Florida Senate - 2016                              CS for SB 220
       
       
        
       By the Committee on Criminal Justice; and Senator Bean
       
       591-02555-16                                           2016220c1
    1                        A bill to be entitled                      
    2         An act relating to contraband forfeiture; amending s.
    3         932.701, F.S.; revising the applicability of a short
    4         title; amending s. 932.704, F.S.; requiring that
    5         specified persons approve a settlement once property
    6         has been seized; specifying when a settlement
    7         agreement must be reviewed; requiring each state or
    8         local law enforcement agency that seizes property for
    9         the purpose of forfeiture to perform a specified
   10         review at least annually; prohibiting certain
   11         compensation or benefit to any law enforcement officer
   12         from being dependent upon attaining a quota of
   13         seizures; requiring a seizing agency to adopt certain
   14         written policies, procedures, and training to ensure
   15         compliance; requiring that supervisory personnel
   16         review seizures to determine whether probable cause
   17         existed; requiring prompt notification of the seizing
   18         agency’s legal counsel after a determination is made
   19         regarding seizure; requiring that the legal counsel
   20         conduct a specified review; requiring each seizing
   21         agency to adopt and implement specified written
   22         policies and procedures for the prompt release of
   23         seized property under certain circumstances; requiring
   24         that the settlement of forfeiture actions be
   25         consistent with certain mandates and with the seizing
   26         agency’s policy; requiring specified training and the
   27         maintenance of related records; amending s. 932.7055,
   28         F.S.; increasing the minimum amount of forfeiture
   29         proceeds that certain law enforcement agencies must
   30         donate to certain programs; creating s. 932.7061,
   31         F.S.; requiring each state or local law enforcement
   32         agency that seizes property for the purpose of
   33         forfeiture to complete an annual report; requiring
   34         certain information to be included in the annual
   35         report; requiring the Department of Law Enforcement to
   36         make an annual report to the Office of Program Policy
   37         Analysis and Government Accountability compiling the
   38         information; prohibiting a law enforcement agency and
   39         an entity having budgetary control over the law
   40         enforcement agency form anticipating proceeds from
   41         forfeitures in their budgeting processes; creating s.
   42         932.7062, F.S.; providing a monetary penalty for
   43         seizing agencies that fail to comply with reporting
   44         requirements; providing an exception; providing for
   45         enforcement; amending ss. 322.34, 323.001, 328.07, and
   46         817.625, F.S.; conforming cross-references; reenacting
   47         ss. 27.3451 and 874.08, F.S., relating to the State
   48         Attorney’s Forfeiture and Investigative Support Trust
   49         Fund, and criminal gang activity, recruitment, and
   50         forfeiture, respectively, to incorporate the amendment
   51         made to s. 932.704, F.S., in references thereto;
   52         providing an effective date.
   53          
   54  Be It Enacted by the Legislature of the State of Florida:
   55  
   56         Section 1. Subsection (1) of section 932.701, Florida
   57  Statutes, is amended to read:
   58         932.701 Short title; definitions.—
   59         (1) Sections 932.701-932.7062 932.706 shall be known and
   60  may be cited as the “Florida Contraband Forfeiture Act.”
   61         Section 2. Subsections (7) and (11) of section 932.704,
   62  Florida Statutes, are amended to read:
   63         932.704 Forfeiture proceedings.—
   64         (7) Once property is seized pursuant to the Florida
   65  Contraband Forfeiture Act, regardless of whether the civil
   66  complaint has been filed, all settlements must be personally
   67  approved by the head of the law enforcement agency making the
   68  seizure. If the agency head is unavailable and a delay would
   69  adversely affect the settlement, approval may be given by a
   70  subordinate of the agency head who is designated to grant such
   71  authority. When the claimant and the seizing law enforcement
   72  agency agree to settle the forfeiture action after the civil
   73  complaint has been filed and before prior to the conclusion of
   74  the forfeiture proceeding, the settlement agreement shall be
   75  reviewed, unless such review is waived by the claimant in
   76  writing, by the court or a mediator or arbitrator agreed upon by
   77  the claimant and the seizing law enforcement agency. If the
   78  claimant is unrepresented, the settlement agreement must include
   79  a provision that the claimant has freely and voluntarily agreed
   80  to enter into the settlement without benefit of counsel.
   81         (11)(a) The Department of Law Enforcement, in consultation
   82  with the Florida Sheriffs Association and the Florida Police
   83  Chiefs Association, shall develop guidelines and training
   84  procedures to be used by state and local law enforcement
   85  agencies and state attorneys in implementing the Florida
   86  Contraband Forfeiture Act. At least annually, each state or
   87  local law enforcement agency that seizes property for the
   88  purpose of forfeiture shall periodically review such seizures of
   89  assets made by the agency’s law enforcement officers, any
   90  settlements, and any forfeiture proceedings initiated by the law
   91  enforcement agency, to determine whether they such seizures,
   92  settlements, and forfeitures comply with the Florida Contraband
   93  Forfeiture Act and the guidelines adopted under this subsection.
   94  If the review suggests deficiencies, the state or local law
   95  enforcement agency shall promptly take action to comply with the
   96  Florida Contraband Forfeiture Act.
   97         (b) The determination as to of whether an agency will file
   98  a civil forfeiture action is must be the sole responsibility of
   99  the head of the agency or his or her designee.
  100         (c)(b) The determination as to of whether to seize currency
  101  must be made by supervisory personnel. The agency’s legal
  102  counsel must be notified as soon as possible after a
  103  determination is made.
  104         (d)The employment, salary, promotion, or other
  105  compensation of any law enforcement officer may not be dependent
  106  on the ability of the officer to meet a quota for seizures.
  107         (e)A seizing agency shall adopt and implement written
  108  policies, procedures, and training to ensure compliance with all
  109  applicable legal requirements regarding seizing, maintaining,
  110  and forfeiting property under the Florida Contraband Forfeiture
  111  Act.
  112         (f)When property is seized for forfeiture, the probable
  113  cause supporting the seizure must be promptly reviewed by
  114  supervisory personnel. The seizing agency’s legal counsel must
  115  be notified as soon as possible of all seizures and shall
  116  conduct a review to determine whether there is legal sufficiency
  117  to proceed with a forfeiture action.
  118         (g)Each seizing agency shall adopt and implement written
  119  policies and procedures promoting the prompt release of seized
  120  property as may be required by the act or by agency
  121  determination when there is no legitimate basis for holding
  122  seized property. To help assure that property is not wrongfully
  123  held after seizure, each law enforcement agency must adopt
  124  written policies and procedures ensuring that all asserted
  125  claims of interest in seized property are promptly reviewed for
  126  potential validity.
  127         (h)The settlement of any forfeiture action must be
  128  consistent with the Florida Contraband Forfeiture Act and the
  129  agency’s policy.
  130         (i)Law enforcement agency personnel involved in the
  131  seizure of property for forfeiture shall receive basic training
  132  and continuing education as required by the Florida Contraband
  133  Forfeiture Act. Each agency shall maintain records demonstrating
  134  each law enforcement officer’s compliance with this requirement.
  135  Among other things, the training must address the legal aspects
  136  of forfeiture, including, but not limited to, search and seizure
  137  and other constitutional considerations.
  138         Section 3. Paragraph (c) of subsection (5) of section
  139  932.7055, Florida Statutes, is amended to read:
  140         932.7055 Disposition of liens and forfeited property.—
  141         (5)
  142         (c) An agency or organization, other than the seizing
  143  agency, that wishes to receive such funds shall apply to the
  144  sheriff or chief of police for an appropriation and its
  145  application shall be accompanied by a written certification that
  146  the moneys will be used for an authorized purpose. Such requests
  147  for expenditures shall include a statement describing
  148  anticipated recurring costs for the agency for subsequent fiscal
  149  years. An agency or organization that receives money pursuant to
  150  this subsection shall provide an accounting for such moneys and
  151  shall furnish the same reports as an agency of the county or
  152  municipality that receives public funds. Such funds may be
  153  expended in accordance with the following procedures:
  154         1. Such funds may be used only for school resource officer,
  155  crime prevention, safe neighborhood, drug abuse education, or
  156  drug prevention programs or such other law enforcement purposes
  157  as the board of county commissioners or governing body of the
  158  municipality deems appropriate.
  159         2. Such funds shall not be a source of revenue to meet
  160  normal operating needs of the law enforcement agency.
  161         3. After July 1, 1992, and during every fiscal year
  162  thereafter, Any local law enforcement agency that acquires at
  163  least $15,000 pursuant to the Florida Contraband Forfeiture Act
  164  within a fiscal year must expend or donate no less than 25 15
  165  percent of such proceeds for the support or operation of any
  166  drug treatment, drug abuse education, drug prevention, crime
  167  prevention, safe neighborhood, or school resource officer
  168  program or programs program(s). The local law enforcement agency
  169  has the discretion to determine which program or programs
  170  program(s) will receive the designated proceeds.
  171  
  172  Notwithstanding the drug abuse education, drug treatment, drug
  173  prevention, crime prevention, safe neighborhood, or school
  174  resource officer minimum expenditures or donations, the sheriff
  175  and the board of county commissioners or the chief of police and
  176  the governing body of the municipality may agree to expend or
  177  donate such funds over a period of years if the expenditure or
  178  donation of such minimum amount in any given fiscal year would
  179  exceed the needs of the county or municipality for such program
  180  or programs program(s). Nothing in this section precludes The
  181  minimum requirement for expenditure or donation of forfeiture
  182  proceeds in excess of the minimum amounts established in this
  183  subparagraph does not preclude expenditures or donations in
  184  excess of that amount herein.
  185         Section 4. Section 932.7061, Florida Statutes, is created
  186  to read:
  187         932.7061Reporting seized property for forfeiture.—
  188         (1)Every law enforcement agency shall submit an annual
  189  report to the Department of Law Enforcement indicating whether
  190  the agency has seized or forfeited property under the Florida
  191  Contraband Forfeiture Act. A law enforcement agency receiving or
  192  expending forfeited property or proceeds from the sale of
  193  forfeited property in accordance with the Florida Contraband
  194  Forfeiture Act shall submit a completed annual report by October
  195  10 documenting the receipts and expenditures. The report shall
  196  be submitted in an electronic form, maintained by the Department
  197  of Law Enforcement in consultation with the Office of Program
  198  Policy Analysis and Government Accountability, to the entity
  199  that has budgetary authority over such agency and to the
  200  Department of Law Enforcement. The annual report must, at a
  201  minimum, specify the type, approximate value, court case number,
  202  type of offense, disposition of property received, and amount of
  203  any proceeds received or expended.
  204         (2)The Department of Law Enforcement shall submit an
  205  annual report to the Office of Program Policy Analysis and
  206  Government Accountability compiling the information and data in
  207  the annual reports submitted by the law enforcement agencies.
  208  The annual report shall also contain a list of law enforcement
  209  agencies that have failed to meet the reporting requirements and
  210  a summary of any action taken against the noncomplying agency by
  211  the office of Chief Financial Officer.
  212         (3)Neither the law enforcement agency nor the entity
  213  having budgetary control over the law enforcement agency shall
  214  anticipate future forfeitures or proceeds therefrom in the
  215  adoption and approval of the budget for the law enforcement
  216  agency.
  217         Section 5. Section 932.7062, Florida Statutes, is created
  218  to read:
  219         932.7062Penalty for noncompliance with reporting
  220  requirements.—A seizing agency that fails to comply with the
  221  reporting requirements in s. 932.7061 is subject to a civil fine
  222  of $5,000 payable to the General Revenue Fund. However, such
  223  agency is not subject to the fine if, within 60 days after
  224  receipt of written notification from the Department of Law
  225  Enforcement of noncompliance with the reporting requirements of
  226  the Florida Contraband Forfeiture Act, the agency substantially
  227  complies with those requirements. The Department of Law
  228  Enforcement shall submit any substantial noncompliance to the
  229  office of Chief Financial Officer, which shall be responsible
  230  for the enforcement of this section.
  231         Section 6. Paragraph (a) of subsection (9) of section
  232  322.34, Florida Statutes, is amended to read:
  233         322.34 Driving while license suspended, revoked, canceled,
  234  or disqualified.—
  235         (9)(a) A motor vehicle that is driven by a person under the
  236  influence of alcohol or drugs in violation of s. 316.193 is
  237  subject to seizure and forfeiture under ss. 932.701-932.7062
  238  932.706 and is subject to liens for recovering, towing, or
  239  storing vehicles under s. 713.78 if, at the time of the offense,
  240  the person’s driver license is suspended, revoked, or canceled
  241  as a result of a prior conviction for driving under the
  242  influence.
  243         Section 7. Subsection (4) of section 323.001, Florida
  244  Statutes, is amended to read:
  245         323.001 Wrecker operator storage facilities; vehicle
  246  holds.—
  247         (4) The requirements for a written hold apply when the
  248  following conditions are present:
  249         (a) The officer has probable cause to believe the vehicle
  250  should be seized and forfeited under the Florida Contraband
  251  Forfeiture Act, ss. 932.701-932.7062 932.706;
  252         (b) The officer has probable cause to believe the vehicle
  253  should be seized and forfeited under chapter 379;
  254         (c) The officer has probable cause to believe the vehicle
  255  was used as the means of committing a crime;
  256         (d) The officer has probable cause to believe that the
  257  vehicle is itself evidence that tends to show that a crime has
  258  been committed or that the vehicle contains evidence, which
  259  cannot readily be removed, which tends to show that a crime has
  260  been committed;
  261         (e) The officer has probable cause to believe the vehicle
  262  was involved in a traffic accident resulting in death or
  263  personal injury and should be sealed for investigation and
  264  collection of evidence by a vehicular homicide investigator;
  265         (f) The vehicle is impounded or immobilized pursuant to s.
  266  316.193 or s. 322.34; or
  267         (g) The officer is complying with a court order.
  268         Section 8. Paragraph (b) of subsection (3) of section
  269  328.07, Florida Statutes, is amended to read:
  270         328.07 Hull identification number required.—
  271         (3)
  272         (b) If any of the hull identification numbers required by
  273  the United States Coast Guard for a vessel manufactured after
  274  October 31, 1972, do not exist or have been altered, removed,
  275  destroyed, covered, or defaced or the real identity of the
  276  vessel cannot be determined, the vessel may be seized as
  277  contraband property by a law enforcement agency or the division,
  278  and shall be subject to forfeiture pursuant to ss. 932.701
  279  932.7062 932.706. Such vessel may not be sold or operated on the
  280  waters of the state unless the division receives a request from
  281  a law enforcement agency providing adequate documentation or is
  282  directed by written order of a court of competent jurisdiction
  283  to issue to the vessel a replacement hull identification number
  284  which shall thereafter be used for identification purposes. No
  285  vessel shall be forfeited under the Florida Contraband
  286  Forfeiture Act when the owner unknowingly, inadvertently, or
  287  neglectfully altered, removed, destroyed, covered, or defaced
  288  the vessel hull identification number.
  289         Section 9. Paragraph (c) of subsection (2) of section
  290  817.625, Florida Statutes, is amended to read:
  291         817.625 Use of scanning device or reencoder to defraud;
  292  penalties.—
  293         (2)
  294         (c) Any person who violates subparagraph (a)1. or
  295  subparagraph (a)2. shall also be subject to the provisions of
  296  ss. 932.701-932.7062 932.706.
  297         Section 10. For the purpose of incorporating the amendment
  298  made by this act to section 932.704, Florida Statutes, in a
  299  reference thereto, section 27.3451, Florida Statutes, is
  300  reenacted to read:
  301         27.3451 State Attorney’s Forfeiture and Investigative
  302  Support Trust Fund.—There is created for each of the several
  303  state attorneys a trust fund to be known as the State Attorney’s
  304  Forfeiture and Investigative Support Trust Fund. Revenues
  305  received by a state attorney as a result of forfeiture
  306  proceedings, as provided under s. 932.704, shall be deposited in
  307  such trust fund and shall be used, when authorized by
  308  appropriation or action of the Executive Office of the Governor
  309  pursuant to s. 216.181(11), for the investigation of crime,
  310  prosecution of criminals, or other law enforcement purposes.
  311         Section 11. For the purpose of incorporating the amendment
  312  made by this act to section 932.704, Florida Statutes, in a
  313  reference thereto, section 874.08, Florida Statutes, is
  314  reenacted to read:
  315         874.08 Criminal gang activity and recruitment; forfeiture.
  316  All profits, proceeds, and instrumentalities of criminal gang
  317  activity and all property used or intended or attempted to be
  318  used to facilitate the criminal activity of any criminal gang or
  319  of any criminal gang member; and all profits, proceeds, and
  320  instrumentalities of criminal gang recruitment and all property
  321  used or intended or attempted to be used to facilitate criminal
  322  gang recruitment are subject to seizure and forfeiture under the
  323  Florida Contraband Forfeiture Act, s. 932.704.
  324         Section 12. This act shall take effect July 1, 2016.