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:
172 847.126 Liability 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.