House Bill hb0299c2

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    Florida House of Representatives - 2002           CS/CS/HB 299

        By the Council for Healthy Communities and Committee on
    Fiscal Policy & Resources and Representatives Littlefield,
    Fasano, Gannon, Betancourt, Henriquez, Lynn and Harrell




  1                      A bill to be entitled

  2         An act relating to domestic violence; amending

  3         ss. 25.385, 39.902, 741.28, and 943.171, F.S.;

  4         redefining the terms "domestic violence" and

  5         "family or household member"; defining the term

  6         "dating relationship"; amending s. 28.241,

  7         F.S.; deleting reference to limitations on

  8         filing fees for domestic violence injunctions

  9         to conform to the act; amending s. 39.903,

10         F.S.; providing duty of the Department of

11         Children and Family Services to operate the

12         domestic violence program; amending ss.

13         390.01115, 470.002, 626.9541, 641.3903,

14         985.213, and 985.215, F.S.; correcting cross

15         references; amending s. 741.281, F.S.; deleting

16         requirement that a court order certain

17         defendants to attend a batterers' intervention

18         program; amending s. 741.2902, F.S.; deleting

19         provisions relating to filing fees and costs to

20         conform to the act; amending s. 741.30, F.S.;

21         specifying when a person has standing to file a

22         petition for an injunction against domestic

23         violence; specifying where the petition may be

24         filed; eliminating the filing fee and revising

25         provisions for reimbursement of costs for

26         issuance of such injunctions; providing for

27         incidents that describe violence or threats of

28         violence; specifying when a court may grant

29         relief; providing factors for the court to

30         consider in determining imminent danger;

31         providing for recording of proceedings;

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  1         providing for the presence of an advocate from

  2         a state attorney's office, law enforcement

  3         agency, or domestic violence center at

  4         injunction proceedings, upon request; amending

  5         s. 741.31, F.S.; specifying additional acts

  6         that violate an injunction against domestic

  7         violence; providing a penalty; amending s.

  8         938.01, F.S.; revising provisions relating to

  9         distribution of additional court costs assessed

10         in specified circumstances; repealing s. 4(2)

11         of ch. 2001-184, Laws of Florida, and s. 7(2)

12         of ch. 2001-232, Laws of Florida, relating to

13         the transfer of certain funds for

14         administration of the Prevention of Domestic

15         and Sexual Violence Program; repealing s.

16         741.466, F.S., relating to transfer of the

17         Prevention of Domestic and Sexual Violence

18         Program from the Department of Community

19         Affairs to the Department of Children and

20         Family Services; providing effective dates.

21

22  Be It Enacted by the Legislature of the State of Florida:

23

24         Section 1.  Subsection (2) of section 25.385, Florida

25  Statutes, is amended to read:

26         25.385  Standards for instruction of circuit and county

27  court judges in handling domestic violence cases.--

28         (2)  As used in this section:

29         (a)  The term "domestic violence" has the meaning set

30  forth in s. 741.28 means any assault, battery, sexual assault,

31  sexual battery, or any criminal offense resulting in physical

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  1  injury or death of one family or household member by another,

  2  who is or was residing in the same single dwelling unit.

  3         (b)  "Family or household member" has the meaning set

  4  forth in s. 741.28 means spouse, former spouse, persons

  5  related by blood or marriage, persons who are presently

  6  residing together, as if a family, or who have resided

  7  together in the past, as if a family, and persons who have a

  8  child in common regardless of whether they have been married

  9  or have resided together at any time.

10         Section 2.  Subsection (5) of section 28.241, Florida

11  Statutes, is amended to read:

12         28.241  Filing charges for trial and appellate

13  proceedings.--

14         (5)  The fees prescribed in this section do not include

15  the service charges required by law for the clerk as provided

16  in s. 28.24 or by other sections of the Florida Statutes.

17  Service charges authorized by this section may not be added to

18  any civil penalty imposed by chapter 316 or chapter 318. Fees

19  for injunctions concerning domestic violence shall be limited

20  as provided in s. 741.30(2)(a).

21         Section 3.  Subsections (1) and (3) of section 39.902,

22  Florida Statutes, are amended to read:

23         39.902  Definitions.--As used in this part, the term:

24         (1)  "Domestic violence" has the meaning set forth in

25  s. 741.28 means any assault, battery, sexual assault, sexual

26  battery, or any criminal offense resulting in physical injury

27  or death of one family or household member by another who is

28  or was residing in the same single dwelling unit.

29         (3)  "Family or household member" has the meaning set

30  forth in s. 741.28 means spouses, former spouses, adults

31  related by blood or marriage, persons who are presently

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  1  residing together as if a family or who have resided together

  2  in the past as if a family, and persons who have a child in

  3  common regardless of whether they have been married or have

  4  resided together at any time.

  5         Section 4.  Subsections (3), (4), (5), and (6) of

  6  section 39.903, Florida Statutes, are renumbered as

  7  subsections (4), (5), (6), and (7), respectively, and a new

  8  subsection (3) is added to said section, to read:

  9         39.903  Duties and functions of the department with

10  respect to domestic violence.--

11         (3)  The department shall operate the domestic violence

12  program, which provides supervision, direction, coordination,

13  and administration of statewide activities related to the

14  prevention of domestic violence.

15         Section 5.  Paragraphs (b) and (e) of subsection (2) of

16  section 390.01115, Florida Statutes, are amended to read:

17         390.01115  Parental Notice of Abortion Act.--

18         (2)  DEFINITIONS.--As used in this section, the term:

19         (b)  "Child abuse" has the meaning ascribed in s.

20  39.0015(3) and refers to the acts of child abuse against a

21  minor by a family member as defined in s. 741.28(4)(2).

22         (e)  "Sexual abuse" has the meaning ascribed in s.

23  39.01 and refers to the acts of sexual abuse against a minor

24  by a family member as defined in s. 741.28(4)(2).

25         Section 6.  Subsection (18) of section 470.002, Florida

26  Statutes, is amended to read:

27         470.002  Definitions.--As used in this chapter:

28         (18)  "Legally authorized person" means, in the

29  priority listed, the decedent, when written inter vivos

30  authorizations and directions are provided by the decedent,

31  the surviving spouse, unless the spouse has been arrested for

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  1  committing against the deceased an act of domestic violence as

  2  defined in s. 741.28(1), a son or daughter who is 18 years of

  3  age or older, a parent, a brother or sister 18 years of age or

  4  over, a grandchild who is 18 years of age or older, or a

  5  grandparent; or any person in the next degree of kinship. In

  6  addition, the term may include, if no family exists or is

  7  available, the following: the guardian of the dead person at

  8  the time of death; the personal representative of the

  9  deceased; the attorney in fact of the dead person at the time

10  of death; the health surrogate of the dead person at the time

11  of death; a public health officer; the medical examiner,

12  county commission or administrator acting under chapter 245,

13  or other public administrator; a representative of a nursing

14  home or other health care institution in charge of final

15  disposition; or a friend or other person not listed in this

16  subsection who is willing to assume the responsibility as

17  authorized person.

18         Section 7.  Paragraph (g) of subsection (1) of section

19  626.9541, Florida Statutes, is amended to read:

20         626.9541  Unfair methods of competition and unfair or

21  deceptive acts or practices defined.--

22         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

23  DECEPTIVE ACTS.--The following are defined as unfair methods

24  of competition and unfair or deceptive acts or practices:

25         (g)  Unfair discrimination.--

26         1.  Knowingly making or permitting any unfair

27  discrimination between individuals of the same actuarially

28  supportable class and equal expectation of life, in the rates

29  charged for any life insurance or annuity contract, in the

30  dividends or other benefits payable thereon, or in any other

31  of the terms and conditions of such contract.

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  1         2.  Knowingly making or permitting any unfair

  2  discrimination between individuals of the same actuarially

  3  supportable class and essentially the same hazard, in the

  4  amount of premium, policy fees, or rates charged for any

  5  policy or contract of accident, disability, or health

  6  insurance, in the benefits payable thereunder, in any of the

  7  terms or conditions of such contract, or in any other manner

  8  whatever.

  9         3.  For a health insurer, life insurer, disability

10  insurer, property and casualty insurer, automobile insurer, or

11  managed care provider to underwrite a policy, or refuse to

12  issue, reissue, or renew a policy, refuse to pay a claim,

13  cancel or otherwise terminate a policy, or increase rates

14  based upon the fact that an insured or applicant who is also

15  the proposed insured has made a claim or sought or should have

16  sought medical or psychological treatment in the past for

17  abuse, protection from abuse, or shelter from abuse, or that a

18  claim was caused in the past by, or might occur as a result

19  of, any future assault, battery, or sexual assault by a family

20  or household member upon another family or household member as

21  defined in s. 741.28(2). A health insurer, life insurer,

22  disability insurer, or managed care provider may refuse to

23  underwrite, issue, or renew a policy based on the applicant's

24  medical condition, but shall not consider whether such

25  condition was caused by an act of abuse.  For purposes of this

26  section, the term "abuse" means the occurrence of one or more

27  of the following acts:

28         a.  Attempting or committing assault, battery, sexual

29  assault, or sexual battery;

30         b.  Placing another in fear of imminent serious bodily

31  injury by physical menace;

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  1         c.  False imprisonment;

  2         d.  Physically or sexually abusing a minor child; or

  3         e.  An act of domestic violence as defined in s.

  4  741.28.

  5

  6  This subparagraph does not prohibit a property and casualty

  7  insurer or an automobile insurer from excluding coverage for

  8  intentional acts by the insured if such exclusion does not

  9  constitute an act of unfair discrimination as defined in this

10  paragraph.

11         Section 8.  Paragraph (b) of subsection (12) of section

12  641.3903, Florida Statutes, is amended to read:

13         641.3903  Unfair methods of competition and unfair or

14  deceptive acts or practices defined.--The following are

15  defined as unfair methods of competition and unfair or

16  deceptive acts or practices:

17         (12)  PROHIBITED DISCRIMINATORY PRACTICES.--A health

18  maintenance organization may not:

19         (b)  Refuse to provide services or care to a subscriber

20  solely because medical services may be or have been sought for

21  injuries resulting from an assault, battery, sexual assault,

22  sexual battery, or any other offense by a family or household

23  member, as defined in s. 741.28(2), or by another who is or

24  was residing in the same dwelling unit.

25         Section 9.  Section 741.28, Florida Statutes, is

26  amended to read:

27         741.28  Domestic violence; definitions.--As used in ss.

28  741.28-741.31:

29         (1)  "Dating relationship" means a relationship between

30  individuals who have or have had a continuing relationship of

31  a romantic or intimate nature. The existence of such a

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  1  relationship shall be determined based on the consideration of

  2  the length the relationship, the nature of the relationship,

  3  and the frequency and type of interaction between the persons

  4  involved in the relationship, but does not include a casual

  5  acquaintanceship or ordinary fraternization between persons in

  6  a business or social context.

  7         (2)(3)  "Department" means the Florida Department of

  8  Law Enforcement.

  9         (3)(1)  "Domestic violence" means any assault,

10  aggravated assault, battery, aggravated battery, sexual

11  assault, sexual battery, stalking, aggravated stalking,

12  kidnapping, false imprisonment, or any criminal offense

13  resulting in physical injury or death of one family or

14  household member by another who is or was residing in the same

15  single dwelling unit.

16         (4)(2)  "Family or household member" means spouses,

17  former spouses, persons who have or have had a dating

18  relationship, persons related by blood or marriage, persons

19  who are presently residing together as if a family or who have

20  resided together in the past as if a family, and persons who

21  have a child in common regardless of whether they have been

22  married or have resided together at any time. With the

23  exception of persons who have a child in common, or who have

24  or have had a dating relationship, the family or household

25  members must be currently residing or have in the past resided

26  together in the same single dwelling unit.

27         (5)(4)  "Law enforcement officer" means any person who

28  is elected, appointed, or employed by any municipality or the

29  state or any political subdivision thereof who meets the

30  minimum qualifications established in s. 943.13 and is

31  certified as a law enforcement officer under s. 943.1395.

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  1         Section 10.  Section 741.281, Florida Statutes, is

  2  amended to read:

  3         741.281  Court to order batterers' intervention program

  4  attendance.--If a person is found guilty of, has had

  5  adjudication withheld on, or has pled nolo contendere to a

  6  crime of domestic violence, as defined in s. 741.28, that

  7  person shall be ordered by the court to a minimum term of 1

  8  year's probation and the court shall order that the defendant

  9  attend a batterers' intervention program as a condition of

10  probation.  If a person is admitted to a pretrial diversion

11  program and has been charged with an act of domestic violence,

12  as defined in s. 741.28, the court shall order as a condition

13  of the program that the defendant attend a batterers'

14  intervention program. The court must impose the condition of

15  the batterers' intervention program for a defendant admitted

16  to pretrial diversion under this section, but the court, in

17  its discretion, may determine not to impose the condition if

18  it states on the record why a batterers' intervention program

19  might be inappropriate.  The court must impose the condition

20  of the batterers' intervention program for a defendant placed

21  on probation unless the court determines that the person does

22  not qualify for the batterers' intervention program pursuant

23  to s. 741.325. Effective July 1, 2002, the batterers'

24  intervention program must be a certified program under s.

25  741.32. The imposition of probation under this section shall

26  not preclude the court from imposing any sentence of

27  imprisonment authorized by s. 775.082.

28         Section 11.  Paragraph (f) of subsection (2) of section

29  741.2902, Florida Statutes, is amended to read:

30         741.2902  Domestic violence; legislative intent with

31  respect to judiciary's role.--

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  1         (2)  It is the intent of the Legislature, with respect

  2  to injunctions for protection against domestic violence,

  3  issued pursuant to s. 741.30, that the court shall:

  4         (f)  Consider requiring the respondent to pay, to the

  5  clerk of the court and sheriff, filing fees and costs waived

  6  pursuant to s. 741.30(2)(a), or to reimburse the petitioner

  7  for filing fees and costs paid by the petitioner.

  8         Section 12.  Subsection (1), paragraph (a) of

  9  subsection (2), and subsections (3) and (6) of section 741.30,

10  Florida Statutes, are amended, subsections (7), (8), and (9)

11  are renumbered as subsections (8), (9), and (10),

12  respectively, and a new subsection (7) is added to said

13  section, to read:

14         741.30  Domestic violence; injunction; powers and

15  duties of court and clerk; petition; notice and hearing;

16  temporary injunction; issuance of injunction; statewide

17  verification system; enforcement.--

18         (1)  There is created a cause of action for an

19  injunction for protection against domestic violence.

20         (a)  Any person described in paragraph (e), who is

21  either the victim of any act of domestic violence as defined

22  in s. 741.28, or has reasonable cause to believe he or she is

23  in imminent danger of becoming the victim of any act of

24  domestic violence, has standing in the circuit court to file a

25  sworn petition for an injunction for protection against

26  domestic violence.

27         (b)  This cause of action for an injunction may be

28  sought whether or not any other cause of action is currently

29  pending between the parties. However, the pendency of any such

30  cause of action shall be alleged in the petition.

31

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  1         (c)  In the event a subsequent cause of action is filed

  2  under chapter 61, any orders entered therein shall take

  3  precedence over any inconsistent provisions of an injunction

  4  issued under this section which addresses matters governed by

  5  chapter 61.

  6         (d)  A person's right to petition for an injunction

  7  shall not be affected by such person having left a residence

  8  or household to avoid domestic violence.

  9         (e)  This cause of action for an injunction may be

10  sought by family or household members. No person shall be

11  precluded from seeking injunctive relief pursuant to this

12  chapter solely on the basis that such person is not a spouse.

13         (f)  This cause of action for an injunction shall not

14  require that either party be represented by an attorney.

15         (g)  Any person, including an officer of the court, who

16  offers evidence or recommendations relating to the cause of

17  action must either present the evidence or recommendations in

18  writing to the court with copies to each party and their

19  attorney, or must present the evidence under oath at a hearing

20  at which all parties are present.

21         (h)  Nothing in this section shall affect the title to

22  any real estate.

23         (i)  The court is prohibited from issuing mutual orders

24  of protection. This does not preclude the court from issuing

25  separate injunctions for protection against domestic violence

26  where each party has complied with the provisions of this

27  section. Compliance with the provisions of this section cannot

28  be waived.

29         (j)  Notwithstanding any provision of chapter 47, a

30  petition for an injunction for protection against domestic

31  violence may be filed in the circuit where the petitioner

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  1  currently or temporarily resides, where the respondent

  2  resides, or where the domestic violence occurred. There is no

  3  minimum requirement of residency to petition for an injunction

  4  for protection.

  5         (2)(a)  Notwithstanding any other provision of law, the

  6  assessment of a filing fee for a petition for protection

  7  against domestic violence is prohibited. However, subject to

  8  legislative appropriation, the clerk of the circuit court may,

  9  on a quarterly basis, submit to the Office of the State Courts

10  Administrator a certified request for reimbursement for

11  petitions for protection against domestic violence issued by

12  the court, at the rate of $40 per petition.  The request for

13  reimbursement shall be submitted in the form and manner

14  prescribed by the Office of the State Courts Administrator.

15  From this reimbursement, the clerk shall pay any law

16  enforcement agency serving the injunction the fee requested by

17  the law enforcement agency; however, this fee shall not exceed

18  $20. Notwithstanding any other provision of law, the total

19  charge, including any administration fees, law enforcement

20  agency charges, and court costs or service charges, for any

21  court to issue an injunction concerning domestic violence

22  under chapter 741 or chapter 784 shall not exceed $50.  The

23  total charge by any law enforcement agency to serve an

24  injunction or restraining order concerning violence shall not

25  exceed $20.  The remaining $30 fee collected for an injunction

26  under chapter 741 shall only be applied to the initial $40

27  service charge collected by the clerk of the court as provided

28  in s. 28.241(1). In the event the victim does not have

29  sufficient funds with which to pay filing fees to the clerk of

30  the court or service fees to the sheriff or law enforcement

31  agency and signs an affidavit stating so, the fees shall be

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  1  waived by the clerk of the court or the sheriff or law

  2  enforcement agency to the extent necessary to process the

  3  petition and serve the injunction, subject to a subsequent

  4  order of the court relative to the payment of such fees.

  5         (3)(a)  The sworn petition shall allege the existence

  6  of such domestic violence and shall include the specific facts

  7  and circumstances upon the basis of which relief is sought.

  8         (b)  The sworn petition shall be in substantially the

  9  following form:

10

11                           PETITION FOR

12                    INJUNCTION FOR PROTECTION

13                    AGAINST DOMESTIC VIOLENCE

14

15  Before me, the undersigned authority, personally appeared

16  Petitioner ...(Name)..., who has been sworn and says that the

17  following statements are true:

18         (a)  Petitioner resides at: ...(address)...

19         (Petitioner may furnish address to the court in a

20  separate confidential filing if, for safety reasons, the

21  petitioner requires the location of the current residence to

22  be confidential.)

23         (b)  Respondent resides at: ...(last known address)...

24         (c)  Respondent's last known place of employment:

25  ...(name of business and address)...

26         (d)  Physical description of respondent: ....

27         Race....

28         Sex....

29         Date of birth....

30         Height....

31         Weight....

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  1         Eye color....

  2         Hair color....

  3         Distinguishing marks or scars....

  4         (e)  Aliases of respondent: ....

  5         (f)  Respondent is the spouse or former spouse of the

  6  petitioner or is any other person related by blood or marriage

  7  to the petitioner or is any other person who is or was

  8  residing within a single dwelling unit with the petitioner, as

  9  if a family, or is a person with whom the petitioner has a

10  child in common, regardless of whether the petitioner and

11  respondent are or were married or residing together, as if a

12  family.

13         (g)  The following describes any other cause of action

14  currently pending between the petitioner and respondent: .....

15  ..............................................................

16         The petitioner should also describe any previous or

17  pending attempts by the petitioner to obtain an injunction for

18  protection against domestic violence in this or any other

19  circuit, and the results of that attempt......................

20  ..............................................................

21  Case numbers should be included if available.

22         (h)  Petitioner is either a victim of domestic violence

23  has suffered or has reasonable cause to believe he or she is

24  in imminent danger of becoming a victim of fear imminent

25  domestic violence because respondent has ....(mark all

26  sections that apply and describe in the spaces below the

27  incidents of violence or threats of violence, specifying when

28  and where they occurred, including, but not limited to,

29  locations such as a home, school, place of employment, or

30  visitation exchange)....: ....................................

31

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  1         ....committed or threatened to commit domestic violence

  2  defined in s. 741.28, Florida Statutes, as any assault,

  3  aggravated assault, battery, aggravated battery, sexual

  4  assault, sexual battery, stalking, aggravated stalking,

  5  kidnapping, false imprisonment, or any criminal offense

  6  resulting in physical injury or death of one family or

  7  household member by another. With the exception of persons who

  8  are parents of a child in common, the family or household

  9  members must be currently residing or have in the past resided

10  together in the same single dwelling unit.

11         ....previously threatened, harassed, stalked, or

12  physically abused the petitioner.

13         ....attempted to harm the petitioner or family members

14  or individuals closely associated with the petitioner.

15         ....threatened to conceal, kidnap, or harm the

16  petitioner's child or children.

17         ....intentionally injured or killed a family pet.

18         ....used, or has threatened to use, against the

19  petitioner any weapons such as guns or knives.

20         ....physically restrained the petitioner from leaving

21  the home or calling law enforcement.

22         ....a criminal history involving violence or the threat

23  of violence (if known).

24         ....another order of protection issued against him or

25  her previously or from another jurisdiction (if known).

26         ....destroyed personal property, including, but not

27  limited to, telephones or other communication equipment,

28  clothing, or other items belonging to the petitioner.

29         ....engaged in any other behavior or conduct that leads

30  the petitioner to have reasonable cause to believe he or she

31

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  1  is in imminent danger of becoming a victim of domestic

  2  violence.

  3         (i)  Petitioner alleges the following additional

  4  specific facts: (mark appropriate sections)

  5         ....Petitioner is the custodian of a minor child or

  6  children whose names and ages are as follows: ................

  7         ....Petitioner needs the exclusive use and possession

  8  of the dwelling that the parties share.

  9         ....Petitioner is unable to obtain safe alternative

10  housing because: .............................................

11         ....Petitioner genuinely fears that respondent

12  imminently will abuse, remove, or hide the minor child or

13  children from petitioner because: ............................

14  ..............................................................

15         (j)  Petitioner genuinely fears imminent domestic

16  violence by respondent.

17         (k)  Petitioner seeks an injunction: (mark appropriate

18  section or sections)

19         ....Immediately restraining the respondent from

20  committing any acts of domestic violence.

21         ....Restraining the respondent from committing any acts

22  of domestic violence.

23         ....Awarding to the petitioner the temporary exclusive

24  use and possession of the dwelling that the parties share or

25  excluding the respondent from the residence of the petitioner.

26         ....Awarding temporary custody of, or temporary

27  visitation rights with regard to, the minor child or children

28  of the parties, or prohibiting or limiting visitation to that

29  which is supervised by a third party.

30         ....Establishing temporary support for the minor child

31  or children or the petitioner.

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  1         ....Directing the respondent to participate in a

  2  batterers' intervention program or other treatment pursuant to

  3  s. 39.901, Florida Statutes.

  4         ....Providing any terms the court deems necessary for

  5  the protection of a victim of domestic violence, or any minor

  6  children of the victim, including any injunctions or

  7  directives to law enforcement agencies.

  8         (c)  Every petition for an injunction against domestic

  9  violence shall contain, directly above the signature line, a

10  statement in all capital letters and bold type not smaller

11  than the surrounding text, as follows:

12

13         I HAVE READ EVERY STATEMENT MADE IN THIS

14         PETITION AND EACH STATEMENT IS TRUE AND

15         CORRECT. I UNDERSTAND THAT THE STATEMENTS MADE

16         IN THIS PETITION ARE BEING MADE UNDER PENALTY

17         OF PERJURY, PUNISHABLE AS PROVIDED IN SECTION

18         837.02, FLORIDA STATUTES.

19                                        ...(initials)...

20

21         (d)  If the sworn petition seeks to determine issues of

22  custody or visitation with regard to the minor child or

23  children of the parties, the sworn petition shall be

24  accompanied by or shall incorporate the allegations required

25  by s. 61.132 of the Uniform Child Custody Jurisdiction Act.

26         (6)(a)  Upon notice and hearing, when it appears to the

27  court that the petitioner is either the victim of domestic

28  violence as defined by s. 741.28 or has reasonable cause to

29  believe he or she is in imminent danger of becoming a victim

30  of domestic violence, the court may grant such relief as the

31  court deems proper, including an injunction:

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  1         1.  Restraining the respondent from committing any acts

  2  of domestic violence.

  3         2.  Awarding to the petitioner the exclusive use and

  4  possession of the dwelling that the parties share or excluding

  5  the respondent from the residence of the petitioner.

  6         3.  On the same basis as provided in chapter 61,

  7  awarding temporary custody of, or temporary visitation rights

  8  with regard to, a minor child or children of the parties.

  9         4.  On the same basis as provided in chapter 61,

10  establishing temporary support for a minor child or children

11  or the petitioner.

12         5.  Ordering the respondent to participate in

13  treatment, intervention, or counseling services to be paid for

14  by the respondent. When the court orders the respondent to

15  participate in a batterers' intervention program, the court,

16  or any entity designated by the court, must provide the

17  respondent with a list of all certified batterers'

18  intervention programs and all programs which have submitted an

19  application to the Department of Corrections to become

20  certified under s. 741.325, from which the respondent must

21  choose a program in which to participate. If there are no

22  certified batterers' intervention programs in the circuit, the

23  court shall provide a list of acceptable programs from which

24  the respondent must choose a program in which to participate.

25         6.  Referring a petitioner to a certified domestic

26  violence center. The court must provide the petitioner with a

27  list of certified domestic violence centers in the circuit

28  which the petitioner may contact.

29         7.  Ordering such other relief as the court deems

30  necessary for the protection of a victim of domestic violence,

31

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  1  including injunctions or directives to law enforcement

  2  agencies, as provided in this section.

  3         (b)  In determining whether a petitioner has reasonable

  4  cause to believe he or she is in imminent danger of becoming a

  5  victim of domestic violence, the court shall consider and

  6  evaluate all relevant factors alleged in the petition,

  7  including, but not limited to:

  8         1.  The history between the petitioner and the

  9  respondent, including threats, harassment, stalking, and

10  physical abuse.

11         2.  Whether the respondent has attempted to harm the

12  petitioner or family members or individuals closely associated

13  with the petitioner.

14         3.  Whether the respondent has threatened to conceal,

15  kidnap, or harm the petitioner's child or children.

16         4.  Whether the respondent has intentionally injured or

17  killed a family pet.

18         5.  Whether the respondent has used, or has threatened

19  to use, against the petitioner any weapons such as guns or

20  knives.

21         6.  Whether the respondent has physically restrained

22  the petitioner from leaving the home or calling law

23  enforcement.

24         7.  Whether the respondent has a criminal history

25  involving violence or the threat of violence.

26         8.  The existence of a verifiable order of protection

27  issued previously or from another jurisdiction.

28         9.  Whether the respondent has destroyed personal

29  property, including, but not limited to, telephones or other

30  communications equipment, clothing, or other items belonging

31  to the petitioner.

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  1         10.  Whether the respondent engaged in any other

  2  behavior or conduct that leads the petitioner to have

  3  reasonable cause to believe that he or she is in imminent

  4  danger of becoming a victim of domestic violence.

  5

  6  In making its determination under this paragraph, the court is

  7  not limited to those factors enumerated in subparagraphs

  8  1.-10.

  9         (c)(b)  The terms of an injunction restraining the

10  respondent under subparagraph (a)1. or ordering other relief

11  for the protection of the victim under subparagraph (a)7.

12  shall remain in effect until modified or dissolved. Either

13  party may move at any time to modify or dissolve the

14  injunction. No specific allegations are required. Such relief

15  may be granted in addition to other civil or criminal

16  remedies.

17         (d)(c)  A temporary or final judgment on injunction for

18  protection against domestic violence entered pursuant to this

19  section shall, on its face, indicate that:

20         1.  The injunction is valid and enforceable in all

21  counties of the State of Florida.

22         2.  Law enforcement officers may use their arrest

23  powers pursuant to s. 901.15(6) to enforce the terms of the

24  injunction.

25         3.  The court had jurisdiction over the parties and

26  matter under the laws of Florida and that reasonable notice

27  and opportunity to be heard was given to the person against

28  whom the order is sought sufficient to protect that person's

29  right to due process.

30         4.  The date respondent was served with the temporary

31  or final order, if obtainable.

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  1         (e)(d)  An injunction for protection against domestic

  2  violence entered pursuant to this section, on its face, may

  3  order that the respondent attend a batterers' intervention

  4  program as a condition of the injunction. Unless the court

  5  makes written factual findings in its judgment or order which

  6  are based on substantial evidence, stating why batterers'

  7  intervention programs would be inappropriate, the court shall

  8  order the respondent to attend a batterers' intervention

  9  program if:

10         1.  It finds that the respondent willfully violated the

11  ex parte injunction;

12         2.  The respondent, in this state or any other state,

13  has been convicted of, had adjudication withheld on, or pled

14  nolo contendere to a crime involving violence or a threat of

15  violence; or

16         3.  The respondent, in this state or any other state,

17  has had at any time a prior injunction for protection entered

18  against the respondent after a hearing with notice.

19

20  It is mandatory that such programs be certified under s.

21  741.32.

22         (f)(e)  The fact that a separate order of protection is

23  granted to each opposing party shall not be legally sufficient

24  to deny any remedy to either party or to prove that the

25  parties are equally at fault or equally endangered.

26         (g)(f)  A final judgment on injunction for protection

27  against domestic violence entered pursuant to this section

28  must, on its face, indicate that it is a violation of s.

29  790.233, and a first degree misdemeanor, for the respondent to

30  have in his or her care, custody, possession, or control any

31  firearm or ammunition.

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  1         (h)  All proceedings under this subsection shall be

  2  recorded. Recording may be by electronic means as provided by

  3  the Rules of Judicial Administration.

  4         (7)  The court shall allow an advocate from a state

  5  attorney's office, an advocate from a law enforcement agency,

  6  or an advocate from a certified domestic violence center who

  7  is registered under s. 39.905 to be present with the

  8  petitioner or respondent during any court proceedings or

  9  hearings related to the injunction for protection, provided

10  the petitioner or respondent has made such a request and the

11  advocate is able to be present.

12         Section 13.  Paragraph (a) of subsection (4) of section

13  741.31, Florida Statutes, is amended to read:

14         741.31  Violation of an injunction for protection

15  against domestic violence.--

16         (4)(a)  A person who willfully violates an injunction

17  for protection against domestic violence issued pursuant to s.

18  741.30, or a foreign protection order accorded full faith and

19  credit pursuant to s. 741.315, by:

20         1.  Refusing to vacate the dwelling that the parties

21  share;

22         2.  Going to, or being within 500 feet of, the

23  petitioner's residence, school, place of employment, or a

24  specified place frequented regularly by the petitioner and any

25  named family or household member;

26         3.  Committing an act of domestic violence against the

27  petitioner;

28         4.  Committing any other violation of the injunction

29  through an intentional unlawful threat, word, or act to do

30  violence to the petitioner; or

31

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  1         5.  Telephoning, contacting, or otherwise communicating

  2  with the petitioner directly or indirectly, unless the

  3  injunction specifically allows indirect contact through a

  4  third party;

  5         6.  Knowingly and intentionally coming within 100 feet

  6  of the petitioner's motor vehicle, whether or not that vehicle

  7  is occupied;

  8         7.  Defacing or destroying the petitioner's personal

  9  property, including the petitioner's motor vehicle; or

10         8.  Refusing to surrender firearms or ammunition if

11  ordered to do so by the court

12

13  commits a misdemeanor of the first degree, punishable as

14  provided in s. 775.082 or s. 775.083.

15         Section 14.  Subsection (2) of section 943.171, Florida

16  Statutes, is amended to read:

17         943.171  Basic skills training in handling domestic

18  violence cases.--

19         (2)  As used in this section, the term:

20         (a)  "Domestic violence" has the meaning set forth in

21  s. 741.28 means any assault, battery, sexual assault, sexual

22  battery, or any criminal offense resulting in the physical

23  injury or death of one family or household member by another

24  who is or was residing in the same single dwelling unit.

25         (b)  "Household member" has the meaning set forth in s.

26  741.28(4) means spouse, former spouse, persons related by

27  blood or marriage, persons who are presently residing

28  together, as if a family, or who have resided together in the

29  past, as if a family, and persons who have a child in common

30  regardless of whether they have been married or have resided

31  together at any time.

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  1         Section 15.  Paragraph (b) of subsection (2) of section

  2  985.213, Florida Statutes, is amended to read:

  3         985.213  Use of detention.--

  4         (2)

  5         (b)1.  The risk assessment instrument for detention

  6  care placement determinations and orders shall be developed by

  7  the Department of Juvenile Justice in agreement with

  8  representatives appointed by the following associations: the

  9  Conference of Circuit Judges of Florida, the Prosecuting

10  Attorneys Association, the Public Defenders Association, the

11  Florida Sheriffs Association, and the Florida Association of

12  Chiefs of Police.  Each association shall appoint two

13  individuals, one representing an urban area and one

14  representing a rural area.  The parties involved shall

15  evaluate and revise the risk assessment instrument as is

16  considered necessary using the method for revision as agreed

17  by the parties. The risk assessment instrument shall take into

18  consideration, but need not be limited to, prior history of

19  failure to appear, prior offenses, offenses committed pending

20  adjudication, any unlawful possession of a firearm, theft of a

21  motor vehicle or possession of a stolen motor vehicle, and

22  probation status at the time the child is taken into custody.

23  The risk assessment instrument shall also take into

24  consideration appropriate aggravating and mitigating

25  circumstances, and shall be designed to target a narrower

26  population of children than s. 985.215(2). The risk assessment

27  instrument shall also include any information concerning the

28  child's history of abuse and neglect. The risk assessment

29  shall indicate whether detention care is warranted, and, if

30  detention care is warranted, whether the child should be

31  placed into secure, nonsecure, or home detention care.

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  1         2.  If, at the detention hearing, the court finds a

  2  material error in the scoring of the risk assessment

  3  instrument, the court may amend the score to reflect factual

  4  accuracy.

  5         3.  A child who is charged with committing an offense

  6  of domestic violence as defined in s. 741.28(1) and who does

  7  not meet detention criteria may be held in secure detention if

  8  the court makes specific written findings that:

  9         a.  Respite care for the child is not available; and

10         b.  It is necessary to place the child in secure

11  detention in order to protect the victim from injury.

12

13  The child may not be held in secure detention under this

14  subparagraph for more than 48 hours unless ordered by the

15  court. After 48 hours, the court shall hold a hearing if the

16  state attorney or victim requests that secure detention be

17  continued. The child may continue to be held in detention care

18  if the court makes a specific, written finding that detention

19  care is necessary to protect the victim from injury. However,

20  the child may not be held in detention care beyond the time

21  limits set forth in s. 985.215.

22         4.  For a child who is under the supervision of the

23  department through probation, home detention, nonsecure

24  detention, conditional release, postcommitment probation, or

25  commitment and who is charged with committing a new offense,

26  the risk assessment instrument may be completed and scored

27  based on the underlying charge for which the child was placed

28  under the supervision of the department and the new offense.

29         Section 16.  Paragraph (d) of subsection (2) of section

30  985.215, Florida Statutes, is amended to read:

31         985.215  Detention.--

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  1         (2)  Subject to the provisions of subsection (1), a

  2  child taken into custody and placed into nonsecure or home

  3  detention care or detained in secure detention care prior to a

  4  detention hearing may continue to be detained by the court if:

  5         (d)  The child is charged with committing an offense of

  6  domestic violence as defined in s. 741.28(1) and is detained

  7  as provided in s. 985.213(2)(b)3.

  8

  9  A child who meets any of these criteria and who is ordered to

10  be detained pursuant to this subsection shall be given a

11  hearing within 24 hours after being taken into custody. The

12  purpose of the detention hearing is to determine the existence

13  of probable cause that the child has committed the delinquent

14  act or violation of law with which he or she is charged and

15  the need for continued detention. Unless a child is detained

16  under paragraph (d) or paragraph (e), the court shall utilize

17  the results of the risk assessment performed by the juvenile

18  probation officer and, based on the criteria in this

19  subsection, shall determine the need for continued detention.

20  A child placed into secure, nonsecure, or home detention care

21  may continue to be so detained by the court pursuant to this

22  subsection. If the court orders a placement more restrictive

23  than indicated by the results of the risk assessment

24  instrument, the court shall state, in writing, clear and

25  convincing reasons for such placement. Except as provided in

26  s. 790.22(8) or in subparagraph (10)(a)2., paragraph (10)(b),

27  paragraph (10)(c), or paragraph (10)(d), when a child is

28  placed into secure or nonsecure detention care, or into a

29  respite home or other placement pursuant to a court order

30  following a hearing, the court order must include specific

31  instructions that direct the release of the child from such

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  1  placement no later than 5 p.m. on the last day of the

  2  detention period specified in paragraph (5)(b) or paragraph

  3  (5)(c), or subparagraph (10)(a)1., whichever is applicable,

  4  unless the requirements of such applicable provision have been

  5  met or an order of continuance has been granted pursuant to

  6  paragraph (5)(f).

  7         Section 17.  Effective July 1, 2002, subsection (1) of

  8  section 938.01, Florida Statutes, as amended by section 29 of

  9  chapter 2001-254, Laws of Florida, section 19 of chapter

10  2001-122, Laws of Florida, section 1 of chapter 2001-184, Laws

11  of Florida, section 3 of chapter 2001-232, Laws of Florida,

12  and section 30 of chapter 2001-254, Laws of Florida, is

13  amended to read:

14         938.01  Additional Court Cost Clearing Trust Fund.--

15         (Substantial rewording of subsection. See

16         s. 938.01(1), F.S., for present text.)

17         (1)  All courts created by Art. V of the State

18  Constitution shall, in addition to any fine or other penalty,

19  assess $3 as a court cost against every person convicted for

20  violation of a state penal or criminal statute or convicted

21  for violation of a municipal or county ordinance. Any person

22  whose adjudication is withheld pursuant to the provisions of

23  s. 318.14(9) or (10) shall also be assessed such cost. In

24  addition, $3 from every bond estreature or forfeited bail bond

25  related to such penal statutes or penal ordinances shall be

26  remitted to the Department of Revenue as described in this

27  subsection. However, no such assessment may be made against

28  any person convicted for violation of any state statute,

29  municipal ordinance, or county ordinance relating to the

30  parking of vehicles.

31

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  1         (a)  All costs collected by the courts pursuant to this

  2  subsection shall be remitted to the Department of Revenue in

  3  accordance with administrative rules adopted by the executive

  4  director of the Department of Revenue for deposit in the

  5  Additional Court Cost Clearing Trust Fund. These funds and the

  6  funds deposited in the Additional Court Cost Clearing Trust

  7  Fund pursuant to s. 318.21(2)(c) shall be distributed as

  8  follows:

  9         1.  Ninety-two percent to the Department of Law

10  Enforcement Criminal Justice Standards and Training Trust

11  Fund.

12         2.  Six and three-tenths percent to the Department of

13  Law Enforcement Operating Trust Fund for the Criminal Justice

14  Grant Program.

15         3.  One and seven-tenths percent to the Department of

16  Children and Family Services Domestic Violence Trust Fund for

17  the domestic violence program pursuant to s. 39.903(3).

18         (b)  The funds deposited in the Department of Law

19  Enforcement Criminal Justice Standards and Training Trust

20  Fund, the Department of Law Enforcement Operating Trust Fund,

21  and the Department of Children and Family Services Domestic

22  Violence Trust Fund may be invested. Any interest earned from

23  investing such funds and any unencumbered funds remaining at

24  the end of the budget cycle shall remain in the respective

25  trust fund.

26         (c)  All funds in the Department of Law Enforcement

27  Criminal Justice Standards and Training Trust Fund shall be

28  disbursed only in compliance with s. 943.25(9).

29         Section 18.  Subsection (2) of section 4 of chapter

30  2001-184, Laws of Florida, and subsection (2) of section 7 of

31  chapter 2001-232, Laws of Florida, are repealed.

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  1         Section 19.  Section 741.466, Florida Statutes, is

  2  repealed.

  3         Section 20.  Except as otherwise provided herein, this

  4  act shall take effect October 1, 2002.

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