Florida Senate - 2018                          SENATOR AMENDMENT
       Bill No. CS for HB 1301
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/OO/3R         .                                
             03/09/2018 07:48 PM       .                                

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