HB 559

1
A bill to be entitled
2An act relating to the distribution of material harmful to
3minors; amending s. 847.001, F.S.; redefining the term
4"harmful to minors"; amending s. 847.011, F.S.; providing
5that it is a third-degree felony for any person to sell,
6distribute, transmit, advertise, or possess with the
7intent to sell, distribute, transmit, or advertise certain
8materials to minors; providing that ignorance of a minor's
9age or the minor's consent is not a defense in a
10prosecution for such a violation; amending s. 847.012,
11F.S.; prohibiting a person from knowingly using a minor in
12the production of certain materials, regardless of whether
13those materials are intended for distribution to minors or
14actually distributed to minors; providing a penalty;
15providing that ignorance of a minor's age or the minor's
16consent is not a defense in a prosecution for specified
17violations; amending s. 847.013, F.S.; providing that it
18is a first-degree misdemeanor for any person to knowingly
19use a minor in the production of certain materials
20depicting certain images, representations, or acts;
21providing that ignorance of a minor's age or the minor's
22consent is not a defense in a prosecution for specified
23violations; revising legislative intent concerning the
24enforcement of such laws with respect to minors; amending
25s. 847.0133, F.S.; providing that it is a felony of the
26third degree for any person to knowingly give away,
27distribute, transmit, or show any obscene material to a
28minor, display, distribute, transmit, or show erotic
29nudity to a minor, or distribute, display, transmit, or
30show erotic fondling to a minor; amending s. 921.0022,
31F.S., relating to the offense severity ranking chart of
32the Criminal Punishment Code; establishing offense levels
33to conform to changes made by the act; providing an
34effective date.
35
36Be It Enacted by the Legislature of the State of Florida:
37
38     Section 1.  Subsection (6) of section 847.001, Florida
39Statutes, is amended to read:
40     847.001  Definitions.--As used in this chapter, the term:
41     (6)  "Harmful to minors" means any reproduction, imitation,
42characterization, description, exhibition, presentation, or
43representation, of whatever kind or form, depicting nudity,
44sexual conduct, or sexual excitement when it:
45     (a)  Predominantly appeals to the prurient, shameful, or
46morbid interest of minors;
47     (b)  Is patently offensive to prevailing standards in the
48adult community as a whole with respect to what is suitable
49material or conduct for minors; and
50     (c)  Taken as a whole, is without serious literary,
51artistic, political, or scientific value for minors.
52
53A mother's breastfeeding of her baby is not under any
54circumstance "harmful to minors."
55     Section 2.  Subsections (1) and (2) of section 847.011,
56Florida Statutes, are amended to read:
57     847.011  Prohibition of certain acts in connection with
58obscene, lewd, etc., materials; penalty.--
59     (1)(a)  Any person who knowingly sells, lends, gives away,
60distributes, transmits, shows, or transmutes, or offers to sell,
61lend, give away, distribute, transmit, show, or transmute, or
62has in his or her possession, custody, or control with intent to
63sell, lend, give away, distribute, transmit, show, transmute, or
64advertise in any manner, any obscene book, magazine, periodical,
65pamphlet, newspaper, comic book, story paper, written or printed
66story or article, writing, paper, card, picture, drawing,
67photograph, motion picture film, figure, image, phonograph
68record, or wire or tape or other recording, or any written,
69printed, or recorded matter of any such character which may or
70may not require mechanical or other means to be transmuted into
71auditory, visual, or sensory representations of such character,
72or any article or instrument for obscene use, or purporting to
73be for obscene use or purpose; or who knowingly designs, copies,
74draws, photographs, poses for, writes, prints, publishes, or in
75any manner whatsoever manufactures or prepares any such
76material, matter, article, or thing of any such character; or
77who knowingly writes, prints, publishes, or utters, or causes to
78be written, printed, published, or uttered, any advertisement or
79notice of any kind, giving information, directly or indirectly,
80stating, or purporting to state, where, how, of whom, or by what
81means any, or what purports to be any, such material, matter,
82article, or thing of any such character can be purchased,
83obtained, or had; or who in any manner knowingly hires, employs,
84uses, or permits any person knowingly to do or assist in doing
85any act or thing mentioned above, commits is guilty of a
86misdemeanor of the first degree, punishable as provided in s.
87775.082 or s. 775.083. A person who, after having been convicted
88of a violation of this subsection, thereafter violates any of
89its provisions, commits is guilty of a felony of the third
90degree, punishable as provided in s. 775.082, s. 775.083, or s.
91775.084.
92     (b)  The knowing possession by any person of three or more
93identical or similar materials, matters, articles, or things
94coming within the provisions of paragraph (a) is prima facie
95evidence of the violation of the said paragraph.
96     (c)  A person who commits a violation of paragraph (a) or
97subsection (2) which is based on materials that depict a minor
98engaged in any act or conduct that is harmful to minors commits
99a felony of the third degree, punishable as provided in s.
100775.082, s. 775.083, or s. 775.084.
101     (d)  A person's ignorance of a minor's age, a minor's
102misrepresentation of his or her age, a bona fide belief of a
103minor's age, or a minor's consent may not be raised as a defense
104in a prosecution for one or more violations of paragraph (a) or
105subsection (2).
106     (2)  A person who knowingly has in his or her possession,
107custody, or control any obscene book, magazine, periodical,
108pamphlet, newspaper, comic book, story paper, written or printed
109story or article, writing, paper, card, picture, drawing,
110photograph, motion picture film, film, any sticker, decal,
111emblem or other device attached to a motor vehicle containing
112obscene descriptions, photographs, or depictions, any figure,
113image, phonograph record, or wire or tape or other recording, or
114any written, printed, or recorded matter of any such character
115which may or may not require mechanical or other means to be
116transmuted into auditory, visual, or sensory representations of
117such character, or any article or instrument for obscene use, or
118purporting to be for obscene use or purpose, without intent to
119sell, lend, give away, distribute, transmit, show, transmute, or
120advertise the same, commits is guilty of a misdemeanor of the
121second degree, punishable as provided in s. 775.082 or s.
122775.083. A person who, after having been convicted of violating
123this subsection, thereafter violates any of its provisions
124commits is guilty of a misdemeanor of the first degree,
125punishable as provided in s. 775.082 or s. 775.083. In any
126prosecution for such possession, it is shall not be necessary to
127allege or prove the absence of such intent.
128     Section 3.  Section 847.012, Florida Statutes, is amended
129to read:
130     847.012  Prohibition of sale or other distribution of
131harmful materials to persons under 18 years of age; penalty.--
132     (1)  As used in this section, "knowingly" means having the
133general knowledge of, reason to know, or a belief or ground for
134belief which warrants further inspection or inquiry of both:
135     (a)  The character and content of any material described in
136this section herein which is reasonably susceptible of
137examination by the defendant;, and
138     (b)  The age of the minor; however, an honest mistake shall
139constitute an excuse from liability hereunder if the defendant
140made a reasonable bona fide attempt to ascertain the true age of
141such minor.
142     (2)  A person's ignorance of a minor's age, a minor's
143misrepresentation of his or her age, a bona fide belief of a
144minor's age, or a minor's consent may not be raised as a defense
145in a prosecution for a violation of this section.
146     (3)(2)  A It is unlawful for any person may not knowingly
147to sell, rent, or loan for monetary consideration to a minor:
148     (a)  Any picture, photograph, drawing, sculpture, motion
149picture film, videocassette, or similar visual representation or
150image of a person or portion of the human body which depicts
151nudity or sexual conduct, sexual excitement, sexual battery,
152bestiality, or sadomasochistic abuse and which is harmful to
153minors;, or
154     (b)  Any book, pamphlet, magazine, printed matter however
155reproduced, or sound recording that which contains any matter
156defined in s. 847.001, explicit and detailed verbal descriptions
157or narrative accounts of sexual excitement, or sexual conduct
158and that which is harmful to minors.
159     (4)  A person may not knowingly use a minor in the
160production of any material described in subsection (3),
161regardless of whether the material is intended for distribution
162to minors or is actually distributed to minors.
163     (5)(3)  Any person violating any provision of this section
164commits is guilty of a felony of the third degree, punishable as
165provided in s. 775.082, s. 775.083, or s. 775.084.
166     (6)(4)  Every act, thing, or transaction forbidden by this
167section constitutes a separate offense and is punishable as
168such.
169     (7)(5)(a)  The circuit court has jurisdiction to enjoin a
170violation of this section upon complaint filed by the state
171attorney in the name of the state upon the relation of such
172state attorney.
173     (b)  After the filing of such a complaint, the judge to
174whom it is presented may grant an order restraining the person
175complained of until final hearing or further order of the court.
176Whenever the relator state attorney requests a judge of such
177court to set a hearing upon an application for such a
178restraining order, the such judge shall set the such hearing for
179a time within 3 days after the making of the such request. The
180No such order may not shall be made unless the such judge is
181satisfied that sufficient notice of the application therefor has
182been given to the party restrained of the time when and place
183where the application for the such restraining order is to be
184made.
185     (c)  The person sought to be enjoined is shall be entitled
186to a trial of the issues within 1 day after joinder of issue,
187and a decision shall be rendered by the court within 2 days
188after of the conclusion of the trial.
189     (d)  If In the event that a final decree of injunction is
190entered, it must shall contain a provision directing the
191defendant having the possession, custody, or control of the
192materials, matters, articles, or things affected by the
193injunction to surrender the same to the sheriff and requiring
194the sheriff to seize and destroy the same. The sheriff shall
195file a certificate of her or his compliance.
196     (e)  In any action brought as provided in this section, a
197no bond or undertaking may not shall be required of the state or
198the state attorney before the issuance of a restraining order
199provided for by paragraph (b), and there shall be no liability
200on the part of the state or the state attorney may not be held
201liable for costs or for damages sustained by reason of the such
202restraining order in any case where a final decree is rendered
203in favor of the person sought to be enjoined.
204     (f)  Every person who has possession, custody, or control
205of, or otherwise deals with, any of the materials, matters,
206articles, or things described in this section, after the service
207upon her or him of a summons and complaint in an action for
208injunction brought under this section, is chargeable with
209knowledge of the contents and character thereof.
210     (8)(6)  The several sheriffs and state attorneys shall
211vigorously enforce this section within their respective
212jurisdictions.
213     (9)(7)  This section does not apply to the exhibition of
214motion pictures, shows, presentations, or other representations
215regulated under the provisions of s. 847.013.
216     Section 4.  Section 847.013, Florida Statutes, is amended
217to read:
218     847.013  Exposing minors to or using minors in the
219production of harmful motion pictures, exhibitions, shows,
220presentations, or representations.--
221     (1)  "KNOWINGLY" DEFINED.--As used in this section
222"knowingly" means having general knowledge of, reason to know,
223or a belief or ground for belief which warrants further
224inspection or inquiry of both:
225     (a)  The character and content of any motion picture
226described herein which is reasonably susceptible of examination
227by the defendant, or the character of any exhibition,
228presentation, representation, or show described herein, other
229than a motion picture show, which is reasonably susceptible of
230being ascertained by the defendant;, and
231     (b)  The age of the minor; however, an honest mistake shall
232constitute an excuse from liability hereunder if the defendant
233made a reasonable bona fide attempt to ascertain the true age of
234such minor.
235     (2)  MINOR'S AGE.--A person's ignorance of a minor's age, a
236minor's misrepresentation of his or her age, a bona fide belief
237of a minor's age, or a minor's consent may not be raised as a
238defense in a prosecution for a violation of this section.
239     (3)(2)  OFFENSES AND PENALTIES.--
240     (a)  A It is unlawful for any person may not knowingly to
241exhibit for a monetary consideration to a minor or knowingly to
242sell or rent a videotape of a motion picture to a minor or
243knowingly sell to a minor an admission ticket or pass or
244knowingly admit a minor for a monetary consideration to premises
245whereon there is exhibited a motion picture, exhibition, show,
246representation, or other presentation which, in whole or in
247part, depicts nudity, sexual conduct, sexual excitement, sexual
248battery, bestiality, or sadomasochistic abuse and which is
249harmful to minors.
250     (b)  A It is unlawful for any person may not knowingly to
251rent or sell, or loan to a minor for monetary consideration, a
252videocassette or a videotape of a motion picture, or similar
253presentation, which, in whole or in part, depicts nudity, sexual
254conduct, sexual excitement, sexual battery, bestiality, or
255sadomasochistic abuse and which is harmful to minors.
256     (c)  The provisions of paragraph (a) do not apply to a
257minor when the minor is accompanied by his or her parents or
258either of them.
259     (d)  A It is unlawful for any minor may not to falsely
260represent to the owner of any premises mentioned in paragraph
261(a), or to the owner's agent, or to any person mentioned in
262paragraph (b), that the such minor is 17 years of age or older,
263with the intent to procure the such minor's admission to such
264premises, or the such minor's purchase or rental of a videotape,
265for a monetary consideration.
266     (e)  A It is unlawful for any person may not to knowingly
267make a false representation to the owner of any premises
268mentioned in paragraph (a), or to the owner's agent, or to any
269person mentioned in paragraph (b), that he or she is the parent
270of any minor or that any minor is 17 years of age or older, with
271intent to procure the such minor's admission to the such
272premises or to aid the such minor in procuring admission
273thereto, or to aid or enable the such minor's purchase or rental
274of a videotape, for a monetary consideration.
275     (f)  A person may not knowingly use a minor in the
276production of any motion picture, exhibition, show,
277representation, or other presentation that, in whole or in part,
278depicts nudity, sexual conduct, sexual excitement, sexual
279battery, bestiality, or sadomasochistic abuse and that is
280harmful to minors.
281     (g)(f)  A violation of any provision of this subsection
282constitutes a misdemeanor of the first degree, punishable as
283provided in s. 775.082 or s. 775.083.
284     (4)(3)  INJUNCTIVE PROCEEDINGS.--
285     (a)  The circuit court has jurisdiction to enjoin a
286threatened violation of subsection (2) upon complaint filed by
287the state attorney in the name of the state upon the relation of
288such state attorney.
289     (b)  After the filing of such a complaint, the judge to
290whom it is presented may grant an order restraining the person
291or persons complained of until final hearing or further order of
292the court. Whenever the relator requests a judge of the such
293court to set a hearing upon an application for such a
294restraining order, the such judge shall set the such hearing for
295a time within 3 days after the making of the such request. An No
296such order may not shall be made unless the such judge is
297satisfied that sufficient notice of the application therefor has
298been given to the person or persons restrained of the time when
299and place where the application for the such restraining order
300is to be heard. However, the such notice shall be dispensed with
301when it is manifest to the such judge, from the allegations of a
302sworn complaint or independent affidavit, sworn to by the
303relator or by some person associated with him or her in the
304field of law enforcement and filed by the relator, that the
305apprehended violation will be committed if an immediate remedy
306is not afforded.
307     (c)  The person or persons sought to be enjoined are shall
308be entitled to a trial of the issues within 1 day after joinder
309of issue, and a decision shall be rendered by the court within 2
310days after the conclusion of the trial.
311     (d)  In any action brought as provided in this section, a
312no bond or undertaking is not shall be required of the state or
313the relator state attorney before the issuance of a restraining
314order provided for by this section, and there is shall be no
315liability on the part of the state or the relator state attorney
316for costs or damages sustained by reason of such restraining
317order in any case in which a final decree is rendered in favor
318of the person or persons sought to be enjoined.
319     (e)  Every person who has possession, custody, or control
320of, or otherwise deals with, any motion picture, exhibition,
321show, representation, or presentation described in this section,
322after the service upon him or her of a summons and complaint in
323an action for injunction brought under this section, is
324chargeable with knowledge of the contents or character thereof.
325     (5)(4)  LEGISLATIVE INTENT.--In order to make the
326application and enforcement of this section uniform throughout
327the state, it is the intent of the Legislature to preempt the
328field, to the exclusion of counties and municipalities, insofar
329as it concerns exposing persons under 17 years of age to harmful
330motion pictures, exhibitions, shows, representations, and
331presentations, and commercial or sexual exploitation. To that
332end, it is hereby declared that every county ordinance and every
333municipal ordinance adopted prior to July 1, 1969, and relating
334to such subject shall stand abrogated and unenforceable on and
335after such date and that no county, municipality, or
336consolidated county-municipal government shall have the power to
337adopt any ordinance relating to that subject on or after such
338effective date.
339     Section 5.  Section 847.0133, Florida Statutes, is amended
340to read:
341     847.0133  Protection of minors; prohibition of certain acts
342in connection with obscenity; prohibition of displaying erotic
343nudity or erotic fondling to minors; penalty.--
344     (1)  A It is unlawful for any person may not knowingly to
345sell, rent, loan, give away, distribute, transmit, or show any
346obscene material to a minor. For purposes of this section
347"obscene material" means any obscene book, magazine, periodical,
348pamphlet, newspaper, comic book, story paper, written or printed
349story or article, writing paper, card, picture, drawing,
350photograph, motion picture film, figure, image, videotape,
351videocassette, phonograph record, or wire or tape or other
352recording, or any written, printed, or recorded matter of any
353such character which may or may not require mechanical or other
354means to be transmuted into auditory, visual, or sensory
355representations of such character, or any article or instrument
356for obscene use, or purporting to be for obscene use or purpose.
357The term "obscene" has shall have the same meaning as set forth
358in s. 847.001.
359     (2)(a)  A person may not knowingly sell, rent, loan, give
360away, distribute, transmit, or show any material displaying
361erotic nudity to a minor. As used in this subsection, the term
362"erotic nudity" means the display of the genitals, pubic area,
363or breasts of a person, or the undeveloped or developing
364genitals, breasts, or public area of a minor for the purpose of
365real or simulated overt sexual gratification or stimulation of a
366minor. Displaying erotic nudity means its inclusion in any book,
367magazine, periodical, pamphlet, newspaper, comic book, story
368paper, written or printed story or article, writing paper, card,
369picture, drawing, photograph, motion picture film, figure,
370image, videotape, videocassette, phonograph record, wire, tape,
371or other recording, or any written, printed, or recorded matter
372of any such character which may or may not require mechanical or
373other means to be transmuted into auditory, visual, or sensory
374representations of erotic nudity.
375     (b)  A person may not knowingly sell, rent, loan, give
376away, distribute, transmit, or show any material displaying
377erotic fondling to a minor. As used in this subsection, the term
378"erotic fondling" means touching the clothed or unclothed
379genitals, pubic area, buttocks, or breasts of a person, or the
380developing or undeveloped genitals, pubic area, or breasts of a
381minor for the purpose of real or simulated overt sexual
382gratification or stimulation of a minor. The term does not
383include physical contact that is not for the purpose of real or
384simulated overt sexual gratification or stimulation of a minor.
385Displaying erotic fondling means its inclusion in any book,
386magazine, periodical, pamphlet, newspaper, comic book, story
387paper, written or printed story or article, writing paper, card,
388picture, drawing, photograph, motion picture film, figure,
389image, videotape, videocassette, phonograph record, wire, tape,
390or other recording, or any written, printed, or recorded matter
391of any such character which may or may not require mechanical or
392other means to be transmuted into auditory, visual, or sensory
393representations of erotic fondling.
394     (3)(2)  As used in this section "knowingly" has the same
395meaning set forth in s. 847.012(1). A "minor" is any person
396under the age of 18 years.
397     (4)(3)  A person who violates subsection (1) or subsection
398(2) commits violation of the provisions of this section
399constitutes a felony of the third degree, punishable as provided
400in s. 775.082 or s. 775.083.
401     Section 6.  Paragraph (f) of subsection (3) of section
402921.0022, Florida Statutes, is amended to read:
403     921.0022  Criminal Punishment Code; offense severity
404ranking chart.--
405     (3)  OFFENSE SEVERITY RANKING CHART
406     (f)  LEVEL 6
407
 
FloridaStatuteFelonyDegreeDescription
408
 
316.193(2)(b)3rdFelony DUI, 4th or subsequent conviction.
409
 
499.0051(3)2ndForgery of pedigree papers.
410
 
499.0051(4)2ndPurchase or receipt of legend drug from unauthorized person.
411
 
499.0051(5)2ndSale of legend drug to unauthorized person.
412
 
775.0875(1)3rdTaking firearm from law enforcement officer.
413
 
784.021(1)(a)3rdAggravated assault; deadly weapon without intent to kill.
414
 
784.021(1)(b)3rdAggravated assault; intent to commit felony.
415
 
784.0413rdFelony battery; domestic battery by strangulation.
416
 
784.048(3)3rdAggravated stalking; credible threat.
417
 
784.048(5)3rdAggravated stalking of person under 16.
418
 
784.07(2)(c)2ndAggravated assault on law enforcement officer.
419
 
784.074(1)(b)2ndAggravated assault on sexually violent predators facility staff.
420
 
784.08(2)(b)2ndAggravated assault on a person 65 years of age or older.
421
 
784.081(2)2ndAggravated assault on specified official or employee.
422
 
784.082(2)2ndAggravated assault by detained person on visitor or other detainee.
423
 
784.083(2)2ndAggravated assault on code inspector.
424
 
787.02(2)3rdFalse imprisonment; restraining with purpose other than those in s. 787.01.
425
 
790.115(2)(d)2ndDischarging firearm or weapon on school property.
426
 
790.161(2)2ndMake, possess, or throw destructive device with intent to do bodily harm or damage property.
427
 
790.164(1)2ndFalse report of deadly explosive, weapon of mass destruction, or act of arson or violence to state property.
428
 
790.192ndShooting or throwing deadly missiles into dwellings, vessels, or vehicles.
429
 
794.011(8)(a)3rdSolicitation of minor to participate in sexual activity by custodial adult.
430
 
794.05(1)2ndUnlawful sexual activity with specified minor.
431
 
800.04(5)(d)3rdLewd or lascivious molestation; victim 12 years of age or older but less than 16 years; offender less than 18 years.
432
 
800.04(6)(b)2ndLewd or lascivious conduct; offender 18 years of age or older.
433
 
806.031(2)2ndArson resulting in great bodily harm to firefighter or any other person.
434
 
810.02(3)(c)2ndBurglary of occupied structure; unarmed; no assault or battery.
435
 
812.014(2)(b)1.2ndProperty stolen $20,000 or more, but less than $100,000, grand theft in 2nd degree.
436
 
812.014(6)2ndTheft; property stolen $3,000 or more; coordination of others.
437
 
812.015(9)(a)2ndRetail theft; property stolen $300 or more; second or subsequent conviction.
438
 
812.015(9)(b)2ndRetail theft; property stolen $3,000 or more; coordination of others.
439
 
812.13(2)(c)2ndRobbery, no firearm or other weapon (strong-arm robbery).
440
 
817.034(4)(a)1.1stCommunications fraud, value greater than $50,000.
441
 
817.4821(5)2ndPossess cloning paraphernalia with intent to create cloned cellular telephones.
442
 
825.102(1)3rdAbuse of an elderly person or disabled adult.
443
 
825.102(3)(c)3rdNeglect of an elderly person or disabled adult.
444
 
825.1025(3)3rdLewd or lascivious molestation of an elderly person or disabled adult.
445
 
825.103(2)(c)3rdExploiting an elderly person or disabled adult and property is valued at less than $20,000.
446
 
827.03(1)3rdAbuse of a child.
447
 
827.03(3)(c)3rdNeglect of a child.
448
 
827.071(2)&(3)2ndUse or induce a child in a sexual performance, or promote or direct such performance.
449
 
836.052ndThreats; extortion.
450
 
836.102ndWritten threats to kill or do bodily injury.
451
 
843.123rdAids or assists person to escape.
452
 
847.0113rdDistributing, offering to distribute, or possessing with intent to distribute obscene materials to minors or depicting minors.
453
 
847.0123rdKnowingly using a minor in the production of obscene or sexually explicit materials.
454
 
847.0135(2)3rdFacilitates sexual conduct of or with a minor or the visual depiction of such conduct.
455
 
914.232ndRetaliation against a witness, victim, or informant, with bodily injury.
456
 
944.35(3)(a)2.3rdCommitting malicious battery upon or inflicting cruel or inhuman treatment on an inmate or offender on community supervision, resulting in great bodily harm.
457
 
944.402ndEscapes.
458
 
944.463rdHarboring, concealing, aiding escaped prisoners.
459
 
944.47(1)(a)5.2ndIntroduction of contraband (firearm, weapon, or explosive) into correctional facility.
460
 
951.22(1)3rdIntoxicating drug, firearm, or weapon introduced into county facility.
461
462     Section 7.  This act shall take effect July 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.