Florida Senate - 2018 COMMITTEE AMENDMENT Bill No. CS for SB 1044 Ì654858ZÎ654858 LEGISLATIVE ACTION Senate . House . . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Rules (Book) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. This act may be cited as the “Civil Cause of 6 Action for Victims of Human Trafficking Act.” 7 Section 2. Section 787.061, Florida Statutes, is created to 8 read: 9 787.061 Civil actions by victims of human trafficking.— 10 (1) FINDINGS.-The Legislature finds that, to achieve the 11 intent of the Legislature relating to human trafficking 12 expressed in s. 787.06(1)(d), it is necessary to provide a civil 13 cause of action for the recovery of compensatory and punitive 14 damages, attorney fees, and costs. 15 (2) DEFINITIONS.—As used in this section, the term: 16 (a) “Facilitator” means a person who knowingly, or in 17 willful blindness, assists or provides resources, goods, or 18 services to a trafficker which assist or enable the trafficker 19 to carry out human trafficking. The term does not include a 20 person who facilitates human trafficking as a result of force, 21 threat, or coercion. 22 (b) “Human trafficking” has the same meaning as provided in 23 s. 787.06. 24 (c) “Trafficker” means any person who knowingly engages in 25 human trafficking, attempts to engage in human trafficking, or 26 benefits financially by receiving anything of value from 27 participation in a venture that has subjected a person to human 28 trafficking. 29 (d) “Trust fund” means the Trust Fund for Victims of Human 30 Trafficking and Prevention created in s. 787.0611. 31 (e) “Venture” means any group of two or more individuals 32 associated in fact, whether or not a legal entity. 33 (f) “Victim of human trafficking” means a person subjected 34 to coercion, as defined in s. 787.06, for the purpose of being 35 used in human trafficking; a child under 18 years of age 36 subjected to human trafficking; or an individual subjected to 37 human trafficking as defined by federal law. 38 (g) “Willful blindness” exists when a person has knowledge 39 of information that would raise suspicions in a reasonable 40 person and he or she deliberately refrains from obtaining 41 confirmation of or acting on the information because he or she 42 wants to remain in ignorance, such that knowledge of the facts 43 avoided can reasonably and fairly be imputed to the person who 44 avoided confirming it. 45 (3) CIVIL CAUSE OF ACTION.— 46 (a) A victim of human trafficking has a civil cause of 47 action against the trafficker or facilitator who victimized her 48 or him and may recover damages as provided in this section. 49 (b) The action may be brought in any court of competent 50 jurisdiction, and the standard of proof is the greater weight of 51 the evidence, but the standard of proof for punitive damages 52 under this section is clear and convincing evidence. 53 (c) A victim who prevails in any such action is entitled to 54 recover economic and noneconomic damages, penalties, punitive 55 damages, reasonable attorney fees, reasonable investigative 56 expenses, and costs. 57 1. Economic damages include, but are not limited to, past 58 and future medical and mental health expenses; repatriation 59 expenses, when a victim elects repatriation; and all other 60 reasonable costs and expenses incurred by the victim in the past 61 or estimated to be incurred by the victim in the future as a 62 result of the human trafficking. 63 2. Noneconomic damages include pain and suffering, 64 inconvenience, physical impairment, mental anguish, 65 disfigurement, loss of capacity for enjoyment of life, and other 66 nonfinancial losses. 67 (d) The remedies provided in this section are in addition 68 to and cumulative with other legal and administrative remedies 69 available to victims of human trafficking, except that a victim 70 may not recover under both this section and s. 772.104(2). If a 71 parent or legal guardian knowingly or through willful blindness 72 trafficked the victim, facilitated such trafficking, or 73 otherwise participated in the human trafficking of the victim, 74 such parent or legal guardian is not entitled to damages or 75 distributions under this section. 76 (e) If a victim prevails in an action under this section, 77 in addition to any other award imposed, the court shall assess a 78 civil penalty against the defendant in the amount of $50,000. 79 This penalty is in addition to and not in lieu of any other 80 damage award. The civil penalty must be assessed by the court 81 and may not be disclosed to the jury. The entire $50,000 civil 82 penalty shall be deposited into the trust fund unless the 83 proceeds become subject to equitable distribution under 84 paragraph (g). 85 (f) If a victim prevails in an action under this section, 86 and if one or more law enforcement agencies rescued the victim 87 or stopped the abuse or exploitation of a victim on the property 88 where it occurred, the court shall assess a civil penalty 89 against the defendant in the amount of $50,000 and award the 90 penalty to such law enforcement agencies to fund future efforts 91 to combat human trafficking. This penalty is in addition to, and 92 not in lieu of, any other damage award or civil penalty. The 93 court shall equitably distribute this civil penalty among the 94 law enforcement agencies. The entire $50,000 civil penalty shall 95 be distributed to the law enforcement agencies unless the 96 proceeds become subject to equitable distribution under 97 paragraph (g). 98 (g) If an action brought under this section is either 99 settled before a jury verdict or the victim is unable to recover 100 the full amount of the compensatory damages caused by the human 101 trafficking, the court must determine the percentage of the 102 victim’s damages that were recovered, after deducting the 103 victim’s reasonable and necessary out-of-pocket expenses, but 104 before deducting attorney fees, and that same percentage of 105 $50,000 shall be paid from the recovery to the trust fund. If 106 one or more law enforcement agencies are entitled to a civil 107 penalty under paragraph (f), that same percentage of $50,000 108 shall be paid from the recovery to the law enforcement agencies 109 to fund future efforts to combat human trafficking. 110 (h) The court shall have specific authority to consolidate 111 civil actions for the same trafficker or facilitator for the 112 purpose of case resolution and aggregate jurisdiction. 113 (i) Notwithstanding any other law to the contrary, the 114 amount of punitive damages awarded under this section shall be 115 equally divided between the victim and the trust fund. 116 (j) Moneys collected from penalties, damages, or other 117 costs imposed by this section which are to be deposited into the 118 trust fund shall be remitted to the Department of Revenue for 119 deposit into the Department of Law Enforcement Trust Fund for 120 Victims of Human Trafficking and Prevention. 121 (4) STATUTE OF LIMITATIONS.—The statutes of limitations as 122 specified in s. 95.11(7) and (9) are applicable to actions 123 brought under this section. 124 (5) AFFIRMATIVE DEFENSE.— 125 (a) In any action brought under this section against the 126 owner or operator of a public food service or lodging 127 establishment based on a claim of vicarious liability for an 128 employee’s conduct, it is an affirmative defense to punitive 129 damages recoverable under such claim if the owner or operator 130 proves by the greater weight of evidence that: 131 1. Its personnel have been trained to identify and report 132 suspected human trafficking activity in accordance with s. 133 509.210 and rules adopted thereunder. 134 2. The owner or operator had in place an employee protocol 135 or employee code of conduct to detect and report suspected human 136 trafficking activity to appropriate law enforcement authorities, 137 which may include the National Human Trafficking Hotline, the 138 United States Department of Justice Hotline, the Florida Abuse 139 Hotline, or local law enforcement authorities. 140 3. If the victim of human trafficking was a minor at the 141 time of the trafficking, the owner or operator exercised 142 reasonable care and diligence, screening, training, overseeing, 143 and supervising the employee, and exercised reasonable care and 144 diligence in its compliance with the anti-human-trafficking 145 protocols and training required by this section. 146 (b) If the victim of human trafficking was an adult at the 147 time of the trafficking, the affirmative defense provided in 148 this subsection may be overcome with proof by clear and 149 convincing evidence that the officers, directors, or managers of 150 the owner or operator of the public food service or lodging 151 establishment knowingly, or in willful blindness, condoned, 152 ratified, permitted, caused, or consented to the conduct 153 constituting human trafficking or the facilitation of such 154 trafficking or failed to use reasonable care and diligence in 155 its compliance with the anti-human-trafficking protocols and 156 training required by this section. 157 Section 3. Subsection (4) is added to section 772.104, 158 Florida Statutes, to read: 159 772.104 Civil cause of action.— 160 (4) This section does not apply to a cause of action that 161 may be brought under s. 787.061. 162 Section 4. Section 509.210, Florida Statutes, is created to 163 read: 164 509.210 Training of public food service and lodging 165 establishment personnel regarding human trafficking.— 166 (1) In consultation with the Attorney General, human 167 trafficking victim advocacy organizations, and state and 168 national restaurant and lodging associations, the division shall 169 adopt by rule one or more educational programs designed to train 170 employees of public food service and lodging establishments in 171 the identification and reporting of suspected human trafficking 172 activity. The owner or operator of a public food service or 173 lodging establishment may also adopt its own educational program 174 for this purpose, which must be submitted to the division and 175 approved by it for the owner’s or operator’s use. The division 176 shall approve such a program for the use by the owner or 177 operator and its affiliated establishments if it is determined 178 to be at least as comprehensive and effective as the other 179 programs adopted by the division by rule. The rule must require 180 the owner or operator of each public food service or lodging 181 establishment to train those classes of employee reasonably 182 expected to routinely interact with guests, using an approved 183 educational program, within a reasonable time after hiring, and 184 at appropriate intervals thereafter, and to maintain 185 documentation of such training for routine inspection. If the 186 owner or operator fails to comply with the rule’s requirements, 187 the division shall impose administrative sanctions pursuant to 188 s. 509.261. 189 (2) All public food service and lodging establishments 190 shall provide the division with proof of employee training upon 191 request, including, but not limited to, at the time of any 192 division inspection of the establishment. Proof of training for 193 each employee shall include the name, date of birth, and job 194 title of the trained employee, the date the training occurred, 195 and the approved educational program used. 196 Section 5. The Division of Hotels and Restaurants of the 197 Department of Business and Professional Regulation may adopt 198 emergency rules pursuant to s. 120.54, Florida Statutes, to 199 implement s. 509.210, Florida Statutes, as created by this act. 200 The Legislature finds emergency rulemaking power necessary for 201 the preservation of the rights and welfare of the people of 202 Florida and to address the scourge of human trafficking in our 203 state. The adoption of emergency rules pursuant to this section 204 is exempt from s. 120.54(4)(a), Florida Statutes. 205 Section 6. Subsections (7) and (9) of section 95.11, 206 Florida Statutes, are amended to read: 207 95.11 Limitations other than for the recovery of real 208 property.—Actions other than for recovery of real property shall 209 be commenced as follows: 210 (7) FOR INTENTIONAL TORTS BASED ON ABUSE.—An action founded 211 on alleged abuse, as defined in s. 39.01, s. 415.102, or s. 212 984.03,
orincest, as defined in s. 826.04, or human 213 trafficking, as defined in s. 787.06, may be commenced at any 214 time within 7 years after the age of majority, or within 4 years 215 after the injured person leaves the dependency of the abuser, or 216 within 4 years from the time of discovery by the injured party 217 of both the injury and the causal relationship between the 218 injury and the abuse, whichever occurs later. 219 (9) SEXUAL BATTERY OFFENSES ON VICTIMS UNDER AGE 16.—An 220 action related to an act constituting a violation of s. 794.011 221 or brought pursuant to s. 787.061 involving a victim who was 222 under the age of 16 at the time of the act may be commenced at 223 any time. This subsection applies to any such action other than 224 one which would have been time barred on or before July 1, 2010. 225 Section 7. This act shall take effect October 1, 2018. 226 227 ================= T I T L E A M E N D M E N T ================ 228 And the title is amended as follows: 229 Delete everything before the enacting clause 230 and insert: 231 A bill to be entitled 232 An act relating to victims of human trafficking; 233 providing a short title; creating s. 787.061, F.S.; 234 providing legislative findings; defining terms; 235 providing a civil cause of action for victims of human 236 trafficking against a trafficker or facilitator; 237 providing procedures and requirements for bringing a 238 claim; providing for damages, penalties, punitive 239 damages, attorney fees, expenses, and costs; requiring 240 a court to impose civil penalties in certain 241 circumstances; providing for the deposit or 242 distribution of civil penalties; requiring the equal 243 distribution of punitive damages between victims and a 244 specified trust fund; requiring the remittance of 245 certain collected moneys to the Department of Revenue 246 for deposit into a certain trust fund; providing that 247 such actions are subject to specified statutes of 248 limitations; providing an affirmative defense for 249 owners or operators of public lodging establishments 250 under certain circumstances; amending s. 772.104, 251 F.S.; specifying that certain provisions concerning 252 civil actions for criminal practices do not apply to 253 actions that may be brought under s. 787.061, F.S.; 254 creating s. 509.210, F.S.; requiring educational 255 programs for employees of public food service and 256 lodging establishments regarding human trafficking; 257 specifying proof of compliance requirements for 258 establishments; requiring rulemaking; providing 259 emergency rulemaking authority and an exemption from 260 specified provisions for the Division of Hotels and 261 Restaurants; amending s. 95.11, F.S.; conforming 262 provisions to changes made by the act; providing an 263 effective date.