Florida Senate - 2023                                     SB 472
       
       
        
       By Senator Garcia
       
       
       
       
       
       36-01597-23                                            2023472__
    1                        A bill to be entitled                      
    2         An act relating to protection of exploited persons;
    3         amending s. 450.045, F.S.; providing criminal
    4         penalties for the failure to verify and maintain
    5         specified documentation of an adult theater employee
    6         or contractor; amending s. 796.07, F.S.; requiring a
    7         mandatory minimum term of incarceration for a person
    8         convicted of solicitation of prostitution, lewdness,
    9         or assignation; authorizing a judicial circuit to
   10         offer an educational program to such a person;
   11         providing topics for the educational program;
   12         providing legislative intent; creating s. 847.126,
   13         F.S.; providing definitions; requiring a commercial
   14         entity that publishes or distributes material harmful
   15         to minors on the Internet from a website that contains
   16         a substantial portion of such material to perform
   17         reasonable age verification; providing for damages for
   18         minors who access such sites; prohibiting such sites
   19         from retaining identifying information; providing for
   20         damages for violations; providing exceptions;
   21         providing construction; amending s. 943.0433, F.S.;
   22         conforming cross-references; providing effective
   23         dates.
   24          
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Paragraph (e) is added to subsection (3) of
   28  section 450.045, Florida Statutes, and paragraphs (a), (b), and
   29  (c) of that subsection are republished, to read:
   30         450.045 Proof of identity and age; posting of notices.—
   31         (3)(a) In order to provide the department and law
   32  enforcement agencies the means to more effectively identify,
   33  investigate, and arrest persons engaging in human trafficking,
   34  an adult theater, as defined in s. 847.001(2)(b), shall obtain
   35  proof of the identity and age of each of its employees or
   36  independent contractors, and shall verify the validity of the
   37  identification and age verification document with the issuer,
   38  before his or her employment or provision of services as an
   39  independent contractor.
   40         (b) The adult theater shall obtain and keep on record a
   41  photocopy of the person’s driver license or state or federal
   42  government-issued photo identification card, along with a record
   43  of the verification of the validity of the identification and
   44  age verification document with the issuer, during the entire
   45  period of employment or business relationship with the
   46  independent contractor and for at least 3 years after the
   47  employee or independent contractor ceases employment or the
   48  provision of services.
   49         (c) The department and its agents have the authority to
   50  enter during operating hours, unannounced and without prior
   51  notice, and inspect at any time a place or establishment covered
   52  by this subsection and to have access to age verification
   53  documents kept on file by the adult theater and such other
   54  records as may aid in the enforcement of this subsection.
   55         (e)A person who owns, operates, or manages an adult
   56  theater in violation of the requirements of this subsection
   57  commits a misdemeanor of the first degree, punishable as
   58  provided in s. 775.082 or s. 775.083.
   59         Section 2. Subsection (5) of section 796.07, Florida
   60  Statutes, is amended, subsection (8) is added to that section,
   61  and paragraph (f) of subsection (2) of that section is
   62  republished, to read:
   63         796.07 Prohibiting prostitution and related acts.—
   64         (2) It is unlawful:
   65         (f) To solicit, induce, entice, or procure another to
   66  commit prostitution, lewdness, or assignation.
   67         (5)(a) A person who violates paragraph (2)(f) commits:
   68         1. A misdemeanor of the first degree for a first violation,
   69  punishable as provided in s. 775.082 or s. 775.083.
   70         2. A felony of the third degree for a second violation,
   71  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
   72         3. A felony of the second degree for a third or subsequent
   73  violation, punishable as provided in s. 775.082, s. 775.083, or
   74  s. 775.084.
   75         (b) In addition to any other penalty imposed, the court
   76  shall order a person convicted of a violation of paragraph
   77  (2)(f) to:
   78         1. Perform 100 hours of community service.; and
   79         2. Pay for and attend an educational program as described
   80  in subsection (8) about the negative effects of prostitution and
   81  human trafficking, such as a sexual violence prevention
   82  education program, including such programs offered by faith
   83  based providers, if such a program exists programs exist in the
   84  judicial circuit in which the offender is sentenced.
   85         3.Serve a minimum of:
   86         a.Ten days in county jail for a first violation.
   87         b.Thirty days in county jail for a second or subsequent
   88  violation.
   89         (c)In addition to any other penalty imposed, the court
   90  shall sentence a person convicted of a second or subsequent
   91  violation of paragraph (2)(f) to a minimum mandatory period of
   92  incarceration of 10 days.
   93         (c)(d)1. If a person who violates paragraph (2)(f) uses a
   94  vehicle in the course of the violation, the judge, upon the
   95  person’s conviction, may issue an order for the impoundment or
   96  immobilization of the vehicle for a period of up to 60 days. The
   97  order of impoundment or immobilization must include the names
   98  and telephone numbers of all immobilization agencies meeting all
   99  of the conditions of s. 316.193(13). Within 7 business days
  100  after the date that the court issues the order of impoundment or
  101  immobilization, the clerk of the court must send notice by
  102  certified mail, return receipt requested, to the registered
  103  owner of the vehicle, if the registered owner is a person other
  104  than the defendant, and to each person of record claiming a lien
  105  against the vehicle.
  106         2. The owner of the vehicle may request the court to
  107  dismiss the order. The court must dismiss the order, and the
  108  owner of the vehicle will incur no costs, if the owner of the
  109  vehicle alleges and the court finds to be true any of the
  110  following:
  111         a. The owner’s family has no other private or public means
  112  of transportation;
  113         b. The vehicle was stolen at the time of the offense;
  114         c. The owner purchased the vehicle after the offense was
  115  committed, and the sale was not made to circumvent the order and
  116  allow the defendant continued access to the vehicle; or
  117         d. The vehicle is owned by the defendant but is operated
  118  solely by employees of the defendant or employees of a business
  119  owned by the defendant.
  120         3. If the court denies the request to dismiss the order,
  121  the petitioner may request an evidentiary hearing. If, at the
  122  evidentiary hearing, the court finds to be true any of the
  123  circumstances described in sub-subparagraphs (c)2.a.-d. sub
  124  subparagraphs (d)2.a.-d., the court must dismiss the order and
  125  the owner of the vehicle will incur no costs.
  126         (d)(e) The Soliciting for Prostitution Public Database
  127  created pursuant to s. 943.0433 must include the criminal
  128  history record of a person who is found guilty as a result of a
  129  trial or who enters a plea of guilty or nolo contendere,
  130  regardless of whether adjudication is withheld, of paragraph
  131  (2)(f), and there is evidence that such person provided a form
  132  of payment or arranged for the payment of such services. Upon
  133  conviction, the clerk of the court shall forward the criminal
  134  history record of the person to the Department of Law
  135  Enforcement, pursuant to s. 943.052(2), for inclusion in the
  136  database. This paragraph shall stand repealed on January 1,
  137  2024, unless reviewed and saved from repeal by the Legislature.
  138         (8)A judicial circuit may establish an educational program
  139  for persons convicted of or charged with a violation of
  140  paragraph (2)(f), to include education on:
  141         (a)The relationship between demand for commercial sex and
  142  human trafficking.
  143         (b)The impact of human trafficking on victims.
  144         (c)Coercion, consent, and sexual violence.
  145         (d)The health and legal consequences of commercial sex.
  146         (e)The negative impact of commercial sex on prostituted
  147  persons and the community.
  148         (f)The reasons and motivations for engaging in
  149  prostitution.
  150  
  151  An educational program under this subsection may include a
  152  program offered by a faith-based provider.
  153         Section 3. Section 847.126, Florida Statutes, is intended
  154  to provide a civil remedy for damages against commercial
  155  entities who distribute material harmful to minors. Pornography
  156  is creating a public health crisis and is having a corroding
  157  influence on minors. Due to advances in technology, the
  158  universal availability of the Internet, and limited age
  159  verification requirements, minors are exposed to pornography
  160  younger in age. Pornography contributes to the
  161  hypersexualization of teens and prepubescent children and may
  162  lead to low self-esteem, body image disorders, problematic
  163  sexual activity at a young age, and desire among adolescents to
  164  engage in risky sexual behavior. Pornography may also impact
  165  brain development and functioning, contribute to emotional and
  166  medical illnesses, shape deviant sexual arousal, lead to
  167  difficulty in forming or maintaining positive intimate
  168  relationships, and promote problematic or harmful sexual
  169  behaviors and addiction.
  170         Section 4. Effective January 1, 2024, section 847.126,
  171  Florida Statutes, is created to read:
  172         847.126Liability for publishers and distributors of
  173  material harmful to minors.—
  174         (1)As used in this section, the term:
  175         (a)“Commercial entity” includes corporations, limited
  176  liability companies, partnerships, limited partnerships, sole
  177  proprietorships, and any other legally recognized entities.
  178         (b)“Distribute” means to issue, sell, give, provide,
  179  deliver, transfer, transmute, circulate, or disseminate by any
  180  means.
  181         (c)“Internet” means the international computer network of
  182  both federal and nonfederal interoperable packet-switched data
  183  networks.
  184         (d)“Material harmful to minors” means all of the
  185  following:
  186         1.Any material that the average person applying
  187  contemporary community standards would find, taken as a whole
  188  and with respect to minors, appeals to or panders to the
  189  prurient interest.
  190         2.Any material that exploits, is devoted to, or
  191  principally consists of descriptions of actual, simulated, or
  192  animated display or depiction of any of the following, in a
  193  manner patently offensive with respect to minors:
  194         a.Pubic hair, anus, vulva, genitals, or nipple of the
  195  female breast.
  196         b.Touching, caressing, or fondling of nipples, breasts,
  197  buttocks, anuses, or genitals.
  198         c.Sexual intercourse, masturbation, sodomy, bestiality,
  199  oral copulation, flagellation, excretory functions, exhibitions,
  200  or any other sexual act.
  201         3.The material taken as a whole lacks serious literary,
  202  artistic, political, or scientific value for minors.
  203         (e)“News-gathering organization” means any of the
  204  following:
  205         1.An employee of a newspaper, news publication, or news
  206  source, printed or on an online or mobile platform, of current
  207  news and public interest, while operating as an employee as
  208  provided in this subparagraph, who can provide documentation of
  209  such employment.
  210         2.An employee of a radio broadcast station, television
  211  broadcast station, cable television operator, or wire service
  212  while operating as an employee as provided in this subparagraph,
  213  who can provide documentation of such employment.
  214         (f)“Publish” means to communicate or make information
  215  available to another person or entity on a publicly available
  216  Internet website.
  217         (g)“Reasonable age verification methods” include verifying
  218  that the person seeking to access the material is 18 years of
  219  age or older by using any of the following methods:
  220         1.Providing a digital proof of driver license or
  221  identification card as provided in s. 322.032.
  222         2.Requiring the person to comply with a commercial age
  223  verification system that verifies age in one or more of the
  224  following ways:
  225         a.Government-issued identification.
  226         b.Any commercially reasonable method that relies on public
  227  or private transactional data to verify the age of the person is
  228  at least 18 years of age or older.
  229         (h)“Substantial portion” means more than 33 1/3 percent of
  230  total material on a website is material harmful to minors.
  231         (i)“Transactional data” means a sequence of information
  232  that documents an exchange, agreement, or transfer between a
  233  person and a commercial entity or a third party used for the
  234  purpose of satisfying a request or event. Transactional data
  235  includes, but is not limited to, records from mortgage,
  236  education, and employment entities.
  237         (2)(a)A commercial entity that knowingly and intentionally
  238  publishes or distributes material harmful to minors on the
  239  Internet on a website that contains a substantial portion of
  240  such material must perform reasonable age verification methods
  241  to verify the age of persons attempting to access the material.
  242         (b)A commercial entity that fails to comply with paragraph
  243  (a) is liable to a minor for damages resulting from the minor
  244  accessing the material, including court costs and reasonable
  245  attorney fees as ordered by the court.
  246         (3)(a)A commercial entity or third party that performs the
  247  required age verification may not retain any identifying
  248  information of the person after access has been granted to the
  249  material.
  250         (b)A commercial entity that violates paragraph (a) is
  251  liable to the person for damages resulting from retaining the
  252  identifying information, including court costs and reasonable
  253  attorney fees as ordered by the court.
  254         (4)(a)This section does not apply to any bona fide news or
  255  public interest broadcast, website video, report, or event and
  256  may not be construed to affect the rights of a news-gathering
  257  organization.
  258         (b)An Internet service provider or its affiliates or
  259  subsidiaries, a search engine, or a cloud service provider may
  260  not be held to have violated this section solely for providing
  261  access or connection to or from a website or other information
  262  or content on the Internet or a facility, system, or network not
  263  under that provider’s control, including transmission,
  264  downloading, intermediate storage, or access software, to the
  265  extent such provider is not responsible for the creation of the
  266  content of the communication that constitutes material harmful
  267  to minors.
  268         Section 5. Subsection (1) and paragraphs (a) and (b) of
  269  subsection (2) of section 943.0433, Florida Statutes, are
  270  amended to read:
  271         943.0433 Soliciting for Prostitution Public Database.—
  272         (1) The department shall create and administer the
  273  Soliciting for Prostitution Public Database. The clerk of the
  274  court shall forward to the department the criminal history
  275  record of a person in accordance with s. 796.07(5)(d) s.
  276  796.07(5)(e), and the department shall add the criminal history
  277  record to the database.
  278         (2)(a) The department shall automatically remove the
  279  criminal history record of a person from the database if, after
  280  5 years following the commission of an offense that meets the
  281  criteria set forth in s. 796.07(5)(d) s. 796.07(5)(e), such
  282  person has not subsequently committed a violation that meets
  283  such criteria or any other offense within that time that would
  284  constitute a sexual offense, including, but not limited to,
  285  human trafficking, or an offense that would require registration
  286  as a sexual offender.
  287         (b) The department may not remove a criminal history record
  288  from the database if a person commits a violation that meets the
  289  criteria set forth in s. 796.07(5)(d) s. 796.07(5)(e) a second
  290  or subsequent time.
  291         Section 6. Except as otherwise provided in this act, this
  292  act shall take effect July 1, 2023.