CS/HB 559

1	A bill to be entitled
2	An act relating to material harmful to minors; amending s.
3	847.001, F.S.; redefining the term "harmful to minors";
4	amending s. 847.011, F.S.; providing that it is a third-
5	degree felony for any person to sell, distribute,
6	transmit, advertise, or possess with the intent to sell,
7	distribute, transmit, or advertise certain materials to
8	minors; providing that ignorance of a minor's age or the
9	minor's consent is not a defense in a prosecution for such
10	a violation; providing penalties; amending s. 847.012,
11	F.S.; prohibiting a person from knowingly using a minor in
12	the production of certain materials, regardless of whether
13	those materials are intended for distribution to minors or
14	actually distributed to minors; providing a penalty;
15	providing that ignorance of a minor's age or the minor's
16	consent is not a defense in a prosecution for specified
17	violations; amending s. 847.013, F.S.; providing that
18	ignorance of a minor's age or the minor's consent is not a
19	defense in a prosecution for specified violations;
20	revising legislative intent concerning the enforcement of
21	such laws with respect to minors; amending s. 847.0133,
22	F.S.; revising terminology; amending s. 921.0022, F.S.,
23	relating to the offense severity ranking chart of the
24	Criminal Punishment Code; establishing offense levels to
25	conform to changes made by the act; providing an effective
26	date.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1.  Subsection (6) of section 847.001, Florida
31	Statutes, is amended to read:
32	847.001  Definitions.--As used in this chapter, the term:
33	(6)  "Harmful to minors" means any reproduction, imitation,
34	characterization, description, exhibition, presentation, or
35	representation, of whatever kind or form, depicting nudity,
36	sexual conduct, or sexual excitement when it:
37	(a)  Predominantly appeals to a the prurient, shameful, or
38	morbid interest of minors;
39	(b)  Is patently offensive to prevailing standards in the
40	adult community as a whole with respect to what is suitable
41	material or conduct for minors; and
42	(c)  Taken as a whole, is without serious literary,
43	artistic, political, or scientific value for minors.
44
45	A mother's breastfeeding of her baby is not under any
46	circumstance "harmful to minors."
47	Section 2.  Subsections (1) and (2) of section 847.011,
48	Florida Statutes, are amended to read:
49	847.011  Prohibition of certain acts in connection with
50	obscene, lewd, etc., materials; penalty.--
51	(1)(a)  Except as provided in paragraph (c), any person who
52	knowingly sells, lends, gives away, distributes, transmits,
53	shows, or transmutes, or offers to sell, lend, give away,
54	distribute, transmit, show, or transmute, or has in his or her
55	possession, custody, or control with intent to sell, lend, give
56	away, distribute, transmit, show, transmute, or advertise in any
57	manner, any obscene book, magazine, periodical, pamphlet,
58	newspaper, comic book, story paper, written or printed story or
59	article, writing, paper, card, picture, drawing, photograph,
60	motion picture film, figure, image, phonograph record, or wire
61	or tape or other recording, or any written, printed, or recorded
62	matter of any such character which may or may not require
63	mechanical or other means to be transmuted into auditory,
64	visual, or sensory representations of such character, or any
65	article or instrument for obscene use, or purporting to be for
66	obscene use or purpose; or who knowingly designs, copies, draws,
67	photographs, poses for, writes, prints, publishes, or in any
68	manner whatsoever manufactures or prepares any such material,
69	matter, article, or thing of any such character; or who
70	knowingly writes, prints, publishes, or utters, or causes to be
71	written, printed, published, or uttered, any advertisement or
72	notice of any kind, giving information, directly or indirectly,
73	stating, or purporting to state, where, how, of whom, or by what
74	means any, or what purports to be any, such material, matter,
75	article, or thing of any such character can be purchased,
76	obtained, or had; or who in any manner knowingly hires, employs,
77	uses, or permits any person knowingly to do or assist in doing
78	any act or thing mentioned above, commits is guilty of a
79	misdemeanor of the first degree, punishable as provided in s.
80	775.082 or s. 775.083. A person who, after having been convicted
81	of a violation of this subsection, thereafter violates any of
82	its provisions, commits is guilty of a felony of the third
83	degree, punishable as provided in s. 775.082, s. 775.083, or s.
84	775.084.
85	(b)  The knowing possession by any person of three or more
86	identical or similar materials, matters, articles, or things
87	coming within the provisions of paragraph (a) is prima facie
88	evidence of the violation of the said paragraph.
89	(c)  A person who commits a violation of paragraph (a) or
90	subsection (2) which is based on materials that depict a minor
91	engaged in any act or conduct that is harmful to minors commits
92	a felony of the third degree, punishable as provided in s.
93	775.082, s. 775.083, or s. 775.084.
94	(d)  A person's ignorance of a minor's age, a minor's
95	misrepresentation of his or her age, a bona fide belief of a
96	minor's age, or a minor's consent may not be raised as a defense
97	in a prosecution for one or more violations of paragraph (a) or
98	subsection (2).
99	(2)  Except as provided in paragraph (1)(c), a person who
100	knowingly has in his or her possession, custody, or control any
101	obscene book, magazine, periodical, pamphlet, newspaper, comic
102	book, story paper, written or printed story or article, writing,
103	paper, card, picture, drawing, photograph, motion picture film,
104	film, any sticker, decal, emblem or other device attached to a
105	motor vehicle containing obscene descriptions, photographs, or
106	depictions, any figure, image, phonograph record, or wire or
107	tape or other recording, or any written, printed, or recorded
108	matter of any such character which may or may not require
109	mechanical or other means to be transmuted into auditory,
110	visual, or sensory representations of such character, or any
111	article or instrument for obscene use, or purporting to be for
112	obscene use or purpose, without intent to sell, lend, give away,
113	distribute, transmit, show, transmute, or advertise the same,
114	commits is guilty of a misdemeanor of the second degree,
115	punishable as provided in s. 775.082 or s. 775.083. A person
116	who, after having been convicted of violating this subsection,
117	thereafter violates any of its provisions commits is guilty of a
118	misdemeanor of the first degree, punishable as provided in s.
119	775.082 or s. 775.083. In any prosecution for such possession,
120	it is shall not be necessary to allege or prove the absence of
121	such intent.
122	Section 3.  Section 847.012, Florida Statutes, is amended
123	to read:
124	847.012  Harmful materials; Prohibition of sale or other
125	distribution of harmful materials to minors or using minors in
126	production prohibited persons under 18 years of age; penalty.--
127	(1)  As used in this section, "knowingly" means having the
128	general knowledge of, reason to know, or a belief or ground for
129	belief which warrants further inspection or inquiry of both:
130	(a)  The character and content of any material described in
131	this section herein which is reasonably susceptible of
132	examination by the defendant;, and
133	(b)  The age of the minor; however, an honest mistake shall
134	constitute an excuse from liability hereunder if the defendant
135	made a reasonable bona fide attempt to ascertain the true age of
136	such minor.
137	(2)  A person's ignorance of a minor's age, a minor's
138	misrepresentation of his or her age, a bona fide belief of a
139	minor's age, or a minor's consent may not be raised as a defense
140	in a prosecution for a violation of this section.
141	(3)(2)  A It is unlawful for any person may not knowingly
142	to sell, rent, or loan for monetary consideration to a minor:
143	(a)  Any picture, photograph, drawing, sculpture, motion
144	picture film, videocassette, or similar visual representation or
145	image of a person or portion of the human body which depicts
146	nudity or sexual conduct, sexual excitement, sexual battery,
147	bestiality, or sadomasochistic abuse and which is harmful to
148	minors;, or
149	(b)  Any book, pamphlet, magazine, printed matter however
150	reproduced, or sound recording that which contains any matter
151	defined in s. 847.001, explicit and detailed verbal descriptions
152	or narrative accounts of sexual excitement, or sexual conduct
153	and that which is harmful to minors.
154	(4)  A person may not knowingly use a minor in the
155	production of any material described in subsection (3),
156	regardless of whether the material is intended for distribution
157	to minors or is actually distributed to minors.
158	(5)(3)  Any person violating any provision of this section
159	commits is guilty of a felony of the third degree, punishable as
160	provided in s. 775.082, s. 775.083, or s. 775.084.
161	(6)(4)  Every act, thing, or transaction forbidden by this
162	section constitutes a separate offense and is punishable as
163	such.
164	(7)(5)(a)  The circuit court has jurisdiction to enjoin a
165	violation of this section upon complaint filed by the state
166	attorney in the name of the state upon the relation of such
167	state attorney.
168	(b)  After the filing of such a complaint, the judge to
169	whom it is presented may grant an order restraining the person
170	complained of until final hearing or further order of the court.
171	Whenever the relator state attorney requests a judge of such
172	court to set a hearing upon an application for such a
173	restraining order, the such judge shall set the such hearing for
174	a time within 3 days after the making of the such request. The
175	No such order may not shall be made unless the such judge is
176	satisfied that sufficient notice of the application therefor has
177	been given to the party restrained of the time when and place
178	where the application for the such restraining order is to be
179	made.
180	(c)  The person sought to be enjoined is shall be entitled
181	to a trial of the issues within 1 day after joinder of issue,
182	and a decision shall be rendered by the court within 2 days
183	after of the conclusion of the trial.
184	(d)  If In the event that a final decree of injunction is
185	entered, it must shall contain a provision directing the
186	defendant having the possession, custody, or control of the
187	materials, matters, articles, or things affected by the
188	injunction to surrender the same to the sheriff and requiring
189	the sheriff to seize and destroy the same. The sheriff shall
190	file a certificate of her or his compliance.
191	(e)  In any action brought as provided in this section, a
192	no bond or undertaking may not shall be required of the state or
193	the state attorney before the issuance of a restraining order
194	provided for by paragraph (b), and there shall be no liability
195	on the part of the state or the state attorney may not be held
196	liable for costs or for damages sustained by reason of the such
197	restraining order in any case where a final decree is rendered
198	in favor of the person sought to be enjoined.
199	(f)  Every person who has possession, custody, or control
200	of, or otherwise deals with, any of the materials, matters,
201	articles, or things described in this section, after the service
202	upon her or him of a summons and complaint in an action for
203	injunction brought under this section, is chargeable with
204	knowledge of the contents and character thereof.
205	(8)(6)  The several sheriffs and state attorneys shall
206	vigorously enforce this section within their respective
207	jurisdictions.
208	(9)(7)  This section does not apply to the exhibition of
209	motion pictures, shows, presentations, or other representations
210	regulated under the provisions of s. 847.013.
211	Section 4.  Section 847.013, Florida Statutes, is amended
212	to read:
213	847.013  Exposing minors to harmful motion pictures,
214	exhibitions, shows, presentations, or representations.--
215	(1)  "KNOWINGLY" DEFINED.--As used in this section
216	"knowingly" means having general knowledge of, reason to know,
217	or a belief or ground for belief which warrants further
218	inspection or inquiry of both:
219	(a)  The character and content of any motion picture
220	described herein which is reasonably susceptible of examination
221	by the defendant, or the character of any exhibition,
222	presentation, representation, or show described herein, other
223	than a motion picture show, which is reasonably susceptible of
224	being ascertained by the defendant;, and
225	(b)  The age of the minor; however, an honest mistake shall
226	constitute an excuse from liability hereunder if the defendant
227	made a reasonable bona fide attempt to ascertain the true age of
228	such minor.
229	(2)  MINOR'S AGE.--A person's ignorance of a minor's age, a
230	minor's misrepresentation of his or her age, a bona fide belief
231	of a minor's age, or a minor's consent may not be raised as a
232	defense in a prosecution for a violation of this section.
233	(3)(2)  OFFENSES AND PENALTIES.--
234	(a)  A It is unlawful for any person may not knowingly to
235	exhibit for a monetary consideration to a minor or knowingly to
236	sell or rent a videotape of a motion picture to a minor or
237	knowingly sell to a minor an admission ticket or pass or
238	knowingly admit a minor for a monetary consideration to premises
239	whereon there is exhibited a motion picture, exhibition, show,
240	representation, or other presentation which, in whole or in
241	part, depicts nudity, sexual conduct, sexual excitement, sexual
242	battery, bestiality, or sadomasochistic abuse and which is
243	harmful to minors.
244	(b)  A It is unlawful for any person may not knowingly to
245	rent or sell, or loan to a minor for monetary consideration, a
246	videocassette or a videotape of a motion picture, or similar
247	presentation, which, in whole or in part, depicts nudity, sexual
248	conduct, sexual excitement, sexual battery, bestiality, or
249	sadomasochistic abuse and which is harmful to minors.
250	(c)  The provisions of paragraph (a) do not apply to a
251	minor when the minor is accompanied by his or her parents or
252	either of them.
253	(d)  A It is unlawful for any minor may not to falsely
254	represent to the owner of any premises mentioned in paragraph
255	(a), or to the owner's agent, or to any person mentioned in
256	paragraph (b), that the such minor is 17 years of age or older,
257	with the intent to procure the such minor's admission to such
258	premises, or the such minor's purchase or rental of a videotape,
259	for a monetary consideration.
260	(e)  A It is unlawful for any person may not to knowingly
261	make a false representation to the owner of any premises
262	mentioned in paragraph (a), or to the owner's agent, or to any
263	person mentioned in paragraph (b), that he or she is the parent
264	of any minor or that any minor is 17 years of age or older, with
265	intent to procure the such minor's admission to the such
266	premises or to aid the such minor in procuring admission
267	thereto, or to aid or enable the such minor's purchase or rental
268	of a videotape, for a monetary consideration.
269	(f)  A violation of any provision of this subsection
270	constitutes a misdemeanor of the first degree, punishable as
271	provided in s. 775.082 or s. 775.083.
272	(4)(3)  INJUNCTIVE PROCEEDINGS.--
273	(a)  The circuit court has jurisdiction to enjoin a
274	threatened violation of subsection (2) upon complaint filed by
275	the state attorney in the name of the state upon the relation of
276	such state attorney.
277	(b)  After the filing of such a complaint, the judge to
278	whom it is presented may grant an order restraining the person
279	or persons complained of until final hearing or further order of
280	the court. Whenever the relator requests a judge of the such
281	court to set a hearing upon an application for such a
282	restraining order, the such judge shall set the such hearing for
283	a time within 3 days after the making of the such request. An No
284	such order may not shall be made unless the such judge is
285	satisfied that sufficient notice of the application therefor has
286	been given to the person or persons restrained of the time when
287	and place where the application for the such restraining order
288	is to be heard. However, the such notice shall be dispensed with
289	when it is manifest to the such judge, from the allegations of a
290	sworn complaint or independent affidavit, sworn to by the
291	relator or by some person associated with him or her in the
292	field of law enforcement and filed by the relator, that the
293	apprehended violation will be committed if an immediate remedy
294	is not afforded.
295	(c)  The person or persons sought to be enjoined are shall
296	be entitled to a trial of the issues within 1 day after joinder
297	of issue, and a decision shall be rendered by the court within 2
298	days after the conclusion of the trial.
299	(d)  In any action brought as provided in this section, a
300	no bond or undertaking is not shall be required of the state or
301	the relator state attorney before the issuance of a restraining
302	order provided for by this section, and there is shall be no
303	liability on the part of the state or the relator state attorney
304	for costs or damages sustained by reason of such restraining
305	order in any case in which a final decree is rendered in favor
306	of the person or persons sought to be enjoined.
307	(e)  Every person who has possession, custody, or control
308	of, or otherwise deals with, any motion picture, exhibition,
309	show, representation, or presentation described in this section,
310	after the service upon him or her of a summons and complaint in
311	an action for injunction brought under this section, is
312	chargeable with knowledge of the contents or character thereof.
313	(5)(4)  LEGISLATIVE INTENT.--In order to make the
314	application and enforcement of this section uniform throughout
315	the state, it is the intent of the Legislature to preempt the
316	field, to the exclusion of counties and municipalities, insofar
317	as it concerns exposing persons under 17 years of age to harmful
318	motion pictures, exhibitions, shows, representations, and
319	presentations, and commercial or sexual exploitation. To that
320	end, it is hereby declared that every county ordinance and every
321	municipal ordinance adopted prior to July 1, 1969, and relating
322	to such subject shall stand abrogated and unenforceable on and
323	after such date and that no county, municipality, or
324	consolidated county-municipal government shall have the power to
325	adopt any ordinance relating to that subject on or after such
326	effective date.
327	Section 5.  Subsection (1) of section 847.0133, Florida
328	Statutes, is amended to read:
329	847.0133  Protection of minors; prohibition of certain acts
330	in connection with obscenity; penalty.--
331	(1)  A It is unlawful for any person may not knowingly to
332	sell, rent, loan, give away, distribute, transmit, or show any
333	obscene material to a minor. For purposes of this section
334	"obscene material" means any obscene book, magazine, periodical,
335	pamphlet, newspaper, comic book, story paper, written or printed
336	story or article, writing paper, card, picture, drawing,
337	photograph, motion picture film, figure, image, videotape,
338	videocassette, phonograph record, or wire or tape or other
339	recording, or any written, printed, or recorded matter of any
340	such character which may or may not require mechanical or other
341	means to be transmuted into auditory, visual, or sensory
342	representations of such character, or any article or instrument
343	for obscene use, or purporting to be for obscene use or purpose.
344	The term "obscene" has shall have the same meaning as set forth
345	in s. 847.001.
346	Section 6.  Paragraph (f) of subsection (3) of section
347	921.0022, Florida Statutes, is amended to read:
348	921.0022  Criminal Punishment Code; offense severity
349	ranking chart.--
350	(3)  OFFENSE SEVERITY RANKING CHART
351	(f)  LEVEL 6
352
	FloridaStatute FelonyDegree Description
353
	316.193(2)(b) 3rd Felony DUI, 4th or subsequent conviction.
354
	499.0051(3) 2nd Forgery of pedigree papers.
355
	499.0051(4) 2nd Purchase or receipt of legend drug from unauthorized person.
356
	499.0051(5) 2nd Sale of legend drug to unauthorized person.
357
	775.0875(1) 3rd Taking firearm from law enforcement officer.
358
	784.021(1)(a) 3rd Aggravated assault; deadly weapon without intent to kill.
359
	784.021(1)(b) 3rd Aggravated assault; intent to commit felony.
360
	784.041 3rd Felony battery; domestic battery by strangulation.
361
	784.048(3) 3rd Aggravated stalking; credible threat.
362
	784.048(5) 3rd Aggravated stalking of person under 16.
363
	784.07(2)(c) 2nd Aggravated assault on law enforcement officer.
364
	784.074(1)(b) 2nd Aggravated assault on sexually violent predators facility staff.
365
	784.08(2)(b) 2nd Aggravated assault on a person 65 years of age or older.
366
	784.081(2) 2nd Aggravated assault on specified official or employee.
367
	784.082(2) 2nd Aggravated assault by detained person on visitor or other detainee.
368
	784.083(2) 2nd Aggravated assault on code inspector.
369
	787.02(2) 3rd False imprisonment; restraining with purpose other than those in s. 787.01.
370
	790.115(2)(d) 2nd Discharging firearm or weapon on school property.
371
	790.161(2) 2nd Make, possess, or throw destructive device with intent to do bodily harm or damage property.
372
	790.164(1) 2nd False report of deadly explosive, weapon of mass destruction, or act of arson or violence to state property.
373
	790.19 2nd Shooting or throwing deadly missiles into dwellings, vessels, or vehicles.
374
	794.011(8)(a) 3rd Solicitation of minor to participate in sexual activity by custodial adult.
375
	794.05(1) 2nd Unlawful sexual activity with specified minor.
376
	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.
377
	800.04(6)(b) 2nd Lewd or lascivious conduct; offender 18 years of age or older.
378
	806.031(2) 2nd Arson resulting in great bodily harm to firefighter or any other person.
379
	810.02(3)(c) 2nd Burglary of occupied structure; unarmed; no assault or battery.
380
	812.014(2)(b)1. 2nd Property stolen $20,000 or more, but less than $100,000, grand theft in 2nd degree.
381
	812.014(6) 2nd Theft; property stolen $3,000 or more; coordination of others.
382
	812.015(9)(a) 2nd Retail theft; property stolen $300 or more; second or subsequent conviction.
383
	812.015(9)(b) 2nd Retail theft; property stolen $3,000 or more; coordination of others.
384
	812.13(2)(c) 2nd Robbery, no firearm or other weapon (strong-arm robbery).
385
	817.034(4)(a)1. 1st Communications fraud, value greater than $50,000.
386
	817.4821(5) 2nd Possess cloning paraphernalia with intent to create cloned cellular telephones.
387
	825.102(1) 3rd Abuse of an elderly person or disabled adult.
388
	825.102(3)(c) 3rd Neglect of an elderly person or disabled adult.
389
	825.1025(3) 3rd Lewd or lascivious molestation of an elderly person or disabled adult.
390
	825.103(2)(c) 3rd Exploiting an elderly person or disabled adult and property is valued at less than $20,000.
391
	827.03(1) 3rd Abuse of a child.
392
	827.03(3)(c) 3rd Neglect of a child.
393
	827.071(2)&(3) 2nd Use or induce a child in a sexual performance, or promote or direct such performance.
394
	836.05 2nd Threats; extortion.
395
	836.10 2nd Written threats to kill or do bodily injury.
396
	843.12 3rd Aids or assists person to escape.
397
	847.011 3rd Distributing, offering to distribute, or possessing with intent to distribute obscene materials depicting minors.
398
	847.012 3rd Knowingly using a minor in the production of materials harmful to minors.
399
	847.0135(2) 3rd Facilitates sexual conduct of or with a minor or the visual depiction of such conduct.
400
	914.23 2nd Retaliation against a witness, victim, or informant, with bodily injury.
401
	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.
402
	944.40 2nd Escapes.
403
	944.46 3rd Harboring, concealing, aiding escaped prisoners.
404
	944.47(1)(a)5. 2nd Introduction of contraband (firearm, weapon, or explosive) into correctional facility.
405
	951.22(1) 3rd Intoxicating drug, firearm, or weapon introduced into county facility.
406
407	Section 7.  This act shall take effect July 1, 2008.

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