Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1044
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Rules (Book) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. This act may be cited as the “Civil Cause of
    6  Action for Victims of Human Trafficking Act.”
    7         Section 2. Section 787.061, Florida Statutes, is created to
    8  read:
    9         787.061Civil actions by victims of human trafficking.—
   10         (1)FINDINGS.-The Legislature finds that, to achieve the
   11  intent of the Legislature relating to human trafficking
   12  expressed in s. 787.06(1)(d), it is necessary to provide a civil
   13  cause of action for the recovery of compensatory and punitive
   14  damages, attorney fees, and costs.
   15         (2)DEFINITIONS.—As used in this section, the term:
   16         (a)“Facilitator” means a person who knowingly, or in
   17  willful blindness, assists or provides resources, goods, or
   18  services to a trafficker which assist or enable the trafficker
   19  to carry out human trafficking. The term does not include a
   20  person who facilitates human trafficking as a result of force,
   21  threat, or coercion.
   22         (b)“Human trafficking” has the same meaning as provided in
   23  s. 787.06.
   24         (c)“Trafficker” means any person who knowingly engages in
   25  human trafficking, attempts to engage in human trafficking, or
   26  benefits financially by receiving anything of value from
   27  participation in a venture that has subjected a person to human
   28  trafficking.
   29         (d)“Trust fund” means the Trust Fund for Victims of Human
   30  Trafficking and Prevention created in s. 787.0611.
   31         (e)“Venture” means any group of two or more individuals
   32  associated in fact, whether or not a legal entity.
   33         (f)“Victim of human trafficking” means a person subjected
   34  to coercion, as defined in s. 787.06, for the purpose of being
   35  used in human trafficking; a child under 18 years of age
   36  subjected to human trafficking; or an individual subjected to
   37  human trafficking as defined by federal law.
   38         (g)“Willful blindness” exists when a person has knowledge
   39  of information that would raise suspicions in a reasonable
   40  person and he or she deliberately refrains from obtaining
   41  confirmation of or acting on the information because he or she
   42  wants to remain in ignorance, such that knowledge of the facts
   43  avoided can reasonably and fairly be imputed to the person who
   44  avoided confirming it.
   45         (3)CIVIL CAUSE OF ACTION.—
   46         (a)A victim of human trafficking has a civil cause of
   47  action against the trafficker or facilitator who victimized her
   48  or him and may recover damages as provided in this section.
   49         (b)The action may be brought in any court of competent
   50  jurisdiction, and the standard of proof is the greater weight of
   51  the evidence, but the standard of proof for punitive damages
   52  under this section is clear and convincing evidence.
   53         (c)A victim who prevails in any such action is entitled to
   54  recover economic and noneconomic damages, penalties, punitive
   55  damages, reasonable attorney fees, reasonable investigative
   56  expenses, and costs.
   57         1.Economic damages include, but are not limited to, past
   58  and future medical and mental health expenses; repatriation
   59  expenses, when a victim elects repatriation; and all other
   60  reasonable costs and expenses incurred by the victim in the past
   61  or estimated to be incurred by the victim in the future as a
   62  result of the human trafficking.
   63         2.Noneconomic damages include pain and suffering,
   64  inconvenience, physical impairment, mental anguish,
   65  disfigurement, loss of capacity for enjoyment of life, and other
   66  nonfinancial losses.
   67         (d)The remedies provided in this section are in addition
   68  to and cumulative with other legal and administrative remedies
   69  available to victims of human trafficking, except that a victim
   70  may not recover under both this section and s. 772.104(2). If a
   71  parent or legal guardian knowingly or through willful blindness
   72  trafficked the victim, facilitated such trafficking, or
   73  otherwise participated in the human trafficking of the victim,
   74  such parent or legal guardian is not entitled to damages or
   75  distributions under this section.
   76         (e)If a victim prevails in an action under this section,
   77  in addition to any other award imposed, the court shall assess a
   78  civil penalty against the defendant in the amount of $50,000.
   79  This penalty is in addition to and not in lieu of any other
   80  damage award. The civil penalty must be assessed by the court
   81  and may not be disclosed to the jury. The entire $50,000 civil
   82  penalty shall be deposited into the trust fund unless the
   83  proceeds become subject to equitable distribution under
   84  paragraph (g).
   85         (f)If a victim prevails in an action under this section,
   86  and if one or more law enforcement agencies rescued the victim
   87  or stopped the abuse or exploitation of a victim on the property
   88  where it occurred, the court shall assess a civil penalty
   89  against the defendant in the amount of $50,000 and award the
   90  penalty to such law enforcement agencies to fund future efforts
   91  to combat human trafficking. This penalty is in addition to, and
   92  not in lieu of, any other damage award or civil penalty. The
   93  court shall equitably distribute this civil penalty among the
   94  law enforcement agencies. The entire $50,000 civil penalty shall
   95  be distributed to the law enforcement agencies unless the
   96  proceeds become subject to equitable distribution under
   97  paragraph (g).
   98         (g)If an action brought under this section is either
   99  settled before a jury verdict or the victim is unable to recover
  100  the full amount of the compensatory damages caused by the human
  101  trafficking, the court must determine the percentage of the
  102  victim’s damages that were recovered, after deducting the
  103  victim’s reasonable and necessary out-of-pocket expenses, but
  104  before deducting attorney fees, and that same percentage of
  105  $50,000 shall be paid from the recovery to the trust fund. If
  106  one or more law enforcement agencies are entitled to a civil
  107  penalty under paragraph (f), that same percentage of $50,000
  108  shall be paid from the recovery to the law enforcement agencies
  109  to fund future efforts to combat human trafficking.
  110         (h)The court shall have specific authority to consolidate
  111  civil actions for the same trafficker or facilitator for the
  112  purpose of case resolution and aggregate jurisdiction.
  113         (i)Notwithstanding any other law to the contrary, the
  114  amount of punitive damages awarded under this section shall be
  115  equally divided between the victim and the trust fund.
  116         (j) Moneys collected from penalties, damages, or other
  117  costs imposed by this section which are to be deposited into the
  118  trust fund shall be remitted to the Department of Revenue for
  119  deposit into the Department of Law Enforcement Trust Fund for
  120  Victims of Human Trafficking and Prevention.
  121         (4)STATUTE OF LIMITATIONS.—The statutes of limitations as
  122  specified in s. 95.11(7) and (9) are applicable to actions
  123  brought under this section.
  124         (5)AFFIRMATIVE DEFENSE.—
  125         (a)In any action brought under this section against the
  126  owner or operator of a public food service or lodging
  127  establishment based on a claim of vicarious liability for an
  128  employee’s conduct, it is an affirmative defense to punitive
  129  damages recoverable under such claim if the owner or operator
  130  proves by the greater weight of evidence that:
  131         1.Its personnel have been trained to identify and report
  132  suspected human trafficking activity in accordance with s.
  133  509.210 and rules adopted thereunder.
  134         2.The owner or operator had in place an employee protocol
  135  or employee code of conduct to detect and report suspected human
  136  trafficking activity to appropriate law enforcement authorities,
  137  which may include the National Human Trafficking Hotline, the
  138  United States Department of Justice Hotline, the Florida Abuse
  139  Hotline, or local law enforcement authorities.
  140         3.If the victim of human trafficking was a minor at the
  141  time of the trafficking, the owner or operator exercised
  142  reasonable care and diligence, screening, training, overseeing,
  143  and supervising the employee, and exercised reasonable care and
  144  diligence in its compliance with the anti-human-trafficking
  145  protocols and training required by this section.
  146         (b)If the victim of human trafficking was an adult at the
  147  time of the trafficking, the affirmative defense provided in
  148  this subsection may be overcome with proof by clear and
  149  convincing evidence that the officers, directors, or managers of
  150  the owner or operator of the public food service or lodging
  151  establishment knowingly, or in willful blindness, condoned,
  152  ratified, permitted, caused, or consented to the conduct
  153  constituting human trafficking or the facilitation of such
  154  trafficking or failed to use reasonable care and diligence in
  155  its compliance with the anti-human-trafficking protocols and
  156  training required by this section.
  157         Section 3. Subsection (4) is added to section 772.104,
  158  Florida Statutes, to read:
  159         772.104 Civil cause of action.—
  160         (4)This section does not apply to a cause of action that
  161  may be brought under s. 787.061.
  162         Section 4. Section 509.210, Florida Statutes, is created to
  163  read:
  164         509.210Training of public food service and lodging
  165  establishment personnel regarding human trafficking.—
  166         (1)In consultation with the Attorney General, human
  167  trafficking victim advocacy organizations, and state and
  168  national restaurant and lodging associations, the division shall
  169  adopt by rule one or more educational programs designed to train
  170  employees of public food service and lodging establishments in
  171  the identification and reporting of suspected human trafficking
  172  activity. The owner or operator of a public food service or
  173  lodging establishment may also adopt its own educational program
  174  for this purpose, which must be submitted to the division and
  175  approved by it for the owner’s or operator’s use. The division
  176  shall approve such a program for the use by the owner or
  177  operator and its affiliated establishments if it is determined
  178  to be at least as comprehensive and effective as the other
  179  programs adopted by the division by rule. The rule must require
  180  the owner or operator of each public food service or lodging
  181  establishment to train those classes of employee reasonably
  182  expected to routinely interact with guests, using an approved
  183  educational program, within a reasonable time after hiring, and
  184  at appropriate intervals thereafter, and to maintain
  185  documentation of such training for routine inspection. If the
  186  owner or operator fails to comply with the rule’s requirements,
  187  the division shall impose administrative sanctions pursuant to
  188  s. 509.261.
  189         (2)All public food service and lodging establishments
  190  shall provide the division with proof of employee training upon
  191  request, including, but not limited to, at the time of any
  192  division inspection of the establishment. Proof of training for
  193  each employee shall include the name, date of birth, and job
  194  title of the trained employee, the date the training occurred,
  195  and the approved educational program used.
  196         Section 5. The Division of Hotels and Restaurants of the
  197  Department of Business and Professional Regulation may adopt
  198  emergency rules pursuant to s. 120.54, Florida Statutes, to
  199  implement s. 509.210, Florida Statutes, as created by this act.
  200  The Legislature finds emergency rulemaking power necessary for
  201  the preservation of the rights and welfare of the people of
  202  Florida and to address the scourge of human trafficking in our
  203  state. The adoption of emergency rules pursuant to this section
  204  is exempt from s. 120.54(4)(a), Florida Statutes.
  205         Section 6. Subsections (7) and (9) of section 95.11,
  206  Florida Statutes, are amended to read:
  207         95.11 Limitations other than for the recovery of real
  208  property.—Actions other than for recovery of real property shall
  209  be commenced as follows:
  210         (7) FOR INTENTIONAL TORTS BASED ON ABUSE.—An action founded
  211  on alleged abuse, as defined in s. 39.01, s. 415.102, or s.
  212  984.03, or incest, as defined in s. 826.04, or human
  213  trafficking, as defined in s. 787.06, may be commenced at any
  214  time within 7 years after the age of majority, or within 4 years
  215  after the injured person leaves the dependency of the abuser, or
  216  within 4 years from the time of discovery by the injured party
  217  of both the injury and the causal relationship between the
  218  injury and the abuse, whichever occurs later.
  220  action related to an act constituting a violation of s. 794.011
  221  or brought pursuant to s. 787.061 involving a victim who was
  222  under the age of 16 at the time of the act may be commenced at
  223  any time. This subsection applies to any such action other than
  224  one which would have been time barred on or before July 1, 2010.
  225         Section 7. This act shall take effect October 1, 2018.
  227  ================= T I T L E  A M E N D M E N T ================
  228  And the title is amended as follows:
  229         Delete everything before the enacting clause
  230  and insert:
  231                        A bill to be entitled                      
  232         An act relating to victims of human trafficking;
  233         providing a short title; creating s. 787.061, F.S.;
  234         providing legislative findings; defining terms;
  235         providing a civil cause of action for victims of human
  236         trafficking against a trafficker or facilitator;
  237         providing procedures and requirements for bringing a
  238         claim; providing for damages, penalties, punitive
  239         damages, attorney fees, expenses, and costs; requiring
  240         a court to impose civil penalties in certain
  241         circumstances; providing for the deposit or
  242         distribution of civil penalties; requiring the equal
  243         distribution of punitive damages between victims and a
  244         specified trust fund; requiring the remittance of
  245         certain collected moneys to the Department of Revenue
  246         for deposit into a certain trust fund; providing that
  247         such actions are subject to specified statutes of
  248         limitations; providing an affirmative defense for
  249         owners or operators of public lodging establishments
  250         under certain circumstances; amending s. 772.104,
  251         F.S.; specifying that certain provisions concerning
  252         civil actions for criminal practices do not apply to
  253         actions that may be brought under s. 787.061, F.S.;
  254         creating s. 509.210, F.S.; requiring educational
  255         programs for employees of public food service and
  256         lodging establishments regarding human trafficking;
  257         specifying proof of compliance requirements for
  258         establishments; requiring rulemaking; providing
  259         emergency rulemaking authority and an exemption from
  260         specified provisions for the Division of Hotels and
  261         Restaurants; amending s. 95.11, F.S.; conforming
  262         provisions to changes made by the act; providing an
  263         effective date.