Florida Senate - 2017                                     SB 776
       
       
        
       By Senator Baxley
       
       12-00453A-17                                           2017776__
    1                        A bill to be entitled                      
    2         An act relating to the unlawful acquisition of utility
    3         services; amending s. 812.14, F.S.; revising the
    4         elements that constitute theft of utilities;
    5         clarifying that the presence of certain devices and
    6         alterations on the property of, and the actual
    7         possession by, a person constitutes a permissive
    8         inference of a violation; clarifying that certain
    9         evidence of controlled substance manufacture in a
   10         leased dwelling constitutes a permissive inference of
   11         a violation by an owner, lessor, sublessor, or a
   12         person acting on behalf of such persons; clarifying
   13         that specified circumstances create a permissive
   14         inference of theft of utility services for the purpose
   15         of facilitating the manufacture of a controlled
   16         substance; revising such circumstances; specifying the
   17         types of damages that may be recovered in a civil
   18         action or as restitution in a criminal case for
   19         damaging property of a utility or for the theft or
   20         diversion of electric services; specifying the methods
   21         and bases used to determine and assess such damages;
   22         making technical changes; amending s. 812.014, F.S.;
   23         conforming provisions to changes made by the act;
   24         providing an effective date.
   25          
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Section 812.14, Florida Statutes, is amended to
   29  read:
   30         812.14 Trespass and larceny with relation to utility
   31  fixtures; theft of utility services.—
   32         (1) As used in this section, “utility” includes any person,
   33  firm, corporation, association, or political subdivision,
   34  whether private, municipal, county, or cooperative, which is
   35  engaged in the sale, generation, provision, or delivery of gas,
   36  electricity, heat, water, oil, sewer service, telephone service,
   37  telegraph service, radio service, or telecommunication service.
   38         (2) A person may not It is unlawful to:
   39         (a) Willfully alter, tamper with, damage injure, or
   40  knowingly allow damage to a suffer to be injured any meter,
   41  meter seal, pipe, conduit, wire, line, cable, transformer,
   42  amplifier, or other apparatus or device belonging to a utility
   43  line service in such a manner as to cause loss or damage or to
   44  prevent any meter installed for registering electricity, gas, or
   45  water from registering the quantity which otherwise would pass
   46  through the same; to
   47         (b) Alter the index or break the seal of any such meter; in
   48  any way to
   49         (c) Hinder or interfere in any way with the proper action
   50  or accurate just registration of any such meter or device; or
   51         (d) Knowingly to use, waste, or allow suffer the waste, by
   52  any means, of electricity, or gas, or water passing through any
   53  such meter, wire, pipe, or fitting, or other appliance or
   54  appurtenance connected with or belonging to any such utility,
   55  after the such meter, wire, pipe, or fitting, or other appliance
   56  or appurtenance has been tampered with, injured, or altered;.
   57         (e)(b)Connect Make or cause a to be made any connection
   58  with a any wire, main, service pipe or other pipes, appliance,
   59  or appurtenance in a such manner that uses as to use, without
   60  the consent of the utility, any service or any electricity, gas,
   61  or water;, or to
   62         (f) Cause a utility, without its consent, to supply any to
   63  be supplied any service or electricity, gas, or water from a
   64  utility to any person, firm, or corporation or any lamp, burner,
   65  orifice, faucet, or other outlet whatsoever, without reporting
   66  the such service being reported for payment; or
   67         (g) Cause, without the consent of a utility, such
   68  electricity, gas, or water to bypass passing through a meter
   69  provided by the utility and used for measuring and registering
   70  the quantity of electricity, gas, or water passing through the
   71  same; or.
   72         (h)(c) Use or receive the direct benefit from the use of a
   73  utility knowing, or under such circumstances that as would
   74  induce a reasonable person to believe, that the such direct
   75  benefits have resulted from any tampering with, altering of, or
   76  injury to any connection, wire, conductor, meter, pipe, conduit,
   77  line, cable, transformer, amplifier, or other apparatus or
   78  device owned, operated, or controlled by such utility, for the
   79  purpose of avoiding payment.
   80         (3)  The presence on the property of and in the actual
   81  possession by of a person of any device or alteration that
   82  prevents affects the diversion or use of the services of a
   83  utility so as to avoid the registration of the such use of
   84  services by or on a meter installed by the utility or that
   85  avoids so as to otherwise avoid the reporting of the use of
   86  services such service for payment creates a permissive inference
   87  is prima facie evidence of the violation of subsection (2) this
   88  section by such person.; However, this inference presumption
   89  does not apply unless:
   90         (a) The presence of the such a device or alteration can be
   91  attributed only to a deliberate act in furtherance of an intent
   92  to avoid payment for utility services;
   93         (b) The person charged has received the direct benefit of
   94  the reduction of the cost of the such utility services; and
   95         (c) The customer or recipient of the utility services has
   96  received the direct benefit of the such utility service for at
   97  least one full billing cycle.
   98         (4) A person who willfully violates subsection (2)
   99  paragraph (2)(a), paragraph (2)(b), or paragraph (2)(c) commits
  100  grand theft, punishable as provided in s. 812.014.
  101         (5) It is unlawful for A person or entity that owns,
  102  leases, or subleases a property may not to permit a tenant or
  103  occupant to use utility services knowing, or under such
  104  circumstances as would induce a reasonable person to believe,
  105  that such utility services have been connected in violation of
  106  subsection (2) paragraph (2)(a), paragraph (2)(b), or paragraph
  107  (2)(c).
  108         (6) There exists a permissive inference that an owner,
  109  lessor, or sublessor, or a person acting on behalf of such
  110  person, intended It is prima facie evidence of a person’s intent
  111  to violate subsection (5) if:
  112         (a) A controlled substance and materials for manufacturing
  113  the controlled substance intended for sale or distribution to
  114  another were found in a dwelling or structure;
  115         (b) The dwelling or structure was has been visibly modified
  116  to accommodate the use of equipment to grow cannabis marijuana
  117  indoors, including, but not limited to, the installation of
  118  equipment to provide additional air conditioning, equipment to
  119  provide high-wattage lighting, or equipment for hydroponic
  120  cultivation; and
  121         (c) The person or entity that owned, leased, or subleased
  122  the dwelling or structure knew of, or did so under such
  123  circumstances as would induce a reasonable person to believe in,
  124  the presence of a controlled substance and materials for
  125  manufacturing a controlled substance in the dwelling or
  126  structure, regardless of whether the person or entity was
  127  involved in the manufacture or sale of a controlled substance or
  128  was in actual possession of the dwelling or structure.
  129         (7) An owner, lessor, or sublessor, or a person acting on
  130  behalf of such person, A person who willfully violates
  131  subsection (5) commits a misdemeanor of the first degree,
  132  punishable as provided in s. 775.082 or s. 775.083. Prosecution
  133  for a violation of subsection (5) does not preclude prosecution
  134  for theft pursuant to subsection (8) or s. 812.014.
  135         (8) Theft of utility services for the purpose of
  136  facilitating the manufacture of a controlled substance is theft,
  137  punishable as provided in s. 812.014.
  138         (9) A permissive inference It is Prima facie evidence of a
  139  person’s intent to violate subsection (8) exists if:
  140         (a) The person committed theft of utility services
  141  resulting in a dwelling, as defined in s. 810.011, or a
  142  structure, as defined in s. 810.011, receiving unauthorized
  143  access to utility services;
  144         (b) A controlled substance and materials for manufacturing
  145  the controlled substance were found in the dwelling or
  146  structure; and
  147         (c) The person knew or should have known of the presence of
  148  the controlled substance and materials for manufacturing the
  149  controlled substance in the dwelling or structure, regardless of
  150  whether the person was involved in the manufacture of the
  151  controlled substance.
  152         (10) Whoever is found in a civil action to have violated
  153  this section is liable to the utility involved in an amount
  154  equal to 3 times the amount of services unlawfully obtained or
  155  $3,000, whichever is greater.
  156         (11)(a) For purposes of determining a defendant’s liability
  157  for civil damages or criminal restitution for the theft or
  158  diversion of electricity, the amount of civil damages or a
  159  restitution order must include all of the following amounts:
  160         1.The costs to repair or replace damaged property owned by
  161  a utility, including reasonable labor costs.
  162         2. Reasonable costs for the use of specialized equipment to
  163  investigate or calculate the amount of unlawfully obtained
  164  electric services, including reasonable labor costs.
  165         3. The amount of any applicable taxes.
  166         4. The amount of unlawfully obtained electric services.
  167         (b) A prima facie showing of the amount of unlawfully
  168  obtained electric services may be based on any methodology
  169  reasonably relied upon by utilities to estimate such losses. The
  170  methodology may consider the estimated start date of the theft
  171  or diversion and the estimated daily or hourly use of
  172  electricity. Once a prima facie showing has been made, the
  173  burden shifts to the defendant to demonstrate that the loss is
  174  other than that claimed by the utility.
  175         1. The estimated start date of a theft or diversion may be
  176  based upon one or more of the following:
  177         a. The date of an overload notification from a transformer,
  178  or the tripping of a transformer, that the utility reasonably
  179  believes was overloaded as a result of the theft or diversion of
  180  electricity.
  181         b. The date the utility verified a substantive difference
  182  between the amount of electricity used at a property and the
  183  amount billed to the accountholder.
  184         c. The date the utility or a law enforcement officer
  185  located a tap or other device bypassing a meter.
  186         d. The date the utility or a law enforcement officer
  187  observed or verified meter tampering.
  188         e. The maturity of a cannabis crop found in a grow house or
  189  other structure using unlawfully obtained electric services or
  190  the number of cannabis crops the utility or a law enforcement
  191  officer reasonably believes to have been grown in the grow house
  192  or other structure.
  193         f. The date the utility or a law enforcement agency
  194  received a report of suspicious activity potentially indicating
  195  the presence of the unlawful cultivation of cannabis in a grow
  196  house or other structure or when a law enforcement officer or an
  197  employee or contractor of a utility observes such suspicious
  198  activity.
  199         g. The date when a utility observes a significant change in
  200  metered energy usage.
  201         h. The date when an account with the utility was opened for
  202  a property that receives both metered and unlawfully obtained
  203  electric services.
  204         i. Any other facts or data reasonably relied upon by
  205  utilities to estimate the start date of a theft or diversion of
  206  electricity.
  207         2. The estimated average daily or hourly use of the
  208  electricity may be based upon any, or a combination, of the
  209  following:
  210         a. The load imposed by the fixtures, appliances, or
  211  equipment powered by unlawfully obtained electric services.
  212         b. Recordings by the utility of the amount of electricity
  213  used by a property or the difference between the amount used and
  214  the amount billed.
  215         c. A comparison of the amount of electricity historically
  216  used by the property and the amount billed while the property
  217  was using unlawfully obtained electricity.
  218         d. A reasonable analysis of a meter that was altered or
  219  tampered with to prevent the creation of an accurate record of
  220  the amount of electricity obtained.
  221         e. Any other facts or data reasonably relied upon by
  222  utilities to estimate the amount of unlawfully obtained electric
  223  services.
  224         (c) A court order requiring a defendant to pay restitution
  225  for damages to the property of a utility or for the theft or
  226  diversion of electricity need only be based on a criminal
  227  offense that is causally connected to the damages or losses and
  228  bears a significant relationship to those damages or losses. A
  229  conviction for a violation of this section is not a prerequisite
  230  to a restitution order. Criminal offenses that bear a
  231  significant relationship and are causally connected to a
  232  violation of this section include, but are not limited to,
  233  offenses relating to the unlawful cultivation of cannabis in a
  234  grow house or other structure if the theft or diversion of
  235  electricity was used to facilitate the growth of the cannabis.
  236         (d) The amount of restitution that a defendant may be
  237  ordered to pay is not limited by the monetary threshold of any
  238  criminal charge on which the restitution order is based.
  239         (12)(11) This section does not apply to licensed and
  240  certified electrical contractors while such persons are
  241  performing usual and ordinary service in accordance with
  242  recognized standards.
  243         Section 2. Paragraph (c) of subsection (2) of section
  244  812.014, Florida Statutes, is amended to read:
  245         812.014 Theft.—
  246         (2)
  247         (c) It is grand theft of the third degree and a felony of
  248  the third degree, punishable as provided in s. 775.082, s.
  249  775.083, or s. 775.084, if the property stolen is:
  250         1. Valued at $300 or more, but less than $5,000.
  251         2. Valued at $5,000 or more, but less than $10,000.
  252         3. Valued at $10,000 or more, but less than $20,000.
  253         4. A will, codicil, or other testamentary instrument.
  254         5. A firearm.
  255         6. A motor vehicle, except as provided in paragraph (a).
  256         7. Any commercially farmed animal, including any animal of
  257  the equine, bovine, or swine class or other grazing animal; a
  258  bee colony of a registered beekeeper; and aquaculture species
  259  raised at a certified aquaculture facility. If the property
  260  stolen is aquaculture species raised at a certified aquaculture
  261  facility, then a $10,000 fine shall be imposed.
  262         8. Any fire extinguisher.
  263         9. Any amount of citrus fruit consisting of 2,000 or more
  264  individual pieces of fruit.
  265         10. Taken from a designated construction site identified by
  266  the posting of a sign as provided for in s. 810.09(2)(d).
  267         11. Any stop sign.
  268         12. Anhydrous ammonia.
  269         13. Any amount of a controlled substance as defined in s.
  270  893.02. Notwithstanding any other law, separate judgments and
  271  sentences for theft of a controlled substance under this
  272  subparagraph and for any applicable possession of controlled
  273  substance offense under s. 893.13 or trafficking in controlled
  274  substance offense under s. 893.135 may be imposed when all such
  275  offenses involve the same amount or amounts of a controlled
  276  substance.
  277         14.Utility services, in a manner as specified in s.
  278  812.14.
  279  
  280  However, if the property is stolen within a county that is
  281  subject to a state of emergency declared by the Governor under
  282  chapter 252, the property is stolen after the declaration of
  283  emergency is made, and the perpetration of the theft is
  284  facilitated by conditions arising from the emergency, the
  285  offender commits a felony of the second degree, punishable as
  286  provided in s. 775.082, s. 775.083, or s. 775.084, if the
  287  property is valued at $5,000 or more, but less than $10,000, as
  288  provided under subparagraph 2., or if the property is valued at
  289  $10,000 or more, but less than $20,000, as provided under
  290  subparagraph 3. As used in this paragraph, the term “conditions
  291  arising from the emergency” means civil unrest, power outages,
  292  curfews, voluntary or mandatory evacuations, or a reduction in
  293  the presence of or the response time for first responders or
  294  homeland security personnel. For purposes of sentencing under
  295  chapter 921, a felony offense that is reclassified under this
  296  paragraph is ranked one level above the ranking under s.
  297  921.0022 or s. 921.0023 of the offense committed.
  298         Section 3. This act shall take effect July 1, 2017.