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A bill to be entitled

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An act relating to the commercial distribution of

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pornographic materials; providing a short title; providing

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legislative findings; defining terms relating to the

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commercial distribution of pornographic materials;

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prohibiting a person from willfully and knowingly

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distributing pornographic materials for commercial

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purposes; providing a civil penalty; providing that any

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person, including a church, religious organization, or

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other representative group or organization, may bring an

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action to enforce the act; providing certain exemptions;

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providing procedures for enforcing the act; providing for

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attorney's fees and costs; requiring that any civil

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penalty collected be deposited into the General Revenue

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Fund; providing for declaratory and injunctive relief;

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authorizing a person to recover actual damages and

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attorney's fees if the person suffers a loss as a result

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of commercial distribution of pornographic materials;

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providing an effective date.

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

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     Section 1. Florida commercial anti-pornography act.--

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     (1) SHORT TITLE.--This section may be cited as the "Florida

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Commercial Anti-Pornography Act."

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     (2) LEGISLATIVE FINDINGS.--

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     (a) The Legislature finds that pornography has a

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deleterious effect on the health and morals of the people of this

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state. Pornography is demeaning to the men and women of this

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state and it panders to the basest desires of a minority of the

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residents of this state.

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     (b) The Legislature further finds that pornography is

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offensive and a nuisance and that affording the people of this

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state a civil remedy to enjoin the distribution of pornographic

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materials for profit and commercial purposes within their

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community, and to recover civil penalties and damages, will

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result in a general benefit to the health and welfare of the

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people of the state.

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     (c) The Legislature further finds that extending the

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remedies provided under this act to any church or religious

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organization, or other representative group or organization

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within this state, will further the purposes of this act and

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result in a general benefit to the health and welfare of the

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people of the state.

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

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     (a) "Commercial" means profit-seeking production, buying,

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selling, or distribution of any motion picture, exhibition, show,

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representation, performance, or other product.

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     (b) "Distribute" or "distribution" means to transfer

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possession of materials whether with or without consideration.

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     (c) "Exhibit" means to show.

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     (d) "Knowingly" means an awareness, whether actual or

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constructive, of the character of material or of a performance. A

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person has constructive knowledge if a reasonable inspection or

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observation under the circumstances would have disclosed the

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nature of the subject matter and if a failure to inspect or

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observe is for the purpose of avoiding the disclosure.

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     (e) "Material" means anything printed or written; any

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picture, drawing, photograph, motion picture, or pictorial

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representation; any statue or other figure; any recording or

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transcription; any mechanical, chemical, or electrical

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reproduction; or anything that is or may be used as a means of

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communication. The term includes undeveloped photographs, molds,

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printing plates, and other latent representational objects.

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     (f) "Performance" or "performs" means any physical human

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bodily activity, whether engaged in alone or with other persons,

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including, but not limited to, singing, speaking, dancing,

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acting, simulating, or pantomiming.

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     (g) "Pornography" or "pornographic" means a specifically

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described or depicted sexual act or conduct that a person,

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applying contemporary community standards, would consider, taken

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as a whole, to appeal to the prurient interest, and that the

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work, when taken as a whole, lacks serious literary, artistic,

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political, or scientific value.

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     (h) "Specifically described or depicted sexual act or

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conduct" means a sexual act or conduct depicting:

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     1. Rape; sexual battery; or nonconsensual intercourse,

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sodomy, or oral sodomy;

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     2. Incest;

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     3. The involvement of an actual minor in sexual acts or

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conduct;

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     4. Bestiality;

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     5. Multiple penetration by multiple partners of body

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orifices;

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     6. Visible penetration during intercourse, sodomy, or oral

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sodomy;

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     7. Visible ejaculation, urination, menstruation, bowel

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movements, ejaculate, or feces;

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     8. Visible penetration of a bodily orifice with a digit,

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hand, foot, or inanimate object; or

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     9. Sexual acts or conduct involving the dead.

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     (4) CIVIL PENALTY.--

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     (a) A person, or an agent or employee of a person, may not

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willfully and knowingly buy, sell, exhibit, or distribute for

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commercial use in this state pornographic materials.

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     (b) A person, or an agent or employee of a person, who

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willfully and knowingly buys, sells, exhibits, or distributes

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pornographic materials in this state for commercial use is liable

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for a civil penalty of not more than $10,000 for each violation.

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     (c) A violation occurs each time the person, or an agent or

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employee of a person, buys, sells, exhibits, or distributes

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pornographic material, and a violation occurs for each item of

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pornographic material bought, sold, exhibited, or distributed by

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the person or an agent or employee of a person.

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     (5) ENFORCEMENT.--

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     (a) Any person, including a church or religious

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organization, or other representative group or organization, may

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bring an action in the circuit court to enforce this section.

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     (b) Civil penalties may be assessed by and at the

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discretion of the circuit court, with due regard for the purposes

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of this section and the nature of the offense.

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     (6) LIMITATIONS.--This section does not apply to the

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noncommercial distribution of materials through Internet service

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providers, Internet users, or others, and does not regulate,

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limit, or prohibit residents from possessing obscene material for

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personal use in their own homes.

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     (7) FREE SPEECH.--

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     (a) It is the intent of the Legislature to preserve,

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protect, and foster protected free speech, and to minimize the

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costs associated with defending a multiplicity of suits brought

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under this section.

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     (b) In order to ensure that the application and enforcement

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of this section is consistent with this intent, when a motion is

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filed by any party, the court may stay any other suit filed in

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this state which involves the same defendant, pending a final

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determination.

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     (c) In an action brought under this section, upon a motion

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filed by the party against whom the action is brought alleging

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that the action is frivolous, without legal or factual merit, or

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brought for the purpose of harassment, the court may, after

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hearing evidence as to the necessity therefor, and after review

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of the alleged pornographic materials, require the party

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instituting the action to post a bond, in an amount not to exceed

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$10,000, which the court finds reasonable to indemnify the

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defendant for any damages incurred, including reasonable

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attorney's fees.

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     (8) RELIEF.--

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     (a) If civil penalties are assessed in any litigation, the

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plaintiff is entitled to reasonable attorney's fees and costs.

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     (b) Any civil penalty collected accrues to the state and

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shall be deposited as received into the General Revenue Fund.

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     (9) INJUNCTIVE PROCEEDINGS.--

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     (a) After a complaint is filed, the court may grant a

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temporary order restraining the person or persons complained of

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upon an application for a temporary restraining order. A hearing

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must be conducted no later than 3 days after the temporary

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restraining order is issued by the court. A temporary restraining

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order may not be issued unless it is manifest to the court, after

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review of the alleged pornographic material and from the

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allegations of a complaint or affidavit sworn to by the plaintiff

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or the plaintiff's representative, that the apprehended violation

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will be committed if an immediate remedy is not afforded.

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     (b) The person or persons sought to be enjoined are

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entitled to a trial of the issues no later than 30 days after the

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date the temporary restraining order is issued.

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     (c) Except as otherwise provided in this section, a bond or

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undertaking is not required of the state or other plaintiff in

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any action brought under this section before a temporary

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restraining order is issued. The state or other plaintiff is not

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liable for costs or damages sustained by reason of the temporary

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restraining order in any case in which a final decree is rendered

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in favor of the person or persons sought to be enjoined.

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     (10) DAMAGES.--

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     (a) Anyone aggrieved by a violation of this section may

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bring an action for declaratory relief that a sexual act or

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conduct violates this act or to enjoin a person who has violated,

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is violating, or is otherwise likely to violate this section,

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without regard to any other remedy or relief to which a person is

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entitled.

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     (b) A person may recover actual damages and attorney's fees

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and court costs in any action brought by a person who has

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suffered a loss as a result of a violation of this section.

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     Section 2.  This act shall take effect July 1, 2008.