Florida Senate - 2017                       CS for CS for SB 972
       By the Committees on Judiciary; and Criminal Justice; and
       Senator Bracy
       590-04114-17                                           2017972c2
    1                        A bill to be entitled                      
    2         An act relating to victims of human trafficking;
    3         creating s. 787.061, F.S.; providing a short title;
    4         creating s. 787.062, F.S.; defining terms; creating s.
    5         787.063, F.S.; providing legislative findings;
    6         creating a civil cause of action for victims of human
    7         trafficking, or for the Statewide Council on Human
    8         Trafficking on their behalves, against a trafficker or
    9         facilitator; providing procedures and requirements for
   10         bringing a claim; requiring a court to impose a civil
   11         penalty against a defendant if a victim, or the
   12         council on the victim’s behalf, prevails; requiring a
   13         court to impose a civil penalty and award it equitably
   14         to one or more law enforcement agencies under certain
   15         circumstances; providing that such actions are not
   16         subject to a statute of limitations; requiring the
   17         Attorney General to recommend one or more educational
   18         programs designed to train employees of public lodging
   19         establishments in the identification and reporting of
   20         suspected human trafficking; providing that the owner
   21         or operator of a public lodging establishment may not
   22         be held vicariously liable if certain employees
   23         complete such educational programs within a specified
   24         time; creating s. 787.064, F.S.; requiring the council
   25         to issue an annual report to the Legislature which
   26         includes specified information, by a specified date;
   27         creating s. 794.11, F.S.; defining terms; authorizing
   28         subpoenas in certain investigations of sexual offenses
   29         involving child victims; specifying the purpose of
   30         such subpoenas; requiring a subpoena to contain
   31         certain information; requiring the reimbursement of
   32         subpoenaed witnesses; authorizing the recipient of the
   33         subpoena to petition a court; prohibiting the
   34         disclosure of the existence or contents of a subpoena
   35         under certain circumstances; providing exceptions;
   36         requiring certain notice to be provided in a subpoena
   37         that contains a nondisclosure requirement; exempting
   38         from production certain records, objects, and other
   39         information; providing for the return of records,
   40         objects, and other information produced; specifying
   41         timeframes within which records, objects, and other
   42         information must be returned; providing for service
   43         and enforcement of the subpoenas; providing penalties
   44         for a violation of the subpoena or nondisclosure
   45         requirement; providing immunity for certain persons
   46         complying with the subpoenas in certain circumstances;
   47         providing for judicial review, and extensions, of such
   48         nondisclosure requirement; amending s. 16.617, F.S.;
   49         adding functions and duties for the council; providing
   50         for administration of the trust fund by the council;
   51         providing appropriations; providing an effective date.
   53  Be It Enacted by the Legislature of the State of Florida:
   55         Section 1. Section 787.061, Florida Statutes, is created to
   56  read:
   57         787.061Short title.—Sections 787.061-787.065 may be cited
   58  as the “Civil Action for Victims of Human Trafficking and
   59  Prevention of Human Trafficking Act.”
   60         Section 2. Section 787.062, Florida Statutes, is created to
   61  read:
   62         787.062Definitions for the Civil Action for Victims of
   63  Human Trafficking and Prevention of Human Trafficking Act.—As
   64  used in ss. 787.061-787.065 the term:
   65         (1)“Council” means the Statewide Council on Human
   66  Trafficking within the Department of Legal Affairs, as created
   67  in s. 16.617.
   68         (2)“Facilitator” means a person who knowingly, or in
   69  willful blindness, assists or provides goods or services to a
   70  trafficker which assist or enable the trafficker to carry out
   71  human trafficking.
   72         (3)“Human trafficking” has the same meaning as provided in
   73  s. 787.06.
   74         (4)“Trafficker” means any person who knowingly engages in
   75  human trafficking, attempts to engage in human trafficking, or
   76  benefits financially by receiving anything of value from
   77  participation in a venture that has subjected a person to human
   78  trafficking.
   79         (5)“Trust fund” means the Trust Fund for Victims of Human
   80  Trafficking and Prevention created in s. 787.0611.
   81         (6) “Venture” means any group of two or more individuals
   82  associated in fact, whether or not a legal entity.
   83         (7) “Victim of human trafficking” means a person subjected
   84  to coercion, as defined in s. 787.06, for the purpose of being
   85  used in human trafficking, a child under 18 years of age
   86  subjected to human trafficking, or an individual subjected to
   87  human trafficking as defined by federal law.
   88         (8)“Willful blindness” occurs when a person’s suspicions
   89  are aroused about a particular fact and, while he or she
   90  realizes its probability, he or she deliberately refrains from
   91  obtaining confirmation of or acting on the fact because he or
   92  she wants to remain in ignorance, such that knowledge of the
   93  fact avoided can reasonably and fairly be imputed to the person
   94  who avoided confirming it.
   95         Section 3. Section 787.063, Florida Statutes, is created to
   96  read:
   97         787.063Civil action for victims of human trafficking.—
   98         (1)FINDINGS.—The Legislature finds that, to achieve the
   99  state’s goals relating to human trafficking set forth in s.
  100  787.06(1)(d), it is necessary to provide a civil cause of action
  101  for the recovery of compensatory and punitive damages.
  102         (2)CIVIL CAUSE OF ACTION.—
  103         (a)A victim of human trafficking has a civil cause of
  104  action against the trafficker or facilitator of human
  105  trafficking who victimized her or him, and may recover damages
  106  for such victimization as provided in this section.
  107         (b)The council, with the consent of the victim, may bring
  108  a civil cause of action against a trafficker or facilitator of
  109  human trafficking who victimizes a person in this state.
  110         (c) If the council prevails in any action, the trust fund
  111  shall hold moneys awarded to the victim for distribution to the
  112  victim or her or his parent, legal guardian, or estate. However,
  113  if the victim’s parent or legal guardian knowingly, or through
  114  willful blindness, participated in the human trafficking, such
  115  person is not entitled to any distribution or benefit from the
  116  trust fund. If there is no person or estate to appropriately
  117  receive the funds, they must remain in the trust fund and be
  118  used for purposes of the trust fund, as described in s.
  119  787.0611.
  120         (d)The action may be brought in any court of competent
  121  jurisdiction and the standard of proof is a preponderance of the
  122  evidence.
  123         (e)A victim, or the council on behalf of the victim, who
  124  prevails in any such action is entitled to recover economic and
  125  noneconomic damages, penalties, punitive damages, reasonable
  126  attorney fees, reasonable investigative expenses, and costs.
  127         1. The measure of economic damages for services or labor
  128  coerced from the victim of human trafficking shall be the
  129  greater of the fair market value of the labor or services
  130  provided or the amount realized by the trafficker. For purposes
  131  of this subparagraph, the terms “labor” and “services” have the
  132  same meanings as provided in s. 787.06.
  133         2. The measure of economic damages for every day that the
  134  human trafficking was ongoing shall be calculated as a daily
  135  amount of the compensation payable to a person under s.
  136  961.06(1)(a).
  137         3. Economic damages also include past and future medical
  138  and mental health expenses; repatriation expenses, when a victim
  139  elects repatriation; and all other reasonable costs and expenses
  140  incurred by the victim in the past or estimated to be incurred
  141  by the victim in the future as a result of the human
  142  trafficking.
  143         4. Noneconomic damages shall be calculated as in a tort
  144  action.
  145         (f)The remedies provided in this section are in addition
  146  to and cumulative with other legal and administrative remedies
  147  available to victims of human trafficking, except that a victim
  148  may not recover under both this section and s. 772.104(2).
  149         (g)If a victim or the council, on behalf of the victim,
  150  prevails in an action under this section, in addition to any
  151  other award imposed, the court must award a civil penalty
  152  against the defendant in the amount of $100,000. This penalty is
  153  in addition to, and not in lieu of, any other damage award. The
  154  civil penalty must be assessed by the court and may not be
  155  disclosed to the jury. Proceeds from the civil penalty must be
  156  deposited into the trust fund.
  157         (h)If one or more law enforcement agencies rescued the
  158  victim or located the property upon which the abuse or
  159  exploitation of a victim or victims had occurred, the court must
  160  impose a civil penalty against the defendant in the amount of
  161  $50,000 and award the penalty to the law enforcement agencies to
  162  fund future efforts to combat human trafficking. The court must
  163  equitably distribute the civil penalty among the law enforcement
  164  agencies.
  165         (i) The court shall have specific authority to consolidate
  166  civil actions for the same trafficker or facilitator for the
  167  purpose of case resolution and aggregate jurisdiction.
  168         (3)STATUTE OF LIMITATIONS.—There is no statute of
  169  limitations for actions brought pursuant to this section.
  170         (4) EDUCATIONAL PROGRAMS.—No later than January 31, 2018,
  171  and periodically thereafter, the Attorney General shall consult
  172  with state and national hotel and lodging associations and
  173  recommend one or more educational programs designed to train
  174  employees of public lodging establishments in the identification
  175  and reporting of suspected human trafficking. The owner or
  176  operator of a public lodging establishment may not be held
  177  vicariously liable under this section if the establishment
  178  requires only those employees the establishment expects to
  179  routinely interact with guests to complete one of the
  180  recommended educational programs within 30 days of hiring or by
  181  July 1, 2018, whichever occurs later.
  182         Section 4. Section 787.064, Florida Statutes, is created to
  183  read:
  184         787.064Annual Report of the Civil Action for Victims of
  185  Human Trafficking and Prevention of Human Trafficking Act.—The
  186  council shall issue an annual report no later than October 1 of
  187  each year to the President of the Senate and the Speaker of the
  188  House of Representatives detailing for the prior fiscal year all
  189  of the following:
  190         (1) The status of the trust fund.
  191         (2) Any actions and outcomes under s. 787.063.
  192         (3) Any information that demonstrates the council’s
  193  fulfillment of the purposes of the trust fund during the prior
  194  fiscal year.
  195         Section 5. Section 794.11, Florida Statutes, is created to
  196  read:
  197         794.11 Investigative subpoenas in certain cases involving
  198  child victims.—
  199         (1) DEFINITIONS.—As used in this section, the term:
  200         (a) “Child” means a person younger than 18 years of age.
  201         (b) “Child sexual offender” means a person required to
  202  register as a sexual predator under s. 775.21 or as a sexual
  203  offender under s. 943.0435 if at least one of the offenses that
  204  qualified the person for such registration requirement involved
  205  a victim who was a child at the time of the offense.
  206         (c) “Criminal justice agency” means a law enforcement
  207  agency, court, or prosecutor in this state.
  208         (d) “Sexual exploitation or abuse of a child” means a
  209  criminal offense based on any conduct described in s. 39.01(70).
  210         (2) AUTHORIZATION.—
  211         (a) A criminal justice agency may issue in writing and
  212  cause to be served a subpoena requiring the production of any
  213  record, object, or other information or testimony described in
  214  paragraph (b) in any investigation of:
  215         1. An offense involving the sexual exploitation or abuse of
  216  a child;
  217         2. A sexual offense allegedly committed by a child sexual
  218  offender who has not registered as required under s. 775.21 or
  219  s. 943.0435; or
  220         3. An offense under chapter 847 involving a child victim
  221  which is not otherwise included in subparagraph 1. or
  222  subparagraph 2.
  223         (b) A subpoena issued under this section may require:
  224         1. The production of any record, object, or other
  225  information relevant to the investigation.
  226         2. Testimony by the custodian of the record, object, or
  227  other information concerning its production and authenticity.
  228         (3) CONTENTS OF SUBPOENAS.—A subpoena issued under this
  229  section must describe any record, object, or other information
  230  required to be produced and prescribe a reasonable return date
  231  by which the record, object, or other information can be
  232  assembled and made available.
  233         (4) WITNESS EXPENSES.—Witnesses subpoenaed under this
  234  section shall be reimbursed for fees and mileage at the same
  235  rate at which witnesses in the courts of this state are
  236  reimbursed.
  237         (5) PETITIONS BEFORE RETURN DATE.—At any time before the
  238  return date specified in the subpoena, the recipient of the
  239  subpoena may, in the circuit court of the county in which the
  240  recipient conducts business or resides, petition for an order
  241  modifying or setting aside the subpoena or the requirement for
  242  nondisclosure of certain information under subsection (6).
  243         (6) NONDISCLOSURE.—
  244         (a)1. If a subpoena issued under this section is
  245  accompanied by a written certification under subparagraph 2. and
  246  notice under paragraph (c), the recipient of the subpoena, and a
  247  person to whom information is disclosed under subparagraph
  248  (b)1., may not disclose to any person for a period of 180 days
  249  the existence or contents of the subpoena.
  250         2. The nondisclosure requirement in subparagraph 1. applies
  251  if the criminal justice agency that issued the subpoena
  252  certifies in writing that the disclosure may result in one or
  253  more of the following circumstances:
  254         a. Endangering a person’s life or physical safety;
  255         b. Encouraging a person’s flight from prosecution;
  256         c. Destruction of or tampering with evidence;
  257         d. Intimidation of potential witnesses; or
  258         e. Otherwise seriously jeopardizing an investigation or
  259  unduly delaying a trial.
  260         (b)1. A recipient of a subpoena may disclose information
  261  subject to the nondisclosure requirement in subparagraph (a)1.
  262  to:
  263         a. A person to whom disclosure is necessary in order to
  264  comply with the subpoena;
  265         b. An attorney in order to obtain legal advice or
  266  assistance regarding the subpoena; or
  267         c. Any other person as authorized by the criminal justice
  268  agency that issued the subpoena.
  269         2. A recipient of a subpoena who discloses to a person
  270  described in subparagraph 1. information subject to the
  271  nondisclosure requirement shall notify such person of the
  272  nondisclosure requirement by providing the person with a copy of
  273  the subpoena. A person to whom information is disclosed under
  274  subparagraph 1. is subject to the nondisclosure requirement in
  275  subparagraph (a)1.
  276         3. At the request of the criminal justice agency that
  277  issued the subpoena, a recipient of a subpoena who discloses or
  278  intends to disclose to a person described in sub-subparagraph
  279  1.a. or sub-subparagraph 1.b. information subject to the
  280  nondisclosure requirement shall provide to the criminal justice
  281  agency the identity of the person to whom such disclosure was or
  282  will be made.
  283         (c)1. The nondisclosure requirement imposed under paragraph
  284  (a) is subject to judicial review under subsection (13).
  285         2. A subpoena issued under this section, in connection with
  286  which a nondisclosure requirement under paragraph (a) is
  287  imposed, must include:
  288         a. Notice of the nondisclosure requirement and the
  289  availability of judicial review.
  290         b. Notice that a violation of the nondisclosure requirement
  291  is subject to the penalties provided in paragraph (11)(b).
  292         (d) The nondisclosure requirement in paragraph (a) may be
  293  extended under subsection (13).
  294         (7) EXCEPTIONS TO PRODUCTION.—A subpoena issued under this
  295  section may not require the production of anything that is
  296  protected from production under the standards applicable to a
  297  subpoena duces tecum issued by a court of this state.
  298         (8) RETURN OF RECORDS AND OBJECTS.—If a case or proceeding
  299  resulting from the production of any record, object, or other
  300  information under this section does not arise within a
  301  reasonable time after such production, the criminal justice
  302  agency to which it was delivered shall, upon written demand made
  303  by the person producing it, return the record, object, or other
  304  information to such person, unless the record was a copy and not
  305  an original.
  306         (9) TIME OF PRODUCTION.—A subpoena issued under this
  307  section may require production of any record, object, or other
  308  information as soon as possible, but the recipient of the
  309  subpoena must have at least 24 hours after he or she is served
  310  to produce the record, object, or other information.
  311         (10) SERVICE.—A subpoena issued under this section may be
  312  served as provided in chapter 48.
  313         (11) ENFORCEMENT.—
  314         (a) If a recipient of a subpoena under this section refuses
  315  to comply with the subpoena, the criminal justice agency may
  316  invoke the aid of any circuit court described in subsection (5)
  317  or of the circuit court of the county in which the authorized
  318  investigation is being conducted. Such court may issue an order
  319  requiring the recipient of a subpoena to appear before the
  320  criminal justice agency that issued the subpoena to produce any
  321  record, object, or other information or to testify concerning
  322  the production and authenticity of the record, object, or other
  323  information. Any failure to comply with an order under this
  324  paragraph may be punished by the court as a contempt of court.
  325  All process in any such case may be served in any county in
  326  which such person may be found.
  327         (b) A recipient of a subpoena, or a person to whom
  328  information is disclosed under subparagraph(6)(b)1., who
  329  knowingly violates:
  330         1. A nondisclosure requirement imposed under paragraph
  331  (6)(a) commits a noncriminal violation punishable as provided in
  332  s. 775.083. Each person to whom a disclosure is made in
  333  violation of this subparagraph constitutes a separate violation
  334  subject to a separate fine.
  335         2. A nondisclosure requirement ordered by the court under
  336  this section may be held in contempt of court.
  337         (12) IMMUNITY.—Notwithstanding any other law, any person,
  338  including any officer, agent, or employee, receiving a subpoena
  339  under this section who complies in good faith with the subpoena
  340  and produces or discloses any record, object, or other
  341  information sought is not liable in any court in this state to
  342  any customer or other person for such production or disclosure.
  344         (a)1.a. If a recipient of a subpoena under this section, or
  345  a person to whom information is disclosed under subparagraph
  346  (6)(b)1., wishes to have a court review a nondisclosure
  347  requirement under subsection (6), such recipient or person may
  348  notify the criminal justice agency issuing the subpoena or file
  349  a petition for judicial review in the circuit court described in
  350  subsection (5).
  351         b. Within 30 days after the date on which the criminal
  352  justice agency receives the notification under sub-subparagraph
  353  a., the criminal justice agency shall apply for an order
  354  prohibiting the disclosure of the existence or contents of the
  355  subpoena. An application under this sub-subparagraph may be
  356  filed in the circuit court described in subsection (5) or in the
  357  circuit court of the county in which the authorized
  358  investigation is being conducted.
  359         c. The nondisclosure requirement shall remain in effect
  360  during the pendency of proceedings relating to the requirement.
  361         d. A circuit court that receives a petition under sub
  362  subparagraph a. or an application under sub-subparagraph b.
  363  shall rule on such petition or application as expeditiously as
  364  possible.
  365         2. An application for a nondisclosure order or extension
  366  thereof or a response to a petition filed under this paragraph
  367  must include a certification from the criminal justice agency
  368  that issued the subpoena indicating that the disclosure of such
  369  information may result in one or more of the circumstances
  370  described in subparagraph (6)(a)2.
  371         3. A circuit court shall issue a nondisclosure order or
  372  extension thereof under this paragraph if it determines that
  373  there is reason to believe that disclosure of such information
  374  may result in one or more of the circumstances described in
  375  subparagraph (6)(a)2.
  376         4. Upon a showing that any of the circumstances described
  377  in subparagraph (6)(a)2. continues to exist, a circuit court may
  378  issue an ex parte order extending a nondisclosure order imposed
  379  under this section for an additional 180 days. There is no limit
  380  on the number of nondisclosure extensions that may be granted
  381  under this subparagraph.
  382         (b) In all proceedings under this subsection, subject to
  383  any right to an open hearing in a contempt proceeding, a circuit
  384  court must close any hearing to the extent necessary to prevent
  385  the unauthorized disclosure of a request for records, objects,
  386  or other information made to any person under this section.
  387  Petitions, filings, records, orders, certifications, and
  388  subpoenas must also be kept under seal to the extent and as long
  389  as necessary to prevent the unauthorized disclosure of any
  390  information under this section.
  391         Section 6. Paragraph (f) is added to subsection (4) of
  392  section 16.617, Florida Statutes, to read:
  393         16.617 Statewide Council on Human Trafficking; creation;
  394  membership; duties.—
  395         (4) DUTIES.—The council shall:
  396         (f)Perform the functions and duties as provided in ss.
  397  787.061-787.065 and administer the Trust Fund for Victims of
  398  Human Trafficking and Prevention as created in s. 787.0611.
  399         Section 7. For the 2017-2018 fiscal year, the sums of
  400  $153,000 in recurring funds and $29,000 in nonrecurring funds
  401  from the Crimes Compensation Trust Fund are appropriated to the
  402  Department of Legal Affairs, and three full-time equivalent
  403  positions are authorized, for the purpose of implementing this
  404  act.
  405         Section 8. This act shall take effect October 1, 2017.