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 exemption
26	to sections amended by this act for providers of
27	communications services and providers of information
28	services in certain circumstances; providing an effective
29	date.
30
31	Be It Enacted by the Legislature of the State of Florida:
32
33	Section 1.  Subsection (6) of section 847.001, Florida
34	Statutes, is amended to read:
35	847.001  Definitions.--As used in this chapter, the term:
36	(6)  "Harmful to minors" means any reproduction, imitation,
37	characterization, description, exhibition, presentation, or
38	representation, of whatever kind or form, depicting nudity,
39	sexual conduct, or sexual excitement when it:
40	(a)  Predominantly appeals to a the prurient, shameful, or
41	morbid interest of minors;
42	(b)  Is patently offensive to prevailing standards in the
43	adult community as a whole with respect to what is suitable
44	material or conduct for minors; and
45	(c)  Taken as a whole, is without serious literary,
46	artistic, political, or scientific value for minors.
47
48	A mother's breastfeeding of her baby is not under any
49	circumstance "harmful to minors."
50	Section 2.  Subsections (1) and (2) of section 847.011,
51	Florida Statutes, are amended to read:
52	847.011  Prohibition of certain acts in connection with
53	obscene, lewd, etc., materials; penalty.--
54	(1)(a)  Except as provided in paragraph (c), any person who
55	knowingly sells, lends, gives away, distributes, transmits,
56	shows, or transmutes, or offers to sell, lend, give away,
57	distribute, transmit, show, or transmute, or has in his or her
58	possession, custody, or control with intent to sell, lend, give
59	away, distribute, transmit, show, transmute, or advertise in any
60	manner, any obscene book, magazine, periodical, pamphlet,
61	newspaper, comic book, story paper, written or printed story or
62	article, writing, paper, card, picture, drawing, photograph,
63	motion picture film, figure, image, phonograph record, or wire
64	or tape or other recording, or any written, printed, or recorded
65	matter of any such character which may or may not require
66	mechanical or other means to be transmuted into auditory,
67	visual, or sensory representations of such character, or any
68	article or instrument for obscene use, or purporting to be for
69	obscene use or purpose; or who knowingly designs, copies, draws,
70	photographs, poses for, writes, prints, publishes, or in any
71	manner whatsoever manufactures or prepares any such material,
72	matter, article, or thing of any such character; or who
73	knowingly writes, prints, publishes, or utters, or causes to be
74	written, printed, published, or uttered, any advertisement or
75	notice of any kind, giving information, directly or indirectly,
76	stating, or purporting to state, where, how, of whom, or by what
77	means any, or what purports to be any, such material, matter,
78	article, or thing of any such character can be purchased,
79	obtained, or had; or who in any manner knowingly hires, employs,
80	uses, or permits any person knowingly to do or assist in doing
81	any act or thing mentioned above, commits is guilty of a
82	misdemeanor of the first degree, punishable as provided in s.
83	775.082 or s. 775.083. A person who, after having been convicted
84	of a violation of this subsection, thereafter violates any of
85	its provisions, commits is guilty of a felony of the third
86	degree, punishable as provided in s. 775.082, s. 775.083, or s.
87	775.084.
88	(b)  The knowing possession by any person of three or more
89	identical or similar materials, matters, articles, or things
90	coming within the provisions of paragraph (a) is prima facie
91	evidence of the violation of the said paragraph.
92	(c)  A person who commits a violation of paragraph (a) or
93	subsection (2) which is based on materials that depict a minor
94	engaged in any act or conduct that is harmful to minors commits
95	a felony of the third degree, punishable as provided in s.
96	775.082, s. 775.083, or s. 775.084.
97	(d)  A person's ignorance of a minor's age, a minor's
98	misrepresentation of his or her age, a bona fide belief of a
99	minor's age, or a minor's consent may not be raised as a defense
100	in a prosecution for one or more violations of paragraph (a) or
101	subsection (2).
102	(2)  Except as provided in paragraph (1)(c), a person who
103	knowingly has in his or her possession, custody, or control any
104	obscene book, magazine, periodical, pamphlet, newspaper, comic
105	book, story paper, written or printed story or article, writing,
106	paper, card, picture, drawing, photograph, motion picture film,
107	film, any sticker, decal, emblem or other device attached to a
108	motor vehicle containing obscene descriptions, photographs, or
109	depictions, any figure, image, phonograph record, or wire or
110	tape or other recording, or any written, printed, or recorded
111	matter of any such character which may or may not require
112	mechanical or other means to be transmuted into auditory,
113	visual, or sensory representations of such character, or any
114	article or instrument for obscene use, or purporting to be for
115	obscene use or purpose, without intent to sell, lend, give away,
116	distribute, transmit, show, transmute, or advertise the same,
117	commits is guilty of a misdemeanor of the second degree,
118	punishable as provided in s. 775.082 or s. 775.083. A person
119	who, after having been convicted of violating this subsection,
120	thereafter violates any of its provisions commits is guilty of a
121	misdemeanor of the first degree, punishable as provided in s.
122	775.082 or s. 775.083. In any prosecution for such possession,
123	it is shall not be necessary to allege or prove the absence of
124	such intent.
125	Section 3.  Section 847.012, Florida Statutes, is amended
126	to read:
127	847.012  Harmful materials; Prohibition of sale or other
128	distribution of harmful materials to minors or using minors in
129	production prohibited persons under 18 years of age; penalty.--
130	(1)  As used in this section, "knowingly" means having the
131	general knowledge of, reason to know, or a belief or ground for
132	belief which warrants further inspection or inquiry of both:
133	(a)  The character and content of any material described in
134	this section herein which is reasonably susceptible of
135	examination by the defendant;, and
136	(b)  The age of the minor; however, an honest mistake shall
137	constitute an excuse from liability hereunder if the defendant
138	made a reasonable bona fide attempt to ascertain the true age of
139	such minor.
140	(2)  A person's ignorance of a minor's age, a minor's
141	misrepresentation of his or her age, a bona fide belief of a
142	minor's age, or a minor's consent may not be raised as a defense
143	in a prosecution for a violation of this section.
144	(3)(2)  A It is unlawful for any person may not knowingly
145	to sell, rent, or loan for monetary consideration to a minor:
146	(a)  Any picture, photograph, drawing, sculpture, motion
147	picture film, videocassette, or similar visual representation or
148	image of a person or portion of the human body which depicts
149	nudity or sexual conduct, sexual excitement, sexual battery,
150	bestiality, or sadomasochistic abuse and which is harmful to
151	minors;, or
152	(b)  Any book, pamphlet, magazine, printed matter however
153	reproduced, or sound recording that which contains any matter
154	defined in s. 847.001, explicit and detailed verbal descriptions
155	or narrative accounts of sexual excitement, or sexual conduct
156	and that which is harmful to minors.
157	(4)  A person may not knowingly use a minor in the
158	production of any material described in subsection (3),
159	regardless of whether the material is intended for distribution
160	to minors or is actually distributed to minors.
161	(5)(3)  Any person violating any provision of this section
162	commits is guilty of a felony of the third degree, punishable as
163	provided in s. 775.082, s. 775.083, or s. 775.084.
164	(6)(4)  Every act, thing, or transaction forbidden by this
165	section constitutes a separate offense and is punishable as
166	such.
167	(7)(5)(a)  The circuit court has jurisdiction to enjoin a
168	violation of this section upon complaint filed by the state
169	attorney in the name of the state upon the relation of such
170	state attorney.
171	(b)  After the filing of such a complaint, the judge to
172	whom it is presented may grant an order restraining the person
173	complained of until final hearing or further order of the court.
174	Whenever the relator state attorney requests a judge of such
175	court to set a hearing upon an application for such a
176	restraining order, the such judge shall set the such hearing for
177	a time within 3 days after the making of the such request. The
178	No such order may not shall be made unless the such judge is
179	satisfied that sufficient notice of the application therefor has
180	been given to the party restrained of the time when and place
181	where the application for the such restraining order is to be
182	made.
183	(c)  The person sought to be enjoined is shall be entitled
184	to a trial of the issues within 1 day after joinder of issue,
185	and a decision shall be rendered by the court within 2 days
186	after of the conclusion of the trial.
187	(d)  If In the event that a final decree of injunction is
188	entered, it must shall contain a provision directing the
189	defendant having the possession, custody, or control of the
190	materials, matters, articles, or things affected by the
191	injunction to surrender the same to the sheriff and requiring
192	the sheriff to seize and destroy the same. The sheriff shall
193	file a certificate of her or his compliance.
194	(e)  In any action brought as provided in this section, a
195	no bond or undertaking may not shall be required of the state or
196	the state attorney before the issuance of a restraining order
197	provided for by paragraph (b), and there shall be no liability
198	on the part of the state or the state attorney may not be held
199	liable for costs or for damages sustained by reason of the such
200	restraining order in any case where a final decree is rendered
201	in favor of the person sought to be enjoined.
202	(f)  Every person who has possession, custody, or control
203	of, or otherwise deals with, any of the materials, matters,
204	articles, or things described in this section, after the service
205	upon her or him of a summons and complaint in an action for
206	injunction brought under this section, is chargeable with
207	knowledge of the contents and character thereof.
208	(8)(6)  The several sheriffs and state attorneys shall
209	vigorously enforce this section within their respective
210	jurisdictions.
211	(9)(7)  This section does not apply to the exhibition of
212	motion pictures, shows, presentations, or other representations
213	regulated under the provisions of s. 847.013.
214	Section 4.  Section 847.013, Florida Statutes, is amended
215	to read:
216	847.013  Exposing minors to harmful motion pictures,
217	exhibitions, shows, presentations, or representations.--
218	(1)  "KNOWINGLY" DEFINED.--As used in this section
219	"knowingly" means having general knowledge of, reason to know,
220	or a belief or ground for belief which warrants further
221	inspection or inquiry of both:
222	(a)  The character and content of any motion picture
223	described herein which is reasonably susceptible of examination
224	by the defendant, or the character of any exhibition,
225	presentation, representation, or show described herein, other
226	than a motion picture show, which is reasonably susceptible of
227	being ascertained by the defendant;, and
228	(b)  The age of the minor; however, an honest mistake shall
229	constitute an excuse from liability hereunder if the defendant
230	made a reasonable bona fide attempt to ascertain the true age of
231	such minor.
232	(2)  MINOR'S AGE.--A person's ignorance of a minor's age, a
233	minor's misrepresentation of his or her age, a bona fide belief
234	of a minor's age, or a minor's consent may not be raised as a
235	defense in a prosecution for a violation of this section.
236	(3)(2)  OFFENSES AND PENALTIES.--
237	(a)  A It is unlawful for any person may not knowingly to
238	exhibit for a monetary consideration to a minor or knowingly to
239	sell or rent a videotape of a motion picture to a minor or
240	knowingly sell to a minor an admission ticket or pass or
241	knowingly admit a minor for a monetary consideration to premises
242	whereon there is exhibited a motion picture, exhibition, show,
243	representation, or other presentation which, in whole or in
244	part, depicts nudity, sexual conduct, sexual excitement, sexual
245	battery, bestiality, or sadomasochistic abuse and which is
246	harmful to minors.
247	(b)  A It is unlawful for any person may not knowingly to
248	rent or sell, or loan to a minor for monetary consideration, a
249	videocassette or a videotape of a motion picture, or similar
250	presentation, which, in whole or in part, depicts nudity, sexual
251	conduct, sexual excitement, sexual battery, bestiality, or
252	sadomasochistic abuse and which is harmful to minors.
253	(c)  The provisions of paragraph (a) do not apply to a
254	minor when the minor is accompanied by his or her parents or
255	either of them.
256	(d)  A It is unlawful for any minor may not to falsely
257	represent to the owner of any premises mentioned in paragraph
258	(a), or to the owner's agent, or to any person mentioned in
259	paragraph (b), that the such minor is 17 years of age or older,
260	with the intent to procure the such minor's admission to such
261	premises, or the such minor's purchase or rental of a videotape,
262	for a monetary consideration.
263	(e)  A It is unlawful for any person may not to knowingly
264	make a false representation to the owner of any premises
265	mentioned in paragraph (a), or to the owner's agent, or to any
266	person mentioned in paragraph (b), that he or she is the parent
267	of any minor or that any minor is 17 years of age or older, with
268	intent to procure the such minor's admission to the such
269	premises or to aid the such minor in procuring admission
270	thereto, or to aid or enable the such minor's purchase or rental
271	of a videotape, for a monetary consideration.
272	(f)  A violation of any provision of this subsection
273	constitutes a misdemeanor of the first degree, punishable as
274	provided in s. 775.082 or s. 775.083.
275	(4)(3)  INJUNCTIVE PROCEEDINGS.--
276	(a)  The circuit court has jurisdiction to enjoin a
277	threatened violation of subsection (2) upon complaint filed by
278	the state attorney in the name of the state upon the relation of
279	such state attorney.
280	(b)  After the filing of such a complaint, the judge to
281	whom it is presented may grant an order restraining the person
282	or persons complained of until final hearing or further order of
283	the court. Whenever the relator requests a judge of the such
284	court to set a hearing upon an application for such a
285	restraining order, the such judge shall set the such hearing for
286	a time within 3 days after the making of the such request. An No
287	such order may not shall be made unless the such judge is
288	satisfied that sufficient notice of the application therefor has
289	been given to the person or persons restrained of the time when
290	and place where the application for the such restraining order
291	is to be heard. However, the such notice shall be dispensed with
292	when it is manifest to the such judge, from the allegations of a
293	sworn complaint or independent affidavit, sworn to by the
294	relator or by some person associated with him or her in the
295	field of law enforcement and filed by the relator, that the
296	apprehended violation will be committed if an immediate remedy
297	is not afforded.
298	(c)  The person or persons sought to be enjoined are shall
299	be entitled to a trial of the issues within 1 day after joinder
300	of issue, and a decision shall be rendered by the court within 2
301	days after the conclusion of the trial.
302	(d)  In any action brought as provided in this section, a
303	no bond or undertaking is not shall be required of the state or
304	the relator state attorney before the issuance of a restraining
305	order provided for by this section, and there is shall be no
306	liability on the part of the state or the relator state attorney
307	for costs or damages sustained by reason of such restraining
308	order in any case in which a final decree is rendered in favor
309	of the person or persons sought to be enjoined.
310	(e)  Every person who has possession, custody, or control
311	of, or otherwise deals with, any motion picture, exhibition,
312	show, representation, or presentation described in this section,
313	after the service upon him or her of a summons and complaint in
314	an action for injunction brought under this section, is
315	chargeable with knowledge of the contents or character thereof.
316	(5)(4)  LEGISLATIVE INTENT.--In order to make the
317	application and enforcement of this section uniform throughout
318	the state, it is the intent of the Legislature to preempt the
319	field, to the exclusion of counties and municipalities, insofar
320	as it concerns exposing persons under 17 years of age to harmful
321	motion pictures, exhibitions, shows, representations, and
322	presentations, and commercial or sexual exploitation. To that
323	end, it is hereby declared that every county ordinance and every
324	municipal ordinance adopted prior to July 1, 1969, and relating
325	to such subject shall stand abrogated and unenforceable on and
326	after such date and that no county, municipality, or
327	consolidated county-municipal government shall have the power to
328	adopt any ordinance relating to that subject on or after such
329	effective date.
330	Section 5.  Subsection (1) of section 847.0133, Florida
331	Statutes, is amended to read:
332	847.0133  Protection of minors; prohibition of certain acts
333	in connection with obscenity; penalty.--
334	(1)  A It is unlawful for any person may not knowingly to
335	sell, rent, loan, give away, distribute, transmit, or show any
336	obscene material to a minor. For purposes of this section
337	"obscene material" means any obscene book, magazine, periodical,
338	pamphlet, newspaper, comic book, story paper, written or printed
339	story or article, writing paper, card, picture, drawing,
340	photograph, motion picture film, figure, image, videotape,
341	videocassette, phonograph record, or wire or tape or other
342	recording, or any written, printed, or recorded matter of any
343	such character which may or may not require mechanical or other
344	means to be transmuted into auditory, visual, or sensory
345	representations of such character, or any article or instrument
346	for obscene use, or purporting to be for obscene use or purpose.
347	The term "obscene" has shall have the same meaning as set forth
348	in s. 847.001.
349	Section 6.  Paragraph (f) of subsection (3) of section
350	921.0022, Florida Statutes, is amended to read:
351	921.0022  Criminal Punishment Code; offense severity
352	ranking chart.--
353	(3)  OFFENSE SEVERITY RANKING CHART
354	(f)  LEVEL 6
355
	FloridaStatute FelonyDegree Description
356
	316.193(2)(b) 3rd Felony DUI, 4th or subsequent conviction.
357
	499.0051(3) 2nd Forgery of pedigree papers.
358
	499.0051(4) 2nd Purchase or receipt of legend drug from unauthorized person.
359
	499.0051(5) 2nd Sale of legend drug to unauthorized person.
360
	775.0875(1) 3rd Taking firearm from law enforcement officer.
361
	784.021(1)(a) 3rd Aggravated assault; deadly weapon without intent to kill.
362
	784.021(1)(b) 3rd Aggravated assault; intent to commit felony.
363
	784.041 3rd Felony battery; domestic battery by strangulation.
364
	784.048(3) 3rd Aggravated stalking; credible threat.
365
	784.048(5) 3rd Aggravated stalking of person under 16.
366
	784.07(2)(c) 2nd Aggravated assault on law enforcement officer.
367
	784.074(1)(b) 2nd Aggravated assault on sexually violent predators facility staff.
368
	784.08(2)(b) 2nd Aggravated assault on a person 65 years of age or older.
369
	784.081(2) 2nd Aggravated assault on specified official or employee.
370
	784.082(2) 2nd Aggravated assault by detained person on visitor or other detainee.
371
	784.083(2) 2nd Aggravated assault on code inspector.
372
	787.02(2) 3rd False imprisonment; restraining with purpose other than those in s. 787.01.
373
	790.115(2)(d) 2nd Discharging firearm or weapon on school property.
374
	790.161(2) 2nd Make, possess, or throw destructive device with intent to do bodily harm or damage property.
375
	790.164(1) 2nd False report of deadly explosive, weapon of mass destruction, or act of arson or violence to state property.
376
	790.19 2nd Shooting or throwing deadly missiles into dwellings, vessels, or vehicles.
377
	794.011(8)(a) 3rd Solicitation of minor to participate in sexual activity by custodial adult.
378
	794.05(1) 2nd Unlawful sexual activity with specified minor.
379
	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.
380
	800.04(6)(b) 2nd Lewd or lascivious conduct; offender 18 years of age or older.
381
	806.031(2) 2nd Arson resulting in great bodily harm to firefighter or any other person.
382
	810.02(3)(c) 2nd Burglary of occupied structure; unarmed; no assault or battery.
383
	812.014(2)(b)1. 2nd Property stolen $20,000 or more, but less than $100,000, grand theft in 2nd degree.
384
	812.014(6) 2nd Theft; property stolen $3,000 or more; coordination of others.
385
	812.015(9)(a) 2nd Retail theft; property stolen $300 or more; second or subsequent conviction.
386
	812.015(9)(b) 2nd Retail theft; property stolen $3,000 or more; coordination of others.
387
	812.13(2)(c) 2nd Robbery, no firearm or other weapon (strong-arm robbery).
388
	817.034(4)(a)1. 1st Communications fraud, value greater than $50,000.
389
	817.4821(5) 2nd Possess cloning paraphernalia with intent to create cloned cellular telephones.
390
	825.102(1) 3rd Abuse of an elderly person or disabled adult.
391
	825.102(3)(c) 3rd Neglect of an elderly person or disabled adult.
392
	825.1025(3) 3rd Lewd or lascivious molestation of an elderly person or disabled adult.
393
	825.103(2)(c) 3rd Exploiting an elderly person or disabled adult and property is valued at less than $20,000.
394
	827.03(1) 3rd Abuse of a child.
395
	827.03(3)(c) 3rd Neglect of a child.
396
	827.071(2)&(3) 2nd Use or induce a child in a sexual performance, or promote or direct such performance.
397
	836.05 2nd Threats; extortion.
398
	836.10 2nd Written threats to kill or do bodily injury.
399
	843.12 3rd Aids or assists person to escape.
400
	847.011 3rd Distributing, offering to distribute, or possessing with intent to distribute obscene materials depicting minors.
401
	847.012 3rd Knowingly using a minor in the production of materials harmful to minors.
402
	847.0135(2) 3rd Facilitates sexual conduct of or with a minor or the visual depiction of such conduct.
403
	914.23 2nd Retaliation against a witness, victim, or informant, with bodily injury.
404
	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.
405
	944.40 2nd Escapes.
406
	944.46 3rd Harboring, concealing, aiding escaped prisoners.
407
	944.47(1)(a)5. 2nd Introduction of contraband (firearm, weapon, or explosive) into correctional facility.
408
	951.22(1) 3rd Intoxicating drug, firearm, or weapon introduced into county facility.
409
410
411	Section 7.  The amendments to ss. 847.012, 847.011,
412	847.013, and 847.0133, Florida Statutes, by this act do not
413	apply to providers of communications services as defined in s.
414	202.11, Florida Statutes, or to providers of information
415	services, including, but not limited to, Internet access service
416	providers and hosting service providers, when they only provide
417	the transmission, storage, or caching of electronic
418	communications or messages of others or provide other related
419	communications or information services used by others in
420	violation of such amended provisions. This exemption shall not
421	apply to providers of communications services as defined in s.
422	202.11, Florida Statutes, or providers of information services
423	that knowingly for commercial advantage or private financial
424	gain facilitate the specific violation of such amended
425	provisions by others.
426	Section 8.  This act shall take effect July 1, 2008.

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