Florida Senate - 2017 COMMITTEE AMENDMENT Bill No. SB 972 Ì228352$Î228352 LEGISLATIVE ACTION Senate . House Comm: RS . 04/17/2017 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Criminal Justice (Bracy) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Section 787.061, Florida Statutes, is created to 6 read: 7 787.061 Short title.—Sections 787.061-787.066 may be cited 8 as the “Civil Action for Victims of Human Trafficking and 9 Prevention of Human Trafficking Act.” 10 Section 2. Section 787.062, Florida Statutes, is created to 11 read: 12 787.062 Definitions for the Civil Action for Victims of 13 Human Trafficking and Prevention of Human Trafficking Act.—As 14 used in ss. 787.061-787.066 the term: 15 (1) “Civil forfeiture proceeding” or “forfeiture 16 proceeding” means a hearing or trial in which the court or jury 17 determines whether the property must be forfeited. 18 (2) “Claimant” means any party who has proprietary interest 19 in the property that is the subject of a civil forfeiture action 20 under s. 787.063(3) and has standing to challenge such 21 forfeiture. 22 (3) “Council” means the Statewide Council on Human 23 Trafficking within the Department of Legal Affairs, as created 24 in s. 16.617. 25 (4) “Facilitator” means a person who knowingly, or in 26 willful blindness, assists or provides goods or services to a 27 trafficker which assist or enable the trafficker to carry out 28 human trafficking. 29 (5) “Human trafficking” has the same meaning as provided in 30 s. 787.06. 31 (6) “Trafficker” means any person who knowingly engages in 32 human trafficking, attempts to engage in human trafficking, or 33 benefits financially by receiving anything of value from 34 participation in a venture that has subjected a person to human 35 trafficking. 36 (7) “Trust fund” means the Trust Fund for Victims of Human 37 Trafficking and Prevention created in s. 787.0611. 38 (8) “Venture” means any group of two or more individuals 39 associated in fact, whether or not a legal entity. 40 (9) “Victim of human trafficking” means a person subjected 41 to coercion, as defined in s. 787.06, for the purpose of being 42 used in human trafficking, a child under 18 years of age 43 subjected to human trafficking, or an individual subjected to 44 human trafficking as defined by federal law. 45 (10) “Willful blindness” occurs when a person’s suspicions 46 are aroused about a particular fact and, while she or he 47 realizes its probability, he or she deliberately refrains from 48 obtaining confirmation of or acting on the fact because he or 49 she wants to remain in ignorance, such that knowledge of the 50 fact avoided can reasonably and fairly be imputed to the person 51 who avoided confirming it. 52 Section 3. Section 787.063, Florida Statutes, is created to 53 read: 54 787.063 Civil action for victims of human trafficking; 55 civil forfeiture proceeding.— 56 (1) FINDINGS.—The Legislature finds that, to achieve the 57 state’s goals relating to human trafficking set forth in s. 58 787.06(1)(d), it is necessary to provide a civil cause of action 59 for the recovery of compensatory and punitive damages and for 60 the civil seizure and forfeiture of the personal and real 61 property used by those who engage in the human trafficking of 62 persons for sex or labor and those who either knowingly or 63 through willful blindness receive profit from, or otherwise 64 receive direct or indirect economic benefits from, such 65 trafficking. 66 (2) CIVIL CAUSE OF ACTION.— 67 (a) A victim of human trafficking has a civil cause of 68 action against the trafficker or facilitator of human 69 trafficking who victimized her or him, and may recover damages 70 for such victimization as provided in this section. 71 (b) The council, with the consent of the victim, may bring 72 a civil cause of action against a trafficker or facilitator of 73 human trafficking who victimizes a person in this state. 74 (c) If the council prevails in any action, the trust fund 75 shall hold moneys awarded to the victim for distribution to the 76 victim or her or his parent, legal guardian, or estate. However, 77 if the victim’s parent or legal guardian knowingly, or through 78 willful blindness, participated in the human trafficking, such 79 person is not entitled to any distribution or benefit from the 80 trust fund. If there is no person or estate to appropriately 81 receive the funds, they must remain in the trust fund and be 82 used for purposes of the trust fund, as described in s. 83 787.0611. 84 (d) The action may be brought in any court of competent 85 jurisdiction and the standard of proof is a preponderance of the 86 evidence. 87 (e) A victim, or the council on behalf of the victim, who 88 prevails in any such action is entitled to recover economic and 89 noneconomic damages, penalties, punitive damages, reasonable 90 attorney fees, reasonable investigative expenses, and costs. 91 1. The measure of economic damages for services or labor 92 coerced from the victim of human trafficking shall be the 93 greater of the fair market value of the labor or services 94 provided or the amount realized by the trafficker. For purposes 95 of this subparagraph, the terms “labor” and “services” have the 96 same meanings as provided in s. 787.06. 97 2. The measure of economic damages for every day that the 98 human trafficking was ongoing shall be calculated as a daily 99 amount of the compensation payable to a person under s. 100 961.06(1)(a). 101 3. Economic damages also include past and future medical 102 and mental health expenses; repatriation expenses, when a victim 103 elects repatriation; and all other reasonable costs and expenses 104 incurred by the victim in the past or estimated to be incurred 105 by the victim in the future as a result of the human 106 trafficking. 107 4. Noneconomic damages shall be calculated as in a tort 108 action. 109 (f) The remedies provided in this section are in addition 110 to and cumulative with other legal and administrative remedies 111 available to victims of human trafficking, except that a victim 112 may not recover under both this section and s. 772.104(2). 113 (g) If a victim or the council, on behalf of the victim, 114 prevails in an action under this section, in addition to any 115 other award imposed, the court must award a civil penalty 116 against the defendant in the amount of $100,000. This penalty is 117 in addition to, and not in lieu of, any other damage award. The 118 civil penalty must be assessed by the court and may not be 119 disclosed to the jury. Proceeds from the civil penalty must be 120 deposited into the trust fund. 121 (h) If one or more law enforcement agencies rescued the 122 victim or located the property upon which the abuse or 123 exploitation of a victim or victims had occurred, the court must 124 impose a civil penalty against the defendant in the amount of 125 $50,000 and award the penalty to the law enforcement agencies to 126 fund future efforts to combat human trafficking. The court must 127 equitably distribute the civil penalty among the law enforcement 128 agencies. 129 (i) The court shall have specific authority to consolidate 130 civil actions for the same facilitator or trafficker for the 131 purpose of case resolution and aggregate jurisdiction. 132 (3) CIVIL FORFEITURE PROCEEDINGS.— 133 (a) The council may file a civil forfeiture action in the 134 circuit court of the state seeking a judgment of forfeiture 135 against an owner of real or personal property that was knowingly 136 used in the human trafficking of the victim. The civil 137 forfeiture shall be for the benefit of the trust fund and 138 proceeds shall be used as specified in s. 787.0611. Proceeds 139 from the civil forfeiture action must be deposited into the 140 trust fund. 141 (b) Valid and lawful leases, recorded mortgages, or liens 142 of innocent third parties which were in existence before the 143 date of the filing of the civil action and property owned by a 144 good faith purchaser for value are not subject to forfeiture. 145 (c) Civil forfeiture actions brought under this section are 146 exempt from the requirements of the Florida Contraband 147 Forfeiture Act, ss. 932.701-932.7062, and shall be governed as 148 provided in this section. 149 (d) If a law enforcement agency of the state or any other 150 party, pursuant to the Florida Contraband Forfeiture Act or as 151 otherwise provided for by law, seeks the forfeiture of the same 152 property as the council, the council’s claim shall take priority 153 over that of the law enforcement agency. Any action by a law 154 enforcement agency filed pursuant to the Florida Contraband 155 Forfeiture Act or as otherwise provided for by law which 156 involves the same property in an action brought under this 157 section must remain pending until the conclusion of any action 158 brought under this section. 159 (e) In a forfeiture proceeding brought under this section, 160 the council must proceed against property to be forfeited by 161 filing a complaint in the circuit court in the jurisdiction 162 where the property is located or where the offense occurred, 163 paying a filing fee of $1,000, and depositing a bond of $1,500 164 with the clerk of the court. Unless otherwise expressly agreed 165 to in writing by the parties, the bond is payable to the 166 claimant if the claimant prevails in the forfeiture proceeding 167 and in any appeal. 168 (f) The complaint must be styled, “In RE: FORFEITURE OF” 169 (followed by the name or description of the property). The 170 complaint must contain a brief jurisdictional statement, a 171 description of the subject matter of the proceeding, and a 172 statement of the facts sufficient to state a cause of action 173 that would support a final judgment of forfeiture. The complaint 174 must be accompanied by a verified supporting affidavit. 175 (g) If the property is required by law to be titled or 176 registered, or if the property is subject to a perfected 177 security interest in accordance with chapter 679, the council 178 shall serve the forfeiture complaint as an original service of 179 process under the Florida Rules of Civil Procedure and other 180 applicable law to each person having an ownership or security 181 interest in the property. The council shall serve notice of the 182 forfeiture complaint on any known owner or lienholder. The 183 council must make a diligent search and inquiry for the owner of 184 the subject property, and if, after such diligent search and 185 inquiry, the council is unable to ascertain the owner or 186 lienholder, notice is not required. The council shall also 187 publish, in accordance with chapter 50, notice of the forfeiture 188 complaint once each week for 2 consecutive weeks in a newspaper 189 of general circulation, as defined in s. 165.031, in the county 190 where the property is located. 191 (h) The complaint must describe the property to be 192 forfeited and state the name of the court in which the complaint 193 will be filed. If the property to be forfeited has been seized 194 by a law enforcement agency, the complaint must state the 195 county, place, and date of seizure and state the name of the law 196 enforcement agency holding the seized property. 197 (i) The court shall require any claimant who desires to 198 contest the forfeiture proceeding to file and serve upon the 199 plaintiff any responsive pleadings and affirmative defenses 200 within 20 days after receipt of the complaint. 201 (j) Upon proof by a preponderance of the evidence that the 202 property to be forfeited was used in human trafficking, the 203 court shall order the property forfeited to the council. The 204 court shall order the forfeiture of any other property of a 205 claimant, excluding lienholders, up to the value of any property 206 subject to forfeiture under this section if any of the property 207 described in this section: 208 1. Cannot be located; 209 2. Has been transferred to, sold to, or deposited with, a 210 third party; 211 3. Has been placed beyond the jurisdiction of the court; 212 4. Has been substantially diminished in value by any act or 213 omission of the person in possession of the property; or 214 5. Has been commingled with any property that cannot be 215 divided without difficulty. 216 (k)1. Property may not be forfeited under this section 217 unless the council establishes by a preponderance of the 218 evidence that the owner knew, or should have known after a 219 reasonable inquiry, that the property was being employed or was 220 likely to be employed in criminal activity. 221 2. A bona fide lienholder’s interest that has been 222 perfected in the manner prescribed by law may not be forfeited 223 under this section unless the council establishes by a 224 preponderance of the evidence that the lienholder had actual 225 knowledge at the time the lien was made that the property was 226 being employed or was likely to be employed in criminal 227 activity. If a lienholder’s interest is not subject to 228 forfeiture under the requirements of this section, such interest 229 shall be preserved by the court by ordering the lienholder’s 230 interest to be paid as provided in s. 932.7055. 231 3. Property titled or registered between husband and wife 232 jointly by the use of the conjunctives “and,” “and/or,” or “or,” 233 in the manner prescribed by law are not subject to forfeiture 234 under this section unless the council establishes by a 235 preponderance of the evidence that the coowner either knew or 236 had reason to know, after reasonable inquiry, that such property 237 was employed or was likely to be employed in criminal activity. 238 (l) The court’s final order of forfeiture shall perfect in 239 the council right, title, and interest in and to such property, 240 subject only to the rights and interests of bona fide 241 lienholders, and, if applicable, shall relate back to the date 242 of seizure or the date of filing of the civil forfeiture action. 243 (m) Any interest in, title to, or right to property titled 244 or registered jointly by the use of the conjunctives “and,” 245 “and/or,” or “or” held by a coowner, other than property held 246 jointly between husband and wife, may not be forfeited unless 247 council establishes by a preponderance of the evidence that the 248 coowner either knew, or had reason to know, after reasonable 249 inquiry, that the property was employed or was likely to be 250 employed in criminal activity. When the interests of each 251 culpable coowner are forfeited, any remaining coowners shall be 252 afforded the opportunity to purchase the forfeited interest in, 253 title to, or right to the property from the council. If any 254 remaining coowner does not purchase such interest, the council 255 may hold the property in coownership, sell its interest in the 256 property, liquidate its interest in the property, or dispose of 257 its interest in the property in any other reasonable manner. 258 (n) Following an order of forfeiture to the council, 259 subject only to the rights and interests of bona fide 260 lienholders, the forfeited property, or the proceeds from the 261 sale of such forfeited property, shall be transferred to the 262 trust fund. The council must sell the property at public auction 263 or by sealed bid to the highest bidder, except for real 264 property, which must be sold in a commercially reasonable manner 265 after appraisal by listing on the market, or salvage, trade, or 266 transfer the property to any public or nonprofit organization. 267 The council shall destroy any image and the medium on which the 268 image is recorded, including, but not limited to, a photograph, 269 video tape, diskette, compact disc, or fixed disk made in 270 violation of s. 810.145 when the image and the medium on which 271 it is recorded is no longer needed for an official purpose. The 272 council may not sell or retain any image. If the forfeited 273 property is subject to a lien preserved by the court, the 274 council shall sell the property with the proceeds being used 275 toward satisfaction of any liens or satisfy the lien before 276 taking any action authorized by this subsection. 277 (o) If a claimant prevails at the conclusion of a 278 forfeiture proceeding involving property seized by a law 279 enforcement agency and the council decides not to appeal, any 280 seized property must be released immediately to the person 281 entitled to possession of the property as determined by the 282 court. Under such circumstances, the seizing agency may not 283 assess any towing charges, storage fees, administrative costs, 284 or maintenance costs against the claimant with respect to the 285 seized property or forfeiture proceeding. 286 (p) If a claimant prevails at the conclusion of a 287 forfeiture proceeding involving seized property, the trial court 288 shall require the seizing agency to pay to the claimant the 289 reasonable loss of value of the seized property. If a claimant 290 prevails at trial or on appeal and the seizing agency retained 291 the seized property during the trial or appellate process, the 292 trial court must also require the seizing agency to pay to the 293 claimant any loss of income directly attributed to the continued 294 seizure of income-producing property during the trial or 295 appellate process. If the claimant prevails on appeal, the 296 seizing agency must immediately release the seized property to 297 the person entitled to possession of the property as determined 298 by the court and pay any cost as assessed by the court, and may 299 not assess any towing charges, storage fees, administrative 300 costs, or maintenance costs against the claimant with respect to 301 the seized property or the forfeiture proceeding. However, 302 release of the seized property is not required if the seizing 303 agency has a pending forfeiture action as described in paragraph 304 (d). 305 (q) If the claimant prevails, at the conclusion of 306 forfeiture proceedings and any appeal, the court must award 307 reasonable attorney fees and costs to the claimant if the court 308 finds that the council has not proceeded in good faith. The 309 court may order the council to pay the awarded attorney fees and 310 costs from the trust fund. This subsection does not preclude any 311 party from electing to seek attorney fees and costs under 312 chapter 57 or other applicable law. 313 (4) STATUTE OF LIMITATIONS.—There is no statute of 314 limitations for actions brought pursuant to this section. 315 Section 4. Section 787.064, Florida Statutes, is created to 316 read: 317 787.064 Compensation from the Trust Fund for Victims of 318 Human Trafficking and Prevention.— 319 (1) The council shall establish a program for compensation 320 of victims of human trafficking. The council shall establish an 321 application form and procedures for application. Information 322 about the program must be posted on the Department of Legal 323 Affairs’ website. The council may choose to accept applications 324 electronically. Applications for compensation must be made 325 available in English, Spanish, and Creole. 326 (2) Up to 20 percent of all proceeds received from 327 forfeiture actions shall be set aside for the program. If the 328 funds available for the program at any time exceed $2 million, 329 the set asides shall be discontinued and may not be resumed 330 until the fund balance is reduced to less than $1 million by 331 disbursement made under this section. 332 (3) A victim of human trafficking may apply to the council 333 for compensation under this section within 7 years of the end of 334 the human trafficking. If the victim is a minor, regardless of 335 when the human trafficking on which the application is made 336 occurred, application may be made by her or his parent or legal 337 guardian if the victim is under 18 years of age or by the victim 338 within 3 years after turning 18 years of age. 339 (4) Compensation may not be granted unless the council 340 finds that the applicant was a victim of human trafficking. 341 Compensation shall be granted on an actual need basis. 342 Compensation may not be denied based on the victim’s familial 343 relationship to the trafficker or facilitator, except to prevent 344 unjust enrichment of the trafficker or facilitator. 345 (5) Compensation made under this section is considered 346 payment of last resort which follows all other sources. Any 347 compensation shall be reduced by the amount of any other 348 payments received or to be received by the victim as a result of 349 the human trafficking. 350 (6) Compensation may not exceed $10,000 for a victim of 351 human trafficking. Regardless of the number of victims applying, 352 payments for compensation are limited in the aggregate to 353 $100,000 against any one trafficker or facilitator. If the total 354 applied for by victims exceeds the aggregate limit of $100,000, 355 the council shall prorate the compensation based upon the actual 356 need of the victims to the total applied for. 357 (7) Compensation may not be distributed before the 358 expiration of 2 years after the date any victim is found by the 359 council to be approved for compensation under this section. If, 360 during this 2-year period, more than one claim is made against 361 the same trafficker or facilitator, the eligible payments shall 362 be prorated as described in subsection (6). If no additional 363 claims are made, the compensation may be distributed to the 364 victim. Compensation shall be distributed from the set asides in 365 the trust fund. 366 (8) If a victim receives compensation in excess of the 367 amount authorized in this section, the victim shall reimburse 368 the trust fund for any excess amount within 60 days after the 369 victim receives it or 60 days after the compensation is 370 determined to be in excess of that authorized by law, whichever 371 is later. 372 (9) If at any time the funds in the set asides of the trust 373 fund are insufficient to satisfy any approved compensation, the 374 council shall satisfy such undistributed compensation or portion 375 thereof as soon as a sufficient amount of funds have been set 376 aside for the program. When there is more than one undistributed 377 compensation outstanding, such compensation shall be paid in the 378 order in which the compensation was approved by the council. 379 (10) Compensation granted final approval by the council is 380 not subject to appeal or to any other pending proceeding. 381 (11) The council shall establish rules, guidelines, and an 382 implementation plan and shall file a copy, and any subsequent 383 amendments thereto, with the Department of Legal Affairs when 384 adopted. 385 Section 5. Section 787.065, Florida Statutes, is created to 386 read: 387 787.065 Annual Report of the Civil Action for Victims of 388 Human Trafficking and Prevention of Human Trafficking Act.—The 389 council shall issue an annual report no later than October 1 of 390 each year to the President of the Senate and the Speaker of the 391 House of Representatives detailing for the prior fiscal year all 392 of the following: 393 (1) The status of the trust fund. 394 (2) Any actions and outcomes under s. 787.063. 395 (3) Whether the council has received forfeited property 396 under s. 787.063. At a minimum the report must specify the type, 397 approximate value, court case number, disposition of the 398 property received, and amount of any proceeds received or 399 expended. 400 (4) Information about the compensation program. 401 (5) Any information that demonstrates the council’s 402 fulfillment of the purposes of the trust fund during the prior 403 fiscal year. 404 Section 6. Paragraph (f) is added to subsection (4) of 405 section 16.617, Florida Statutes, to read: 406 16.617 Statewide Council on Human Trafficking; creation; 407 membership; duties.— 408 (4) DUTIES.—The council shall: 409 (f) Perform the functions and duties as provided in ss. 410 787.061-787.066 and administer the Florida Compensation Trust 411 Fund for Survivors of Human Trafficking as created in s. 412 787.0611. 413 Section 7. For the 2017-2018 fiscal year, the sums of 414 $153,000 in recurring funds and $29,000 in nonrecurring funds 415 from the Crimes Compensation Trust Fund are appropriated to the 416 Department of Legal Affairs, and three full-time equivalent 417 positions are authorized, for the purpose of implementing this 418 act. 419 Section 8. This act shall take effect October 1, 2017. 420 421 ================= T I T L E A M E N D M E N T ================ 422 And the title is amended as follows: 423 Delete everything before the enacting clause 424 and insert: 425 A bill to be entitled 426 An act relating to victims of human trafficking; 427 creating s. 787.061, F.S.; providing a short title; 428 creating s. 787.062, F.S.; defining terms; creating s. 429 787.063, F.S.; providing legislative findings; 430 creating a civil cause of action for victims of human 431 trafficking, or for the Statewide Council on Human 432 Trafficking on their behalves, against a trafficker or 433 facilitator; providing procedures and requirements for 434 bringing a claim; requiring a court to impose a civil 435 penalty against a defendant if a victim, or the 436 council on the victim’s behalf, prevails; requiring a 437 court to impose a civil penalty and award it equitably 438 to one or more law enforcement agencies under certain 439 circumstances; authorizing the council to file a civil 440 forfeiture action for the council’s benefit; requiring 441 that proceeds from civil forfeiture be deposited into 442 the Trust Fund for Victims of Human Trafficking and 443 Prevention; providing procedures and requirements for 444 civil forfeiture actions; providing that such actions 445 are not subject to a statute of limitations; creating 446 s. 787.064, F.S.; requiring the council to establish a 447 program for the compensation of victims of human 448 trafficking; requiring the council to establish an 449 application form and procedures for application; 450 requiring that applications be made available in 451 certain languages; providing procedures and 452 requirements for the program for compensating victims 453 and the administration of funds; providing for 454 rulemaking; creating s. 787.065, F.S.; requiring the 455 council to issue an annual report to the Legislature 456 which includes specified information, by a specified 457 date; amending s. 16.617, F.S.; adding functions and 458 duties for the council; providing for administration 459 of the trust fund by the council; providing 460 appropriations; providing an effective date.