Florida Senate - 2016                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1044
       
       
       
       
       
       
                                Ì5032867Î503286                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  02/15/2016           .                                
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       Appropriations Subcommittee on Criminal and Civil Justice
       (Hutson) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (1) of section 932.701, Florida
    6  Statutes, is amended to read:
    7         932.701 Short title; definitions.—
    8         (1) Sections 932.701-932.7062 932.706 shall be known and
    9  may be cited as the “Florida Contraband Forfeiture Act.”
   10         Section 2. Subsection (1) of section 932.703, Florida
   11  Statutes, is amended to read:
   12         932.703 Forfeiture of contraband article; exceptions.—
   13         (1)(a) Any contraband article, vessel, motor vehicle,
   14  aircraft, other personal property, or real property used in
   15  violation of any provision of the Florida Contraband Forfeiture
   16  Act, or in, upon, or by means of which any violation of the
   17  Florida Contraband Forfeiture Act has taken or is taking place,
   18  may be seized and shall be forfeited subject to the provisions
   19  of the Florida Contraband Forfeiture Act.
   20         (b) Notwithstanding any other provision of the Florida
   21  Contraband Forfeiture Act, except the provisions of paragraph
   22  (a), contraband articles set forth in s. 932.701(2)(a)7. used in
   23  violation of any provision of the Florida Contraband Forfeiture
   24  Act, or in, upon, or by means of which any violation of the
   25  Florida Contraband Forfeiture Act has taken or is taking place,
   26  shall be seized and shall be forfeited subject to the provisions
   27  of the Florida Contraband Forfeiture Act.
   28         (c) At the time of seizure or entry of a restraining order,
   29  the state acquires provisional title to the seized property. A
   30  forfeiture under the Florida Contraband Forfeiture Act is not
   31  final, and title or other indicia of ownership, other than
   32  provisional title, do not pass to the state or jurisdiction
   33  seeking forfeiture until the owner of the seized property is
   34  prosecuted and convicted of a criminal act that renders the
   35  property a contraband article. If, after 3 months, the seizing
   36  agency cannot find the owner of the seized property after a
   37  diligent effort, the seized property is deemed a contraband
   38  article and forfeited subject to s. 932.704. However, if the
   39  seizing agency finds the owner, the seizing agency shall return
   40  the property to the owner within 5 days after:
   41         1. The court finding that the owner had a bona fide
   42  security interest;
   43         2. The court finding that the owner was an innocent owner;
   44         3. The acquittal or dismissal of the owner of the criminal
   45  charge that was the basis of the forfeiture proceedings; or
   46         4. The disposal of the criminal charge that was the basis
   47  of the forfeiture proceedings by nolle prosequi. The seizing
   48  agency is responsible for any damage, storage fee, and related
   49  cost applicable to the property All rights to, interest in, and
   50  title to contraband articles used in violation of s. 932.702
   51  shall immediately vest in the seizing law enforcement agency
   52  upon seizure.
   53         (d) The seizing agency may not use the seized property for
   54  any purpose until the rights to, interest in, and title to the
   55  seized property are perfected in accordance with the Florida
   56  Contraband Forfeiture Act. This section does not prohibit use or
   57  operation necessary for reasonable maintenance of seized
   58  property. Reasonable efforts shall be made to maintain seized
   59  property in such a manner as to minimize loss of value.
   60         Section 3. Subsections (7) and (11) of section 932.704,
   61  Florida Statutes, are amended to read:
   62         932.704 Forfeiture proceedings.—
   63         (7) Once property is seized pursuant to the Florida
   64  Contraband Forfeiture Act, regardless of whether the civil
   65  complaint has been filed, all settlements must be personally
   66  approved by the head of the law enforcement agency making the
   67  seizure. If the agency head is unavailable and a delay would
   68  adversely affect the settlement, approval may be given by a
   69  subordinate of the agency head who is designated to grant such
   70  authority. When the claimant and the seizing law enforcement
   71  agency agree to settle the forfeiture action after the civil
   72  complaint has been filed and before prior to the conclusion of
   73  the forfeiture proceeding, the settlement agreement shall be
   74  reviewed, unless such review is waived by the claimant in
   75  writing, by the court or a mediator or arbitrator agreed upon by
   76  the claimant and the seizing law enforcement agency. If the
   77  claimant is unrepresented, the settlement agreement must include
   78  a provision that the claimant has freely and voluntarily agreed
   79  to enter into the settlement without benefit of counsel.
   80         (11)(a) The Department of Law Enforcement, in consultation
   81  with the Florida Sheriffs Association and the Florida Police
   82  Chiefs Association, shall develop guidelines and training
   83  procedures to be used by state and local law enforcement
   84  agencies and state attorneys in implementing the Florida
   85  Contraband Forfeiture Act. At least annually, each state or
   86  local law enforcement agency that seizes property for the
   87  purpose of forfeiture shall periodically review such seizures of
   88  assets made by the agency’s law enforcement officers, any
   89  settlements, and any forfeiture proceedings initiated by the law
   90  enforcement agency, to determine whether they such seizures,
   91  settlements, and forfeitures comply with the Florida Contraband
   92  Forfeiture Act and the guidelines adopted under this subsection.
   93  If the review suggests deficiencies, the state or local law
   94  enforcement agency shall promptly take action to comply with the
   95  Florida Contraband Forfeiture Act.
   96         (b) The determination as to of whether an agency will file
   97  a civil forfeiture action is must be the sole responsibility of
   98  the head of the agency or his or her designee.
   99         (c)(b) The determination as to of whether to seize currency
  100  must be made by supervisory personnel. The agency’s legal
  101  counsel must be notified as soon as possible after a
  102  determination is made.
  103         (d)The employment, salary, promotion, or other
  104  compensation of any law enforcement officer may not be dependent
  105  on the ability of the officer to meet a quota for seizures.
  106         (e)A seizing agency shall adopt and implement written
  107  policies, procedures, and training to ensure compliance with all
  108  applicable legal requirements regarding seizing, maintaining,
  109  and forfeiting property under the Florida Contraband Forfeiture
  110  Act.
  111         (f)When property is seized for forfeiture, the probable
  112  cause supporting the seizure must be promptly reviewed by
  113  supervisory personnel. The seizing agency’s legal counsel must
  114  be notified as soon as possible of all seizures and shall
  115  conduct a review to determine whether there is legal sufficiency
  116  to proceed with a forfeiture action.
  117         (g)Each seizing agency shall adopt and implement written
  118  policies and procedures promoting the prompt release of seized
  119  property as may be required by the act or by agency
  120  determination when there is no legitimate basis for holding
  121  seized property. To help ensure that property is not wrongfully
  122  held after seizure, each law enforcement agency must adopt
  123  written policies and procedures ensuring that all asserted
  124  claims of interest in seized property are promptly reviewed for
  125  potential validity.
  126         (h)The settlement of any forfeiture action must be
  127  consistent with the Florida Contraband Forfeiture Act and the
  128  agency’s policy.
  129         (i)Law enforcement agency personnel involved in the
  130  seizure of property for forfeiture shall receive basic training
  131  and continuing education as required by the Florida Contraband
  132  Forfeiture Act. Each agency shall maintain records demonstrating
  133  each law enforcement officer’s compliance with this requirement.
  134  Among other things, the training must address the legal aspects
  135  of forfeiture, including, but not limited to, search and seizure
  136  and other constitutional considerations.
  137         Section 4. Paragraph (c) of subsection (5) of section
  138  932.7055, Florida Statutes, is amended to read:
  139         932.7055 Disposition of liens and forfeited property.—
  140         (5)
  141         (c) An agency or organization, other than the seizing
  142  agency, that wishes to receive such funds shall apply to the
  143  sheriff or chief of police for an appropriation and its
  144  application shall be accompanied by a written certification that
  145  the moneys will be used for an authorized purpose. Such requests
  146  for expenditures shall include a statement describing
  147  anticipated recurring costs for the agency for subsequent fiscal
  148  years. An agency or organization that receives money pursuant to
  149  this subsection shall provide an accounting for such moneys and
  150  shall furnish the same reports as an agency of the county or
  151  municipality that receives public funds. Such funds may be
  152  expended in accordance with the following procedures:
  153         1. Such funds may be used only for school resource officer,
  154  crime prevention, safe neighborhood, drug abuse education, or
  155  drug prevention programs or such other law enforcement purposes
  156  as the board of county commissioners or governing body of the
  157  municipality deems appropriate.
  158         2. Such funds shall not be a source of revenue to meet
  159  normal operating needs of the law enforcement agency.
  160         3. After July 1, 1992, and during every fiscal year
  161  thereafter, Any local law enforcement agency that acquires at
  162  least $15,000 pursuant to the Florida Contraband Forfeiture Act
  163  within a fiscal year must expend or donate no less than 25 15
  164  percent of such proceeds for the support or operation of any
  165  drug treatment, drug abuse education, drug prevention, crime
  166  prevention, safe neighborhood, or school resource officer
  167  program or programs program(s). The local law enforcement agency
  168  has the discretion to determine which program or programs
  169  program(s) will receive the designated proceeds.
  170  
  171  Notwithstanding the drug abuse education, drug treatment, drug
  172  prevention, crime prevention, safe neighborhood, or school
  173  resource officer minimum expenditures or donations, the sheriff
  174  and the board of county commissioners or the chief of police and
  175  the governing body of the municipality may agree to expend or
  176  donate such funds over a period of years if the expenditure or
  177  donation of such minimum amount in any given fiscal year would
  178  exceed the needs of the county or municipality for such program
  179  or programs program(s). Nothing in this section precludes The
  180  minimum requirement for expenditure or donation of forfeiture
  181  proceeds in excess of the minimum amounts established in this
  182  subparagraph does not preclude expenditures or donations in
  183  excess of that amount herein.
  184         Section 5. Section 932.7061, Florida Statutes, is created
  185  to read:
  186         932.7061Reporting seized property for forfeiture.—
  187         (1)Every law enforcement agency shall submit an annual
  188  report to the Department of Law Enforcement indicating whether
  189  the agency has seized or forfeited property under the Florida
  190  Contraband Forfeiture Act. A law enforcement agency receiving or
  191  expending forfeited property or proceeds from the sale of
  192  forfeited property in accordance with the Florida Contraband
  193  Forfeiture Act shall submit a completed annual report by October
  194  10 documenting the receipts and expenditures. The report shall
  195  be submitted in an electronic form, maintained by the Department
  196  of Law Enforcement in consultation with the Office of Program
  197  Policy Analysis and Government Accountability, to the entity
  198  that has budgetary authority over such agency and to the
  199  Department of Law Enforcement. The annual report must, at a
  200  minimum, specify the type, approximate value, court case number,
  201  type of offense, disposition of property received, and amount of
  202  any proceeds received or expended.
  203         (2)The Department of Law Enforcement shall submit an
  204  annual report to the Office of Program Policy Analysis and
  205  Government Accountability compiling the information and data in
  206  the annual reports submitted by the law enforcement agencies.
  207  The annual report shall also contain a list of law enforcement
  208  agencies that have failed to meet the reporting requirements and
  209  a summary of any action taken against the noncomplying agency by
  210  the office of Chief Financial Officer.
  211         (3)Neither the law enforcement agency nor the entity
  212  having budgetary control over the law enforcement agency shall
  213  anticipate future forfeitures or proceeds therefrom in the
  214  adoption and approval of the budget for the law enforcement
  215  agency.
  216         Section 6. Section 932.7062, Florida Statutes, is created
  217  to read:
  218         932.7062Penalty for noncompliance with reporting
  219  requirements.—A seizing agency that fails to comply with the
  220  reporting requirements in s. 932.7061 is subject to a civil fine
  221  of $5,000 payable to the General Revenue Fund. However, such
  222  agency is not subject to the fine if, within 60 days after
  223  receipt of written notification from the Department of Law
  224  Enforcement of noncompliance with the reporting requirements of
  225  the Florida Contraband Forfeiture Act, the agency substantially
  226  complies with those requirements. The Department of Law
  227  Enforcement shall submit any substantial noncompliance to the
  228  office of Chief Financial Officer, which shall be responsible
  229  for the enforcement of this section.
  230         Section 7. Paragraphs (a) and (c) of subsection (9) of
  231  section 322.34, Florida Statutes, are amended to read:
  232         322.34 Driving while license suspended, revoked, canceled,
  233  or disqualified.—
  234         (9)(a) A motor vehicle that is driven by a person under the
  235  influence of alcohol or drugs in violation of s. 316.193 is
  236  subject to seizure and forfeiture under ss. 932.701-932.7062
  237  932.706 and is subject to liens for recovering, towing, or
  238  storing vehicles under s. 713.78 if, at the time of the offense,
  239  the person’s driver license is suspended, revoked, or canceled
  240  as a result of a prior conviction for driving under the
  241  influence.
  242         (c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when
  243  the seizing agency obtains a final judgment granting forfeiture
  244  of the motor vehicle under this section, 30 percent of the net
  245  proceeds from the sale of the motor vehicle shall be retained by
  246  the seizing law enforcement agency and 70 percent shall be
  247  deposited in the General Revenue Fund for use by regional
  248  workforce boards in providing transportation services for
  249  participants of the welfare transition program. In a forfeiture
  250  proceeding under this section, the court may consider the extent
  251  that the family of the owner has other public or private means
  252  of transportation.
  253         Section 8. Subsection (4) of section 323.001, Florida
  254  Statutes, is amended to read:
  255         323.001 Wrecker operator storage facilities; vehicle
  256  holds.—
  257         (4) The requirements for a written hold apply when the
  258  following conditions are present:
  259         (a) The officer has probable cause to believe the vehicle
  260  should be seized and forfeited under the Florida Contraband
  261  Forfeiture Act, ss. 932.701-932.7062 932.706;
  262         (b) The officer has probable cause to believe the vehicle
  263  should be seized and forfeited under chapter 379;
  264         (c) The officer has probable cause to believe the vehicle
  265  was used as the means of committing a crime;
  266         (d) The officer has probable cause to believe that the
  267  vehicle is itself evidence that tends to show that a crime has
  268  been committed or that the vehicle contains evidence, which
  269  cannot readily be removed, which tends to show that a crime has
  270  been committed;
  271         (e) The officer has probable cause to believe the vehicle
  272  was involved in a traffic accident resulting in death or
  273  personal injury and should be sealed for investigation and
  274  collection of evidence by a vehicular homicide investigator;
  275         (f) The vehicle is impounded or immobilized pursuant to s.
  276  316.193 or s. 322.34; or
  277         (g) The officer is complying with a court order.
  278         Section 9. Paragraph (b) of subsection (3) of section
  279  328.07, Florida Statutes, is amended to read:
  280         328.07 Hull identification number required.—
  281         (3)
  282         (b) If any of the hull identification numbers required by
  283  the United States Coast Guard for a vessel manufactured after
  284  October 31, 1972, do not exist or have been altered, removed,
  285  destroyed, covered, or defaced or the real identity of the
  286  vessel cannot be determined, the vessel may be seized as
  287  contraband property by a law enforcement agency or the division,
  288  and shall be subject to forfeiture pursuant to ss. 932.701
  289  932.7062 932.706. Such vessel may not be sold or operated on the
  290  waters of the state unless the division receives a request from
  291  a law enforcement agency providing adequate documentation or is
  292  directed by written order of a court of competent jurisdiction
  293  to issue to the vessel a replacement hull identification number
  294  which shall thereafter be used for identification purposes. No
  295  vessel shall be forfeited under the Florida Contraband
  296  Forfeiture Act when the owner unknowingly, inadvertently, or
  297  neglectfully altered, removed, destroyed, covered, or defaced
  298  the vessel hull identification number.
  299         Section 10. Paragraph (c) of subsection (2) of section
  300  817.625, Florida Statutes, is amended to read:
  301         817.625 Use of scanning device or reencoder to defraud;
  302  penalties.—
  303         (2)
  304         (c) Any person who violates subparagraph (a)1. or
  305  subparagraph (a)2. shall also be subject to the provisions of
  306  ss. 932.701-932.7062 932.706.
  307         Section 11. For the purpose of incorporating the amendment
  308  made by this act to section 932.703, Florida Statutes, in a
  309  reference thereto, paragraph (e) of subsection (6) of section
  310  403.413, Florida Statutes, is reenacted to read:
  311         403.413 Florida Litter Law.—
  312         (6) PENALTIES; ENFORCEMENT.—
  313         (e) A motor vehicle, vessel, aircraft, container, crane,
  314  winch, or machine used to dump litter that exceeds 500 pounds in
  315  weight or 100 cubic feet in volume is declared contraband and is
  316  subject to forfeiture in the same manner as provided in ss.
  317  932.703 and 932.704.
  318         Section 12. For the purpose of incorporating the amendment
  319  made by this act to section 932.704, Florida Statutes, in a
  320  reference thereto, section 27.3451, Florida Statutes, is
  321  reenacted to read:
  322         27.3451 State Attorney’s Forfeiture and Investigative
  323  Support Trust Fund.—There is created for each of the several
  324  state attorneys a trust fund to be known as the State Attorney’s
  325  Forfeiture and Investigative Support Trust Fund. Revenues
  326  received by a state attorney as a result of forfeiture
  327  proceedings, as provided under s. 932.704, shall be deposited in
  328  such trust fund and shall be used, when authorized by
  329  appropriation or action of the Executive Office of the Governor
  330  pursuant to s. 216.181(11), for the investigation of crime,
  331  prosecution of criminals, or other law enforcement purposes.
  332         Section 13. For the purpose of incorporating the amendment
  333  made by this act to section 932.704, Florida Statutes, in a
  334  reference thereto, section 874.08, Florida Statutes, is
  335  reenacted to read:
  336         874.08 Criminal gang activity and recruitment; forfeiture.
  337  All profits, proceeds, and instrumentalities of criminal gang
  338  activity and all property used or intended or attempted to be
  339  used to facilitate the criminal activity of any criminal gang or
  340  of any criminal gang member; and all profits, proceeds, and
  341  instrumentalities of criminal gang recruitment and all property
  342  used or intended or attempted to be used to facilitate criminal
  343  gang recruitment are subject to seizure and forfeiture under the
  344  Florida Contraband Forfeiture Act, s. 932.704.
  345         Section 14. This act shall take effect July 1, 2016.
  346  
  347  ================= T I T L E  A M E N D M E N T ================
  348  And the title is amended as follows:
  349         Delete everything before the enacting clause
  350  and insert:
  351                        A bill to be entitled                      
  352         An act relating to contraband forfeiture; amending s.
  353         932.701, F.S.; revising the applicability of a short
  354         title; amending s. 932.703, F.S.; providing for the
  355         acquisition of the provisional title of seized
  356         property under certain circumstances; prohibiting a
  357         forfeiture under the Florida Contraband Forfeiture Act
  358         from being final until the owner of the seized
  359         property is prosecuted and convicted of a criminal act
  360         that renders the property a contraband article;
  361         providing that the property is deemed a contraband
  362         article and forfeited subject to forfeiture
  363         proceedings under certain circumstances; specifying
  364         circumstances under which the seizing law enforcement
  365         agency must return the property to the owner; deleting
  366         a provision vesting rights, interests, and title to
  367         contraband articles in the seizing law enforcement
  368         agency; amending s. 932.704, F.S.; requiring that
  369         specified persons approve a settlement once property
  370         has been seized; specifying when a settlement
  371         agreement must be reviewed; requiring each state or
  372         local law enforcement agency that seizes property for
  373         the purpose of forfeiture to perform a specified
  374         review at least annually; prohibiting certain
  375         compensation or benefit to any law enforcement officer
  376         from being dependent upon attaining a quota of
  377         seizures; requiring a seizing agency to adopt certain
  378         written policies, procedures, and training to ensure
  379         compliance; requiring that supervisory personnel
  380         review seizures to determine whether probable cause
  381         existed; requiring prompt notification of the seizing
  382         agency’s legal counsel after a determination is made
  383         regarding seizure; requiring that the legal counsel
  384         conduct a specified review; requiring each seizing
  385         agency to adopt and implement specified written
  386         policies and procedures for the prompt release of
  387         seized property under certain circumstances; requiring
  388         that the settlement of forfeiture actions be
  389         consistent with certain mandates and with the seizing
  390         agency’s policy; requiring specified training and the
  391         maintenance of related records; amending s. 932.7055,
  392         F.S.; increasing the minimum amount of forfeiture
  393         proceeds that certain law enforcement agencies must
  394         donate to certain programs; creating s. 932.7061,
  395         F.S.; requiring each state or local law enforcement
  396         agency that seizes property for the purpose of
  397         forfeiture to complete an annual report; requiring
  398         certain information to be included in the annual
  399         report; requiring the Department of Law Enforcement to
  400         make an annual report to the Office of Program Policy
  401         Analysis and Government Accountability compiling the
  402         information; prohibiting a law enforcement agency and
  403         an entity having budgetary control over the law
  404         enforcement agency form anticipating proceeds from
  405         forfeitures in their budgeting processes; creating s.
  406         932.7062, F.S.; providing a monetary penalty for
  407         seizing agencies that fail to comply with reporting
  408         requirements; providing an exception; providing for
  409         enforcement; amending s. 322.24, F.S.; conforming
  410         cross-references; conforming a provision to changes
  411         made by the act; amending ss. 323.001, 328.07, and
  412         817.625, F.S.; conforming cross-references; reenacting
  413         s. 403.413(6)(e), F.S., relating to forfeiture under
  414         the Florida Litter Law, to incorporate the amendment
  415         made to s. 932.703, F.S., in a reference thereto;
  416         reenacting ss. 27.3451 and 874.08, F.S., relating to
  417         the State Attorney’s Forfeiture and Investigative
  418         Support Trust Fund, and criminal gang activity,
  419         recruitment, and forfeiture, respectively, to
  420         incorporate the amendment made to s. 932.704, F.S., in
  421         references thereto; providing an effective date.