Florida Senate - 2021                                     SB 410
       By Senator Rodriguez
       39-00282-21                                            2021410__
    1                        A bill to be entitled                      
    2         An act relating to materials harmful to minors;
    3         amending s. 847.001, F.S.; revising the definitions of
    4         the terms “child pornography,” “harmful to minors,”
    5         “obscene,” and “person”; amending s. 847.012, F.S.;
    6         prohibiting a person from selling or renting specified
    7         materials to a minor for monetary consideration;
    8         prohibiting a person from loaning specified materials
    9         to a minor for any reason; requiring school districts
   10         to proactively remove specified materials; requiring
   11         school districts to remove such materials independent
   12         of a parent or resident complaint; amending s.
   13         1002.20, F.S.; providing that a public school student
   14         may be exposed to certain teaching only in accordance
   15         with a specified procedure; making a technical change;
   16         amending s. 1003.42, F.S.; requiring school districts
   17         or specified schools to notify and request the written
   18         consent of parents before the teaching of reproductive
   19         health or any sexually transmitted disease;
   20         prohibiting schools from allowing students to be
   21         exposed to such teaching without the written consent
   22         of their parent; prohibiting a student whose parent
   23         does not give such written consent from being
   24         penalized; amending s. 1006.28, F.S.; adding certain
   25         materials to the policy district school boards are
   26         required to adopt which allows certain objections from
   27         parents or county residents; requiring district school
   28         boards to annually review specified materials and
   29         immediately discontinue the use of any found to be
   30         inappropriate or unsuitable, regardless of whether a
   31         complaint was received; authorizing a student’s parent
   32         or a county resident to contest on specified grounds a
   33         district school board’s adoption of certain
   34         instructional material; specifying a certain petition
   35         to be filed and the form required for the filing;
   36         requiring the school board to make the form available
   37         to the public and to publish the form on the school
   38         district’s website; requiring the school board to
   39         grant the petition or refer the matter to a hearing
   40         within a certain timeframe; providing that an
   41         administrative law judge has final order authority to
   42         rule on the petition; providing for the award of
   43         attorney fees and costs under certain circumstances;
   44         reenacting ss. 92.561(1) and 288.1254(1)(b) and (j),
   45         F.S., relating to the prohibition against reproducing
   46         child pornography and the exclusion of obscene content
   47         under the entertainment industry financial incentive
   48         program, respectively, to incorporate the amendments
   49         made to s. 847.001, F.S., in references thereto;
   50         providing effective dates.
   52  Be It Enacted by the Legislature of the State of Florida:
   54         Section 1. Effective October 1, 2021, subsections (3), (6),
   55  (10), and (11) of section 847.001, Florida Statutes, are amended
   56  to read:
   57         847.001 Definitions.—As used in this chapter, the term:
   58         (3) “Child pornography” means any image depicting or text
   59  describing a minor engaged in sexual conduct.
   60         (6) “Harmful to minors” means any reproduction, imitation,
   61  characterization, description, exhibition, presentation, or
   62  representation, of whatever kind or form, depicting nudity,
   63  sexual conduct, or sexual excitement when it:
   64         (a) Predominantly appeals to a prurient, shameful, or
   65  morbid interest; and
   66         (b) Is patently offensive to prevailing standards for
   67  minors in the adult community as a whole with respect to what is
   68  suitable material or conduct for minors; and
   69         (c) Taken as a whole, is without serious literary,
   70  artistic, political, or scientific value for minors.
   72  A mother’s breastfeeding of her baby is not under any
   73  circumstance “harmful to minors.”
   74         (10) “Obscene” means the status of materials that material
   75  which:
   76         (a)1. The average person, applying contemporary community
   77  standards, would find, taken as a whole, appeals to the prurient
   78  interest;
   79         2.(b) Depicts or describes, in a patently offensive way,
   80  sexual conduct as specifically defined herein; and
   81         3.(c) Taken as a whole, lacks serious literary, artistic,
   82  political, or scientific value; or
   83         (b)1.The average person, applying contemporary community
   84  standards for appropriate materials for minors, would object to
   85  as depicting or describing, in a patently offensive way, sexual
   86  conduct as defined herein which is harmful to minors; and
   87         2. Taken as a whole, lacks serious literary, artistic,
   88  political, or scientific value for minors.
   90  A mother’s breastfeeding of her baby is not under any
   91  circumstance “obscene.”
   92         (11) “Person” includes individuals, minors children, firms,
   93  associations, joint ventures, partnerships, estates, trusts,
   94  business trusts, syndicates, fiduciaries, corporations, and all
   95  other groups or combinations.
   96         Section 2. Effective October 1, 2021, section 847.012,
   97  Florida Statutes, is amended to read:
   98         847.012 Harmful materials; sale or distribution to minors
   99  or using minors in production prohibited; use in public schools
  100  prohibited; penalty.—
  101         (1) As used in this section, “knowingly” means having the
  102  general knowledge of, reason to know, or a belief or ground for
  103  belief which warrants further inspection or inquiry of both:
  104         (a) The character and content of any material described in
  105  this section which is reasonably susceptible of examination by
  106  the defendant; and
  107         (b) The age of the minor.
  108         (2) A person’s ignorance of a minor’s age, a minor’s
  109  misrepresentation of his or her age, a bona fide belief of a
  110  minor’s age, or a minor’s consent may not be raised as a defense
  111  in a prosecution for a violation of this section.
  112         (3) A person may not knowingly sell or, rent for monetary
  113  consideration, or loan for any reason monetary consideration to
  114  a minor:
  115         (a) Any picture, photograph, drawing, sculpture, motion
  116  picture film, videocassette, or similar visual representation or
  117  image of a person or portion of the human body which depicts
  118  nudity or sexual conduct, sexual excitement, sexual battery,
  119  bestiality, or sadomasochistic abuse and which is harmful to
  120  minors; or
  121         (b) Any book, pamphlet, magazine, printed matter however
  122  reproduced, or sound recording that contains any matter defined
  123  in s. 847.001, explicit and detailed verbal descriptions or
  124  narrative accounts of sexual excitement, or sexual conduct and
  125  that is harmful to minors; or
  126         (c) Any material used in a public K-12 school classroom,
  127  made available in a public K-12 school library, or included on a
  128  public K-12 school recommended reading list which contains
  129  obscene content or is harmful to minors or is prohibited as
  130  conduct inappropriate for minors. Such materials are not
  131  acceptable and the school district shall proactively remove all
  132  such materials. If the district school board finds that any
  133  instructional material, including any materials used in the
  134  classroom or assigned or offered as reading material, violates
  135  this section, the material shall be proactively removed. This
  136  required action is not dependent on a parent or resident
  137  complaint.
  138         (4) A person may not knowingly use a minor in the
  139  production of any material described in subsection (3),
  140  regardless of whether the material is intended for distribution
  141  to minors or is actually distributed to minors.
  142         (5) An adult may not knowingly distribute to a minor on
  143  school property, or post on school property, any material
  144  described in subsection (3). As used in this subsection, the
  145  term “school property” means the grounds or facility of any
  146  kindergarten, elementary school, middle school, junior high
  147  school, or secondary school, whether public or nonpublic. This
  148  subsection does not apply to the distribution or posting of
  149  school-approved instructional materials that by design serve as
  150  a major tool for assisting in the instruction of a subject or
  151  course by school officers, instructional personnel,
  152  administrative personnel, school volunteers, educational support
  153  employees, or managers as those terms are defined in s. 1012.01.
  154         (6) Any person violating any provision of this section
  155  commits a felony of the third degree, punishable as provided in
  156  s. 775.082, s. 775.083, or s. 775.084.
  157         (7) Every act, thing, or transaction forbidden by this
  158  section constitutes a separate offense and is punishable as
  159  such.
  160         (8)(a) The circuit court has jurisdiction to enjoin a
  161  violation of this section upon complaint filed by the state
  162  attorney in the name of the state upon the relation of such
  163  state attorney.
  164         (b) After the filing of such a complaint, the judge to whom
  165  it is presented may grant an order restraining the person
  166  complained of until final hearing or further order of the court.
  167  Whenever the relator state attorney requests a judge of such
  168  court to set a hearing upon an application for a restraining
  169  order, the judge shall set the hearing for a time within 3 days
  170  after the making of the request. The order may not be made
  171  unless the judge is satisfied that sufficient notice of the
  172  application therefor has been given to the party restrained of
  173  the time when and place where the application for the
  174  restraining order is to be made.
  175         (c) The person sought to be enjoined is entitled to a trial
  176  of the issues within 1 day after joinder of issue, and a
  177  decision shall be rendered by the court within 2 days after the
  178  conclusion of the trial.
  179         (d) If a final decree of injunction is entered, it must
  180  contain a provision directing the defendant having the
  181  possession, custody, or control of the materials, matters,
  182  articles, or things affected by the injunction to surrender the
  183  same to the sheriff and requiring the sheriff to seize and
  184  destroy the same. The sheriff shall file a certificate of her or
  185  his compliance.
  186         (e) In any action brought as provided in this section, a
  187  bond or undertaking may not be required of the state or the
  188  state attorney before the issuance of a restraining order
  189  provided for by paragraph (b), and the state or the state
  190  attorney may not be held liable for costs or for damages
  191  sustained by reason of the restraining order in any case where a
  192  final decree is rendered in favor of the person sought to be
  193  enjoined.
  194         (f) Every person who has possession, custody, or control
  195  of, or otherwise deals with, any of the materials, matters,
  196  articles, or things described in this section, after the service
  197  upon her or him of a summons and complaint in an action for
  198  injunction brought under this section, is chargeable with
  199  knowledge of the contents and character thereof.
  200         (9) The several sheriffs and state attorneys shall
  201  vigorously enforce this section within their respective
  202  jurisdictions.
  203         (10) This section does not apply to the exhibition of
  204  motion pictures, shows, presentations, or other representations
  205  regulated under s. 847.013.
  206         Section 3. Paragraph (d) of subsection (3) of section
  207  1002.20, Florida Statutes, is amended to read:
  208         1002.20 K-12 student and parent rights.—Parents of public
  209  school students must receive accurate and timely information
  210  regarding their child’s academic progress and must be informed
  211  of ways they can help their child to succeed in school. K-12
  212  students and their parents are afforded numerous statutory
  213  rights including, but not limited to, the following:
  214         (3) HEALTH ISSUES.—
  215         (d) Reproductive health and disease education.—A public
  216  school student whose parent makes written request to the school
  217  principal shall be exempted from may be exposed to the teaching
  218  of reproductive health or any sexually transmitted disease,
  219  including HIV/AIDS, only in accordance with the provisions of s.
  220  1003.42(3).
  221         Section 4. Subsection (3) of section 1003.42, Florida
  222  Statutes, is amended to read:
  223         1003.42 Required instruction.—
  224         (3) School districts, or schools as defined in s.
  225  1003.01(2), shall notify and request the written consent of
  226  parents at least 10 instructional days before Any student whose
  227  parent makes written request to the school principal shall be
  228  exempted from the teaching of reproductive health or any
  229  sexually transmitted disease, including HIV/AIDS, and its
  230  symptoms, development, and treatment. A school may not allow a
  231  student to be exposed to such teaching without the prior written
  232  consent of his or her parent. A student whose parent does not
  233  give written consent for such teaching so exempted may not be
  234  penalized by reason of that withholding of consent exemption.
  235  Course descriptions for comprehensive health education may shall
  236  not interfere with the local determination of appropriate
  237  curriculum which reflects local values and concerns.
  238         Section 5. Paragraph (a) of subsection (2) of section
  239  1006.28, Florida Statutes, is amended to read:
  240         1006.28 Duties of district school board, district school
  241  superintendent; and school principal regarding K-12
  242  instructional materials.—
  243         (2) DISTRICT SCHOOL BOARD.—The district school board has
  244  the constitutional duty and responsibility to select and provide
  245  adequate instructional materials for all students in accordance
  246  with the requirements of this part. The district school board
  247  also has the following specific duties and responsibilities:
  248         (a) Courses of study; adoption.—Adopt courses of study,
  249  including instructional materials, for use in the schools of the
  250  district.
  251         1. Each district school board is responsible for the
  252  content of all instructional materials and any other materials
  253  used in a classroom, made available in a school library, or
  254  included on a reading list, whether adopted and purchased from
  255  the state-adopted instructional materials list, adopted and
  256  purchased through a district instructional materials program
  257  under s. 1006.283, or otherwise purchased or made available.
  258  Each district school board shall maintain on its website a
  259  current list of instructional materials, by grade level,
  260  purchased by the district.
  261         2. Each district school board must adopt a policy regarding
  262  an objection by a parent or a resident of the county to the use
  263  of a specific instructional material, which clearly describes a
  264  process to handle all objections and provides for resolution.
  265  The process must provide the parent or resident the opportunity
  266  to proffer evidence to the district school board that:
  267         a. An instructional material does not meet the criteria of
  268  s. 1006.31(2) or s. 1006.40(3)(d) if it was selected for use in
  269  a course or otherwise made available to students in the school
  270  district but was not subject to the public notice, review,
  271  comment, and hearing procedures under s. 1006.283(2)(b)8., 9.,
  272  and 11.
  273         b. Any material used in a classroom, made available in a
  274  school library, or included on a reading list contains content
  275  that constitutes child pornography, is harmful to minors, or is
  276  obscene, as those terms are defined in s. 847.001, is
  277  pornographic or prohibited under s. 847.012, is not suited to
  278  student needs and their ability to comprehend the material
  279  presented, or is inappropriate for the grade level and age group
  280  for which the material is used.
  282  By July 1, 2022, and each July 1 thereafter, district school
  283  boards shall complete a review of all instructional material
  284  used in a public K-12 school classroom, made available in a
  285  public K-12 school library, or included on a public K-12 school
  286  reading list within the district. If the district school board
  287  finds that an instructional material does not meet the criteria
  288  under sub-subparagraph a. or that any other material contains
  289  prohibited content under sub-subparagraph b., the school
  290  district shall immediately discontinue use of the material for
  291  any grade level or age group for which such use is inappropriate
  292  or unsuitable, regardless of whether the district school board
  293  has received any complaint about the material.
  294         3. Each district school board must establish a process by
  295  which the parent of a public school student or a resident of the
  296  county may contest the district school board’s adoption of a
  297  specific instructional material. The parent or resident must
  298  file a petition, on a form provided by the school board, within
  299  30 calendar days after the adoption of the material by the
  300  school board. The school board must make the form available to
  301  the public and publish the form on the school district’s
  302  website. The form must be signed by the parent or resident,
  303  include the required contact information, and state the
  304  objection to the instructional material based on the criteria of
  305  s. 1006.31(2) or s. 1006.40(3)(d). Within 30 days after the 30
  306  day period has expired, the school board must, for all petitions
  307  timely received, conduct at least one open public hearing before
  308  an unbiased and qualified hearing officer. The hearing officer
  309  may not be an employee or agent of the school district. The
  310  hearing is not subject to the provisions of chapter 120;
  311  however, the hearing must provide sufficient procedural
  312  protections to allow each petitioner an adequate and fair
  313  opportunity to be heard and present evidence to the hearing
  314  officer. The school board’s decision after convening a hearing
  315  is final and not subject to further petition or review.
  316         4.Notwithstanding subparagraph 3., the parent of a public
  317  school student or a resident of the county may contest the
  318  district school board’s adoption of a specific instructional
  319  material at any time before or after the material’s adoption by
  320  the district school board on the grounds that the material
  321  constitutes child pornography, is harmful to minors, or is
  322  obscene, as those terms are defined in s. 847.001, or is
  323  pornographic or prohibited under s. 847.012. The parent or
  324  resident must file a petition on a form provided by the school
  325  board. The school board shall make the form available to the
  326  public and publish the form on the school district’s website.
  327  The form must be signed by the parent or resident, include any
  328  required contact information, and state the objection to the
  329  instructional material, based on the criteria in s. 847.001 or
  330  s. 847.012. Within 30 days, the school board must either grant
  331  the petition or refer the matter to the Division of
  332  Administrative Hearings for a hearing under chapter 120. The
  333  administrative law judge has final order authority to rule on
  334  the parent or resident’s petition. The administrative law judge
  335  shall award a prevailing parent or resident reasonable attorney
  336  fees and costs incurred during the administrative proceeding and
  337  any appeals.
  338         Section 6. For the purpose of incorporating the amendments
  339  made by this act to section 847.001, Florida Statutes, in a
  340  reference thereto, subsection (1) of section 92.561, Florida
  341  Statutes, is reenacted to read:
  342         92.561 Prohibition on reproduction of child pornography.—
  343         (1) In a criminal proceeding, any property or material that
  344  portrays sexual performance by a child as defined in s. 827.071,
  345  or constitutes child pornography as defined in s. 847.001, must
  346  remain secured or locked in the care, custody, and control of a
  347  law enforcement agency, the state attorney, or the court.
  348         Section 7. For the purpose of incorporating the amendments
  349  made by this act to section 847.001, Florida Statutes, in
  350  references thereto, paragraphs (b) and (j) of subsection (1) of
  351  section 288.1254, Florida Statutes, are reenacted to read:
  352         288.1254 Entertainment industry financial incentive
  353  program.—
  354         (1) DEFINITIONS.—As used in this section, the term:
  355         (b) “Digital media project” means a production of
  356  interactive entertainment that is produced for distribution in
  357  commercial or educational markets. The term includes a video
  358  game or production intended for Internet or wireless
  359  distribution, an interactive website, digital animation, and
  360  visual effects, including, but not limited to, three-dimensional
  361  movie productions and movie conversions. The term does not
  362  include a production that contains content that is obscene as
  363  defined in s. 847.001.
  364         (j) “Qualified production” means a production in this state
  365  meeting the requirements of this section. The term does not
  366  include a production:
  367         1. In which, for the first 2 years of the incentive
  368  program, less than 50 percent, and thereafter, less than 60
  369  percent, of the positions that make up its production cast and
  370  below-the-line production crew, or, in the case of digital media
  371  projects, less than 75 percent of such positions, are filled by
  372  legal residents of this state, whose residency is demonstrated
  373  by a valid Florida driver license or other state-issued
  374  identification confirming residency, or students enrolled full
  375  time in a film-and-entertainment-related course of study at an
  376  institution of higher education in this state; or
  377         2. That contains obscene content as defined in s.
  378  847.001(10).
  379         Section 8. Except as otherwise expressly provided in this
  380  act, this act shall take effect July 1, 2021.