Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 972
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: RS            .                                
                  04/17/2017           .                                

       The Committee on Criminal Justice (Bracy) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 787.061, Florida Statutes, is created to
    6  read:
    7         787.061Short 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         787.062Definitions 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         787.063Civil 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.
  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         787.064Compensation 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         787.065Annual 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.
  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.