Florida Senate - 2017                       CS for CS for SB 776
       
       
        
       By the Committees on Communications, Energy, and Public
       Utilities; and Criminal Justice; and Senator Baxley
       
       
       
       
       579-02988-17                                           2017776c2
    1                        A bill to be entitled                      
    2         An act relating to the unlawful acquisition of utility
    3         services; amending s. 812.14, F.S.; revising the
    4         elements that constitute theft of utilities;
    5         clarifying that the presence of certain devices and
    6         alterations on the property of, and the actual
    7         possession by, a person constitutes prima facie
    8         evidence of a violation; clarifying that certain
    9         evidence of the manufacturing of a controlled
   10         substance in a leased dwelling constitutes prima facie
   11         evidence of a violation by an owner, lessor,
   12         sublessor; clarifying that specified circumstances
   13         create prima facie evidence of theft of utility
   14         services for the purpose of facilitating the
   15         manufacture of a controlled substance; revising such
   16         circumstances; specifying the types of damages that
   17         may be recovered as civil damages or restitution in a
   18         criminal case for damaging property of a utility or
   19         for the theft of electricity services; specifying the
   20         methods and bases used to determine and assess damages
   21         in a civil action or restitution in a criminal case
   22         for damaging property of a utility or for the theft of
   23         electricity services; providing an effective date.
   24          
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Section 812.14, Florida Statutes, is amended to
   28  read:
   29         812.14 Trespass and larceny with relation to utility
   30  fixtures; theft of utility services.—
   31         (1) As used in this section, “utility” includes any person,
   32  firm, corporation, association, or political subdivision,
   33  whether private, municipal, county, or cooperative, which is
   34  engaged in the sale, generation, provision, or delivery of gas,
   35  electricity, heat, water, oil, sewer service, telephone service,
   36  telegraph service, radio service, or telecommunication service.
   37         (2) A person may not It is unlawful to:
   38         (a) Willfully alter, tamper with, damage injure, or
   39  knowingly allow damage to a suffer to be injured any meter,
   40  meter seal, pipe, conduit, wire, line, cable, transformer,
   41  amplifier, or other apparatus or device belonging to a utility
   42  line service in such a manner as to cause loss or damage or to
   43  prevent any meter installed for registering electricity, gas, or
   44  water from registering the quantity which otherwise would pass
   45  through the same; to
   46         (b) Alter the index or break the seal of any such meter; in
   47  any way to
   48         (c) Hinder or interfere in any way with the proper action
   49  or accurate just registration of any such meter or device; or
   50         (d) Knowingly to use, waste, or allow suffer the waste of,
   51  by any means, of electricity, or gas, or water passing through
   52  any such meter, wire, pipe, or fitting, or other appliance or
   53  appurtenance connected with or belonging to any such utility,
   54  after the such meter, wire, pipe, or fitting, or other appliance
   55  or appurtenance has been tampered with, injured, or altered;.
   56         (e)(b)Connect Make or cause a to be made any connection
   57  with a any wire, main, service pipe or other pipes, appliance,
   58  or appurtenance in a such manner that uses as to use, without
   59  the consent of the utility, any service or any electricity, gas,
   60  or water;, or to
   61         (f) Cause a utility, without its consent, to supply any to
   62  be supplied any service or electricity, gas, or water from a
   63  utility to any person, firm, or corporation or any lamp, burner,
   64  orifice, faucet, or other outlet whatsoever, without reporting
   65  the such service being reported for payment; or
   66         (g) Cause, without the consent of a utility, such
   67  electricity, gas, or water to bypass passing through a meter
   68  provided by the utility; or and used for measuring and
   69  registering the quantity of electricity, gas, or water passing
   70  through the same.
   71         (h)(c) Use or receive the direct benefit from the use of a
   72  utility knowing, or under such circumstances that as would
   73  induce a reasonable person to believe, that the such direct
   74  benefits have resulted from any tampering with, altering of, or
   75  injury to any connection, wire, conductor, meter, pipe, conduit,
   76  line, cable, transformer, amplifier, or other apparatus or
   77  device owned, operated, or controlled by such utility, for the
   78  purpose of avoiding payment.
   79         (3) The presence on the property of and in the actual
   80  possession by of a person of any device or alteration that
   81  prevents affects the diversion or use of the services of a
   82  utility so as to avoid the registration of the such use of
   83  services by or on a meter installed by the utility or that
   84  avoids so as to otherwise avoid the reporting of the use of
   85  services such service for payment is prima facie evidence of the
   86  violation of subsection (2) this section by such person.;
   87  However, this presumption does not apply unless:
   88         (a) The presence of the such a device or alteration can be
   89  attributed only to a deliberate act in furtherance of an intent
   90  to avoid payment for utility services;
   91         (b) The person charged has received the direct benefit of
   92  the reduction of the cost of the such utility services; and
   93         (c) The customer or recipient of the utility services has
   94  received the direct benefit of the such utility service for at
   95  least one full billing cycle.
   96         (4) A person who willfully violates subsection (2)
   97  paragraph (2)(a), paragraph (2)(b), or paragraph (2)(c) commits
   98  theft, punishable as provided in s. 812.014.
   99         (5) It is unlawful for A person or entity that owns,
  100  leases, or subleases a property may not to permit a tenant or
  101  occupant to use utility services knowing, or under such
  102  circumstances as would induce a reasonable person to believe,
  103  that such utility services have been connected in violation of
  104  subsection (2) paragraph (2)(a), paragraph (2)(b), or paragraph
  105  (2)(c).
  106         (6) It is prima facie evidence that an owner, lessor, or
  107  sublessor intended It is prima facie evidence of a person’s
  108  intent to violate subsection (5) if:
  109         (a) A controlled substance and materials for manufacturing
  110  the controlled substance intended for sale or distribution to
  111  another were found in a dwelling or structure;
  112         (b) The dwelling or structure was has been visibly modified
  113  to accommodate the use of equipment to grow cannabis marijuana
  114  indoors, including, but not limited to, the installation of
  115  equipment to provide additional air conditioning, equipment to
  116  provide high-wattage lighting, or equipment for hydroponic
  117  cultivation; and
  118         (c) The person or entity that owned, leased, or subleased
  119  the dwelling or structure knew of, or did so under such
  120  circumstances as would induce a reasonable person to believe in,
  121  the presence of a controlled substance and materials for
  122  manufacturing a controlled substance in the dwelling or
  123  structure, regardless of whether the person or entity was
  124  involved in the manufacture or sale of a controlled substance or
  125  was in actual possession of the dwelling or structure.
  126         (7) An owner, lessor, or sublessor A person who willfully
  127  violates subsection (5) commits a misdemeanor of the first
  128  degree, punishable as provided in s. 775.082 or s. 775.083.
  129  Prosecution for a violation of subsection (5) does not preclude
  130  prosecution for theft pursuant to subsection (8) or s. 812.014.
  131         (8) Theft of utility services for the purpose of
  132  facilitating the manufacture of a controlled substance is theft,
  133  punishable as provided in s. 812.014.
  134         (9) It is prima facie evidence of a person’s intent to
  135  violate subsection (8) if:
  136         (a) The person committed theft of utility services
  137  resulting in a dwelling, as defined in s. 810.011, or a
  138  structure, as defined in s. 810.011, receiving unauthorized
  139  access to utility services;
  140         (b) A controlled substance and materials for manufacturing
  141  the controlled substance were found in the dwelling or
  142  structure; and
  143         (c) The person knew or should have known of the presence of
  144  the controlled substance and materials for manufacturing the
  145  controlled substance in the dwelling or structure, regardless of
  146  whether the person was involved in the manufacture of the
  147  controlled substance.
  148         (10) Whoever is found in a civil action to have violated
  149  this section is liable to the utility involved in an amount
  150  equal to 3 times the amount of services unlawfully obtained or
  151  $3,000, whichever is greater.
  152         (11)(a) For purposes of determining a defendant’s liability
  153  for civil damages under subsection (10) or criminal restitution
  154  for the theft of electricity, the amount of civil damages or a
  155  restitution order must include all of the following amounts:
  156         1.The costs to repair or replace damaged property owned by
  157  a utility, including reasonable labor costs.
  158         2. Reasonable costs for the use of specialized equipment to
  159  investigate or calculate the amount of unlawfully obtained
  160  electricity services, including reasonable labor costs.
  161         3. The amount of unlawfully obtained electricity services.
  162         (b) A prima facie showing of the amount of unlawfully
  163  obtained electricity services may be based on any methodology
  164  reasonably relied upon by a utility to estimate such loss. The
  165  methodology may consider the estimated start date of the theft
  166  and the estimated daily or hourly use of electricity. Once a
  167  prima facie showing has been made, the burden shifts to the
  168  defendant to demonstrate that the loss is other than that
  169  claimed by the utility.
  170         1. The estimated start date of a theft may be based upon
  171  one or more of the following:
  172         a. The date of an overload notification from a transformer,
  173  or the tripping of a transformer, which the utility reasonably
  174  believes was overloaded as a result of the theft of electricity.
  175         b. The date the utility verified a substantive difference
  176  between the amount of electricity used at a property and the
  177  amount billed to the account holder.
  178         c. The date the utility or a law enforcement officer
  179  located a tap or other device bypassing a meter.
  180         d. The date the utility or a law enforcement officer
  181  observed or verified meter tampering.
  182         e. The maturity of a cannabis crop found in a dwelling or
  183  structure using unlawfully obtained electricity services the
  184  utility or a law enforcement officer reasonably believes to have
  185  been grown in the dwelling or structure.
  186         f. The date the utility or a law enforcement agency
  187  received a report of suspicious activity potentially indicating
  188  the presence of the unlawful cultivation of cannabis in a
  189  dwelling or structure or the date a law enforcement officer or
  190  an employee or contractor of a utility observed such suspicious
  191  activity.
  192         g. The date when a utility observed a significant change in
  193  metered energy usage.
  194         h. The date when an account with the utility was opened for
  195  a property that receives both metered and unlawfully obtained
  196  electricity services.
  197         i. Any other fact or data reasonably relied upon by the
  198  utility to estimate the start date of a theft of electricity.
  199         2. The estimated average daily or hourly use of the
  200  electricity may be based upon any, or a combination, of the
  201  following:
  202         a. The load imposed by the fixtures, appliances, or
  203  equipment powered by unlawfully obtained electricity services.
  204         b. Recordings by the utility of the amount of electricity
  205  used by a property or the difference between the amount used and
  206  the amount billed.
  207         c. A comparison of the amount of electricity historically
  208  used by the property and the amount billed while the property
  209  was using unlawfully obtained electricity.
  210         d. A reasonable analysis of a meter that was altered or
  211  tampered with to prevent the creation of an accurate record of
  212  the amount of electricity obtained.
  213         e. Any other fact or data reasonably relied upon by
  214  utilities to estimate the amount of unlawfully obtained
  215  electricity services.
  216         (12) A court order requiring a defendant to pay restitution
  217  for damages to the property of a utility or for the theft of
  218  electricity need only be based on a conviction for a criminal
  219  offense that is causally connected to the damages or losses and
  220  bears a significant relationship to those damages or losses. A
  221  conviction for a violation of this section is not a prerequisite
  222  for a restitution order. Criminal offenses that bear a
  223  significant relationship and are causally connected to a
  224  violation of this section include, but are not limited to,
  225  offenses relating to the unlawful cultivation of cannabis in a
  226  dwelling or structure if the theft of electricity was used to
  227  facilitate the growth of the cannabis.
  228         (13) The amount of restitution that a defendant may be
  229  ordered to pay is not limited by the monetary threshold of any
  230  criminal charge on which the restitution order is based.
  231         (14)(11) This section does not apply to licensed and
  232  certified electrical contractors while such persons are
  233  performing usual and ordinary service in accordance with
  234  recognized standards.
  235         Section 2. This act shall take effect October 1, 2017.
  236