Senate Bill sb0284c2

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    Florida Senate - 2004                     CS for CS for SB 284

    By the Committees on Judiciary; Communication and Public
    Utilities; and Senator Aronberg




    308-2511-04

  1                      A bill to be entitled

  2         An act relating to video voyeurism; creating s.

  3         810.145, F.S.; providing definitions;

  4         prohibiting a person from secretly viewing,

  5         recording, or broadcasting images of another

  6         person for the purpose of entertainment, sexual

  7         arousal, profit, or abuse when that other

  8         person is in a location that provides a

  9         reasonable expectation of privacy; prohibiting

10         a person from secretly filming, recording, or

11         broadcasting images of another person under or

12         through that other person's clothing for the

13         purpose of viewing that other person's body or

14         undergarments without knowledge and consent of

15         the person viewed; prohibiting a person from

16         disseminating images when the person

17         disseminating the images knows or has reason to

18         believe that the images were recorded in

19         violation of law; prohibiting a person from

20         selling images to another for consideration

21         when the person selling the images knows or has

22         reason to believe that the images were recorded

23         in violation of law; prohibiting a person from

24         disseminating images that were recorded in

25         violation of law to another person for that

26         person to sell the images to others; providing

27         for certain exceptions; providing criminal

28         penalties; defining a previous conviction or

29         adjudication of delinquency; amending s.

30         932.701, F.S.; defining the term "contraband

31         article" to include any imaging equipment,

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    Florida Senate - 2004                     CS for CS for SB 284
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 1         format, or device used in violation of law;

 2         amending s. 932.7055, F.S.; requiring agencies

 3         seizing images of persons recorded in violation

 4         of law to destroy the images; providing that

 5         the seizing agency may not retain or sell the

 6         images; amending s. 932.707, F.S.; conforming a

 7         cross-reference; reenacting ss. 705.101(6) and

 8         932.703(4), F.S., relating to definitions of

 9         lost or abandoned property and the seizure of a

10         vessel, motor vehicle, aircraft, other personal

11         property, or real property in or on which a

12         contraband article is located, to incorporate

13         the amendment to s. 932.701, F.S., in

14         references thereto; amending s. 877.26, F.S.;

15         providing a limited exception to a prohibition

16         against a merchant observing customers in

17         dressing, fitting, or changing rooms or

18         restrooms; providing an effective date.

19  

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

21  

22         Section 1.  Section 810.145, Florida Statutes, is

23  created to read:

24         810.145  Video voyeurism.--

25         (1)  As used in this section, the term:

26         (a)  "Broadcast" means electronically transmitting a

27  visual image with the intent that it be viewed by another

28  person.

29         (b)  "Imaging device" means any mechanical, digital, or

30  electronic viewing device, still camera, camcorder, motion

31  picture camera, or any other instrument, equipment, or format

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    Florida Senate - 2004                     CS for CS for SB 284
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 1  capable of recording, storing, or transmitting visual images

 2  of another person.

 3         (c)  "Place and time when a person has a reasonable

 4  expectation of privacy" means a place and time when a

 5  reasonable person would believe that he or she could fully

 6  disrobe in privacy, without being concerned that the person's

 7  undressing was being viewed, recorded, or broadcasted by

 8  another, including, but not limited to, the interior of a

 9  bathroom, changing room, fitting room, dressing room, or

10  tanning booth.

11         (d)  "Privately exposing the body" means exposing a

12  sexual organ.

13         (2)  A person commits the offense of video voyeurism if

14  that person:

15         (a)  For his or her own amusement, entertainment,

16  sexual arousal, gratification, or profit, or for the purpose

17  of degrading or abusing another person, intentionally uses or

18  installs an imaging device to secretly view, broadcast, or

19  record a person, without that person's knowledge and consent,

20  who is dressing, undressing, or privately exposing the body,

21  at a place and time when that person has a reasonable

22  expectation of privacy;

23         (b)  For the amusement, entertainment, sexual arousal,

24  gratification, or profit of another, or on behalf of another,

25  intentionally permits the use or installation of an imaging

26  device to secretly view, broadcast, or record a person,

27  without that person's knowledge and consent, who is dressing,

28  undressing, or privately exposing the body, at a place and

29  time when that person has a reasonable expectation of privacy;

30  or

31  

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    Florida Senate - 2004                     CS for CS for SB 284
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 1         (c)  For the amusement, entertainment, sexual arousal,

 2  gratification, or profit of oneself or another, or on behalf

 3  of oneself or another, intentionally uses an imaging device to

 4  secretly view, broadcast, or record under or through the

 5  clothing being worn by another person, without that person's

 6  knowledge and consent, for the purpose of viewing the body of,

 7  or the undergarments worn by, that person.

 8         (3)  A person commits the offense of video voyeurism

 9  dissemination if that person, knowing or having reason to

10  believe that an image was created in a manner described in

11  this section, intentionally disseminates, distributes, or

12  transfers the image to another person.

13         (4)  A person commits the offense of commercial video

14  voyeurism dissemination if that person:

15         (a)  Knowing or having reason to believe that an image

16  was created in a manner described in this section, sells the

17  image for consideration to another person; or

18         (b)  Having created the image in a manner described in

19  this section, disseminates, distributes, or transfers the

20  image to another person for that person to sell the image to

21  others.

22         (5)  This section does not apply to any:

23         (a)  Law enforcement agency conducting surveillance for

24  a law enforcement purpose;

25         (b)  Security system when a written notice is

26  conspicuously posted on the premises stating that a video

27  surveillance system has been installed for the purpose of

28  security for the premises;

29         (c)  Video surveillance device that is installed in

30  such a manner that the presence of the device is clearly and

31  immediately obvious; or

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    Florida Senate - 2004                     CS for CS for SB 284
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 1         (d)  Dissemination, distribution, or transfer of images

 2  subject to this section by a provider of an electronic

 3  communication service as defined in 18 U.S.C. s. 2510(15), or

 4  a provider of a remote computing service as defined in 18

 5  U.S.C. s. 2711(2). For purposes of this section, the

 6  exceptions to the definition of "electronic communication" set

 7  forth in 18 U.S.C. s. 2510(12)(a), (b), (c), and (d) do not

 8  apply, but are included within the definition of the term.

 9         (6)  Except as provided in subsection (7), a person who

10  violates this section commits a misdemeanor of the first

11  degree, punishable as provided in s. 775.082 or s. 775.083.

12         (7)  A person who violates this section and who has

13  previously been convicted of or adjudicated delinquent for any

14  violation of this section commits a felony of the third

15  degree, punishable as provided in s. 775.082, s. 775.083, or

16  s. 775.084.

17         (8)  For purposes of this section, a person has

18  previously been convicted of or adjudicated delinquent for a

19  violation of this section if the violation resulted in a

20  conviction that was sentenced separately, or an adjudication

21  of delinquency entered separately, prior to the current

22  offense.

23         Section 2.  Paragraph (a) of subsection (2) of section

24  932.701, Florida Statutes, is amended to read:

25         932.701  Short title; definitions.--

26         (2)  As used in the Florida Contraband Forfeiture Act:

27         (a)  "Contraband article" means:

28         1.  Any controlled substance as defined in chapter 893

29  or any substance, device, paraphernalia, or currency or other

30  means of exchange that was used, was attempted to be used, or

31  was intended to be used in violation of any provision of

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    Florida Senate - 2004                     CS for CS for SB 284
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 1  chapter 893, if the totality of the facts presented by the

 2  state is clearly sufficient to meet the state's burden of

 3  establishing probable cause to believe that a nexus exists

 4  between the article seized and the narcotics activity, whether

 5  or not the use of the contraband article can be traced to a

 6  specific narcotics transaction.

 7         2.  Any gambling paraphernalia, lottery tickets, money,

 8  currency, or other means of exchange which was used, was

 9  attempted, or intended to be used in violation of the gambling

10  laws of the state.

11         3.  Any equipment, liquid or solid, which was being

12  used, is being used, was attempted to be used, or intended to

13  be used in violation of the beverage or tobacco laws of the

14  state.

15         4.  Any motor fuel upon which the motor fuel tax has

16  not been paid as required by law.

17         5.  Any personal property, including, but not limited

18  to, any vessel, aircraft, item, object, tool, substance,

19  device, weapon, machine, vehicle of any kind, money,

20  securities, books, records, research, negotiable instruments,

21  or currency, which was used or was attempted to be used as an

22  instrumentality in the commission of, or in aiding or abetting

23  in the commission of, any felony, whether or not comprising an

24  element of the felony, or which is acquired by proceeds

25  obtained as a result of a violation of the Florida Contraband

26  Forfeiture Act.

27         6.  Any real property, including any right, title,

28  leasehold, or other interest in the whole of any lot or tract

29  of land, which was used, is being used, or was attempted to be

30  used as an instrumentality in the commission of, or in aiding

31  or abetting in the commission of, any felony, or which is

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    Florida Senate - 2004                     CS for CS for SB 284
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 1  acquired by proceeds obtained as a result of a violation of

 2  the Florida Contraband Forfeiture Act.

 3         7.  Any personal property, including, but not limited

 4  to, equipment, money, securities, books, records, research,

 5  negotiable instruments, currency, or any vessel, aircraft,

 6  item, object, tool, substance, device, weapon, machine, or

 7  vehicle of any kind in the possession of or belonging to any

 8  person who takes aquaculture products in violation of s.

 9  812.014(2)(c).

10         8.  Any motor vehicle offered for sale in violation of

11  s. 320.28.

12         9.  Any motor vehicle used during the course of

13  committing an offense in violation of s. 322.34(9)(a).

14         10.  Any personal property, including, but not limited

15  to, any imaging device, used in violation of s. 810.145,

16  photograph, film, or other recorded image, including an image

17  recorded on videotape, a compact disc, digital tape, or fixed

18  disk, recorded in violation of s. 810.145.

19         Section 3.  Present subsections (2) through (8) of

20  section 932.7055, Florida Statutes, are redesignated as

21  subsections (3) through (9), respectively, and a new

22  subsection (2) is added to that section, to read:

23         932.7055  Disposition of liens and forfeited

24  property.--

25         (2)  Notwithstanding subsection (1), a seizing agency

26  must destroy any image and the medium on which the image is

27  recorded, including, but not limited to, a photograph, video

28  tape, diskette, compact disc, or fixed disk made in violation

29  of s. 810.145 when the image and the medium on which it is

30  recorded is no longer needed for an official purpose. The

31  agency may not sell or retain any image.

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    Florida Senate - 2004                     CS for CS for SB 284
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 1         Section 4.  Section 932.707, Florida Statutes, is

 2  amended to read:

 3         932.707  Penalty for noncompliance with reporting

 4  requirements.--Any seizing agency that which fails to comply

 5  with the reporting requirements as described in s.

 6  932.7055(9)(a) s. 932.7055(8)(a), is subject to a civil fine

 7  of $5,000 payable to the General Revenue Fund.  However, such

 8  agency will not be subject to the fine if, within 60 days

 9  after of receipt of written notification from the Department

10  of Law Enforcement of the noncompliance with the reporting

11  requirements of the Florida Contraband Forfeiture Act, the

12  agency substantially complies with those said requirements.

13  The Department of Law Enforcement shall submit any substantial

14  noncompliance to the Office of the Chief Financial Officer,

15  which shall be responsible for the enforcement of this

16  section.

17         Section 5.  For the purpose of incorporating the

18  amendment made by this act to section 932.701, Florida

19  Statutes, in references thereto, subsection (6) of section

20  705.101, Florida Statutes, is reenacted to read:

21         705.101  Definitions.--As used in this chapter:

22         (6)  "Unclaimed evidence" means any tangible personal

23  property, including cash, not included within the definition

24  of "contraband article," as provided in s. 932.701(2), which

25  was seized by a law enforcement agency, was intended for use

26  in a criminal or quasi-criminal proceeding, and is retained by

27  the law enforcement agency or the clerk of the county or

28  circuit court for 60 days after the final disposition of the

29  proceeding and to which no claim of ownership has been made.

30         Section 6.  For the purpose of incorporating the

31  amendment made by this act to section 932.701, Florida

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    Florida Senate - 2004                     CS for CS for SB 284
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 1  Statutes, in references thereto, subsection (4) of section

 2  932.703, Florida Statutes, is reenacted to read:

 3         932.703  Forfeiture of contraband article;

 4  exceptions.--

 5         (4)  In any incident in which possession of any

 6  contraband article defined in s. 932.701(2)(a) constitutes a

 7  felony, the vessel, motor vehicle, aircraft, other personal

 8  property, or real property in or on which such contraband

 9  article is located at the time of seizure shall be contraband

10  subject to forfeiture.  It shall be presumed in the manner

11  provided in s. 90.302(2) that the vessel, motor vehicle,

12  aircraft, other personal property, or real property in which

13  or on which such contraband article is located at the time of

14  seizure is being used or was attempted or intended to be used

15  in a manner to facilitate the transportation, carriage,

16  conveyance, concealment, receipt, possession, purchase, sale,

17  barter, exchange, or giving away of a contraband article

18  defined in s. 932.701(2).

19         Section 7.  Section 877.26, Florida Statutes, is

20  amended to read:

21         877.26  Direct observation, videotaping, or visual

22  surveillance of customers in merchant's dressing room, etc.,

23  prohibited; penalties.--

24         (1)  It is unlawful for any merchant to directly

25  observe or make use of video cameras or other visual

26  surveillance devices to observe or record customers in the

27  merchant's dressing room, fitting room, changing room, or

28  restroom when such room provides a reasonable expectation of

29  privacy. However, a merchant may directly observe a customer

30  from outside such room if the observation is within the scope

31  of the merchant's duties and the observation does not

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    Florida Senate - 2004                     CS for CS for SB 284
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 1  otherwise violate s. 810.14 or s. 810.145 or if the customer

 2  invites or consents to the presence of the merchant in the

 3  room.

 4         (2)  As used in this subsection, the term "merchant"

 5  means an owner or operator, or the agent, consignee, employee,

 6  lessee, or officer of an owner or operator, of any premises or

 7  apparatus used for retail purchase or sale of any merchandise.

 8         (3)(2)  Any merchant who violates subsection (1)

 9  commits is guilty of a misdemeanor of the first degree,

10  punishable as provided in s. 775.082 or s. 775.083.

11         Section 8.  This act shall take effect July 1, 2004.

12  

13          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
14                      CS for Senate Bill 284

15                                 

16  
    This CS makes the following changes:
17  
    -    Provides exceptions for certain electronic communications
18       services, such as providers of wire or oral
         communications, tone-only paging communications, remote
19       computing services, tracking devices, or electronic funds
         transfer.
20  
    -    Provides a limited exception for a merchant observing
21       customers in dressing, fitting or changing rooms or
         restrooms, where the observation is within the scope of
22       the merchant's duties, and does not otherwise violate
         certain laws, or if the customer invites or consents to
23       the merchant's presence.

24  -    Revises language providing for a third degree felony for
         a violator convicted or adjudicated delinquent two or
25       more times previously, to a violator previously convicted
         or adjudicated delinquent of a violation of this section.
26  
    -    Clarifies that an agency that has received illegal video
27       voyeurism images through forfeiture, must destroy any
         image and the medium upon which the image is recorded
28       when it is no longer needed for an official purpose.  .

29  

30  

31  

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