a mixture containing a
278	controlled substance described in this section, the weight of
279	the controlled substance is the total weight of the mixture,
280	including the controlled substance and any other substance in
281	the mixture. If there is more than one mixture containing the
282	same controlled substance, the weight of the controlled
283	substance is calculated by aggregating the total weight of each
284	mixture.
285	Section 9.  This act shall take effect July 1, 2008.

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