Florida Senate - 2018                                     SB 546
       
       
        
       By Senator Garcia
       
       
       
       
       
       36-00520-18                                            2018546__
    1                        A bill to be entitled                      
    2         An act relating to transmission of disease through
    3         bodily fluids; providing a short title; amending s.
    4         381.0041, F.S.; providing an exception to allow the
    5         donation of blood, plasma, organs, skin, or other
    6         human tissue by certain persons when deemed medically
    7         appropriate by a licensed physician; reclassifying a
    8         criminal offense relating to such donations; amending
    9         s. 384.23, F.S.; defining the terms “sexual conduct”
   10         and “substantial risk of transmission”; amending s.
   11         384.24, F.S.; expanding the scope of unlawful acts by
   12         a person infected with a sexually transmissible
   13         disease; expanding the list of sexually transmissible
   14         diseases to include human immunodeficiency virus
   15         infections; specifying that a certain act is unlawful
   16         if the person committing the offense acts with the
   17         intent to transmit a specified disease, engages in
   18         conduct that poses a substantial risk of transmission
   19         of that disease to another person who is unaware that
   20         the person who transmits the disease is a carrier of
   21         the disease, and actually transmits the disease;
   22         providing that certain actions are not sufficient to
   23         establish intent on the part of the person who
   24         transmits the disease; defining the term “behavioral
   25         recommendations”; amending s. 384.34, F.S.;
   26         reclassifying specified criminal offenses; eliminating
   27         a fine for specified rule violations; amending ss.
   28         775.0877 and 921.0022, F.S.; conforming provisions to
   29         changes made by the act; providing an effective date.
   30          
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. This act shall be known as the “HIV Prevention
   34  Justice Act.”
   35         Section 2. Paragraph (b) of subsection (11) of section
   36  381.0041, Florida Statutes, is amended to read:
   37         381.0041 Donation and transfer of human tissue; testing
   38  requirements.—
   39         (11)
   40         (b) Except when the donation is deemed medically
   41  appropriate by a licensed physician, any person who has human
   42  immunodeficiency virus infection, who knows he or she is
   43  infected with human immunodeficiency virus, and who has been
   44  informed that he or she may communicate this disease by donating
   45  blood, plasma, organs, skin, or other human tissue who donates
   46  blood, plasma, organs, skin, or other human tissue commits is
   47  guilty of a misdemeanor felony of the first third degree,
   48  punishable as provided in s. 775.082 or, s. 775.083, or s.
   49  775.084.
   50         Section 3. Present subsection (3) of section 384.23,
   51  Florida Statutes, is redesignated as subsection (4) and a new
   52  subsection (3) and subsection (5) are added to that section, to
   53  read:
   54         384.23 Definitions.—
   55         (3) “Sexual conduct” means conduct between persons,
   56  regardless of gender, which is capable of transmitting a
   57  sexually transmissible disease, including, but not limited to,
   58  contact between a:
   59         (a) Penis and a vulva or an anus; or
   60         (b) Mouth and a penis, a vulva, or an anus.
   61         (5) “Substantial risk of transmission” means a reasonable
   62  probability of disease transmission as proven by competent
   63  medical or epidemiological evidence.
   64         Section 4. Section 384.24, Florida Statutes, is amended to
   65  read:
   66         384.24 Unlawful acts.—
   67         (1) It is unlawful for any person who has chancroid,
   68  gonorrhea, granuloma inguinale, lymphogranuloma venereum,
   69  genital herpes simplex, chlamydia, nongonococcal urethritis
   70  (NGU), pelvic inflammatory disease (PID)/acute salpingitis, or
   71  syphilis, or human immunodeficiency virus infection, when such
   72  person knows he or she is infected with one or more of these
   73  diseases and when such person has been informed that he or she
   74  may communicate this disease to another person through sexual
   75  conduct intercourse, to act with the intent to transmit the
   76  disease, to engage in have sexual conduct that poses a
   77  substantial risk of transmission to another person when the
   78  intercourse with any other person is unaware that the person is
   79  a carrier of the disease, and to transmit the disease to the,
   80  unless such other person has been informed of the presence of
   81  the sexually transmissible disease and has consented to the
   82  sexual intercourse.
   83         (2) A person does not act with the intent required in
   84  subsection (1) if he or she in good faith complies with a
   85  treatment regimen prescribed by his or her health care provider
   86  or with the behavioral recommendations of his or her health care
   87  provider or public health officials to limit the risk of
   88  transmission, or if he or she offers to comply with such
   89  behavioral recommendations, but that offer is rejected by the
   90  other person. For purposes of this section, the term “behavioral
   91  recommendations” includes, but is not limited to, the use of a
   92  prophylactic device to limit the risk of transmission of the
   93  disease. Evidence of the person’s failure to comply with such a
   94  treatment regimen or such behavioral recommendations is not, in
   95  and of itself, sufficient to establish that he or she acted with
   96  the intent required under subsection (1) It is unlawful for any
   97  person who has human immunodeficiency virus infection, when such
   98  person knows he or she is infected with this disease and when
   99  such person has been informed that he or she may communicate
  100  this disease to another person through sexual intercourse, to
  101  have sexual intercourse with any other person, unless such other
  102  person has been informed of the presence of the sexually
  103  transmissible disease and has consented to the sexual
  104  intercourse.
  105         Section 5. Section 384.34, Florida Statutes, is amended to
  106  read:
  107         384.34 Penalties.—
  108         (1) Any person who violates s. 384.24 the provisions of s.
  109  384.24(1) commits a misdemeanor of the first degree, punishable
  110  as provided in s. 775.082 or s. 775.083.
  111         (2) Any person who violates the provisions of s. 384.26 or
  112  s. 384.29 commits a misdemeanor of the first degree, punishable
  113  as provided in s. 775.082 or s. 775.083.
  114         (3) Any person who maliciously disseminates any false
  115  information or report concerning the existence of any sexually
  116  transmissible disease commits a misdemeanor felony of the first
  117  third degree, punishable as provided in s. 775.082 or s. 775.083
  118  ss. 775.082, 775.083, and 775.084.
  119         (4) Any person who violates the provisions of the
  120  department’s rules pertaining to sexually transmissible diseases
  121  may be punished by a fine not to exceed $500 for each violation.
  122  Any penalties enforced under this subsection shall be in
  123  addition to other penalties provided by this chapter. The
  124  department may enforce this section and adopt rules necessary to
  125  administer this section.
  126         (5) Any person who violates s. 384.24(2) commits a felony
  127  of the third degree, punishable as provided in s. 775.082, s.
  128  775.083, or s. 775.084. Any person who commits multiple
  129  violations of s. 384.24(2) commits a felony of the first degree,
  130  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  131         (6) Any person who obtains information that identifies an
  132  individual who has a sexually transmissible disease, who knew or
  133  should have known the nature of the information and maliciously,
  134  or for monetary gain, disseminates this information or otherwise
  135  makes this information known to any other person, except by
  136  providing it either to a physician or nurse employed by the
  137  Department of Health or to a law enforcement agency, commits a
  138  misdemeanor felony of the first third degree, punishable as
  139  provided in s. 775.082 or, s. 775.083, or s. 775.084.
  140         Section 6. Subsections (1) and (3) of section 775.0877,
  141  Florida Statutes, are amended to read:
  142         775.0877 Criminal transmission of HIV; procedures;
  143  penalties.—
  144         (1) In any case in which a person has been convicted of or
  145  has pled nolo contendere or guilty to, regardless of whether
  146  adjudication is withheld, any of the following offenses, or the
  147  attempt thereof, which offense or attempted offense involves the
  148  transmission of body fluids from one person to another:
  149         (a) Section 794.011, relating to sexual battery;
  150         (b) Section 826.04, relating to incest;
  151         (c) Section 800.04, relating to lewd or lascivious offenses
  152  committed upon or in the presence of persons less than 16 years
  153  of age;
  154         (d) Sections 784.011, 784.07(2)(a), and 784.08(2)(d),
  155  relating to assault;
  156         (e) Sections 784.021, 784.07(2)(c), and 784.08(2)(b),
  157  relating to aggravated assault;
  158         (f) Sections 784.03, 784.07(2)(b), and 784.08(2)(c),
  159  relating to battery;
  160         (g) Sections 784.045, 784.07(2)(d), and 784.08(2)(a),
  161  relating to aggravated battery;
  162         (h) Section 827.03(2)(c), relating to child abuse;
  163         (i) Section 827.03(2)(a), relating to aggravated child
  164  abuse;
  165         (j) Section 825.102(1), relating to abuse of an elderly
  166  person or disabled adult;
  167         (k) Section 825.102(2), relating to aggravated abuse of an
  168  elderly person or disabled adult;
  169         (l) Section 827.071, relating to sexual performance by
  170  person less than 18 years of age;
  171         (m) Sections 796.07 and 796.08, relating to prostitution;
  172  or
  173         (n) Section 381.0041(11)(b), relating to donation of blood,
  174  plasma, organs, skin, or other human tissue; or
  175         (o) Sections 787.06(3)(b), (d), (f), and (g), relating to
  176  human trafficking,
  177  
  178  the court shall order the offender to undergo HIV testing, to be
  179  performed under the direction of the Department of Health in
  180  accordance with s. 381.004, unless the offender has undergone
  181  HIV testing voluntarily or pursuant to procedures established in
  182  s. 381.004(2)(h)6. or s. 951.27, or any other applicable law or
  183  rule providing for HIV testing of criminal offenders or inmates,
  184  subsequent to her or his arrest for an offense enumerated in
  185  paragraphs (a)-(n) for which she or he was convicted or to which
  186  she or he pled nolo contendere or guilty. The results of an HIV
  187  test performed on an offender pursuant to this subsection are
  188  not admissible in any criminal proceeding arising out of the
  189  alleged offense.
  190         (3) An offender who has undergone HIV testing pursuant to
  191  subsection (1), and to whom positive test results have been
  192  disclosed pursuant to subsection (2), who commits a second or
  193  subsequent offense enumerated in paragraphs (1)(a)-(n), commits
  194  criminal transmission of HIV, a misdemeanor felony of the first
  195  third degree, punishable as provided in s. 775.082 or, s.
  196  775.083, or s. 775.084. A person may be convicted and sentenced
  197  separately for a violation of this subsection and for the
  198  underlying crime enumerated in paragraphs (1)(a)-(n).
  199         Section 7. Paragraph (e) of subsection (3) of section
  200  921.0022, Florida Statutes, is amended to read:
  201         921.0022 Criminal Punishment Code; offense severity ranking
  202  chart.—
  203         (3) OFFENSE SEVERITY RANKING CHART
  204         (e) LEVEL 5
  205  
  206  FloridaStatute             FelonyDegree        Description        
  207  316.027(2)(a)                  3rd     Accidents involving personal injuries other than serious bodily injury, failure to stop; leaving scene.
  208  316.1935(4)(a)                 2nd     Aggravated fleeing or eluding.
  209  316.80(2)                      2nd     Unlawful conveyance of fuel; obtaining fuel fraudulently.
  210  322.34(6)                      3rd     Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
  211  327.30(5)                      3rd     Vessel accidents involving personal injury; leaving scene.
  212  379.365(2)(c)1.                3rd     Violation of rules relating to: willful molestation of stone crab traps, lines, or buoys; illegal bartering, trading, or sale, conspiring or aiding in such barter, trade, or sale, or supplying, agreeing to supply, aiding in supplying, or giving away stone crab trap tags or certificates; making, altering, forging, counterfeiting, or reproducing stone crab trap tags; possession of forged, counterfeit, or imitation stone crab trap tags; and engaging in the commercial harvest of stone crabs while license is suspended or revoked.
  213  379.367(4)                     3rd     Willful molestation of a commercial harvester’s spiny lobster trap, line, or buoy.
  214  379.407(5)(b)3.                3rd     Possession of 100 or more undersized spiny lobsters.
  215  381.0041(11)(b)                3rd     Donate blood, plasma, or organs knowing HIV positive.
  216  440.10(1)(g)                   2nd     Failure to obtain workers’ compensation coverage.
  217  440.105(5)                     2nd     Unlawful solicitation for the purpose of making workers’ compensation claims.
  218  440.381(2)                     2nd     Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
  219  624.401(4)(b)2.                2nd     Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
  220  626.902(1)(c)                  2nd     Representing an unauthorized insurer; repeat offender.
  221  790.01(2)                      3rd     Carrying a concealed firearm.
  222  790.162                        2nd     Threat to throw or discharge destructive device.
  223  790.163(1)                     2nd     False report of bomb, explosive, weapon of mass destruction, or use of firearms in violent manner.
  224  790.221(1)                     2nd     Possession of short-barreled shotgun or machine gun.
  225  790.23                         2nd     Felons in possession of firearms, ammunition, or electronic weapons or devices.
  226  796.05(1)                      2nd     Live on earnings of a prostitute; 1st offense.
  227  800.04(6)(c)                   3rd     Lewd or lascivious conduct; offender less than 18 years of age.
  228  800.04(7)(b)                   2nd     Lewd or lascivious exhibition; offender 18 years of age or older.
  229  806.111(1)                     3rd     Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
  230  812.0145(2)(b)                 2nd     Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
  231  812.015(8)                     3rd     Retail theft; property stolen is valued at $300 or more and one or more specified acts.
  232  812.019(1)                     2nd     Stolen property; dealing in or trafficking in.
  233  812.131(2)(b)                  3rd     Robbery by sudden snatching.
  234  812.16(2)                      3rd     Owning, operating, or conducting a chop shop.
  235  817.034(4)(a)2.                2nd     Communications fraud, value $20,000 to $50,000.
  236  817.234(11)(b)                 2nd     Insurance fraud; property value $20,000 or more but less than $100,000.
  237  817.2341(1), (2)(a) & (3)(a)    3rd     Filing false financial statements, making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity.
  238  817.568(2)(b)                  2nd     Fraudulent use of personal identification information; value of benefit, services received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more persons.
  239  817.611(2)(a)                  2nd     Traffic in or possess 5 to 14 counterfeit credit cards or related documents.
  240  817.625(2)(b)                  2nd     Second or subsequent fraudulent use of scanning device, skimming device, or reencoder.
  241  825.1025(4)                    3rd     Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
  242  827.071(4)                     2nd     Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
  243  827.071(5)                     3rd     Possess, control, or intentionally view any photographic material, motion picture, etc., which includes sexual conduct by a child.
  244  839.13(2)(b)                   2nd     Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
  245  843.01                         3rd     Resist officer with violence to person; resist arrest with violence.
  246  847.0135(5)(b)                 2nd     Lewd or lascivious exhibition using computer; offender 18 years or older.
  247  847.0137 (2) & (3)             3rd     Transmission of pornography by electronic device or equipment.
  248  847.0138 (2) & (3)             3rd     Transmission of material harmful to minors to a minor by electronic device or equipment.
  249  874.05(1)(b)                   2nd     Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
  250  874.05(2)(a)                   2nd     Encouraging or recruiting person under 13 years of age to join a criminal gang.
  251  893.13(1)(a)1.                 2nd     Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs).
  252  893.13(1)(c)2.                 2nd     Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center.
  253  893.13(1)(d)1.                 1st     Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of university.
  254  893.13(1)(e)2.                 2nd     Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) within 1,000 feet of property used for religious services or a specified business site.
  255  893.13(1)(f)1.                 1st     Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of public housing facility.
  256  893.13(4)(b)                   2nd     Use or hire of minor; deliver to minor other controlled substance.
  257  893.1351(1)                    3rd     Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
  258         Section 8. This act shall take effect July 1, 2018.