Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 776
       
       
       
       
       
       
                                Ì539650,Î539650                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/21/2017           .                                
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       The Committee on Criminal Justice (Baxley) recommended the
       following:
       
    1         Senate Substitute for Amendment (319480) (with title
    2  amendment)
    3  
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. Section 812.14, Florida Statutes, is amended to
    7  read:
    8         812.14 Trespass and larceny with relation to utility
    9  fixtures; theft of utility services.—
   10         (1) As used in this section, “utility” includes any person,
   11  firm, corporation, association, or political subdivision,
   12  whether private, municipal, county, or cooperative, which is
   13  engaged in the sale, generation, provision, or delivery of gas,
   14  electricity, heat, water, oil, sewer service, telephone service,
   15  telegraph service, radio service, or telecommunication service.
   16         (2) A person may not It is unlawful to:
   17         (a) Willfully alter, tamper with, damage injure, or
   18  knowingly allow damage to a suffer to be injured any meter,
   19  meter seal, pipe, conduit, wire, line, cable, transformer,
   20  amplifier, or other apparatus or device belonging to a utility
   21  line service in such a manner as to cause loss or damage or to
   22  prevent any meter installed for registering electricity, gas, or
   23  water from registering the quantity which otherwise would pass
   24  through the same; to
   25         (b) Alter the index or break the seal of any such meter; in
   26  any way to
   27         (c) Hinder or interfere in any way with the proper action
   28  or accurate just registration of any such meter or device; or
   29         (d) Knowingly to use, waste, or allow suffer the waste, by
   30  any means, of electricity, or gas, or water passing through any
   31  such meter, wire, pipe, or fitting, or other appliance or
   32  appurtenance connected with or belonging to any such utility,
   33  after the such meter, wire, pipe, or fitting, or other appliance
   34  or appurtenance has been tampered with, injured, or altered;.
   35         (e)(b)Connect Make or cause a to be made any connection
   36  with a any wire, main, service pipe or other pipes, appliance,
   37  or appurtenance in a such manner that uses as to use, without
   38  the consent of the utility, any service or any electricity, gas,
   39  or water;, or to
   40         (f) Cause a utility, without its consent, to supply any to
   41  be supplied any service or electricity, gas, or water from a
   42  utility to any person, firm, or corporation or any lamp, burner,
   43  orifice, faucet, or other outlet whatsoever, without reporting
   44  the such service being reported for payment; or
   45         (g) Cause, without the consent of a utility, such
   46  electricity, gas, or water to bypass passing through a meter
   47  provided by the utility and used for measuring and registering
   48  the quantity of electricity, gas, or water passing through the
   49  same; or.
   50         (h)(c) Use or receive the direct benefit from the use of a
   51  utility knowing, or under such circumstances that as would
   52  induce a reasonable person to believe, that the such direct
   53  benefits have resulted from any tampering with, altering of, or
   54  injury to any connection, wire, conductor, meter, pipe, conduit,
   55  line, cable, transformer, amplifier, or other apparatus or
   56  device owned, operated, or controlled by such utility, for the
   57  purpose of avoiding payment.
   58         (3)  The presence on the property of and in the actual
   59  possession by of a person of any device or alteration that
   60  prevents affects the diversion or use of the services of a
   61  utility so as to avoid the registration of the such use of
   62  services by or on a meter installed by the utility or that
   63  avoids so as to otherwise avoid the reporting of the use of
   64  services such service for payment is prima facie evidence of the
   65  violation of subsection (2) this section by such person.;
   66  However, this presumption does not apply unless:
   67         (a) The presence of the such a device or alteration can be
   68  attributed only to a deliberate act in furtherance of an intent
   69  to avoid payment for utility services;
   70         (b) The person charged has received the direct benefit of
   71  the reduction of the cost of the such utility services; and
   72         (c) The customer or recipient of the utility services has
   73  received the direct benefit of the such utility service for at
   74  least one full billing cycle.
   75         (4) A person who willfully violates subsection (2)
   76  paragraph (2)(a), paragraph (2)(b), or paragraph (2)(c) commits
   77  grand theft, punishable as provided in s. 812.014.
   78         (5) It is unlawful for A person or entity that owns,
   79  leases, or subleases a property may not to permit a tenant or
   80  occupant to use utility services knowing, or under such
   81  circumstances as would induce a reasonable person to believe,
   82  that such utility services have been connected in violation of
   83  subsection (2) paragraph (2)(a), paragraph (2)(b), or paragraph
   84  (2)(c).
   85         (6) It is prima facie evidence that an owner, lessor, or
   86  sublessor intended It is prima facie evidence of a person’s
   87  intent to violate subsection (5) if:
   88         (a) A controlled substance and materials for manufacturing
   89  the controlled substance intended for sale or distribution to
   90  another were found in a dwelling or structure;
   91         (b) The dwelling or structure was has been visibly modified
   92  to accommodate the use of equipment to grow cannabis marijuana
   93  indoors, including, but not limited to, the installation of
   94  equipment to provide additional air conditioning, equipment to
   95  provide high-wattage lighting, or equipment for hydroponic
   96  cultivation; and
   97         (c) The person or entity that owned, leased, or subleased
   98  the dwelling or structure knew of, or did so under such
   99  circumstances as would induce a reasonable person to believe in,
  100  the presence of a controlled substance and materials for
  101  manufacturing a controlled substance in the dwelling or
  102  structure, regardless of whether the person or entity was
  103  involved in the manufacture or sale of a controlled substance or
  104  was in actual possession of the dwelling or structure.
  105         (7) An owner, lessor, or sublessor A person who willfully
  106  violates subsection (5) commits a misdemeanor of the first
  107  degree, punishable as provided in s. 775.082 or s. 775.083.
  108  Prosecution for a violation of subsection (5) does not preclude
  109  prosecution for theft pursuant to subsection (8) or s. 812.014.
  110         (8) Theft of utility services for the purpose of
  111  facilitating the manufacture of a controlled substance is grand
  112  theft, punishable as provided in s. 812.014.
  113         (9) It is prima facie evidence of a person’s intent to
  114  violate subsection (8) if:
  115         (a) The person committed theft of utility services
  116  resulting in a dwelling, as defined in s. 810.011, or a
  117  structure, as defined in s. 810.011, receiving unauthorized
  118  access to utility services;
  119         (b) A controlled substance and materials for manufacturing
  120  the controlled substance were found in the dwelling or
  121  structure; and
  122         (c) The person knew or should have known of the presence of
  123  the controlled substance and materials for manufacturing the
  124  controlled substance in the dwelling or structure, regardless of
  125  whether the person was involved in the manufacture of the
  126  controlled substance.
  127         (10) Whoever is found in a civil action to have violated
  128  this section is liable to the utility involved in an amount
  129  equal to 3 times the amount of services unlawfully obtained or
  130  $3,000, whichever is greater.
  131         (11)(a) For purposes of determining a defendant’s liability
  132  for civil damages under subsection (10) or criminal restitution
  133  for the theft of electricity, the amount of civil damages or a
  134  restitution order must include all of the following amounts:
  135         1.The costs to repair or replace damaged property owned by
  136  a utility, including reasonable labor costs.
  137         2. Reasonable costs for the use of specialized equipment to
  138  investigate or calculate the amount of unlawfully obtained
  139  electricity services, including reasonable labor costs.
  140         3. The amount of unlawfully obtained electricity services.
  141         (b) A prima facie showing of the amount of unlawfully
  142  obtained electricity services may be based on any methodology
  143  reasonably relied upon by utilities to estimate such losses. The
  144  methodology may consider the estimated start date of the theft
  145  and the estimated daily or hourly use of electricity. Once a
  146  prima facie showing has been made, the burden shifts to the
  147  defendant to demonstrate that the loss is other than that
  148  claimed by the utility.
  149         1. The estimated start date of a theft may be based upon
  150  one or more of the following:
  151         a. The date of an overload notification from a transformer,
  152  or the tripping of a transformer, that the utility reasonably
  153  believes was overloaded as a result of the theft of electricity.
  154         b. The date the utility verified a substantive difference
  155  between the amount of electricity used at a property and the
  156  amount billed to the accountholder.
  157         c. The date the utility or a law enforcement officer
  158  located a tap or other device bypassing a meter.
  159         d. The date the utility or a law enforcement officer
  160  observed or verified meter tampering.
  161         e. The maturity of a cannabis crop found in a dwelling or
  162  structure using unlawfully obtained electricity services the
  163  utility or a law enforcement officer reasonably believes to have
  164  been grown in the dwelling or structure.
  165         f. The date the utility or a law enforcement agency
  166  received a report of suspicious activity potentially indicating
  167  the presence of the unlawful cultivation of cannabis in a
  168  dwelling or structure or the date a law enforcement officer or
  169  an employee or contractor of a utility observes such suspicious
  170  activity.
  171         g. The date when a utility observes a significant change in
  172  metered energy usage.
  173         h. The date when an account with the utility was opened for
  174  a property that receives both metered and unlawfully obtained
  175  electricity services.
  176         i. Any other facts or data reasonably relied upon by
  177  utilities to estimate the start date of a theft of electricity.
  178         2. The estimated average daily or hourly use of the
  179  electricity may be based upon any, or a combination, of the
  180  following:
  181         a. The load imposed by the fixtures, appliances, or
  182  equipment powered by unlawfully obtained electricity services.
  183         b. Recordings by the utility of the amount of electricity
  184  used by a property or the difference between the amount used and
  185  the amount billed.
  186         c. A comparison of the amount of electricity historically
  187  used by the property and the amount billed while the property
  188  was using unlawfully obtained electricity.
  189         d. A reasonable analysis of a meter that was altered or
  190  tampered with to prevent the creation of an accurate record of
  191  the amount of electricity obtained.
  192         e. Any other facts or data reasonably relied upon by
  193  utilities to estimate the amount of unlawfully obtained
  194  electricity services.
  195         (12) A court order requiring a defendant to pay restitution
  196  for damages to the property of a utility or for the theft of
  197  electricity need only be based on a conviction for a criminal
  198  offense that is causally connected to the damages or losses and
  199  bears a significant relationship to those damages or losses. A
  200  conviction for a violation of this section is not a prerequisite
  201  for a restitution order. Criminal offenses that bear a
  202  significant relationship and are causally connected to a
  203  violation of this section include, but are not limited to,
  204  offenses relating to the unlawful cultivation of cannabis in a
  205  dwelling or structure if the theft of electricity was used to
  206  facilitate the growth of the cannabis.
  207         (13) The amount of restitution that a defendant may be
  208  ordered to pay is not limited by the monetary threshold of any
  209  criminal charge on which the restitution order is based.
  210         (14)(11) This section does not apply to licensed and
  211  certified electrical contractors while such persons are
  212  performing usual and ordinary service in accordance with
  213  recognized standards.
  214         Section 2. Paragraph (c) of subsection (2) of section
  215  812.014, Florida Statutes, is amended to read:
  216         812.014 Theft.—
  217         (2)
  218         (c) It is grand theft of the third degree and a felony of
  219  the third degree, punishable as provided in s. 775.082, s.
  220  775.083, or s. 775.084, if the property stolen is:
  221         1. Valued at $300 or more, but less than $5,000.
  222         2. Valued at $5,000 or more, but less than $10,000.
  223         3. Valued at $10,000 or more, but less than $20,000.
  224         4. A will, codicil, or other testamentary instrument.
  225         5. A firearm.
  226         6. A motor vehicle, except as provided in paragraph (a).
  227         7. Any commercially farmed animal, including any animal of
  228  the equine, bovine, or swine class or other grazing animal; a
  229  bee colony of a registered beekeeper; and aquaculture species
  230  raised at a certified aquaculture facility. If the property
  231  stolen is aquaculture species raised at a certified aquaculture
  232  facility, then a $10,000 fine shall be imposed.
  233         8. Any fire extinguisher.
  234         9. Any amount of citrus fruit consisting of 2,000 or more
  235  individual pieces of fruit.
  236         10. Taken from a designated construction site identified by
  237  the posting of a sign as provided for in s. 810.09(2)(d).
  238         11. Any stop sign.
  239         12. Anhydrous ammonia.
  240         13. Any amount of a controlled substance as defined in s.
  241  893.02. Notwithstanding any other law, separate judgments and
  242  sentences for theft of a controlled substance under this
  243  subparagraph and for any applicable possession of controlled
  244  substance offense under s. 893.13 or trafficking in controlled
  245  substance offense under s. 893.135 may be imposed when all such
  246  offenses involve the same amount or amounts of a controlled
  247  substance.
  248         14.Utility services, in a manner as specified in s.
  249  812.14.
  250  
  251  However, if the property is stolen within a county that is
  252  subject to a state of emergency declared by the Governor under
  253  chapter 252, the property is stolen after the declaration of
  254  emergency is made, and the perpetration of the theft is
  255  facilitated by conditions arising from the emergency, the
  256  offender commits a felony of the second degree, punishable as
  257  provided in s. 775.082, s. 775.083, or s. 775.084, if the
  258  property is valued at $5,000 or more, but less than $10,000, as
  259  provided under subparagraph 2., or if the property is valued at
  260  $10,000 or more, but less than $20,000, as provided under
  261  subparagraph 3. As used in this paragraph, the term “conditions
  262  arising from the emergency” means civil unrest, power outages,
  263  curfews, voluntary or mandatory evacuations, or a reduction in
  264  the presence of or the response time for first responders or
  265  homeland security personnel. For purposes of sentencing under
  266  chapter 921, a felony offense that is reclassified under this
  267  paragraph is ranked one level above the ranking under s.
  268  921.0022 or s. 921.0023 of the offense committed.
  269         Section 3. This act shall take effect October 1, 2017.
  270  
  271  ================= T I T L E  A M E N D M E N T ================
  272  And the title is amended as follows:
  273         Delete everything before the enacting clause
  274  and insert:
  275                        A bill to be entitled                      
  276         An act relating to the unlawful acquisition of utility
  277         services; amending s. 812.14, F.S.; revising the
  278         elements that constitute theft of utilities;
  279         clarifying that the presence of certain devices and
  280         alterations on the property of, and the actual
  281         possession by, a person constitutes prima facie
  282         evidence of a violation; clarifying that certain
  283         evidence of controlled substance manufacture in a
  284         leased dwelling constitutes prima facie evidence of a
  285         violation by an owner, lessor, sublessor, or a person
  286         acting on behalf of such persons; clarifying that
  287         specified circumstances create prima facie evidence of
  288         theft of utility services for the purpose of
  289         facilitating the manufacture of a controlled
  290         substance; revising such circumstances; specifying the
  291         types of damages that may be recovered in as civil
  292         damages or restitution in a criminal case for damaging
  293         property of a utility or for the theft of electricity
  294         services; specifying the methods and bases used to
  295         determine and assess damages in a civil action or
  296         restitution in a criminal case for damaging property
  297         of a utility or for the theft of electricity services;
  298         making technical changes; amending s. 812.014, F.S.;
  299         conforming provisions to changes made by the act;
  300         providing an effective date.