CS for CS for SB 1044                            First Engrossed
       
       
       
       
       
       
       
       
       20161044e1
       
    1                        A bill to be entitled                      
    2         An act relating to contraband forfeiture; amending s.
    3         932.701, F.S.; conforming provisions to changes made
    4         by the act; amending s. 932.703, F.S.; specifying that
    5         property may be seized only under certain
    6         circumstances; defining the term “monetary
    7         instrument”; requiring that specified persons approve
    8         a settlement; providing circumstances when property
    9         may be deemed contraband; allocating responsibility
   10         for damage to seized property and payment of storage
   11         and maintenance expenses; requiring the seizing agency
   12         to apply for an order, within a certain timeframe,
   13         making a probable cause determination after the agency
   14         seizes property; providing application requirements;
   15         requiring a court to make specified determinations;
   16         providing procedures upon certain court findings;
   17         authorizing the court to seal any portion of the
   18         application and of specified proceedings under certain
   19         circumstances; amending s. 932.704, F.S.; providing
   20         requirements for a filing fee and a bond to be paid to
   21         the clerk of court; requiring that the bond be made
   22         payable to the claimant under certain circumstances
   23         unless otherwise expressly agreed to in writing;
   24         increasing the evidentiary standard from clear and
   25         convincing evidence to proof beyond a reasonable doubt
   26         that a contraband article was being used in violation
   27         of the Florida Contraband Forfeiture Act for a court
   28         to order the forfeiture of the seized property;
   29         increasing the attorney fees and costs awarded to
   30         claimant under certain circumstances; requiring a
   31         seizing agency to annually review seizures,
   32         settlements, and forfeiture proceedings to determine
   33         compliance with the Florida Contraband Forfeiture Act;
   34         providing requirements for seizing law enforcement
   35         agencies; requiring seizing law enforcement agencies
   36         to adopt and implement specified written policies,
   37         procedures, and training; requiring law enforcement
   38         agency personnel to receive basic training and
   39         continuing education; requiring the maintenance of
   40         training records; amending s. 932.7055, F.S.;
   41         conforming provisions to changes made by the act;
   42         creating s. 932.7061, F.S.; providing reporting
   43         requirements for seized property for forfeiture;
   44         creating s. 932.7062, F.S.; providing penalties for
   45         noncompliance with reporting requirements; amending s.
   46         322.34, F.S.; providing for payment of court costs,
   47         fines, and fees from proceeds of certain forfeitures;
   48         conforming provisions to changes made by the act;
   49         amending ss. 323.001, 328.07, and 817.625, F.S.;
   50         conforming provisions to changes made by the act;
   51         providing an effective date.
   52          
   53  Be It Enacted by the Legislature of the State of Florida:
   54  
   55         Section 1. Subsection (1) of section 932.701, Florida
   56  Statutes, is amended to read:
   57         932.701 Short title; definitions.—
   58         (1) Sections 932.701-932.7062 932.706 shall be known and
   59  may be cited as the “Florida Contraband Forfeiture Act.”
   60         Section 2. Subsection (1) of section 932.703, Florida
   61  Statutes, is amended, a new subsection (2) is added, and present
   62  subsections (2) through (8) are redesignated as subsections (3)
   63  through (9), respectively, to read:
   64         932.703 Forfeiture of contraband article; exceptions.—
   65         (1)(a) A Any contraband article, vessel, motor vehicle,
   66  aircraft, other personal property, or real property used in
   67  violation of any provision of the Florida Contraband Forfeiture
   68  Act, or in, upon, or by means of which any violation of the
   69  Florida Contraband Forfeiture Act has taken or is taking place,
   70  may be seized and shall be forfeited subject to the provisions
   71  of the Florida Contraband Forfeiture Act. A seizure may occur
   72  only if the owner of the property is arrested for a criminal
   73  offense that forms the basis for determining that the property
   74  is a contraband article under s. 932.701, or one or more of the
   75  following circumstances apply:
   76         1. The owner of the property cannot be identified after a
   77  diligent search;
   78         2. The owner of the property is a fugitive from justice or
   79  is deceased;
   80         3. An individual who does not own the property is arrested
   81  for a criminal offense that forms the basis for determining that
   82  the property is a contraband article under s. 932.701 and the
   83  owner of the property had actual knowledge of the criminal
   84  activity. Evidence that an owner received written notification
   85  from a law enforcement agency and acknowledged receipt of the
   86  notification in writing, that the seized asset had been used in
   87  violation of the Florida Contraband Forfeiture Act on a prior
   88  occasion by the arrested person, may be used to establish actual
   89  knowledge;
   90         4.The owner of the property agrees to be a confidential
   91  informant as defined in s. 914.28. The seizing agency may not
   92  use the threat of property seizure or forfeiture to coerce the
   93  owner of the property to enter into a confidential informant
   94  agreement. The seizing agency shall return the property to the
   95  owner if criminal charges are not filed against the owner and
   96  the active criminal investigation ends or if the owner ceases
   97  being a confidential informant, unless the agency includes the
   98  final forfeiture of the property as a component of the
   99  confidential informant agreement; or
  100         5.The property is a monetary instrument. For purposes of
  101  this subparagraph, the term “monetary instrument” means coin or
  102  currency of the United States or any other country; a traveler’s
  103  check; a personal check; a bank check; a cashier’s check; a
  104  money order; a bank draft of any country; an investment security
  105  or negotiable instrument in bearer form or in other form such
  106  that title passes upon delivery; a prepaid or stored value card
  107  or other device that is the equivalent of money and can be used
  108  to obtain cash, property, or services; or gold, silver, or
  109  platinum bullion or coins.
  110         (b) After property is seized pursuant to the Florida
  111  Contraband Forfeiture Act, regardless of whether the civil
  112  complaint has been filed, all settlements must be personally
  113  approved by the head of the law enforcement agency that seized
  114  the property. If the agency head is unavailable and a delay
  115  would adversely affect the settlement, approval may be given by
  116  a subordinate of the agency head who is designated to grant such
  117  approval Notwithstanding any other provision of the Florida
  118  Contraband Forfeiture Act, except the provisions of paragraph
  119  (a), contraband articles set forth in s. 932.701(2)(a)7. used in
  120  violation of any provision of the Florida Contraband Forfeiture
  121  Act, or in, upon, or by means of which any violation of the
  122  Florida Contraband Forfeiture Act has taken or is taking place,
  123  shall be seized and shall be forfeited subject to the provisions
  124  of the Florida Contraband Forfeiture Act.
  125         (c) If at least 90 days have elapsed since the initial
  126  seizure of the property and the seizing agency has failed to
  127  locate the owner after making a diligent effort, the seized
  128  property is deemed a contraband article that is subject to
  129  forfeiture under the Florida Contraband Forfeiture Act All
  130  rights to, interest in, and title to contraband articles used in
  131  violation of s. 932.702 shall immediately vest in the seizing
  132  law enforcement agency upon seizure.
  133         (d)1. The seizing agency may not use the seized property
  134  for any purpose until the rights to, interest in, and title to
  135  the seized property are perfected in accordance with the Florida
  136  Contraband Forfeiture Act. This section does not prohibit use or
  137  operation necessary for reasonable maintenance of seized
  138  property. Reasonable efforts shall be made to maintain seized
  139  property in such a manner as to minimize loss of value.
  140         2. Unless otherwise expressly agreed to in writing by the
  141  parties, the agency seeking forfeiture of the seized property is
  142  responsible for any damage to the property and any storage fees
  143  or maintenance costs applicable to the property. If more than
  144  one agency seeks forfeiture of the property, the division of
  145  liability under this subparagraph may be governed by the terms
  146  of an agreement between the agencies.
  147         (2)(a)When a seizure of property is made under the Florida
  148  Contraband Forfeiture Act, the seizing agency shall apply,
  149  within 10 business days after the date of the seizure, to a
  150  court of competent jurisdiction for an order determining whether
  151  probable cause exists for the seizure of the property. The
  152  application for the probable cause determination must be
  153  accompanied by a sworn affidavit and may be filed electronically
  154  by reliable electronic means.
  155         (b)The court must determine whether:
  156         1. The owner was arrested under paragraph (1)(a), and if
  157  not, whether an exception to the arrest requirement specified in
  158  paragraph (1)(a) applies; and
  159         2. Probable cause exists for the property seizure under the
  160  Florida Contraband Forfeiture Act.
  161         (c) If the court finds that the requirements specified in
  162  paragraph (1)(a) were satisfied and that probable cause exists
  163  for the seizure, the forfeiture may proceed as set forth in the
  164  Florida Contraband Forfeiture Act, and no additional probable
  165  cause determination is required unless the claimant requests an
  166  adversarial preliminary hearing as set forth in the act. Upon
  167  such a finding, the court shall issue a written order finding
  168  probable cause for the seizure and order the property held until
  169  the issue of a determination of title is resolved pursuant to
  170  the procedures defined in the act.
  171         (d) If the court finds that the requirements in paragraph
  172  (1)(a) were not satisfied or that probable cause does not exist
  173  for the seizure, any forfeiture hold, lien, lis pendens, or
  174  other civil encumbrance must be released within 5 days.
  175         (e) The court may seal any portion of the application and
  176  the record of any proceeding under the Florida Contraband
  177  Forfeiture Act which is exempt or confidential and exempt from
  178  s. 119.07(1) and s. 24(a), Art. I of the State Constitution or
  179  may otherwise be sealed pursuant to Rule 2.420, Florida Rules of
  180  Judicial Administration.
  181         Section 3. Subsection (4), paragraph (b) of subsection (5),
  182  paragraph (b) of subsection (6), subsections (8), (10), and (11)
  183  of section 932.704, Florida Statutes, are amended to read:
  184         932.704 Forfeiture proceedings.—
  185         (4) The seizing agency shall promptly proceed against the
  186  contraband article by filing a complaint in the circuit court
  187  within the jurisdiction where the seizure or the offense
  188  occurred, paying a filing fee of at least $1,000 and depositing
  189  a bond of $1,500 to the clerk of the court. Unless otherwise
  190  expressly agreed to in writing by the parties, the bond shall be
  191  payable to the claimant if the claimant prevails in the
  192  forfeiture proceeding and in any appeal.
  193         (5)
  194         (b) If no person entitled to notice requests an adversarial
  195  preliminary hearing, as provided in s. 932.703(3)(a)
  196  932.703(2)(a), the court, upon receipt of the complaint, shall
  197  review the complaint and the verified supporting affidavit to
  198  determine whether there was probable cause for the seizure. Upon
  199  a finding of probable cause, the court shall enter an order
  200  showing the probable cause finding.
  201         (6)
  202         (b) The complaint must, in addition to stating that which
  203  is required by s. 932.703(3)(a) and (b) 932.703(2)(a) and (b),
  204  as appropriate, describe the property; state the county, place,
  205  and date of seizure; state the name of the law enforcement
  206  agency holding the seized property; and state the name of the
  207  court in which the complaint will be filed.
  208         (8) Upon proof beyond a reasonable doubt clear and
  209  convincing evidence that the contraband article was being used
  210  in violation of the Florida Contraband Forfeiture Act, the court
  211  shall order the seized property forfeited to the seizing law
  212  enforcement agency. The final order of forfeiture by the court
  213  shall perfect in the law enforcement agency right, title, and
  214  interest in and to such property, subject only to the rights and
  215  interests of bona fide lienholders, and shall relate back to the
  216  date of seizure.
  217         (10) The court shall award reasonable attorney’s fees and
  218  costs, up to a limit of $2,000 $1,000, to the claimant at the
  219  close of the adversarial preliminary hearing if the court makes
  220  a finding of no probable cause. When the claimant prevails, at
  221  the close of forfeiture proceedings and any appeal, the court
  222  shall award reasonable trial attorney’s fees and costs to the
  223  claimant if the court finds that the seizing agency has not
  224  proceeded at any stage of the proceedings in good faith or that
  225  the seizing agency’s action which precipitated the forfeiture
  226  proceedings was a gross abuse of the agency’s discretion. The
  227  court may order the seizing agency to pay the awarded attorney’s
  228  fees and costs from the appropriate contraband forfeiture trust
  229  fund. Nothing in this subsection precludes any party from
  230  electing to seek attorney’s fees and costs under chapter 57 or
  231  other applicable law.
  232         (11)(a) The Department of Law Enforcement, in consultation
  233  with the Florida Sheriffs Association and the Florida Police
  234  Chiefs Association, shall develop guidelines and training
  235  procedures to be used by state and local law enforcement
  236  agencies and state attorneys in implementing the Florida
  237  Contraband Forfeiture Act. At least annually, each state or
  238  local law enforcement agency that seizes property for the
  239  purpose of forfeiture shall periodically review such seizures of
  240  assets made by the agency’s law enforcement officers, any
  241  settlements, and any forfeiture proceedings initiated by the law
  242  enforcement agency, to determine whether they such seizures,
  243  settlements, and forfeitures comply with the Florida Contraband
  244  Forfeiture Act and the guidelines adopted under this subsection.
  245  If the review suggests deficiencies, the state or local law
  246  enforcement agency shall promptly take action to comply with the
  247  Florida Contraband Forfeiture Act.
  248         (b) The determination as to of whether an agency will file
  249  a civil forfeiture action is must be the sole responsibility of
  250  the head of the agency or his or her designee.
  251         (c)(b) The determination as to of whether to seize currency
  252  must be made by supervisory personnel. The agency’s legal
  253  counsel must be notified as soon as possible after a
  254  determination is made.
  255         (d)The employment, salary, promotion, or other
  256  compensation of any law enforcement officer may not be dependent
  257  on the ability of the officer to meet a quota for seizures.
  258         (e)A seizing agency shall adopt and implement written
  259  policies, procedures, and training to ensure compliance with all
  260  applicable legal requirements regarding seizing, maintaining,
  261  and the forfeiture of property under the Florida Contraband
  262  Forfeiture Act.
  263         (f)When property is seized for forfeiture, the probable
  264  cause supporting the seizure must be promptly reviewed by
  265  supervisory personnel. The seizing agency’s legal counsel must
  266  be notified as soon as possible of all seizures and shall
  267  conduct a review to determine whether there is legal sufficiency
  268  to proceed with a forfeiture action.
  269         (g)Each seizing agency shall adopt and implement written
  270  policies and procedures promoting the prompt release of seized
  271  property as may be required by the act or by agency
  272  determination when there is no legitimate basis for holding
  273  seized property. To help ensure that property is not wrongfully
  274  held after seizure, each law enforcement agency must adopt
  275  written policies and procedures ensuring that all asserted
  276  claims of interest in seized property are promptly reviewed for
  277  potential validity.
  278         (h)The settlement of any forfeiture action must be
  279  consistent with the Florida Contraband Forfeiture Act and the
  280  policy of the seizing agency.
  281         (i)Law enforcement agency personnel involved in the
  282  seizure of property for forfeiture shall receive basic training
  283  and continuing education as required by the Florida Contraband
  284  Forfeiture Act. Each agency shall maintain records demonstrating
  285  each law enforcement officer’s compliance with this requirement.
  286  Among other things, the training must address the legal aspects
  287  of forfeiture, including, but not limited to, search and seizure
  288  and other constitutional considerations.
  289         Section 4. Subsection (3) and paragraph (c) of subsection
  290  (5) of section 932.7055, Florida Statutes, are amended to read:
  291         932.7055 Disposition of liens and forfeited property.—
  292         (3) If the forfeited property is subject to a lien
  293  preserved by the court as provided in s. 932.703(7)(b)
  294  932.703(6)(b), the agency shall:
  295         (a) Sell the property with the proceeds being used towards
  296  satisfaction of any liens; or
  297         (b) Have the lien satisfied prior to taking any action
  298  authorized by subsection (1).
  299         (5)
  300         (c) An agency or organization, other than the seizing
  301  agency, that wishes to receive such funds shall apply to the
  302  sheriff or chief of police for an appropriation and its
  303  application shall be accompanied by a written certification that
  304  the moneys will be used for an authorized purpose. Such requests
  305  for expenditures shall include a statement describing
  306  anticipated recurring costs for the agency for subsequent fiscal
  307  years. An agency or organization that receives money pursuant to
  308  this subsection shall provide an accounting for such moneys and
  309  shall furnish the same reports as an agency of the county or
  310  municipality that receives public funds. Such funds may be
  311  expended in accordance with the following procedures:
  312         1. Such funds may be used only for school resource officer,
  313  crime prevention, safe neighborhood, drug abuse education, or
  314  drug prevention programs or such other law enforcement purposes
  315  as the board of county commissioners or governing body of the
  316  municipality deems appropriate.
  317         2. Such funds shall not be a source of revenue to meet
  318  normal operating needs of the law enforcement agency.
  319         3. After July 1, 1992, and during every fiscal year
  320  thereafter, Any local law enforcement agency that acquires at
  321  least $15,000 pursuant to the Florida Contraband Forfeiture Act
  322  within a fiscal year must expend or donate no less than 25 15
  323  percent of such proceeds for the support or operation of any
  324  drug treatment, drug abuse education, drug prevention, crime
  325  prevention, safe neighborhood, or school resource officer
  326  program or programs program(s). The local law enforcement agency
  327  has the discretion to determine which program or programs
  328  program(s) will receive the designated proceeds.
  329  
  330  Notwithstanding the drug abuse education, drug treatment, drug
  331  prevention, crime prevention, safe neighborhood, or school
  332  resource officer minimum expenditures or donations, the sheriff
  333  and the board of county commissioners or the chief of police and
  334  the governing body of the municipality may agree to expend or
  335  donate such funds over a period of years if the expenditure or
  336  donation of such minimum amount in any given fiscal year would
  337  exceed the needs of the county or municipality for such program
  338  or programs program(s). Nothing in this section precludes The
  339  minimum requirement for expenditure or donation of forfeiture
  340  proceeds in excess of the minimum amounts established in this
  341  subparagraph does not preclude expenditures or donations in
  342  excess of that amount herein.
  343         Section 5. Section 932.7061, Florida Statutes, is created
  344  to read:
  345         932.7061Reporting seized property for forfeiture.—
  346         (1)Every law enforcement agency shall submit an annual
  347  report to the Department of Law Enforcement indicating whether
  348  the agency has seized or forfeited property under the Florida
  349  Contraband Forfeiture Act. A law enforcement agency receiving or
  350  expending forfeited property or proceeds from the sale of
  351  forfeited property in accordance with the Florida Contraband
  352  Forfeiture Act shall submit a completed annual report by October
  353  10 documenting the receipts and expenditures. The report shall
  354  be submitted in an electronic form, maintained by the Department
  355  of Law Enforcement in consultation with the Office of Program
  356  Policy Analysis and Government Accountability, to the entity
  357  that has budgetary authority over such agency and to the
  358  Department of Law Enforcement. The annual report must, at a
  359  minimum, specify the type, approximate value, court case number,
  360  type of offense, disposition of property received, and amount of
  361  any proceeds received or expended.
  362         (2)The Department of Law Enforcement shall submit an
  363  annual report to the Office of Program Policy Analysis and
  364  Government Accountability compiling the information and data in
  365  the annual reports submitted by the law enforcement agencies.
  366  The annual report shall also contain a list of law enforcement
  367  agencies that have failed to meet the reporting requirements and
  368  a summary of any action taken against the noncomplying agency by
  369  the office of Chief Financial Officer.
  370         (3)The law enforcement agency and the entity having
  371  budgetary control over the law enforcement agency may not
  372  anticipate future forfeitures or proceeds therefrom in the
  373  adoption and approval of the budget for the law enforcement
  374  agency.
  375         Section 6. Section 932.7062, Florida Statutes, is created
  376  to read:
  377         932.7062Penalty for noncompliance with reporting
  378  requirements.—A seizing agency that fails to comply with the
  379  reporting requirements in s. 932.7061 is subject to a civil fine
  380  of $5,000, to be determined by the Chief Financial Officer and
  381  payable to the General Revenue Fund. However, such agency is not
  382  subject to the fine if, within 60 days after receipt of written
  383  notification from the Department of Law Enforcement of
  384  noncompliance with the reporting requirements of the Florida
  385  Contraband Forfeiture Act, the agency substantially complies
  386  with those requirements. The Department of Law Enforcement shall
  387  submit any substantial noncompliance to the office of Chief
  388  Financial Officer, which shall be responsible for the
  389  enforcement of this section.
  390         Section 7. Paragraphs (a) and (c) of subsection (9) of
  391  section 322.34, Florida Statutes, are amended to read:
  392         322.34 Driving while license suspended, revoked, canceled,
  393  or disqualified.—
  394         (9)(a) A motor vehicle that is driven by a person under the
  395  influence of alcohol or drugs in violation of s. 316.193 is
  396  subject to seizure and forfeiture under ss. 932.701-932.7062
  397  932.706 and is subject to liens for recovering, towing, or
  398  storing vehicles under s. 713.78 if, at the time of the offense,
  399  the person’s driver license is suspended, revoked, or canceled
  400  as a result of a prior conviction for driving under the
  401  influence.
  402         (c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when
  403  the seizing agency obtains a final judgment granting forfeiture
  404  of the motor vehicle under this section, 30 percent of the net
  405  proceeds from the sale of the motor vehicle shall be retained by
  406  the seizing law enforcement agency. The remaining 70 percent of
  407  the proceeds shall first be applied to payment of court costs,
  408  fines, and fees remaining due, and any remaining balance of
  409  proceeds and 70 percent shall be deposited in the General
  410  Revenue Fund for use by regional workforce boards in providing
  411  transportation services for participants of the welfare
  412  transition program. In a forfeiture proceeding under this
  413  section, the court may consider the extent that the family of
  414  the owner has other public or private means of transportation.
  415         Section 8. Paragraph (a) of subsection (4) of section
  416  323.001, Florida Statutes, is amended to read:
  417         323.001 Wrecker operator storage facilities; vehicle
  418  holds.—
  419         (4) The requirements for a written hold apply when the
  420  following conditions are present:
  421         (a) The officer has probable cause to believe the vehicle
  422  should be seized and forfeited under the Florida Contraband
  423  Forfeiture Act, ss. 932.701-932.7062 932.706;
  424         Section 9. Paragraph (b) of subsection (3) of section
  425  328.07, Florida Statutes, is amended to read:
  426         328.07 Hull identification number required.—
  427         (3)
  428         (b) If any of the hull identification numbers required by
  429  the United States Coast Guard for a vessel manufactured after
  430  October 31, 1972, do not exist or have been altered, removed,
  431  destroyed, covered, or defaced or the real identity of the
  432  vessel cannot be determined, the vessel may be seized as
  433  contraband property by a law enforcement agency or the division,
  434  and shall be subject to forfeiture pursuant to ss. 932.701
  435  932.7062 932.706. Such vessel may not be sold or operated on the
  436  waters of the state unless the division receives a request from
  437  a law enforcement agency providing adequate documentation or is
  438  directed by written order of a court of competent jurisdiction
  439  to issue to the vessel a replacement hull identification number
  440  which shall thereafter be used for identification purposes. No
  441  vessel shall be forfeited under the Florida Contraband
  442  Forfeiture Act when the owner unknowingly, inadvertently, or
  443  neglectfully altered, removed, destroyed, covered, or defaced
  444  the vessel hull identification number.
  445         Section 10. Paragraph (c) of subsection (2) of section
  446  817.625, Florida Statutes, is amended to read:
  447         817.625 Use of scanning device or reencoder to defraud;
  448  penalties.—
  449         (2)
  450         (c) Any person who violates subparagraph (a)1. or
  451  subparagraph (a)2. shall also be subject to the provisions of
  452  ss. 932.701-932.7062 932.706.
  453         Section 11. This act shall take effect July 1, 2016.