Florida Senate - 2014                          SENATOR AMENDMENT
       Bill No. CS for CS for HB 409
       
       
       
       
       
       
                                Ì271768RÎ271768                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 2/RE/3R         .                                
             04/28/2014 08:33 PM       .                                
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       Senator Abruzzo moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 73 - 238
    4  and insert:
    5  Florida Statutes, are amended, subsections (11) through (17) of
    6  that section are redesignated as subsections (13) through (19),
    7  respectively, and new subsections (11) and (12) are added to
    8  that section, to read:
    9         817.568 Criminal use of personal identification
   10  information.—
   11         (6) Any person who willfully and without authorization
   12  fraudulently uses personal identification information concerning
   13  an individual who is younger less than 18 years of age or 60
   14  years of age or older without first obtaining the consent of
   15  that individual or of his or her legal guardian commits a felony
   16  of the second degree, punishable as provided in s. 775.082, s.
   17  775.083, or s. 775.084.
   18         (7) Any person who is in the relationship of parent or
   19  legal guardian, or who otherwise exercises custodial authority
   20  over an individual who is younger less than 18 years of age or
   21  60 years of age or older, who willfully and fraudulently uses
   22  personal identification information of that individual commits a
   23  felony of the second degree, punishable as provided in s.
   24  775.082, s. 775.083, or s. 775.084.
   25         (11) A person who willfully and without authorization
   26  fraudulently uses personal identification information concerning
   27  an individual who is 60 years of age or older; a disabled adult
   28  as defined in s. 825.101; a public servant as defined in s.
   29  838.014; a veteran as defined in s. 1.01; a first responder as
   30  defined in s. 125.01045; an individual who is employed by the
   31  State of Florida; or an individual who is employed by the
   32  Federal Government without first obtaining the consent of that
   33  individual commits a felony of the second degree, punishable as
   34  provided in s. 775.082, s. 775.083, or s. 775.084.
   35         (12) In addition to any sanction imposed when a person
   36  pleads guilty or nolo contendere to, or is found guilty of,
   37  regardless of adjudication, a violation of this section, the
   38  court shall impose a surcharge of $1,001. Payment of the
   39  surcharge shall be a condition of probation, community control,
   40  or any other court-ordered supervision.
   41         (a) The sum of $500 of the surcharge shall be deposited
   42  into the Department of Law Enforcement Operating Trust Fund for
   43  the department to provide grants to local law enforcement
   44  agencies to investigate offenses related to the criminal use of
   45  personal identification information as provided in s. 943.0412.
   46         (b) The sum of $500 of the surcharge shall be deposited
   47  into the State Attorneys Revenue Trust Fund for the purpose of
   48  funding prosecutions of offenses relating to the criminal use of
   49  personal identification information.
   50         (c) The clerk of the court shall retain $1 of each $1,001
   51  surcharge that he or she collects as a service charge of the
   52  clerk’s office.
   53         (d) The surcharge may not be waived by the court. In the
   54  event that the person has been ordered to pay restitution in
   55  accordance with s. 775.089, the surcharge shall be included in a
   56  judgment.
   57         Section 3. Subsections (2), (3), and (8) of section
   58  825.101, Florida Statutes, are amended to read:
   59         825.101 Definitions.—As used in this chapter:
   60         (2) “Caregiver” means a person who has been entrusted with
   61  or has assumed responsibility for the care or the property of an
   62  elderly person or disabled adult. “Caregiver” includes, but is
   63  not limited to, relatives, court-appointed or voluntary
   64  guardians, adult household members, neighbors, health care
   65  providers, and employees and volunteers of facilities as defined
   66  in subsection (6)(7).
   67         (3) “Deception” means:
   68         (a) Misrepresenting or concealing a material fact relating
   69  to:
   70         1. Services rendered, disposition of property, or use of
   71  property, when such services or property are intended to benefit
   72  an elderly person or disabled adult;
   73         2. Terms of a contract or agreement entered into with an
   74  elderly person or disabled adult; or
   75         3. An existing or preexisting condition of any property
   76  involved in a contract or agreement entered into with an elderly
   77  person or disabled adult; or
   78         (b) Using any misrepresentation, false pretense, or false
   79  promise in order to induce, encourage, or solicit an elderly
   80  person or disabled adult to enter into a contract or agreement.
   81         (8) “Intimidation” means the communication by word or act
   82  to an elderly person or disabled adult that the elderly person
   83  or disabled adult will be deprived of food, nutrition, clothing,
   84  shelter, supervision, medicine, medical services, money, or
   85  financial support or will suffer physical violence.
   86         Section 4. Section 825.103, Florida Statutes, is amended to
   87  read:
   88         825.103 Exploitation of an elderly person or disabled
   89  adult; penalties.—
   90         (1) “Exploitation of an elderly person or disabled adult”
   91  means:
   92         (a) Knowingly, by deception or intimidation, obtaining or
   93  using, or endeavoring to obtain or use, an elderly person’s or
   94  disabled adult’s funds, assets, or property with the intent to
   95  temporarily or permanently deprive the elderly person or
   96  disabled adult of the use, benefit, or possession of the funds,
   97  assets, or property, or to benefit someone other than the
   98  elderly person or disabled adult, by a person who:
   99         1. Stands in a position of trust and confidence with the
  100  elderly person or disabled adult; or
  101         2. Has a business relationship with the elderly person or
  102  disabled adult;
  103         (b) Obtaining or using, endeavoring to obtain or use, or
  104  conspiring with another to obtain or use an elderly person’s or
  105  disabled adult’s funds, assets, or property with the intent to
  106  temporarily or permanently deprive the elderly person or
  107  disabled adult of the use, benefit, or possession of the funds,
  108  assets, or property, or to benefit someone other than the
  109  elderly person or disabled adult, by a person who knows or
  110  reasonably should know that the elderly person or disabled adult
  111  lacks the capacity to consent; or
  112         (c) Breach of a fiduciary duty to an elderly person or
  113  disabled adult by the person’s guardian, trustee who is an
  114  individual, or agent under a power of attorney which results in
  115  an unauthorized appropriation, sale, or transfer of property. An
  116  unauthorized appropriation under this paragraph occurs when the
  117  elderly person or disabled adult does not receive the reasonably
  118  equivalent financial value in goods or services, or when the
  119  fiduciary violates any of these duties:
  120         1. For agents appointed under chapter 709:
  121         a. Committing fraud in obtaining their appointments;
  122         b. Abusing their powers;
  123         c. Wasting, embezzling, or intentionally mismanaging the
  124  assets of the principal or beneficiary; or
  125         d. Acting contrary to the principal’s sole benefit or best
  126  interest; or
  127         2. For guardians and trustees who are individuals and who
  128  are appointed under chapter 736 or chapter 744:
  129         a. Committing fraud in obtaining their appointments;
  130         b. Abusing their powers; or
  131         c. Wasting, embezzling, or intentionally mismanaging the
  132  assets of the ward or beneficiary of the trust;
  133         (d) Misappropriating, misusing, or transferring without
  134  authorization money belonging to an elderly person or disabled
  135  adult from an account in which the elderly person or disabled
  136  adult placed the funds, owned the funds, and was the sole
  137  contributor or payee of the funds before the misappropriation,
  138  misuse, or unauthorized transfer. This paragraph only applies to
  139  the following types of accounts:
  140         1. Personal accounts;
  141         2. Joint accounts created with the intent that only the
  142  elderly person or disabled adult enjoys all rights, interests,
  143  and claims to moneys deposited into such account; or
  144         3. Convenience accounts created in accordance with s.
  145  655.80; or
  146         (e) Intentionally or negligently failing to effectively use
  147  an elderly person’s or disabled adult’s income and assets for
  148  the necessities required for that person’s support and
  149  maintenance, by a caregiver or a person who stands in a position
  150  of trust and confidence with the elderly person or disabled
  151  adult.
  152         (2) Any inter vivos transfer of money or property valued in
  153  excess of $10,000 at the time of the transfer, whether in a
  154  single transaction or multiple transactions, by a person age 65
  155  or older to a nonrelative whom the transferor knew for fewer
  156  than 2 years before the first transfer and for which the
  157  transferor did not receive the reasonably equivalent financial
  158  value in goods or services creates a permissive presumption that
  159  the transfer was the result of exploitation.
  160         (a) This subsection applies regardless of whether the
  161  transfer or transfers are denoted by the parties as a gift or
  162  loan, except that it does not apply to a valid loan evidenced in
  163  writing that includes definite repayment dates. However, if
  164  repayment of any such loan is in default, in whole or in part,
  165  for more than 65 days, the presumption of this subsection
  166  applies.
  167         (b) This subsection does not apply to:
  168         1. Persons who are in the business of making loans.
  169         2. Bona fide charitable donations to nonprofit
  170  organizations that qualify for tax exempt status under the
  171  Internal Revenue Code.
  172         (c) In a criminal case to which this subsection applies, if
  173  the trial is by jury, jurors shall be instructed that they may,
  174  but are not required to, draw an inference of exploitation upon
  175  proof beyond a reasonable doubt of the facts listed in this
  176  subsection. The presumption of this subsection imposes no burden
  177  of proof on the defendant.
  178         (3)(2)(a) If the funds, assets, or property involved in the
  179  exploitation of the elderly person or disabled adult is valued
  180  at $50,000 $100,000 or more, the offender commits a felony of
  181  the first degree, punishable as provided in s. 775.082, s.
  182  775.083, or s. 775.084.
  183         (b) If the funds, assets, or property involved in the
  184  exploitation of the elderly person or disabled adult is valued
  185  at $10,000 $20,000 or more, but less than $50,000 $100,000, the
  186  offender commits a felony of the second degree, punishable as
  187  provided in s. 775.082, s. 775.083, or s. 775.084.
  188         (c) If the funds, assets, or property involved in the
  189  exploitation of an elderly person or disabled adult is valued at
  190  less than $10,000 $20,000, the offender commits a felony of the
  191  third degree, punishable as provided in s. 775.082, s. 775.083,
  192  or s. 775.084.
  193         (4) If a person is charged with financial exploitation of
  194  an elderly person or disabled adult that involves the taking of
  195  or loss of property valued at more than $5,000 and property
  196  belonging to a victim is seized from the defendant pursuant to a
  197  search warrant, the court shall hold an evidentiary hearing and
  198  determine, by a preponderance of the evidence, whether the
  199  defendant unlawfully obtained the victim’s property. If the
  200  court finds that the property was unlawfully obtained, the court
  201  may order it returned to the victim for restitution purposes
  202  before trial on the charge. This determination is inadmissible
  203  in evidence at trial on the charge and does not give rise to any
  204  inference that the defendant has committed an offense under this
  205  section.
  206         Section 5. Section 943.0412, Florida Statutes, is created
  207  to read:
  208         943.0412 Identity Theft and Fraud Grant Program.—
  209         (1) There is created the Identity Theft and Fraud Grant
  210  Program within the department to award grants to support local
  211  law enforcement agencies in the investigation and enforcement of
  212  personal identification information theft and fraud. Grants
  213  shall be provided if funds are appropriated for that purpose by
  214  law.
  215         (2) Funds collected pursuant to s. 817.568(12)(a) and any
  216  funds specifically appropriated for the grant program shall be
  217  awarded annually by the department to local law enforcement
  218  agencies. The total amount of grants awarded may not exceed
  219  funding appropriated for the grant program.
  220         (3) The department may establish criteria and set specific
  221  time periods for the acceptance of applications and for the
  222  selection process for awards.
  223  
  224  ================= T I T L E  A M E N D M E N T ================
  225  And the title is amended as follows:
  226         Delete lines 10 - 26
  227  and insert:
  228         older; providing that it is unlawful for any person to
  229         willfully and without authorization fraudulently use
  230         personal identification information concerning
  231         specified individuals without their consent; providing
  232         criminal penalties; providing for a surcharge and
  233         allocation thereof; amending s. 825.101, F.S.;
  234         revising and deleting definitions; amending s.
  235         825.103, F.S.; deleting a requirement that property of
  236         an elderly person or disabled adult be obtained by
  237         deception or intimidation in order to constitute
  238         exploitation of such a person; specifying additional
  239         circumstances that constitute a breach of a fiduciary
  240         duty and specifying when an unauthorized appropriation
  241         occurs; creating a presumption that certain inter
  242         vivos transfers are a result of exploitation;
  243         providing exceptions; providing for jury instructions
  244         concerning the presumption; revising the valuation of
  245         funds, assets, or property involved for various
  246         degrees of offenses of exploitation of an elderly
  247         person or disabled adult; providing for return of
  248         property seized from a defendant to the victim before
  249         trial in certain circumstances; creating s. 943.0412,
  250         F.S.; providing legislative findings; creating the
  251         Identity Theft and Fraud Grant Program; amending ss.
  252         775.0844 and