F.S. 1987 GAMBLING Ch.849

county in which the seizure was made and shall be deliv­ered forthwith to the clerk of the circuit court and shall by him be placed in the fine and forfeiture fund of said county.

History.-s. 6, ch . 18143, 1937; CGL 1940 Supp. 4151(405-e).

849.20 Machines and devices declared nuisance; place of operation subject to lien for fine.-Any room, house, building, boat, vehicle, structure or place where­in any machine or device, or any part thereof, the pos­session, operation or use of which is prohibited by ss. 849.15-849.23, shall be maintained or operated, and each of such machines or devices, is declared to be a common nuisance. If a person has knowledge, or reason to believe, that his room, house, building, boat, vehicle, structure or place is occupied or used in violation of the provisions of ss. 849.15-849.23 and by acquiescence or consent suffers the same to be used, such room, house, building, boat, vehicle, structure or place shall be sub­ject to a lien for and may be sold to pay all fines or costs assessed against the person guilty of such nuisance, for such violation, and the several state attorneys shall en­force such lien in the courts of this state having jurisdic­tion.

History.-s. 7, ch. 18143, 1937; CGL 1940 Supp. 4151(405-f): s. 7, ch. 22858, 1945.

849.21 Injunction to restrain violation.-An action to enjoin any nuisance as herein defined may be brought by any person in the courts of equity in this state. If it is made to appear by affidavit or otherwise, to the satis­faction of the court, or judge in vacation, that such nui­sance exists, a temporary writ of injunction shall forth­with issue restraining the defendant from conducting or permitting the continuance of such nuisance until the conclusion of the action. Upon application of the compli­ant in such a proceeding, the court or judge may also enter an order restraining the defendant and all other persons from removing, or in any way interfering with the machines or devices or other things used in connection with the violation of ss. 849.15-849.23 constituting such a nuisance. No bond shall be required in instituting such proceedings.

History.-s. 8, ch . 18143, 1937; CGL 1940 Supp. 4151 (405-g).

849.22 Fees of clerk of circuit court and sheriff.­The clerks of the courts and the sheriffs performing du­ties under the provisions of ss. 849.15-849.23 shall re­ceive the same fees as prescribed by general law for the performance of similar duties, and such fees shall be paid out of the fine and forfeiture fund of the county as costs are paid upon conviction of an insolvent person.

History.-s. 9, ch . 18143, 1937; CGL 1940 Supp. 4151(405-h).

849.23 Penalty for violations of ss. 849.15-849.22. -Whoever shall violate any of the provisions of ss. 849.15-849.22 shall, upon conviction thereof, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any person convict­ed of violating any provision of ss. 849.15-849.22, a sec­ond time shall, upon conviction thereof, be guilty of a misdemeanor of the first degree, punishable as provid­ed in s. 775.082 or s. 775.083. Any person violating any provision of ss. 849. 15-849.22 after having been twice convicted already shall be deemed a "common offend-

er," and shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 3, ch. 18143, 1937: CGL 1940 Supp. 8135(21); s. 1070, ch. 71-136.

849.231 Gambling devices; manufacture, sale, pur­chase or possession unlawful.-

(1) Except in instances when the following de­scribed implements or apparatus are being held or transported by authorized persons for the purpose of destruction, as hereinafter provided, and except in in­stances when the following described instruments or apparatus are being held, sold, transported, or manufac­tured by persons who have registered with the United States Government pursuant to the provisions of Title 15 of the Unit'ed States Code, ss. 1171 et seq ., as amend­ed, so long as the described implements or apparatus are not displayed to the general public, sold for use in Florida, or held or manufactured in contravention of the requirements of 15 U.S.C. ss. 1171 et seq., it shall be un­lawful for any person to manufacture, sell , transport, of­fer for sale, purchase, own, or have in his possession any roulette wheel or table, faro layout, crap table or layout, chemin de fer table or layout, chuck-a-luck wheel , bird cage such as used for gambling, bolita balls, chips with house markings, or any other device, implement, appa­ratus, or paraphernalia ordinarily or commonly used or designed to be used in the operation of gambling hous­es or establishments , excepting ordinary dice and play­ing cards .

(2) In addition to any other penalties provided for the violation of this section , any occupational license held by a person found guilty of violating this section shall be suspended for a period not to exceed 5 years.

(3) This section and s. 849.05 do not apply to a ves­sel of foreign registry or a vessel operated under the au­thority of a country except the United States, while docked in this state or transiting in the territorial waters of this state.

Hlstory.-s. 1, ch. 29665, 1955; s. 9, ch . 74-385; s. 1, ch. 77-174: s. 2, ch. 87-255.

849.232 Property right in gambling devices; confis­cation.-There shall be no right of property in any of the implements or devices enumerated or included in s. 849.231 and upon the seizure of any such implement, device, apparatus or paraphernalia by an authorized en­forcement officer the same shall be delivered to and held by the clerk of the court having jurisdiction of such offenses and shall not be released by such clerk until he shall be advised by the prosecuting officer of such court that the said implement is no longer required as evi­dence and thereupon the said clerk shall deliver the said implement to the sheriff of the county who shall immedi­ately cause the destruction of such implement in the presence of the said clerk or his authorized deputy.

Hlstory.-s. 2, ch. 29665, 1955.

849.233 Penalty for violation of s. 849.231.-Any person, including any enforcement officer, clerk or pros­ecuting official who shall violate the provisions of s. 849.231 shall be guilty of a misdemeanor of the first de­gree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-s. 3, ch. 29665, 1955: s. 1071 , ch . 71-136.

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849.235 Possession of certain gambling devices; defense.-

(1) It is a defense to any action or prosecution under ss. 849.15-849.233 for the possession of any gambling device specified therein that the device is an antique slot machine and that it is not being used for gambling. For the purpose of this section, an antique slot machine is one which was manufactured prior to January 1 , 1941.

(2) Notwithstanding any provision of this chapter to the contrary, upon a successful defense to a prosecu­tion for the possession of a gambling device pursuant to the provisions of this section, the antique slot ma­chine shall be returned to the person from whom it was seized.

History.-s. 1, ch. 78-22.

849.25 "Bookmaking" defined; penalties; excep­tions.-

(1 )(a) The term "bookmaking" means the act of tak­ing or receiving , while engaged in the business or pro­fession of gambling, any bet or wager upon the result of any trial or contest of skill , speed, power, or endurance of man, beast, fowl, motor vehicle, or mechanical appa­ratus or upon the result of any chance, casualty, un­known, or contingent event whatsoever.

(b) The following factors shall be considered in mak­ing a determination that a person has engaged in the of­fense of bookmaking:

1. Taking advantage of betting odds created to pro-duce a profit for the bookmaker or charging a percent­age on accepted wagers.

2. Placing all or part of accepted wagers with other bookmakers to reduce the chance of financial loss.

3. Taking or receiving more than five wagers in any single day.

4. Taking or receiving wagers totaling more than $500 in any single day, or more than $1,500 in any single week.

5. Engaging in a common scheme with two or more persons to take or receive wagers.

6. Taking or receiving wagers on both sides on a contest at the identical point spread .

7. Any other factor relevant to establishing that the operating procedures of such person are commercial in nature.

(c) The existence of any two factors listed in para­graph (b) may constitute prima facie evidence of a com­mercial bookmaking operation.

(2) Any person who engages in bookmaking shall be guilty of a felony of the third degree, punishable as pro­vided in s. 775.082, s. 775.083, or s. 775.084. Notwith­standing the provisions of s. 948.01, any person convict­ed under the provisions of this subsection shall not have adjudication of guilt suspended, deferred, or withheld .

(3) Any person who has been convicted of book­making and thereafter violates the provisions of this sec­tion shall be guilty of a felony of the second degree, pun­ishable as provided in s. 775.082, s. 775.083, or s. 775.084. Notwithstanding the provisions of s. 948.01, any person convicted under the provisions of this sub­section shall not have adjudication of guilt suspended, deferred, or withheld.

(4) Notwithstanding the provisions of s. 777.04, any person who is guilty of conspiracy to commit bookmak­ing shall be subject to the penalties imposed by subsec­tions (2) and (3) .

(5) This section shall not apply to pari-mutuel wa­gering in Florida as authorized under chapters 550 and 551 .

(6) This section shall not apply to any prosecutions filed and pending at the time of the passage hereof, but all such cases shall be disposed of under existing laws at the time of the institution of such prosecutions.

Hlstory.-ss. 1-3, ch. 26847, 1951; s. 1073, ch. 71-136; s. 47, ch. 75-298; s. 1, ch. 78-36; s. 48, ch. 87-243.

849.26 Gambling contracts declared void; excep­tion.-AII promises, agreements, notes, bills, bonds or other contracts , mortgages or other securities, when the whole or part of the consideration if for money or other valuable thing won or lost, laid, staked, betted or wa­gered in any gambling transaction whatsoever, regard­less of its name or nature, whether heretofore prohibited or not, or for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being laid, betted, staked or wagered , are void and of no effect ; provided, that this act shall not apply to wa­gering on pari-mutuels or any gambling transaction ex­pressly authorized by law.

Hlstory.-s. 1, ch. 26543, 1951.

849.29 Persons against whom suits may be brought to recover on gambling contracts.-The follow­ing persons shall be jointly and severally liable for the items which are authorized by this act to be sued for and recovered, and any suit brought under the authorization of this act may be brought against all or any of such per­sons, to wit: The winner of the money or property lost in the gambling transaction; every person who, having di­rect or indirect charge, control or management, either exclusively or with others, of the place where the gam­bling transaction occurs, procures, suffers or permits such place to be used for gambling purposes; whoever promotes, sets up or conducts the gambling transaction in which the loss occurs or has an interest in it as backer, vendor, owner or otherwise; and, as to anything of value other than money, the transferees and assignees, with notice, of the persons hereinabove specified in this sec­tion; and the personal representatives of the persons specified in this section .

History.-s. 4, ch. 26543, 1951 .

849.30 Plaintiff entitled to writs of attachment, gar­nishment and replevin.-ln any suit under ss. 849.26-849.34, the plaintiff shall be entitled to writs of attach­ment and garnishment for the sums of money, exclusive of attorney's fees, sued for the use and benefit of per­sons other than the state, in the same manner and to the same extent as in an action on contract; and, in any suit under this chapter for the recovery of a thing of value other than money, the plaintiff shall be entitled to a writ of replevin for the recovery of such thing of value, in the manner and to the extent provided by the replevin stat­utes of the state.

Hlstory.-s. 5, ch. 26543, 1951 ; s. 24, ch. 57-1.

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849.31 Loser's testimony not to be used against him.-ln the event that suit is brought under the authori­zation of ss. 849.26-849.34 by someone other than the loser of the money or thing of value involved in the suit, such loser shall not be excused from being required to attend and testify or produce any book, paper or other document or evidence in such suit, upon the ground or for the reason that the testimony or evidence required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but he shall not be prose­cuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so be required to testify or produce evi­dence, and no testimony so given or produced shall be received against him upon any criminal investigation or prosecution. If the loser of money or thing of value in­volved in a suit brought under authorization of ss . 849.26-849.34, whether by him or by someone else, vol­untarily attends or produces evidence in such suit , he shall not be prosecuted or subjected to any penalty for or on account of any transaction, matter or thing con­cerning which he may so testify or produce evidence, and no testimony so given or produced shall be received against him upon any criminal investigation or prosecu­tion. Also, neither the fact of the bringing of suit under this act by a loser nor any statement or admission in his pleadings which is material and relevant to the subject matter of the suit shall be received against him upon any criminal investigation or proceeding.

History.-s. 6, ch. 26543, 1951.

849.32 Notice to state attorney; prosecution of suit. -The summons in any such suit , and copies of all pleadings and notices of all hearings in the suit, and no­tice of the trial and of application for the entry of final judgment, shall be served on the state attorney, whose duty it shall be to protect the interests of the state and, if the plaintiff fails to diligently prosecute the suit, to bring such failure to the attention of the court. If the plaintiff fails to effectively prosecute any such suit with­out collusion or deceit and without unnecessary delay, the court shall direct the state attorney to proceed with the action. No such suit shall be dismissed except upon a sworn statement filed by the plaintiff or the state attor­ney which satisfies the court that the suit should be dis­missed.

History.-s. 7, ch . 26543, 1951.

849.33 Judgment and collection of money; execu­tion.-Any judgment recovered in such a suit shall ad­judge separately the amounts recovered for the use of the state, and the plaintiff shall not have execution there­for, and such amounts shall not be paid to the plaintiff, but shall be payable to the state attorney, who shall promptly transmit the sums collected by him to the State Treasurer. The state attorney shall diligently seek the collection of such amounts and may cause a sepa­rate execution to issue for the collection thereof.

History.-s. 8, ch. 26543, 1951 .

849.34 Loser's judgment; recovery of property; writ of assistance.-lf the plaintiff in any such suit seek to recover property lost, and if he shall prevail as to any such property, he shall take judgment for the property

itself and for the value thereof, the judgment as to such property to be satisfied by the recovery of the property or of the value thereof. The plaintiff may, at his option, sue out a separate writ of possession for the property and a separate execution for any other moneys and costs adjudged in his favor, or he may sue out an execu­tion for the value of the property and any other moneys and costs adjudged in his favor. If he elect to sue out a writ of possession for the property, and if the officer shall return that he is unable to find the property, or any of it, the plaintiff may thereupon sue out execution for the val­ue of the property not found. In any proceeding to ascer­tain the value of the property, the value of each article shall be found so that judgment for such value may be entered.

History.-s. 9, ch. 26543, 1951 .

849.35 Definitions.-ln construing ss. 849 .36-849.46 and each and every word , phrase, or part thereof, where the context permits:

(1) The singular includes the plural and vice versa. (2) The masculine includes the feminine and neuter

and vice versa. (3) The term "vessel" includes every description of

watercraft, vessel or contrivance used, or capable of be­ing used, as a means of transportation in or on water, or in or on the water and in the air .

(4) The term "vehicle" includes every description of vehicle, carriage, animal or contrivance used, or capable of being used, as a means of transportation on land, in the air, or on land and in the air.

(5) The term "gambling paraphernalia" includes ev­ery description of apparatus, implement, machine, de­vice or contrivance used in, or in connection with, any violation of the lottery, gaming and gambling statutes, and laws of this state, except facilities and equipment furnished by a public utility in the regular course of busi­ness, and which remain the property of such utility while so furnished.

(6) The term "lottery ticket" shall include every ticket, token , emblem , card, paper or other evidence of a chance, interest, prize or share in, or in connection with any lottery, game of chance or hazard or other things in violation of the lottery and gambling statutes and laws of this state (including bolita, cuba, bond , New York bond , butter and eggs, night house and other like and similar operations, but not excluding others). The said term shall also include so-called rundown sheets, tally sheets, and all other papers, records, instruments, and things designed for use, either directly or indirectly, in, or in connection with , the violation of the statutes and laws of this state prohibiting lotteries and gambling in this state.

History.-s. 1, ch. 29712, 1955.

849.36 Seizure and forfeiture of property used in the violation of lottery and gambling statutes.-

(1) Every vessel or vehicle used for, or in connection with , the removal, transportation , storage, deposit, or concealment of any lottery tickets, or used in connection with any lottery or game in violation of the statutes and laws of this state, shall be subject to seizure and forfeit­ure, as provided by the Florida Contraband Forfeiture Act.

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Ch.849 GAMBLING F.S. 1987

(2) All gambling paraphernalia and lottery tickets as herein defined used in connection with a lottery, gam­bling, unlawful game of chance or hazard, in violation of the statutes and laws of this state, found by an officer in searching a vessel or vehicle used in the violation of the gambling laws shall be safely kept so long as it is necessary for the purpose of being used as evidence in any case, and as soon as may be afterwards, shall be destroyed by order of the court before whom the case is brought or certified to any other court having jurisdic­tion, either state or federal.

(3) The presence of any lottery ticket in any vessel or vehicle owned or being operated by any person charged with a violation of the gambling laws of the state, shall be prima facie evidence that such vessel or vehicle was or is being used in connection with a viola­tion of the lottery and gambling statutes and laws of this state and as a means of removing, transporting, deposit­ing, or concealing lottery tickets and shall be sufficient evidence for the seizure of such vessel or vehicle.

(4) The presence of lottery tickets in any room or place, including vessels and vehicles, shall be prima fa­cie evidence that such room, place, vessel, or vehicle, and all apparatus, implements, machines, contrivances, or devices therein, (herein referred to as "gambling paraphernalia") capable of being used in connection with a violation of the lottery and gambling statutes and laws of this state and shall be sufficient evidence for the seizure of such gambling paraphernalia.

(5) It shall be the duty of every peace officer in this state finding any vessel, vehicle, or paraphernalia being used in violation of the statutes and laws of this state as aforesaid to seize and take possession of such property for disposition as hereinafter provided. It shall also be the duty of every peace officer finding any such property being so used, in connection with any lawful search made by him, to seize and take possession of the same for disposition as hereinafter provided.

History.-s. 2, ch. 29712, 1955; s. 1, ch . 57-236; s. 8, ch. 74-365; s. 8, ch. 80-68. cf.-ss. 932.701-932.704 Florida Contraband Forfeiture Act.

849.37 Disposition and appraisal of property seized under this chapter.-

(1) Every peace officer, other than the sheriff, seiz­ing property pursuant to the provisions of ss. 849.36-849.46 shall forthwith make return of the seizure thereof and deliver the said property to the sheriff of the county wherein the same was seized. The said return to the sheriff shall describe the property seized and give in de­tail the facts and circumstances under which the same was seized and state in full the reason why the seizing officer knew, or was led to believe, that the said property was being used for or in connection with a violation of the statutes and laws of this state prohibiting lotteries and gambling in this state. The said return shall contain the names of all persons, firms and corporations known to the seizing officer to be interested in the seized prop­erty.

(2) When property is seized by the sheriff pursuant to this chapter, or when property seized by another is delivered to the sheriff as aforesaid, he shall forthwith fix the approximate value thereof and make return thereof to the clerk of the circuit court as hereinafter provided.

(3) The return of the sheriff aforesaid shall contain a schedule of the property seized describing the same in reasonable detail and give in detail the facts and circum­stances under which it was seized and state in full the reason why the seizing officer knew or was led to believe that the property was being used for or in connection with a violation of the statutes and laws of this state pro­hibiting lotteries or gambling in this state; and a state­ment of the names of all persons, firms and corporations known to the sheriff to be interested in the seized prop­erty; and in cases where the said property was seized by another the sheriff shall attach to his said return, as an exhibit thereto, the return of the seizing officer to him.

(4) The sheriff shall hold the said property seized pending its disposal by the court as hereinafter provid­ed.

History.-s. 3, ch. 29712, 1955.

849.38 Proceedings for forfeiture; notice of seizure and order to show cause.-

(1) The return of the sheriff aforesaid to the clerk of the circuit court shall be taken and considered as the state's petition or libel in rem for the forfeiture of the property therein described , of which the circuit court of the county shall have jurisdiction without regard to val­ue. The said return shall be sufficient as said petition or libel notwithstanding the fact that it may contain no for­mal prayer or demand for forfeiture, it being the intention of the Legislature that forfeiture may be decreed without a formal prayer or demand therefor. The said return shall be subject to amendment at any time before final hear­ing, provided that copies thereof shall be served upon all persons, firms or corporations who may have filed a claim prior to such amendment.

(2) Upon the filing of said return the clerk of the cir­cuit court shall issue a citation, directed to all persons, firms and corporations owning, having or claiming an in­terest in or a lien upon the seized property, giving notice of the seizure and directing that all persons, firms or cor­porations owning, having or claiming an interest therein or lien thereon, to file their claim to, on, or in said proper­ty within the time fixed in said citation, as to persons, firms and corporations not personally served, and within 20 days from personal service of said citation, when per­sonal service is had. Personal service shall be made on all parties, in Florida, having liens noted upon a certifi­cate of title as shown by the records in the office of the Department of Highway Safety and Motor Vehicles.

(3) The said citation may be in, or substantially in, the following form:

IN THE CIRCUIT COURT OF THE JUDICIAL CIR-CUIT, IN AND FOR_ COUNTY, FLORIDA. IN RE FORFEITURE OF THE FOLLOWING DESCRIBED PROPERTY:

(Here describe property) THE STATE OF FLORIDA TO:

ALL PERSONS, FIRMS AND CORPORATIONS OWN­ING, HAVING OR CLAIMING AN INTEREST IN OR LIEN ON THE ABOVE DESCRIBED PROPERTY.

YOU AND EACH OF YOU are hereby notified that the above described property has been seized, under and by virtue of chapter __ , Laws of Florida, and is now in

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F.S. 1987 GAMBLING Ch.849

the possession of the sheriff of this county, and you, and each of you, are hereby further notified that a petition, under said chapter, has been filed in the Circuit Court of the __ Judicial Circuit , in and for __ County, Flori­da, seeking the forfeiture of the said property, and you are hereby directed and required to file your claim, if any you have, and show cause, on or before __ , 19 __ , if not personally served with process herein, and within 20 days from personal service if personally served with process herein , why the said property should not be for­feited pursuant to said chapter __ , Laws of Florida, 1955. Should you fail to file claim as herein directed judg­ment will be entered herein against you in due course. Persons not personally served with process may obtain a copy of the petition for forfeiture filed herein from the undersigned clerk of court.

WITNESS my hand and the seal of the above men­tioned court, at __ Florida, this __ 19 __ . (COURT SEAL)

(Clerk of the above-mentioned Court.)

By (Depuly Clerk!

(4) Such citation shall be returnable, as to persons served constructively, as therein directed, not less than 21 nor more than 30 days, from the posting or publica­tion thereof, and as to personally served with process within 20 days from service thereof. A copy of the peti­tion shall be served with the process when personally served . Personal service of process may be made in the same manner as a summons in chancery.

(5) If the value of the property seized is shown by the sheriff's return to have an appraised value of $400 or less, the above citation shall be served by posting at three public places in the county, one of which shall be the front door of the courthouse; if the value of the prop­erty is shown by the sheriff's return to have an approxi­mate value of more than $400, the citation shall be pub­lished once a week for 3 consecutive weeks in some newspaper of general publication published in the coun­ty, if there be such a newspaper published in the county and if not, then said notice of such publication shall be made by certificate of the clerk if publication is made by posting, and by affidavit as provided in chapter 50, if made by publication in a newspaper, which affidavit or certificate shall be filed and become a part of the record in the cause. Failure of the record to show proof of such publication shall not affect any judgment made in the cause unless it shall affirmatively appear that no such publication was made.

History.-s. 4, ch. 29712, 1955; ss. 24, 35, ch. 69-106; s. 12, ch. 73-299.

849.39 Delivery of property to claimant-Any per­son, firm, or corporation filing a claim in the cause, which claim shall state fully his right, title , claim, or interest, in and to the seized property, may, at any time after said claim is filed with the clerk of the court, obtain posses­sion of the seized property by filing a petition therefor with the sheriff and posting with him, to be approved by him, a surety bond, payable to the Governor of the state in twice the amount of the value of the said property as fixed in the sheriff's return to the clerk of the circuit court, with a corporate surety duly authorized to trans­act business in this state as surety, conditioned upon his paying to the sheriff the value of the property together

with costs of the proceeding, if judgment of forfeiture be entered by the court. Upon the posting of such bond with the sheriff and the release of the property to the ap­plicant the cause shall proceed to final judgment in the same manner as it would have had no such bond been filed , except that any execution to be issued in the cause pursuant to judgment may run against and be en­forced against the person posting said bond and his surety.

History.-s. 5, ch. 29712, 1955.

849.40 Proceeding when no claim filed.-When no claim is filed in the cause within the time required the clerk shall enter a default against all persons, firms and corporations owning , claiming or having an interest in and to the property seized and the cause may then pro­ceed in the same manner as a common law cause after default, and final judgment shall be entered therein ex parte, except as may be herein otherwise provided .

Hlstory.- s. 6, ch. 29712, 1955.

849.41 Proceeding when claim filed.-When one or more claims are filed in the cause the cause shall be tried upon the issues made thereby with the petition for forfeiture with any affirmative defenses being deemed denied without further pleading . Judgment by default shall be entered against all other persons, firms and cor­porations owning, claiming or having an interest in and to the property seized, after which the cause shall pro­ceed as in other common law cases; except any claim­ant shall prove to the satisfaction of the court that he did not know or have any reason to believe, at the time his right, title, interest, or lien arose, that the property was being used for or in connection with the violation of any of the statutes or laws of this state prohibiting lotteries and gambling and further that at said time there was no reasonable reason to believe that the said property might be used for such purpose. Where the owner of the property has been convicted of a violation of the stat­utes and laws of this state prohibiting lotteries or gam­bling such conviction shall be prima facie evidence that each claimant had reason to believe that the property might be used for or in connection with a violation of such statutes and laws, and it shall be incumbent upon such claimant to satisfy the court that he was without knowledge of such conviction . Trial of all such causes shall be without a jury, except in such cases as a trial by jury may be guaranteed by the State Constitution and in such cases trial by jury shall be deemed waived un­less demanded in the claim filed .

History.-s. 7, ch. 29712, 1955.

849.42 State attorney to represent state.-Upon the filing of the sheriff's return with the clerk of the circuit court the said clerk shall furnish the state attorney with a copy thereof and the said state attorney shall repre­sent the state in the forfeiture proceedings. The Depart­ment of Legal Affairs shall represent the state in all ap­peals from judgments of forfeiture to the appropriate dis­trict court of appeal or direct to the Supreme Court when authorized by s. 3, Art. V of the State Constitution . The state may appeal any judgment denying forfeiture in whole or in part or that may be otherwise adverse to the state.

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Ch.849 GAMBLING F.S. 1987

History.-s. 8, ch . 29712, 1955; s. 34, ch. 63-559; ss. 11 , 35, ch. 69-106; s. 13, ch. 73-299.

849.43 Judgment of forfeiture.-On final hearing the return of the sheriff to the clerk of the circuit court shall be taken as prima facie evidence that the property seized was or had been used in , or in connection with, the violation of the statutes and laws of this state prohib· iting lotteries and gambling in this state and shall be suf­ficient predicate for a judgment of forfeiture in the ab­sence of other proofs and evidence. The burden shall be upon the claimants to show that the property was not so used or if so used that they had no knowledge of such violation and no reason to believe that the seized proper­ty was or would be used for the violation of such statutes and laws. Where such property is encumbered by a lien or retained title agreement under circumstances where­in the lienholder had no knowledge that the property was or would be used in violating such statutes and laws, and no reasonable reason to believe that it might be so used, then the court may declare a forfeiture of all other rights, titles and interests, subject, however, to the lien of such innocent lienholder, or may direct the pay­ment of such lien from the proceeds of any sale of the said property. The proceedings and the judgment of for­feiture shall be in rem and shall be primarily against the property itself. Upon the entry of a judgment of forfeiture the court shall determine the disposition to be made of the property, which may include the destruction thereof, the sale thereof, the allocation thereof to some govern­mental function or use, or otherwise as the court may de­termine. Sales of such property shall be at public sale to the highest and best bidder therefor for cash after 2 weeks' public notice as the court may direct. Where the property has been delivered to a claimant upon the post­ing of a bond the court shall determine the value of the property or portion thereof subject to forfeiture and shall enter judgment against the principal and surety of the bond in such amount for which execution shall issue in

the usual manner. Upon the application of any claimant the court may fix the value of the forfeitable interest or interests in the seized property and permit such claim­ant to redeem the said property upon the payment of a sum equal to said value, which sum shall be disposed of as would the proceeds of a sale of the said property under a judgment of forfeiture.

History.-s. 9, ch . 29712, 1955.

849.44 Disposition of proceeds of forfeiture.-AII sums received from a sale or other disposition of the seized property shall be paid into the county fine and forfeiture fund and shall become a part thereof; provid­ed, however, that in instances where the seizure is by a municipal police officer within the limits of any munici­pality having an ordinance requiring such vehicles, ves­sels or conveyances to be forfeited, the city attorney shall act in behalf of the city in lieu of the state attorney and shall proceed to forfeit the property as herein pro­vided , and all sums received therefrom shall go into the general operating fund of the city .

History.- s. 10, ch . 29712, 1955; s. 24, ch. 57-1 .

849.45 Fees for services.-Fees for services re­quired hereunder shall be the same as provided for sher­iffs and clerks for like and similar services in other cases and matters.

History.-s. 11 , ch . 29712, 1955.

849.46 Exercise of police power.-lt is deemed by the Legislature that this chapter is necessary for the more efficient and proper enforcement of the statutes and laws of this state prohibiting lotteries and gambling, and a lawful exercise of the police power of the state for the protection of the public welfare, health, safety and morals of the people of the state. All the provisions of this chapter shall be liberally construed for the accom­plishment of these purposes.

History.-s. 12, ch . 29712, 1955.

1656

F.S. 1987 DRUNKENNESS; LOITERING; PROWLING; DESERTION Ch.856

CHAPTER 856

DRUNKENNESS; LOITERING; PROWLING; DESERTION

856.011 Disorderly intoxication. 856.021 Loitering or prowling ; penalty. 856.031 Arrest without warrant. 856.04 Desertion; withholding support; proviso.

856.011 Disorderly intoxication.-(1) No person in the state shall be intoxicated and

endanger the safety of another person or property, and no person 1n the state shall be intoxicated or drink any alcoholic beverage 1n a public place or in or upon any public conveyance and cause a public disturbance . . (2) Any person violating the provisions of this sec­

t;on shall be guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.082 or s. 775.083.

(3) Any person who shall have been convicted or have forfeited collateral under the provisions of subsec­tion (1) three times in the preceding 12 months shall be deemed a habitual offender and may be committed by the court to an appropnate treatment resource for a peri­od of not more than 60 days. Any peace officer, in lieu of Incarcerating an intoxicated person for violation of subsection (1 ), may take or send the intoxicated person to h1s home or to a public or private health facility, and the law enforcement officer may take reasonable mea­sures to ascertain the commercial transportation used for such purposes is paid for by such person in advance. Any law enforcement officers so acting shall be consid­ered as carrying out their official duty.

History.-s. 16A, ch . 71-132.

856.021 Loitering or prowling; penalty.-(1) It is unlawful for any person to loiter or prowl in

a place, at a time or in a manner not usual for law­abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

(2) Among the circumstances which may be consid­ered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer re­fuses to identify himself, or manifestly endeavors to ~on­ceal himself or any object. Unless flight by the person or other Circumstance makes it impracticable, a law. en­forcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to d1spel any alarm or immediate concern which would oth-

erwise be warranted by requesting him to identify him­self and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this proce­dure or if it appears at trial that the explanation given by the person is true and , if believed by the officer at the time, would have dispelled the alarm or immediate con­cern.

(3) Any person violating the provisions of this sec­tion shall be guilty of a misdemeanor of the second de­gree, punishable as provided ins. 775.082 or s. 775.083.

History.-s. 1, ch. 72- 133.

856.031 Arrest without warrant-Any sheriff, po­liceman, or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable such sus­pected loiterer or prowler to escape arrest.

History.-s. 2, ch. 72- 133; s. 34, ch. 73-334.

856.04 Desertion; withholding support; proviso.­(1) Any man who shall in this state desert his wife

and children , or either of them, or his wife where there are no children or child, or who shall willfully withhold from them or either of them, the means of support , or any mother, who shall desert her child or children, or who shall willfully withhold from them the means of sup­port, shall be guilty of a felony of the third degree, pun­ishable as provided in s. 775.082, s. 775 .083, or s. 775.084. However, no husband shall be prosecuted un­der this section for the desertion of his wife, or for with­holding from his wife the means of supporting her where there is existing , at the time of such desertion or with­holding, such cause or causes as are recognized as ground or grounds for dissolution of marriage, by stat­ute, in this state, if such person shall have provided for the support of his children, if there be any.

(2) For the purposes of subsection (1 ), a child born out of wedlock shall be deemed to be the child of a man who has been adjudged or decreed to be the father of such child by a court of competent jurisdiction of this state or of any other jurisdiction.

History.-s. 1, ch . 4553, 1897; GS 3569; s. 1, ch. 6483, 1913; RGS 5496; CGL 7654; s. 1, ch. 59- 147; s. 1, ch. 61-335; s. 1, ch. 65-210; s. 1077, ch. 71-136; s. 9, ch . 75-166.

1657

Ch.859 POISONS; ADULTERATED DRUGS F.S. 1987

CHAPTER 859

POISONS; ADULTERATED DRUGS

859.01 859.02

859.03 859.04 859.05

859.058 859.06

859.08

Poisoning food or water. Selling certain poisons by registered pharma-

cists and others. Sale of morphine. Provisions concerning poisons. Narcotics not to be sold except on prescrip­

tion . Prohibition against clove cigarettes. Sale of tobacco products and cigarette wrap­

pers to minors. Penalty for selling adulterated drugs.

859.01 Poisoning food or water.-Whoever mingles any poison with food , drink, or medicine with intent to kill or injure another person, or willfully poisons any spring , well , or reservoir of water with such intent, shall be guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 4, ch. 1637, 1868; RS 2658; GS 3587; RGS 5515; CGL 7675; s. 1078, ch. 71 - 136. cf.-s. 562.455 Adulterating liquor; penalty.

859.02 Selling certain poisons by registered phar­macists and others.-Any violation of the law, relative to sale of poisons, not specially provided for, shall con­stitute a misdemeanor of the second degree, punishable as provided in s. 775.083.

History.-s. 8, ch. 3880, 1889; GS 1906, 3604; RGS 5526; CGL 7692; s. 1079, ch. 71-136.

859.03 Sale of morphine.-Any druggist or other dealer in drugs and medicines who shall sell or offer for sale any sulphate or other preparations of morphine, without wrapping the same in a scarlet wrapper and plainly labeling it , shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083; provided, this section shall not apply to regular practic­ing physicians putting up their own prescriptions in their ordinary practice of dispensing medicines.

History.- s. 2, ch. 1891, 1872; ss. 1, 2. ch. 3288, 1881 ; RS 2667, 826; GS 3605; RGS 5527; CGL 7693; s . 1080, ch. 71- 136.

859.04 Provisions concerning poisons.-(1) It is unlawful for any person not a registered phar­

macist to retail any poisons enumerated below: Arsenic and all its preparations, corrosive sublimate, white and red precipitate, biniodide of mercury, cyanide of potassi­um, hydrocyanic acid, strychnine, and all other poison­ous vegetable alkaloids and their salts, and the essential oil of almonds, opium, and its preparations of opium con­taining less than two grains to the ounce, aconite, bella­donna, colchicum , conium, nux vomica, henbane, savin, ergot, cotton root , cantharides, creosote, veratrum digi­talis, and their pharmaceutical preparations, croton oil, chloroform , chloral hydrate, sulphate of zinc, mineral acids, carbolic and oxalic acids; and he shall label the box, vessel, or paper in which said poison is contained with the name of the article, the word "poison," and the name and place of business of the seller.

(2) No person shall deliver or sell any poisons enu­merated above unless upon due inquiry it be found that the purchaser is aware of its poisonous character and

represents that it is to be used for a legitimate purpose. The provisions of this section shall not apply to the dis­pensing of poisons in not unusual quantities or doses upon the prescriptions of practitioners of medicine.

(3) Any violation of this section shall render the prin­cipal of said store guilty of a misdemeanor of the second degree, punishable as provided ins. 775.083. However, this section shall not apply to manufacturers making and selling at wholesale any of the above poisons. Each box, vessel , or paper in which said poison is contained shall be labeled with the name of the article, the word "poi­son," and the name and place of business of the seller.

History.- s. 8, ch. 3380, 1889; RS 822; GS 3606; RGS 5528; CGL 7694; s. 1081 , ch. 71-136.

859.05 Narcotics not to be sold except on prescrip­tion.-No person shall sell , give away, or otherwise dis­pose of any opium, morphine, cocaine, or its salts, atro­pine, belladonna, or conium, to any person , except upon the written prescription of a licensed practicing physi­cian, which prescription shall not be filled but once; pro­vided, however, that this section shall not apply to man­ufacturers making and selling at wholesale to druggists, or to sales thereof, for the use of dentists, physicians, hospitals, or infirmaries . Any person who shall , for him­self , or for any other person , violate any of the provisions of this section shall be guilty of a felony of the third de­gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.- ss. 1, 2. ch. 5957, 1909; RGS 5529; ss. 1, 2, ch. 10189, 1925; CGL 7695; s . 1082, ch. 71- 136.

859.058 Prohibition against clove cigarettes.-No person shall sell , use, possess, give away, or otherwise dispose of cigarettes or similar products designed or in­tended for smoking, made in whole or in part from , or containing , cloves, clove oil , or eugenol , or any deriva­tive thereof.

History.- s. 2, ch. 85-141 .

859.06 Sale of tobacco products and cigarette wrappers to minors.-No person shall sell, deliver, bar­ter, furnish , or give away, directly or indirectly, to any minor, any cigarette , cigarette wrapper, or other tobac­co product. As used in this section, the word "cigarette" includes clove cigarettes and tobacco substitutes. Any person who violates the provisions of this section is guilty of a misdemeanor of the second degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

History.- ss. 1, 2, ch. 5716, 1907; RGS 5530; CGL 7696; s. 1083, ch. 71-136; s. 1, ch. 85-100. cf.- s. 1.01 •Minor· defined.

859.08 Penalty for selling adulterated drugs.-Ev­ery registered pharmacist , and the owner or proprietor of any store dealing in drugs or medicines, shall be held responsible for the quality of all drugs, chemicals , or medicines he may sell or dispense, with the exception of those sold in the original packages of the manufactur­er and those known as proprietary; and any person who fraudulently adulterates, for the purpose of sale, any drug or medicine or sells any fraudulently adulterated

1658

F.S. 1987 POISONS; ADULTERATED DRUGS Ch. 859

drug or medicine, knowing the same to be adulterated, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and such adulterated drugs and medicine shall be forfeited

and destroyed under the direction of the court; and if the offender be a registered pharmacist, his name shall be stricken from the register.

Hlstory.-s. 8, ch. 6890, 1915; RGS 5532; CGL 7698; s. 1084, ch. 71-136.

1659

Ch. 860 OFFENSES CONCERNING AIRCRAFT, VEHICLES, VESSELS, ETC. F.S. 1987

CHAPTER 860

OFFENSES CONCERNING AIRCRAFT, MOTOR VEHICLES, VESSELS, AND RAILROADS

860.02 860.03 860.04 860.05

860.07

860.08

860.09

860.091

860.10

860.11

860.121 860.13

860.14

860.15 860.16 860.17

860.20

Carelessness of common carrier. Intoxicated servant of common carrier. Persons beating their way on railroad trains. Unauthorized person interfering with railroad

train, cars , or engines. Unauthorized persons giving signals to rail­

road trains or engines. Interference with railroad signals prohibited;

penalty. Interference with railroad track and other

equipment prohibited; penalties. Violations of s. 860.05, s. 860.08, or s. 860.09

resulting in death; penalty. Disposing of duplicate switch keys of railroad

companies; penalty. Injuring railroad structures; driving cattle on

tracks. Crimes against railroad vehicles; penalties. Operation of aircraft while intoxicated or in

careless or reckless manner; penalty. Motor vehicle parts and accessories; records

of certain purchases. Overcharging for repairs and parts; penalty. Aircraft piracy; penalty. Tampering with or interfering with motor vehi­

cles or trailers. Outboard motors; identification numbers.

860.02 Carelessness of common carrier.-Whoev­er, having management or control of or over any railroad train, steamboat, or other public conveyance used for the common carriage of passengers is guilty of gross carelessness or neglect in or in relation to the conduct, management and control of such conveyance, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083.

Hlatory.-s. 48, ch. 1637, 1868; RS 2692; GS 3637; RGS 5573; CGL 7759; s. 1086, ch . 71-136.

860.03 Intoxicated servant of common carrier.-lf any person while in charge of a locomotive engine, act­ing as the conductor or superintendent of a car or train, on the car or train as a brakeman, employed to attend the switches, drawbridges or signal stations on any rail­way, or acting as captain or pilot on any steamboat shall be intoxicated, he shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-RS 2693; GS 3638; RGS 5574; CGL 7700; s. 1087, ch. 71-136.

860.04 Persons beating their way on railroad trains. -Any person who, without permission of those having authority, with the intention of being transported free, rides or attempts to ride on any railroad train in this state shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-ss. 1, 2, ch. 4703, 1899; GS 3643; RGS 5579; CGL 7765; s. 1068, ch . 71-136.

860.05 Unauthorized person interfering with rail­road train, cars, or engines.-Any person, other than an

employee or authorized agent of the railroad company acting within the line of his duty, who shall knowingly or willfully detach or uncouple any train; put on, apply, or tamper with any brake, bell cord, or emergency valve; or otherwise interfere with any train , engine, car, or part thereof is guilty of a felony of the third degree, punish­able as provided ins. 775.082, s. 775.083, or s. 775.084.

Hlstory.-ss. 1, 2, ch. 4704, 1899; GS 3654; RGS 5591 ; CGL 7777; s. 1089, ch . 71-136; s. 1, ch. 79-300.

860.07 Unauthorized persons giving signals to rail­road trains or engines.-Any person who wrongfully, recklessly, or wantonly and without authority, signals any train or engine in this state with a red light or with a red flag, or gives any signal calculated to affect the movement or operation of any train, engine, or cars on any railroad in this state shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. This section shall not apply to any person giving signals to stop a train for the purpose of preventing an accident to such train, or at a regular sta­tion or flag station when the train is flagged for the pur­pose of taking passage on said train.

History.-s. 1, ch. 4708, 1899; GS 3656; RGS 5593; CGL 7779; s. 1091 , ch. 71 - 136.

860.08 Interference with railroad signals prohibit­ed; penalty.-Any person, other than an employee or authorized agent of a railroad company acting within the line of his duty, who knowingly or willfully interferes with or removes any railroad signal system used to control railroad operations, any railroad crossing warning de­vices, or any lantern, light, lamp, torch, flag, fuse, torpe­do, or other signal used in connection with railroad oper­ations is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-ss. 1, 2, ch. 4705, 1899; GS 3657; RGS 5594; CGL 7780; s. 1092, ch. 71-136; s. 1, ch. 79-300.

860.09 Interference with railroad track and other equipment prohibited; penalties.-Any person, other than an employee or authorized agent of a railroad com­pany acting within the line of his duty, who knowingly or willfully moves, interferes with, removes, or obstructs any railroad switch , bridge, track, crossties, or other equipment located on the right-of-way or property of a railroad and used in railroad operations is guilty of a felo­ny of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlatory.-s. 1, ch. 3755, 1887; RS 2698; GS 3600; RGS 5597 ; CGL 7783; s. 1093, ch. 71-136; s. 1, ch. 79-300.

860.091 Violations of s. 860.05, s. 860.08, or s. 860.09 resulting in death; penalty.-Any person who vi­olates the provisions of s. 860.05, s. 860.08, or s. 860.09 when such violation results in the death of another per­son is guilty of homicide as defined in chapter 782, pun­ishable as provided in s. 775.082.

Hlstory.-s. 2, ch. 79-300.

860.10 Disposing of duplicate switch keys of rail­road companies; penalty.-lt is unlawful for any person

1660

F.S. 1987 OFFENSES CONCERNING AIRCRAFT, VEHICLES, VESSELS, ETC. Ch.860

to make, buy, sell, or give away any duplicate key to any lock belonging to or in use by any railroad company in this state on its switches or switch tracks, except on the written order of the officer of said railroad company whose duty it is to distribute and issue switch lock keys to the employees of such railroad company. Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 1, 2, ch. 9307, 1923; CGL 7786; s. 1094, ch. 71-136.

860.11 Injuring railroad structures; driving cattle on tracks.-Whoever otherwise wantonly or maliciously in­jures any bridge, trestle, culvert, cattle guard , or other superstructure of any railroad company or salts the track of any railroad company for the purpose of attracting cattle thereto, or who shall drive cattle thereon, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 3, ch. 3281, 1881 ; RS 2699; GS 3661 ; RGS 5598; CGL 7784; s. 1095, ch. 71-136.

860.121 Crimes against railroad vehicles; penal­ties.-

(1) It shall be unlawful for any person to shoot at, throw any object capable of causing death or great bodi­ly harm at, or place any object capable of causing death or great bodily harm in the path of any railroad train , lo­comotive, car, caboose, or other railroad vehicle.

(2)(a) Any person who violates subsection (1) with respect to an unoccupied railroad vehicle is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Any person who violates subsection (1) with re­spect to an occupied railroad vehicle or a railroad vehi­cle connected thereto is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) Any person who violates subsection (1 ), if such violation results in great bodily harm, is guilty of a felony of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

(d) Any person who violates subsection (1 ), if such violation results in death, is guilty of homicide as defined in chapter 782, punishable as provided in s. 775.082.

History.-s. 3, ch. 79-360.

860.13 Operation of aircraft while intoxicated or in careless or reckless manner; penalty.-

(1) It shall be unlawful for any person: (a) To operate an aircraft in the air or on the ground

or water while under the influence of: 1. Alcoholic beverages; 2. Any substance controlled under chapter 893; 3. Any chemical substance set forth in s. 877.111 ;

or (b) To operate an aircraft in the air or on the ground

or water in a careless or reckless manner so as to endan­ger the life or property of another.

(2) In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation

of aircraft as prescribed by federal statutes or regula­tions governing aeronautics.

(3) Violation of this section shall constitute a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) It shall be the duty of any court in which there is a conviction for violation of this statute to report such conviction to the Civil Aeronautics Administration for its guidance and information with respect to the pilot's cer­tificate.

Hlstory.-ss. 1-4, ch. 25259, 1949; s. 1096, ch. 71-136; ss. 1, 2A, ch. 71-282; s. 32, ch. 73-331 ; s. 5, ch. 83-187 .

860.14 Motor vehicle parts and accessories; rec­ords of certain purchases.-Every person engaged in the business of buying and selling parts and accesso­ries for motor vehicles who purchases such parts and accessories from any person other than manufacturers, distributors, wholesalers, retailers , or other persons usu­ally and regularly engaged in the business of selling such parts and accessories shall keep a daily record of all such parts and accessories so purchased , which rec­ord shall show the date and time of each purchase of such parts and accessories, the name and address of each person from whom such parts and accessories were purchased, the number of the driver's license of such person or, if such person does not have a driver's license, adequate information to properly identify such person, and a detailed description of the parts and ac­cessories purchased from such person, which descrip­tion shall include all serial and other identifying numbers, if any. Such records shall be retained for not less than 1 year and shall at all times be subject to the inspection of all police or peace officers. Any person violating the provisions of this section shall be guilty of a misdemean­or of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History--s. 1, ch. 61-420; s. 1097, ch. 71-136.

860.15 Overcharging for repairs and parts; penalty. (1) It is unlawful for a person to knowingly charge for

any services on motor vehicles which are not actually performed, to knowingly and falsely charge for any parts and accessories for motor vehicles not actually fur­nished, or to knowingly and fraudulently substitute parts when such substitution has no relation to the repairing or servicing of the motor vehicle.

(2) Any person willfully violating the provisions of this section shall be guilty of a misdemeanor of the sec­ond degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-s. 1, ch. 63-203; s. 1098, ch. 71-136.

860.16 Aircraft piracy; penalty.-Whoever without lawful authority seizes or exercises control, by force or violence and with wrongful intent, of any aircraft contain­ing a nonconsenting person or persons within this state is guilty of the crime of aircraft piracy, a felony of the first degree, punishable as provided in s. 775 .082, s. 775.083, or s. 775.084.

Hiatory.-s. 1, ch. 72-725.

860.17 Tampering with or interfering with motor ve­hicles or trailers.-Whoever, without authority, willfully, maliciously, or intentionally tampers with, attempts to

1661

Ch.860 OFFENSES CONCERNING AIRCRAFT, VEHICLES, VESSELS, ETC. F.S. 1987

tamper with, or otherwise interferes with any motor vehi­cle or trailer of another which results in the cargo or con­tents of such motor vehicle or trailer becoming unloaded or damaged, or which results in the mechanical func­tions of such motor vehicle or trailer becoming inopera­tive or impaired, is guilty of a misdemeanor of the sec­ond degree, punishable as provided in s. 775.082 or s. 775.083. A second or subsequent conviction of any per­son violating this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Hiatory.-s. 1, ch. 73-181.

860.20 Outboard motors; identification numbers.­(1 )(a) The Department of Natural Resources shall

promulgate rules not later than October 1, 1984, specify­ing the locations and manner in which serial numbers for outboard motors shall be affixed . In adopting such rules , the department shall consider the adequacy of voluntary industry standards, the current state of technology, and the overall purpose of reducing vessel and motor thefts in the state.

(b) Any outboard motor manufactured after October 1, 1985, which is for sale in the state shall comply with the serial number rules promulgated by the department. Any person, firm, or corporation which sells or offers for sale any outboard boat motor manufactured after Octo­ber 1, 1985, which does not comply with this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2)(a) It is unlawful for any person to possess any outboard boat motor with the knowledge that the serial

number required by subsection (1) has been removed, erased, defaced, or otherwise altered to prevent identifi­cation.

(b) It is unlawful for any person to knowingly pos­sess, manufacture, sell or exchange, offer to sell or ex­change, supply in blank, or give away any counterfeit manufacturer's outboard motor serial number plate or decal used for the purpose of identification of any out­board motor; to authorize, direct, aid in exchange, or give away such counterfeit manufacturer's outboard motor serial number plate or decal; or to conspire to do any of the foregoing.

(c) Any person who violates any provision of this subsection is guilty of a felony of the third degree, pun­ishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) If any of the serial numbers required by this sec­tion to identify ownership of an outboard motor do not exist or have been removed, erased, defaced, or other­wise altered to prevent identification and its true identity cannot be determined, the outboard motor may be seized as contraband property by a law enforcement agency and shall be subject to forfeiture pursuant to ss. 932.701-932.704. Such outboard motor may not be sold or used to propel a vessel on the waters of the state un­less the Division of Law Enforcement of the Department of Natural Resources is directed by written order of a court of competent jurisdiction to issue to the outboard motor a replacement identifying number which shall be affixed to the outboard motor and shall thereafter be used for identification purposes.

Hlatory.-s. 3, ch. 83-102; s. 1, ch . 84-129; s. 2, ch. 86-73.

1662

F.S. 1987 OFFENSES RELATED TO PUBLIC ROADS, TRANSPORT, AND WATERS Ch. 861

CHAPTER 861

OFFENSES RELATED TO PUBLIC ROADS, TRANSPORT, AND WATERS

861.01 861.011 861 .02 861.021 861.03 861.04

861.05 861.06 861.065

861.07 861.08 861 .09

861.11

861.12

Obstructing highway. Obstructing transportation facility. Obstructing watercourse. Obstructing channels; misdemeanor. Injuries to dams. Placing water hyacinths in any of the streams

or waters of the state. Obstruction to navigation by bridges. Obstructing harbors, etc. Divers; definitions; divers-down flag required ;

obstruction to navigation of certain waters; penalty.

Obstructing wagon roads. Obstructing county and settlement roads. Certain vehicles prohibited from using

hard-surfaced roads. Penalty for cutting or destroying shade trees

along public roads. Penalty for road official or overseer neglecting

duty.

861.01 Obstructing highway.-Whoever obstructs any public road or established highway by fencing across or into the same or by willfully causing any other obstruction in or to such road or highway, or any part thereof, shall be guilty of a misdemeanor of the first de­gree, punishable as provided in s. 775.082 or s. 775.083, and the judgment of the court shall also be that the ob­struction be removed.

Hlatory.-s. 68, Feb. 10, 1832; RS 2700; GS 3682; s. 1, ch . 6884, 1915; RGS 5604; CGL 7791 ; s. 1099, ch. 71-136. cf.-s. 861 .011 Obstructing transportation facility.

861.011 Obstructing transportation facility .-Any person who obstructs any public transportation facility by fencing across or into it or by willfully causing any oth­er obstruction in or to such transportation facility, or any part thereof, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and the judgment of the court shall also be that the obstruction be removed.

Hlatory--s. 162, ch. 29965, 1955; s. 242, ch. 71-136; s. 225, ch . 84-309. Note.-Former s. 339.31 .

cf.-s. 334.03 Definition of "transportation facility. ­s. 861 .01 Obstructing highways.

861.02 Obstructing watercourse.-Whoever erects or fixes on any navigable watercourse any dam, bridge, hedge, seine, drag, or other obstruction, whereby the navigation of boats drawing 3 feet of water or the pas­sage of fish may be obstructed, shall be guilty of a mis­demeanor of the first degree, punishable as provided in s. 775.083.

Hiatory--s. 72, Feb. 10, 1832; RS 2701 ; GS 3665; RGS 5608; CGL 7797 ; s. 11 00, ch. 71-136.

861.021 Obstructing channels; misdemeanor.­(1) It is unlawful for any person to place any craw­

fish , crab, or fishtrap or set net or other similar device with a buoy or marker attached so that said buoy or marker obstructs the navigation of boats in channels of the waters of the state which are marked by, and which

markers are continuously maintained by, the Coast Guard of the United States.

(2) Any person willfully violating the provision of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlatory.-s. 1, ch. 69-64; s. 1101 , ch . 71-136.

861.03 Injuries to dams.-Whoever willfully, mali­ciously, and unlawfully injures, removes or destroys any dam lawfully placed in or on any stream in this state for the purpose of propelling any kind of machinery, or will­fully and maliciously makes any aperture or breach in such dam with intent to destroy or injure the same, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlatory.-s. 1, ch. 4752, 1899; GS 3666; RGS 5609; CGL 7798; s. 1102, ch. 71-136.

861.04 Placing water hyacinths in any of the streams or waters of the state.-Whoever willfully places or causes to be placed any water hyacinths in any of the territorial waters of the state whether naviga­ble or nonnavigable shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlatory.-s. 1, ch. 4752, 1899; s. 1, ch. 5196, 1903; GS 3867; RGS 5610; CGL 7799; s. 1, ch. 28046, 1953; s. 1103, ch. 71-136.

861.05 Obstruction to navigation by bridges.-Any railway company, other corporation, or person which has heretofore constructed, and which shall hereafter con­struct, any bridge or other causeway across any of the navigable waters of the state, is required to build and maintain a suitable draw or other proper and necessary appliances so as to be able to remove such obstruction or to turn a sufficient section thereof as to allow boats or other watercraft to pass such bridge or other cause­way without delay or hindrance, and any such company, corporation, or person failing to comply with such re­quirements shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083.

Hlatory.-ss. 1, 2, ch . 3931 , 1889; RS 2702; GS 3668; RGS 5611 ; CGL 7800; s. 1104, ch. 71-136.

861.06 Obstructing harbors, etc.-The master or other person in charge of any steamer, vessel, barge, or lighter, or any other person who violates the provisions of law relative to the protection of harbors, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlatory.-s. 4, ch. 3142, 1879: RS 2703; GS 3689; RGS 5612; CGL 7801 ; s. 1105, ch. 71-136.

861.065 Divers; definitions; divers-down flag re­quired; obstruction to navigation of certain waters; penalty.-

( 1) "Diver" means any person who is wholly or partial­ly submerged in the waters of the state and is equipped with a face mask and snorkel or underwater breathing apparatus.

(2) "Underwater breathing apparatus" shall mean any apparatus, whether self-contained or connected to

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Ch. 861 OFFENSES RELATED TO PUBLIC ROADS, TRANSPORT, AND WATERS F.S. 1987

a distant source of air or other gas, whereby a person wholly or partially submerged in water is enabled to ob­tain or reuse air or any other gas or gases for breathing without returning to the surface of the water.

(3) "Divers-down flag" shall mean a flag that is either square or rectangular, to approximately 4 units high by 5 units long, with a 1-unit diagonal stripe. The divers­down flag shall have a white diagonal stripe on a red background. The stripe shall begin at the top staff-side of the flag and extend diagonally to the opposite lower corner. The flag shall be free-flying and shall be lowered when all divers are aboard or ashore. The minimum size shall be 12 by 12 inches.

(4) All divers shall prominently display a divers­down flag in the area in which the diving occurs, other than when diving in an area customarily used for swim­ming only.

(5) No diver or group of divers shall display one or more divers-down flags on a river, inlet, or navigation channel, except in case of emergency, in a manner which shall unreasonably constitute a navigational haz­ard.

(6) Divers shall make reasonable efforts to stay with­in 100 feet of the divers-down flag on rivers, inlets, and navigation channels.

(7) Any willful violation of this section shall be a mis­demeanor of the second degree punishable as provided by s. 775.082 or s. 775.083.

History.-ss. 1, 2, 3, ch. 74-344; s. 64, ch. 74-383; s. 1, ch. 77-174; s. 1, ch . 86-35.

861.07 Obstructing wagon roads.-Whenever any tie cutter or log cutter cutting ties for a railroad or logs for milling purposes shall cut or fell any tree into or across any traveled road, whether it be a county road , a road regularly used by the public, or a neighborhood road, and shall fail to remove the same within 2 hours thereafter so as to free the road from all obstruction therefrom, such tie cutter or log cutter shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; and such person and his employer shall be liable or responsible for any and all damages resulting from so obstructing a traveled road.

Hlstory.-s. 1, ch. 4780, 1899; GS 3673; RGS 5616; CGL 7805; s. 1106, ch. 71-136; s. 245, ch. 77-104.

861.08 Obstructing county and seHiement roads.­(1) Whoever shall fell, drag, or by any means place

a tree, or other obstruction, in or across any county set­tlement or neighborhood road regularly used, or whoev­er causes such obstruction to be placed therein , shall remove the same from such road within 6 hours thereaf­ter.

(2) Any person violating the provisions of this sec­tion shall be guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.082 or s. 775.083; provided, that this law shall not apply to pasture fences, gates, nor the improvement of private property.

Hlstory.-ss. 1, 2, ch. 5238, 1903; GS 3676; s. 1, ch. 6538, 1913; RGS 5619; CGL 7808; s. 1107, ch. 71-136.

861.09 Certain vehicles prohibited from using hard-surfaced roads.-

(1) It is unlawful for any person to drive, propel , or operate, or to have driven, propelled or operated, over the hard-surfaced public roads or parts of roads of this state any vehicle or implement having wheels that will carry more than 200 pounds per wheel for every vehicle having tires of 1 inch in width , or 500 pounds per wheel for every vehicle having tires of 2 inches in width, or 800 pounds per wheel for every vehicle having tires of 3 inch­es in width , or 1200 pounds per wheel for every vehicle having tires of 4 inches in width, or 1500 pounds per wheel for every vehicle having tires 5 inches in width, or that will carry any load greater than 6,000 pounds with­out first providing 1 inch of tire width per wheel for each additional 2,000 pounds, or fraction thereof, or to permit any vehicle or implement or any load or portion of load thereof to drag upon the surface of any hard-surfaced public road or parts of roads; provided, that nothing in this section shall be construed as prohibiting the use of roughened surfaces on rubber tires or on the wheels of farm implements weighing less than 1 ,000 pounds.

(2) "Hard-surfaced public roads or parts of roads" as used in this section shall be construed to be brick, con­crete, asphaltic , sand clay, sand , or bituminous surfaced roads which are maintained by county or state funds .

(3) Any person violating the provisions of this sec­tion shall be guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-ss. 1, 2, 3, ch. 7329, 1917; ss. 1, 2, ch. 7898, 1919; RGS5617, 5618; CGL 7806, 7807; s. 1108, ch. 71-136.

861.11 Penalty for cutting or destroying shade trees along public roads.-

(1) The county commissioners of each county may prescribe that the public roads in their county shall not be less than 30 feet wide, and it shall be unlawful for any person to belt , cut, or destroy any shade trees on any public road or right-of-way without authority from the superintendent of public roads , supervisor, or overseer of the district in which said trees are situated .

(2) Each supervisor or overseer of each district in such counties shall enforce the provisions of this section by reporting the offenders to the nearest county court judge, and each offender shall be guilty of a misdemean­or of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-ss. 1-3, ch. 5005, 1901 ; GS 3677; RGS 5620; CGL 7809; s. 1110, ch. 71-1 36; s. 34, ch. 73-334. cf.-s. 337.405 Trees or other vegetation; removal or damage; penalty.

861.12 Penalty for road official or overseer ne­glecting duty.-Any superintendent of public roads, su­pervisor, or overseer who willfully neglects to perform the duties prescribed in s. 861 .11 shall be deemed guilty of, and made a party to, the offense and proceeded against as the original offender by any person .

Hlstory.-s. 4, ch. 5005, 1901 ; GS 3678; RGS 5621 ; CGL 7810.

1664

F.S. 1987 VIOLATIONS OF CERTAIN COMMERCIAL RESTRICTIONS Ch.865

CHAPTER 865

VIOLATIONS OF CERTAIN COMMERCIAL RESTRICTIONS

865.02 Falsely shipping oranges as Florida oranges. 865.04 False packing of provisions. 865.05 Selling trees, plants or vines under false name. 865.07 Adulterated syrup. 865.08 Purchase of cotton or leaf tobacco. 865.09 Fictitious Name Statute; definitions; etc. 865.10 Linen suppliers.

865.02 Falsely shipping oranges as Florida or­anges.-Whoever ships foreign-grown fruit or oranges, representing by mark or otherwise that said fru it is the product of the state, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hiatory.-s. 2, ch . 3454, 1883; RS 2708; GS 3699; RGS 5647; CGL 7851; s. 1115, ch. 71 - 136. cf.- s. 601 .98 Shipment, etc., of imported citrus fruit or ci trus products.

865.04 False packing of provisions.-Whoever fraudulently puts into any barrel, bale of cotton, cask or other package of sugar, rice, or pork, or any other article of provisions any dirt , rubbish, or other thing , shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083.

Hiatory.-s. 54, Feb. 10, 1832; RS 2710; GS 3703; RGS 5855; CGL 7856; s. 111 6, ch. 71-136.

865.05 Selling trees, plants or vines under false name.-AII trees, plants, seeds, and vines sold , offered for sale, or exposed for sale in this state shall be properly named as to variety and kind , and any person knowingly selling , trading , exchanging, or offering or exposing for sale any trees, seeds, plants, or vines falsely named as to variety and kind, with the purpose to deceive or de­fraud the purchaser, shall be guilty of a misdemeanor of the second degree , punishable as provided in s. 775.083.

Hlatory.-s. 1, ch. 5233, 1903; GS 3704; RGS 5856; CGL 7857; s. 111 7, ch. 71- 136.

865.07 Adulterated syrup.-(1) Any person , or agent thereof, who shall sell , offer

for sale, or advertise for sale in this state any adulterated or mixed syrups whatever, except at the time of such sale or offer for sale the percentage of such adulteration or mixture and the name and post-office address of the manufacturer is clearly stamped or labeled on the barrel , can, case, bottle, or other receptacle containing such syrup or mixture, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) The term "adulterated mixture" or "admixture ," as used herein is understood to apply to all mixtures of two or more ingredients differing in their nature and quality, such as sugarcane syrup, sorghum syrup, maple syrup, molasses, or glucose.

Hiatory.- ss. 1, 2, 3, ch. 5231, 1903; GS 3706; RGS 5857; CGL 7860; s. 111 9, ch. 71-1 36. cf.-ss. 500.01-500.307 Florida Food Act.

865.08 Purchase of cotton or leaf tobacco.-Who­ever trades, traffics for, or buys, except from the produc­er or his authorized agent, any cotton or leaf tobacco,

unless the same be baled or boxed in the usual manner, or unless upon some exhibition of evidence in writing that the producer has parted with his interest therein , shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlatory.- s. 11 , ch. 1466, 1866; RS 271 1; GS 3707; RGS 5658; CGL 7861 ; s. 1120, ch. 71-136.

865.09 Fictitious Name Statute; definitions; etc.­(1) This section shall be known as the "Fictitious

Name Statute." (2)(a) "Persons" shall include every individual ,

whether natural or artificial , firm , or group or combination of individuals or partnerships, whether natural or repre­sentative.

(b) "Fictitious names" shall include any trade name, whether a single name or a group of names, other than the proper name or known called names of those per­sons engaged in such business or professions.

(c) "Business" shall include all enterprises or adven­tures wherein persons either sell , buy, exchange, barter, or deal , or any of these things, or represent the dealing in anything or article of value, or rendering services for compensation .

(3) It shall be unlawful for any person or persons, as defined herein , to engage in business as herein defined under a fictitious name as herein defined unless said fic­titious name shall be registered with the clerk of the cir­cuit court of the county where the principal place of busi­ness is , which registration shall consist of recording with the clerk an affidavit signed by all interested persons, stating under oath the names of all those interested in the business enterprise, the extent of the interest of each, and the fictitious name under which said business is carried on . Said registration may not be made until the person or persons desiring to engage in business under a fictitious name shall have advertised his or their inten­tion to register said fictitious name at least once a week for 4 consecutive weeks in some newspaper as defined by law in the county where said registration is to be made, and said registration shall not be accepted by the clerk of the circuit court except upon receiving proof of such publication , which shall be recorded with the affi­davit of those declaring an interest in the business enter­prise.

(4) The clerk of the circuit court shall receive a ser­vice charge as provided in s. 28.24 for receiving and re­cording said registration , to be paid by the person or persons engaged in doing business under a fictitious name, as herein defined.

(5)(a) The penalty for failure to comply with this sec­tion is that the business, the members of or those inter­ested in doing such business, shall not be permitted to maintain any action , suit, or proceeding in any court of this state until this section is complied with . No action , suit, or proceeding shall be maintained in any court of this state by any successor or assignee of such busi­ness on any right , claim, or demand arising out of the transaction of business by such business in this state until this section has been complied with .

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Ch.865 VIOLATIONS OF CERTAIN COMMERCIAL RESTRICTIONS F.S. 1987

(b) The failure of a business to comply with this sec­tion shall not impair the validity of any contract, deed, mortgage, security interest, lien, or act of such business and shall not prevent such business from defending any action, suit, or proceeding in any court of this state. However, a party aggrieved by a noncomplying busi­ness shall be entitled to reasonable attorney's fees and court costs necessitated by the noncomplying busi­ness.

(c) Any person who fails to comply with this section is guilty of a misdemeanor of the second degree, punish­able as provided in s. 775.082 or s. 775.083.

History.-ss. 1-5, ch. 20953, 1941 ; s. 1, ch. 26760, 1951 ; s. 1, ch. 67-209; s. 35, ch. 70-134; s. 1121 , ch. 71-136; s. 1, ch. SS-64.

865.10 Linen suppliers.-(1) REGISTRATION OF NAME.-A person engaged

in the business of supplying or furnishing for hire or com­pensation on a rental or lease basis clean laundered bed linen or table linen, garments, aprons, or towels who uses his name and the word "registered" on such articles or supplies may register such articles or supplies by fil­ing in the office of the clerk of the circuit court of the county where his principal place of business is situated, and also with the Department of State, a description of the name so used by him, and paying a fee of $25 to each office for each filing, and shall publish such de-

scription once in each of 3 successive weeks in a news­paper of general circulation in the county where the de­scription has been filed .

(2) UNAUTHORIZED USE OR DISPOSITION OF REGISTERED LINENS, ETC.-No person shall without the written consent of the owner willfully take, detain, use, sell, traffic in or otherwise dispose of, or use for any purpose other than that for which such article was in­tended any registered bed linen or table linen, garment, apron, or towel ; provided, however, that the use of such article or articles at the place where the same are placed or delivered by the owner or owners under an agree­ment, lease, or license from such owner shall not be un­lawful; and provided, further, that nothing herein con­tained shall make it unlawful for any caterer, hotel, res­taurant, cafe, or other public hostelry to permit and allow the use of such bed linen or table linen, garment, apron, or towel by any guest, boarder, or regularly hired em­ployee thereof during the period of any lease, renting, or hiring agreement of said supplies with the owner thereof.

(3) PENAL TY.-Anyone found guilty of violation of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775 .082 or s. 775.083.

Hiatory.-ss. 1, 2, ch. 67-196; ss. 10, 35, ch. 69-106; s. 1122, ch . 71-136.

1666

F.S. 1987 AFFRAYS; RIOTS; ROUTS; UNLAWFUL ASSEMBLIES Ch. 870

CHAPTER 870

AFFRAYS: RIOTS: ROUTS: UNLAWFUL ASSEMBLIES

870.01 870.02 870.03 870.04 870.041

870.042 870.043 870.044 870.045 870.046 870.047 870.048 870.05 870.06

Affrays and riots. Unlawful assemblies. Riots and routs. Magistrate to disperse riotous assembly. Preservation of the public peace by local au-

thority. Designation of local authority. Declaration of emergency. Automatic emergency measures. Discretionary emergency measures. Filing and publication. Duration and termination of emergency. Violations . When killing excused . Unauthorized military organizations.

870.01 Affrays and riots.-(1) All persons guilty of an affray shall be guilty of a

misdemeanor of the first degree, punishable as provid­ed in s. 775.082 or s. 775.083.

(2) All persons guilty of a riot, or of inciting or encour­aging a riot, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 35, Feb. 10, 1832; RS 2406; GS 3239; RGS 5072; CGL 7174; s. 1, ch. 67-407; s. 1125, ch. 71-136.

870.02 Unlawful assemblies.-lf three or more per­sons meet together to commit a breach of the peace, or to do any other unlawful act, each of them shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-RS 2407; GS 3240; RGS 5073; CGL 7175; s. 1126, ch. 71-136. cf.- ss. 876.03, 876.04 Anarchy, Communism, etc., unlawful assembly for purpose

of.

870.03 Riots and routs.-lf any persons unlawfully assembled demolish, pull down or destroy, or begin to demolish, pull down or destroy, any dwelling house or other building, or any ship or vessel, each of them shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 7, ch. 1637, 1868; RS 2408; GS 3241; RGS 5074; CGL 7176; s. 1127, ch . 71-136.

870.04 Magistrate to disperse riotous assembly.­lf any number of persons, whether armed or not, are un­lawfully, riotously or tumultuously assembled in any county, city or municipality, the sheriff or his deputies, or the mayor, or any commissioner, councilman, alder­man or police officer of the said city or municipality, or any officer or member of the Florida Highway Patrol, or any officer or agent of the Game and Fresh Water Fish Commission, Department of Natural Resources, or bev­erage enforcement agent, any personnel or representa­tives of the Department of Law Enforcement or its suc­cessor, or any other peace officer, shall go among the persons so assembled, or as near to them as may be with safety, and shall in the name of the state command all the persons so assembled immediately and peace­ably to disperse: and if such persons do not thereupon immediately and peaceably disperse, said officers shall

command the assistance of all such persons in seizing, arresting and securing such persons in custody; and if any person present being so commanded to aid and as­sist in seizing and securing such rioter or persons so un­lawfully assembled, or in suppressing such riot or unlaw­ful assembly, refuses or neglects to obey such com­mand, or, when required by such officers to depart from the place, refuses and neglects to do so, he shall be deemed one of the rioters or persons unlawfully assem­bled, and may be prosecuted and punished accordingly.

Hlstory.-ss. 1, 2, ch. 1637, 1868; RS 2409; GS 3242; AGS 5075; CGL 7177; ss. 1, chs. 61-223 and 61-237; s. 1, ch. 67-2203; s. 3, ch. 67-2207; ss . 20, 25, 35, ch. 69-106; s. 34, ch. 73-334; s. 1, ch. 77-174; s. 29, ch . 79-8.

870.041 Preservation of the public peace by local authority.-ln the event of overt acts of violence, or the imminent threat of such violence, within a county or mu­nicipality and the Governor has not declared a state of emergency to exist, local officers shall be empowered to declare such a state of emergency exists in accord­ance with the provisions of ss. 870.041-870.048.

History.-s. 1, ch. 70-990.

870.042 Designation of local authority.-(1) The sheriff of each of the several counties of this

state, or such other county official having the duties of a sheriff in counties operating under home rule charter, by whatever name known, shall be empowered to de­clare that a state of emergency exists within the unincor­porated areas of the county and to exercise the emer­gency powers conferred in ss. 870.041-870.047.

(2) The governing body of any municipality within this state may designate by duly adopted ordinance a city official who shall be empowered to declare that a state of emergency exists within the boundaries of the municipality and to exercise the emergency powers con­ferred in ss. 870.041-870.047. The designated city offi­cial shall be either the mayor or chief of police or the per­son who performs the duties of a mayor or chief of police in such municipality. In the absence of a duly adopted ordinance so designating the official so to act , the chief of police of such municipality is designated as the city official to assume the duties and powers hereof.

History.-s. 2, ch. 70-990.

870.043 Declaration of emergency.-Whenever the sheriff or designated city official determines that there has been an act of violence or a flagrant and substantial defiance of, or resistance to, a lawful exercise of public authority and that, on account thereof, there is reason to believe that there exists a clear and present danger of a riot or other general public disorder, widespread dis­obedience of the law, and substantial injury to persons or to property, all of which constitute an imminent threat to public peace or order and to the general welfare of the jurisdiction affected or a part or parts thereof, he may declare that a state of emergency exists within that juris­diction or any part or parts thereof.

Hlstory.-s. 3, ch. 70-990.

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Ch. 870 AFFRAYS; RIOTS; ROUTS; UNLAWFUL ASSEMBLIES F.S. 1987

870.044 Automatic emergency measures.-When­ever the public official declares that a state of emergen­cy exists, pursuant to s. 870.043, the following acts shall be prohibited during the period of said emergency throughout the jurisdiction:

(1) The sale of, or offer to sell, with or without consid­eration; any ammunition or gun or other firearm of any size or description.

(2) The intentional display, after the emergency is declared, by or in any store or shop of any ammunition or gun or other firearm of any size or description .

(3) The intentional possession in a public place of a firearm by any person, except a duly authorized law en­forcement official or person in military service acting in the official performance of his duty.

Hlstory.-ss. 4, 5, ch. 70-990.

870.045 Discretionary emergency measures.­Whenever the public official declares that a state of emergency exists, pursuant to s. 870.043, he may order and promulgate all or any of the following emergency measures, in whole or in part, with such limitations and conditions as he may deem appropriate:

(1) The establishment of curfews, including, but not limited to, the prohibition of or restrictions on pedestrian and vehicular movement, standing, and parking, except for the provision of designated essential services such as fire, police, and hospital services, including the trans­portation of patients thereto, utility emergency repairs, and emergency calls by physicians.

(2) The prohibition of the sale or distribution of any alcoholic beverage, with or without the payment or a consideration therefor.

(3) The prohibition of the possession on any person in a public place of any portable container containing any alcoholic beverage .

(4) The closing of places of public assemblage with designated exceptions.

(5) The prohibition of the sale or other transfer of possession, with or without consideration , of gasoline or any other flammable or combustible liquid altogether or except by delivery into a tank properly affixed to an op­erable motor-driven vehicle, bike, scooter, boat, or air­plane and necessary for the propulsion thereof.

(6) The prohibition of the possession in a public place of any portable container containing gasoline or any other flammable or combustible liquid.

Any such emergency measure so ordered and promul­gated shall be in effect during the period of said emer­gency in the area or areas for which the emergency has been declared.

History.-ss. 4, 6, ch. 70-990.

870.046 Filing and publication.-Any state of emer­gency or emergency measure declared or ordered and promulgated by virtue of the terms of ss. 870.041-870.045 shall, as promptly as practicable, be filed in the office of the municipal clerk or clerk of the circuit court and delivered to appropriate news media for publication

and radio and television broadcast thereof. If practica­ble, such state of emergency declaration or emergency measure shall be published by other means such as by posting and loudspeakers.

Hlstory.-s. 7, ch. 70-990.

870.047 Duration and termination of emergency.­A state of emergency established under ss. 870.041-870.046 shall commence upon the declaration thereof by the public official and shall terminate at the end of a period of 72 consecutive hours thereafter unless, prior to the end of such 72-hour period, the public official, the Governor, county commission, or city council shall have terminated such state of emergency. Any extension of the 72-hour time limit must be accomplished by request from the public official and the concurrence of the coun­ty commission or city council by duly enacted ordinance or resolution in regular or special session .

Hlstory.-s. 8, ch. 70-990.

870.048 Violations.-Any violation of a provision of ss. 870.041-870.047 or of any emergency measure es­tablished pursuant thereto shall be a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 9, ch. 70-990: s. 1128, ch. 71-136.

870.05 When killing excused.-lf, by reason of the efforts made by any of said officers or by their direction to disperse such assembly, or to seize and secure the persons composing the same, who have refused to dis­perse, any such person or other person present is killed or wounded, the said officers and all persons acting by their order or under their direction, shall be held guiltless and fully justified in law; and if any of said officers or any person acting under or by their direction is killed or wounded, all persons so assembled and all other per­sons present who when commanded refused to aid and assist said officer shall be held answerable therefor.

Hlstory.-s. 6, ch. 1637, 1868; RS 2410; GS 3243; RGS 5076; CGL 7178.

870.06 Unauthorized military organizations.-No body of men, other than the regularly organized land and naval militia of this state, the troops of the United States, and the students of regularly chartered educational in­stitutions where military science is a prescribed part of the course of instruction, shall associate themselves to­gether as a military organization for drill or parade in public with firearms, in this state, without special license from the Governor for each occasion , and application for such license must be approved by the mayor and alder­men of the cities and towns where such organizations may propose to parade. Each person unlawfully engag­ing in the formation of such military organization, or par­ticipating in such drill or parade, shall be guilty of a mis­demeanor of the second degree, punishable as provid­ed in s. 775.082 or s. 775 083.

Hlstory.-s. 15, ch. 1466, 1866; RS 2411 ; s. 10, ch . 5202, 1903; GS 3246; RGS 5077 ; CGL 7179; s. 1129, ch. 71-136. cf.-s. 250.43 Uniform, etc., not to be worn by persons not in military service.

1668

F.S. 1987 DISTURBING RELIGIOUS AND OTHER ASSEMBLIES Ch. 871

CHAPTER 871

DISTURBING RELIGIOUS AND OTHER ASSEMBLIES

871 .01 Disturbing schools and religious and other as­semblies.

871 .02 Indictments or informations for disturbing as­sembly.

871 .03 Peddling at camp meeting . 871 .04 Advertising ; religious discrimination ; public

places.

871.01 Disturbing schools and religious and other assemblies.-Whoever willfully interrupts or disturbs any school or any assembly of people met for the wor­ship of God or for any lawful purpose shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 19, 21, 22, ch. 1637, 1868; AS 2627,2629, 2630; GS 3547; s. 1, ch. 5719, 1907; AGS 5448; CGL 7591 ; s. 11 30, ch. 71-136.

871.02 Indictments or informations for disturbing assembly.-The several grand juries of this state in their respective counties may return indictments or the sever­al state attorneys of the state in their respective circui ts may file information against all persons violating s. 871 .01 , and such indictments or informations, when filed with the clerk of the circuit court in the county where such offense is alleged to have been committed, shall be forthwith certified by him to some court in the county having jurisdiction to try and determine such charge, and said court to which such indictment or information is certified shall proceed to try and determine such charge upon such indictment or information , the same as if affidavit had been made before such court charging the said offense.

History-- ss. 2, 3, ch. 5719, 1907; AGS 5449; CGL 7592.

871.03 Peddling at camp meeting.-Whoever dur­ing the time of holding any camp or field meeting for reli ­gious purposes , and within 1 mile of the place of holding such meeting, hawks or peddles goods, wares, mer­chandise, or without permission from the authorities having charge of such meeting , establishes any tent or booth for vending of provisions or refreshments, or prac­tices or engages in gaming or horseracing, or exhibits, or offers to exhibit , shows or plays shall be guilty of a misdemeanor of the second degree, punishable as pro­vided in s. 775.083; but a person having his usual and

regular place of business within such limits is not hereby required to suspend his business.

Hlstory.-s. 20, ch. 1637, 1868; AS 2628; GS 3548; AGS 5450; CGL 7593; s. 11 31, ch . 71-136.

871.04 Advertising; religious discrimination; public places.-

(1) Except where the context clearly requires a dif­ferent meaning , the following terms shall have for the purposes of this section the meaning respectively as­cribed to them:

(a) "Person" means any individual, partnership, asso­ciation , corporation , or organized group of persons, whether incorporated or not.

(b) "Establishment" means any building or part thereof, including, without being limited to, public inns, hotels, motels, apartment hotels, any structure, enclo­sure, tract of land, and all improvements , appurte­nances, and additions, bodies of water whether natural or artificial , and any other place of whatsoever nature to which the general public is or will be admitted, allowed , or invited on payment of a fee, free of charge, or other­wise.

(2) No person, directly or indirectly, for himself or for another, shall publish , post, broadcast by any means, maintain , circularize, issue, display, transmit, or other­wise disseminate or place in any manner before the pub­lic with reference to an establishment any advertisement that the patronage of any person is not welcome, or is objectionable, or is not acceptable because of his reli­gion . No person shall cause or solicit another person to violate this section .

(3) This section shall not apply to any establishment which is private or limited to membership only, to any camp administered by any religious organization, group, or sect , admission to which is based on religious belief or affiliation , or to any gathering , meeting , or assembly held under the auspices of any religious organization , group, or sect.

(4) Any person or persons violating this section shall be guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.082 or s. 775.083.

Hlstory.-ss. 1, 2, ch. 29845, 1955; s. 1132, ch. 71-136.

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Ch. 872 OFFENSES CONCERNING DEAD BODIES AND GRAVES F.S. 1987

CHAPTER 872

OFFENSES CONCERNING DEAD BODIES AND GRAVES

872.01 872.02

872.03 872.04 872.05

Dealing in dead bodies. . Injuring or removing tomb or monument; dis-

turbing contents of grave or tomb; penalties. Cremating human bodies; limitation. Autopsies; consent required , exception. Unmarked human burials.

872.01 Dealing in dead bodies.-Whoever buys, sells , or has in his possession for the purpose of buying or selling or trafficking in the dead body of any .human being shall be guilty of a misdemeanor of the f1rst de­gree, punishable as provided in s. 775.082 ors. 775.083; provided, however, that nothing conta1ned.1n th1s sec­tion shall be construed to prohibit the obta1mng, dissect­ing, using, and disposing of dead bodies for the purpose of teaching or other appropriate university research by any medical school , dental school, school of nurs1ng, or other university research or teaching un1t wh1ch IS a part of a regularly established or chartered institution of higher learning under the laws of the state .. .

History.-s. 26, ch. 1637, 1868; RS 2625; GS 3545; RGS 5446, CGL 7589, s. 1, ch. 22057, 1943; s. 1, ch. 26724, 1951 ; s . 1133, ch. 71-136. . . cf.-s. 873.01 Purchase or sale of body organs and tissue proh1b1ted.

872.02 Injuring or removing tomb or monument; disturbing contents of grave or tomb; penalties.-

(1) A person who willfully and knowingly destroys, mutilates, defaces, injures, or removes any tomb, monu­ment, gravestone, burial mound, earthen or shell monu­ment containing human skeletal rema1ns or assoc1ated burial artifacts, or other structure or thing placed or de­signed for a memorial of the dead, or any fence , railing, curb, or other thing intended for the protect1on or orna­mentation of any tomb, monument, gravestone, bur~al mound, earthen or shell monument containing human skeletal remains or associated burial artifacts, or other structure before mentioned, or for any enclosure for the burial of the dead, or willfully destroys, mutilates, re­moves, cuts , breaks, or injures any tree, shrub, or plant placed or being within any such encl?sure, is guiltyof a misdemeanor of the first degree, pumshable as provid­ed in s. 775.082 or s. 775.083. However, if the damage to such property is greater than $100 or if any prope.rty removed is greater than $100 in value, then he IS gu1lty of a felony of the third degree, punishable as prov1ded in s. 775.082, s. 775.083, or s. 775.084.

(2) A person who willfully and knowingly disturbs the contents of a tomb or grave is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) This section shall not apply to any person acting under the direction or authority of the DIVISion of Histori­cal Resources of the Department of State, to cemeteries operating under chapter 497, or to any person otherwise authorized by law to remove or d1sturb a tomb, monu­ment, gravestone, burial mound, or similar structure, or its contents, as described in subsection (1 ).

History.-s. 27, ch. 1637, 1868; RS 2626; GS 3546; RGS 5447; CGL7590; s. 1134, ch. 71-136; s. 1, ch. 84-230; s. 2, ch. 87-154.

872.03 Cremating human bodies; limitation.-(1) It shall be unlawful for any person, firm, or corpo­

ration to cremate any dead human body pr1or to the ex­piration of 48 hours after the death of such human body.

(2) Anyone convicted for the v1olat1on of th1s sect1on shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlatory.-ss. 1, 2, ch. 21780, 1943; s. 1135, ch. 71-136.

872.04 Autopsies; consent required, exception.­(1) "Autopsy" means a post mortem dissection of a

dead human body in order to determine the cause, seat, or nature of disease or injury and includes the retention of tissues customarily removed during the course of au­topsy for evidentiary, identification, diagnostic, scientif­ic, or therapeutic purposes.

(2) Unless otherwise authorized by statute, no au­topsy shall be performed without the written consent of the spouse, nearest relative, or, if no such next of k1n can be found, the person who has assumed custody of the body for purposes of burial. When two or more persons assume custody of the body for such purposes, then the consent of any one of them shall be sufficient to autho­rize the autopsy.

(3) Any such written consent may be given by tele­gram, and any telegram purporting to have be~n sent by a person authorized to give such consent Will be pre­sumed to have been sent by such person. A duly wit­nessed telephone permission is acceptable in lieu of written permission in those circumstances where obtain­ing written permission would result in undue delay.

(4) If after diligent search and 1n~wy 1t IS estab­lished by the chief law enforcement off1cer hav1ng JUriS­diction , through his examination of missing persons rec­ords and other inquiry, that no person can be found who can authorize an autopsy as herein provided, then after a reasonable time, any person licensed to practice medi­cine under chapter 458 or osteopathic medicine under chapter 459, and whose practice involves the usual per­formance of autopsies, may conduct an autopsy, with­out written consent, on the remains for purposes of con­firming medical diagnosis and sus~ected communica­ble diseases; and no cause of act1on Will be brought against such physician for performance of su?h autop­sy. A reasonable time for purposes of th1s prov1s1on shall be not less than 48 hours or more than 72 hours after death.

Hlstory.-ss. 1-3, ch. 67 -87; s. 1, ch. 70-367; s. 1, ch; 78-34; s. 182, ch. 79-184. cf.-s. 406.11 Examinations, investigations, and autops1es.

872.05 Unmarked human burials.-(1) LEGISLATIVE INTENT.-It is the intent of the

Legislature that all human burials and human skeletal re­mains be accorded equal treatment and respect based upon common human dignity without reference t? ~th­nic origin, cultural background, or relig1ous aff11iat1on. This section applies to all human burials, human skeletal remains, and associated burial artifacts not otherwise protected under chapter 497 or other state law and

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F.S. 1987 OFFENSES CONCERNING DEAD BODIES AND GRAVES Ch.872

found upon or within any public or private land in the state, including submerged lands.

(2) DEFINITIONS.-As used in this section: (a) "Archaeologist" means a person who is regis­

tered by the Society of Professional Archaeologists with an emphasis in .field research or who, in the judgment of the State Archaeologist, meets the training and expe­rience requirements necessary for such registration.

(b) "District medical examiner" means a person ap­pointed under s. 406.06, s. 406.15, or s. 406.17.

(c) "Division" means the Division of Historical Re­sources of the Department of State.

(d) "Human skeletal analyst" means a person who possesses a postgraduate degree in human skeletal bi­ology, human forensic osteology, or other related area of physical anthropology and who has a minimum of 1 year of laboratory experience in human skeletal analysis and reconstruction.

(e) "State Archaeologist" means the person em­ployed by the division pursuant to s. 267.061 (4).

(f) "Unmarked human burial" means any human skeletal remains or associated burial artifacts or any lo­cation where human skeletal remains or associated buri­al artifacts are discovered or believed to exist on the ba­sis of archaeological or historical evidence, but which are not included under s. 872.02.

(3) NOTIFICATION.-(a) Any person who knows or has reason to know

that an unmarked human burial is being unlawfully dis­turbed, destroyed, defaced, mutilated, removed, exca­vated, or exposed shall immediately notify the local law enforcement agency with jurisdiction in the area where the unmarked human burial is located.

(b) Any law enforcement agency that finds evidence that an unmarked human burial has been unlawfully dis­turbed shall notify the district medical examiner pursu­ant to subsection (4).

(4) DISCOVERY OF AN UNMARKED HUMAN BURI­AL OTHER THAN DURING AN ARCHAEOLOGICAL EX­CAVATION.-When an unmarked human burial is dis­covered other than during an archaeological excavation authorized by the state or an educational institution, all activity that may disturb the unmarked human burial shall cease immediately, and the district medical exam­iner shall be notified. Such activity shall not resume un­less specifically authorized by the district medical exam­iner or the State Archaeologist.

(a) If the district medical examiner finds that the un­marked human burial may be involved in a legal investi­gation or represents the burial of an individual who has been dead less than 75 years, the district medical exam­iner shall assume jurisdiction over and responsibility for such unmarked human burial, and no other provisions of this section shall apply. The district medical examiner shall have 30 days after notification of the unmarked hu­man burial to determine if he shall maintain jurisdiction or refer the matter to the State Archaeologist.

(b) If the district medical examiner finds that the un­marked human burial is not involved in a legal investiga­tion and represents the burial of an individual who has been dead 75 years or more, he shall notify the State Ar­chaeologist, and the division may assume jurisdiction

over and responsibility for the unmarked human burial pursuant to subsection (6).

(c) When the division assumes jurisdiction over an unmarked human burial, the State Archaeologist shall consult a human skeletal analyst who shall report within 15 days as to the cultural and biological characteristics of the human skeletal remains and where such burial or remains should be held prior to a final disposition.

(5) DISCOVERY OF AN UNMARKED HUMAN BURI­AL DURING AN ARCHAEOLOGICAL EXCAVATION.-

(a) When an unmarked human burial. is discovered as a result of an archaeological excavation and the ar­chaeologist finds that the unmarked human burial repre­sents the burial of an individual who has been dead less than 75 years, the archaeologist shall notify the district medical examiner, and all activity that may disturb the unmarked human burial shall cease until the district medical examiner authorizes work to resume.

(b) If such unmarked human burial represents the burial of an individual who has been dead 75 years or more, archaeological activities may not resume until the State Archaeologist has been notified of the unmarked human burial.

(c) Within 15 days after the discovery of an un­marked human burial, the archaeologist conducting the excavation shall report to the State Archaeologist his opinion regarding the cultural and biological characteris­tics of the unmarked human burial and where human skeletal remains and associated burial artifacts should be held prior to a final disposition. The division may as­sume jurisdiction over and responsibility for the un­marked human burial pursuant to subsection (6).

(6) JURISDICTION; DUTIES OF THE STATE AR­CHAEOLOGIST.-The division may assume jurisdiction over and responsibility for an unmarked human burial in order to initiate efforts for the proper protection of the burial and the human skeletal remains and associated burial artifacts. Whenever the division assumes jurisdic­tion over and responsibility for an unmarked human buri­al, the State Archaeologist shall:

(a) Determine whether the unmarked human burial is historically, archaeologically, or scientifically signifi­cant. If the burial is deemed significant, reinterment may not occur until the remains have been examined by a hu­man skeletal analyst designated by the State Archaeolo­gist.

(b) Make reasonable efforts to identify and locate persons who can establish direct kinship, tribal , commu­nity, or ethnic relationships with the individual or individ­uals whose remains constitute the unmarked human burial. If possible, the State Archaeologist shall consult with the closest related family member or recognized community leaders, if a community or ethnic relationship is established, in determining the proper disposition of the remains found in the unmarked human burial.

(c) If he is unable to establish a kinship, tribal, com­munity, or ethnic relationship with the unmarked human burial, determine the proper disposition of the burial and consult with persons with relevant experience, includ­ing :

1. A human skeletal analyst. 2. Two Native American members of current state

tribes recommended by the Governor's Council on lndi-

1671

Ch. 872 OFFENSES CONCERNING DEAD BODIES AND GRAVES F.S. 1987

an Affairs, Inc., if the remains are those of a Native Amer­ican .

3. Two representatives of related community or eth-nic groups if the remains are not those of a Native Ameri­can.

4. An individual who has special knowledge or ex-perience regarding the particular type of the unmarked human burial.

If the State Archaeologist finds that an unmarked human burial is historically, archaeologically, or scientifically sig­nificant and if the parties with whom he is required under this subsection to consult agree, the human skeletal re­mains and the associated burial artifacts thereof shall belong to the state with title thereto vested in the d ivi ­sion .

(7) REPORT REQUIRED.- The archaeologist and human skeletal analyst involved in the archaeological excavation and scientific analysis of an unmarked hu­man burial shall submit a written report of archaeological and scientific findings as well as a summary of such find­ings, in terms that may be understood by lay persons, to the State Archaeologist within 2 years after comple­tion of an excavation . The d ivision shall publish the sum­mary within 1 year after its receipt and shall make such report available upon request.

(8) PUBLIC DISPLAY.-(a) Associated burial artifacts may be made avail­

able on loan by the division for educational purposes to institutions that have demonstrated an abil ity to provide safe, proper, and respectful care.

(b) The division shall develop guidelines and adopt rules regarding the public display of human remains . Such guidelines and rules shall not restrict legal , medi­cal, or educational use of human skeletal remains, or the display of human skeletal remains in a manner not objec­tionable to groups with a kinship, tribal, community, or ethnic relationship to the individual whose remains are displayed.

(9) EXCAVATION NOT REQUIRED.- This section does not require excavation of an unmarked human buri­al unless circumstances require excavation to prevent destruction of the human skeletal remains .

(10) VIOLATION AND PENALTIES.-(a) Any person who willfully and knowingly disturbs,

destroys , removes , vandalizes, or damages an un­marked human burial is guilty of a felony of the third de­gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Any person who has knowledge that an un­marked human burial is being disturbed, vandalized, or damaged and fails to notify the local law enforcement agency with jurisdiction in the area where the unmarked human burial is located is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) This subsection shall not apply to any person acting under the direction or authority of the division or to any person otherwise authorized by law to disturb, destroy, or remove an unmarked human burial.

History.- s. 1, ch. 87-154.

1672

F.S. 1987 SALE OF ANATOMICAL MATIER Ch.873

CHAPTER 873

SALE OF ANATOMICAL MA TIER

873.01 Purchase or sale of human organs and tissue prohibited.

873.05 Advertising or sale of human embryos prohibit­ed.

873.01 Purchase or sale of human organs and tis­sue prohibited.-

(1) No person shall knowingly offer to purchase or sell, or purchase, sell, or otherwise transfer, any human organ or tissue for valuable consideration.

(2) No for-profit corporation or any employee there­of shall transfer or arrange for the transfer of any human body part for valuable consideration.

(3)(a) The human organs and tissues subject to the provisions of this section are the eye, cornea, kidney, liv­er, heart, lung, pancreas, bone, and skin or any other or­gan or tissue adopted by rule by the Department of Health and Rehabilitative Services for this purpose.

(b) As used in this section, the term "valuable con­sideration" does not include the reasonable costs asso-

ciated with the removal, storage, and transportation of a human organ or tissue.

(4) A person who violates the provisions of this sec­tion is guilty of a felony of the second degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 1, ch. 84-264: s. 3, ch. 87-372. cf.-ch. 245 Disposition of dead bodies.

s. 732.910 Legislative declaration with respect to anatomical gifts. s. 872.01 Dealing in dead bodies.

873.05 Advertising or sale of human embryos pro­hibited.-

(1) No person shall knowingly advertise or offer to purchase or sell , or purchase, sell , or otherwise transfer, any human embryo for valuable consideration.

(2) As used in this section, the term "valuable con­sideration" does not include the reasonable costs asso­ciated with the removal, storage, and transportation of a human embryo.

(3) A person who violates the provisions of this sec­tion is guilty of a felony of the second degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 5, ch. 84-264: s. 4, ch. 87-372.

1673

Ch.876

876.01

876.02

876.03

876.04

876.05 876.06 876.07

876.08 876.09 876.10 876.11 876.12 876.13

876.14

876.15

876.155 876.16 876.17

876.18

876.19 876.20

876.21 876.22 876.23 876.24

876.25

876.26

876.27 876.28

876.29

876.30

876.31 876.32 876.33 876.34 876.35

876.36 876.37 876.38

876.39

CRIMINAL ANARCHY, TREASON, ETC. F.S. 1987

CHAPTER 876

CRIMINAL ANARCHY, TREASON, AND OTHER CRIMES AGAINST PUBLIC ORDER

Criminal anarchy, Communism, etc ., prohibit­ed.

Criminal anarchy, Communism, etc ., defined and made a felony; penalty.

Unlawful assembly for purposes of anarchy, communism, etc.

Allowing unlawful assembly in building prohib-ited.

Public employees; oath. Discharged for refusal to execute. Oath as prerequisite to qualification for public

office. Penalty for not discharging. Scope of law. False oath ; penalty. Public place defined. Unlawful to wear hood, etc .; on street , etc. Wearing mask, hood, or other device on pub-

lic property. Wearing mask, hood, or other device on prop­

erty of another. Wearing mask, hood, or other device at dem-

onstration or meeting. Applicability; ss. 876.12-876.15. Certain exemptions. Placing burning or flaming cross in publ ic

place. Placing burning or flaming cross on property

of another. Exhibits that intimidate. Wearing mask and placing exhibit to intimi-

date. Penalty. Definitions. Subversive activities unlawful; penalty. Membership in subversive organization; pen-

alty. Persons convicted under s. 876.23 or s.

876.24 not to hold office or vote. Unlawful for subversive organizations to exist

or function . Enforcement of ss. 876.22-876.31 . Grand jury to investigate violations of ss .

876.22-876.31 . Subversive person prohibited from holding of­

fice or employment. Subversive person not to be candidate for

election . Short title ; ss. 876.22-876.30. Treason . Misprision of treason . Combination to usurp government. Combination against part of the people of the

state. Inciting insurrection. Definitions. Intentional injury to or interference with prop­

erty. Intentionally defective workmanship.

876.40 876.41 876.42 876.43 876.44

876.45 876.46

876.47 876.48 876.49 876.50 876.51 876.52

Attempts. Conspirators. Witnesses ' privileges. Unlawful entry on property. Questioning and detaining suspected per­

sons. Closing and restricting use of highway. Penalty for going upon closed or restricted

highway. Rights of labor. Relation to other statutes. Construction . Effective period of law. Short title . Public mutilation of flag .

876.01 Criminal anarchy, Communism, etc., prohib· ited.-"Criminal anarchy," "criminal Communism," "crimi­nal Naziism ," or "criminal Fascism" are doctrines that ex­isting form of constitutional government should be over­thrown by force or violence or by any other unlawful means, or by assassination of officials of the Govern­ment of the United States or of the several states. The advocacy of such doctrines either by word of mouth or writing or the promotion of such doctrines independent­ly or in collaboration with or under the guidance of offi­cials of a foreign state or an international revolutionary party or group is unlawful.

Hlatory.-s. 1, ch . 20216, 1941 ; s. 11 36, ch. 71-136. cf.-ss. 870.02, 870.04 Unlawful assemblies generally.

876.02 Criminal anarchy, Communism, etc., de­fined and made a felony; penalty.-Any person who:

(1) By word of mouth or writing advocates, advises, or teaches the duty, necessity, or propriety of overthrow­ing or overturning existing forms of constitutional gov­ernment by force or violence; of disobeying or sabotag­ing or hindering the carrying out of the laws, orders, or decrees of duly constituted civil , naval, or military au­thorities ; or by the assassination of officials of the Gov­ernment of the United States or of the state, or by any unlawful means or under the guidance of, or in collabora­tion with , officials, agents, or representatives of a foreign state or an international revolutionary party or group; or

(2) Prints, publishes, edits, issues, or knowingly cir­culates, sells, distributes, or publicly displays any book, paper, document, or written or printed matter in any form , containing or advocating, advising , or teaching the doctrine that constitutional government should be over­thrown by force , violence, or any unlawful means; or

(3) Openly, willfully and deliberately urges , advo­cates, or justifies by word of mouth or writing the assas­sination or unlawful killing or assaulting of any official of the Government of the United States or of this state be­cause of his official character, or any other crime, with intent to teach, spread , or advocate the propriety of the doctrines of criminal anarchy, criminal Communism, criminal Naziism, or criminal Fascism; or

1674

F.S. 1987 CRIMINAL ANARCHY, TREASON, ETC. Ch.876

(4) Organizes or helps to organize or becomes a member of any society, group, or assembly of persons formed to teach or advocate such doctrines; or

(5) Becomes a member of, associated with or pro­motes the interest of any criminal anarchistic , Commu­nistic, Naziistic or Fascistic organization, or helps to or­ganize or becomes a member of or affiliated with any subsidiary organization or associated group of persons who advocates, teaches, or advises the principles of criminal anarchy, criminal Communism, criminal Naziism or criminal Fascism;

shall be guilty of a felony of the second degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 2, ch. 20216, 1941; s. 1137, ch. 71-136.

876.03 Unlawful assembly for purposes of anar­chy, communism, etc.-Whenever two or more persons assemble for the purpose of promoting, advocating , or teaching the doctrine of criminal anarchy, criminal Com­munism, criminal Naziism or criminal Fascism, as de­fined ins . 876.01 of this law, such an assembly or organi­zation is unlawful , and every person voluntarily partici­pating therein by his presence, aid, or instigation shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 3, ch. 20216, 1941; s. 1136, ch. 71-136.

876.04 Allowing unlawful assembly in building pro­hibited.-No owner, agent, superintendent, janitor, caretaker, or occupant of any place, building , or room , shall willfully and knowingly permit therein any assem­blage of persons prohibited by s. 876.03, and if such per­son after notification that the premises are so used per­mits such use to be continued he shall be guilty of a mis­demeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.- s. 4, ch. 2021 6, 1941 ; s. 11 39, ch. 71-136.

876.05 Public employees; oath.-(1) All persons who now or hereafter are employed

by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivi­sions, counties , cities , school boards and districts of the free public school system of the state or counties , or in­stitutions of higher learning , and all candidates for public office, are required to take an oath before any person duly authorized to take acknowledgments of instru­ments for public record in the state in the following form :

I, __ , a citizen of the State of Florida and of the Unit­ed States of America, and being employed by or an offi­cer of __ and a recipient of public funds as such em­ployee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida.

(2) Said oath shall be filed with the records of the governing official or employing governmental agency prior to the approval of any voucher for the payment of salary , expenses, or other compensation.

History.-s. 1, ch. 25046, 1949; s. 22, ch . 83-214. cf.-s. 92.50 Oaths, requirements.

876.06 Discharged for refusal to execute.-lf any person required by ss. 876.05-876.10 to take the oath

herein provided for fails to execute the same, the gov­erning authority under which such person is employed shall cause said person to be immediately discharged , and his name removed from the payroll , and such per­son shall not be permitted to receive any payment as an employee or as an officer where he or she was serving .

History.-s. 2, ch. 25046, 1949.

876.07 Oath as prerequisite to qualification for public office.-Any person seeking to qualify for public office who fails or refuses to file the oath required by this act shall be held to have failed to qualify as a candidate for public office, and the name of such person shall not be printed on the ballot as a qualified candidate .

History.- s. 3, ch. 25046, 1949; s. 23, ch. 83- 214. cf. - s. 876.05 Oath for public office.

876.08 Penalty for not discharging.-Any govern­ing authority or person , under whom any employee is serving or by whom employed who shall knowingly or carelessly permit any such employee to continue in em­ployment after failing to comply with the provisions of ss. 876.05-876.10, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.- s. 4, ch. 25046, 1949; s. 1140, ch. 71 - 136.

876.09 Scope of law.-(1) The provisions of ss. 876.05-876.10 shall apply

to all employees and elected officers of the state, includ­ing the Governor and constitutional officers and all em­ployees and elected officers of all cities , towns, coun­ties , and political subdivisions, including the educational system.

(2) This act shall take precedence over all laws relat­ing to merit , and of Civil Service Law.

Hlstory.- ss. 5, 7, ch. 25046, 1949.

876.10 False oath; penalty.-lf any person required by the provisions of ss. 876.05-876.10 to execute the oath herein required executes such oath , and it is subse­quently proven that at the time of the execution of said oath said individual was guilty of making a false state­ment in said oath, he shall be guilty of perjury.

History.- s. 6, ch. 25046, 1949; s. 1141 , ch. 71-136. cf. - ch. 837 Perjury.

876.11 Public place defined.-For the purpose of ss. 876.11-876.21 the term "public place" includes all walks , alleys , streets , boulevards , avenues , lanes , roads , highways , or other ways or thoroughfares dedi­cated to publ ic use or owned or maintained by public au­thority; and all grounds and buildings owned , leased by, operated, or maintained by public authority.

History.- s. 1, ch. 26542, 1951.

876.12 Unlawful to wear hood, etc.; on street, etc. -No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk , alley, street, road , highway, or other public way in this state.

History.-s. 2, ch. 26542, 1951 .

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Ch.876 CRIMINAL ANARCHY, TREASON, ETC. F.S. 1987

876.13 Wearing mask, hood, or other device on public property.-No person or persons shall in this state, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or cov­ered as to conceal the identity of the wearer, enter upon, or be, or appear upon or within the public property of any municipality or county of the state.

History.-s. 3, ch. 26542, 1951 .

876.14 Wearing mask, hood, or other device on property of another.-No person or persons over 16 years of age shall , while wearing a mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, de­mand entrance or admission or enter or come upon or into the premises, enclosure, or house of any other per­son in any municipality or county of this state.

Hlstory.-s. 4, ch. 26542, 1951 .

876.15 Wearing mask, hood, or other device at demonstration or meeting.-No person or persons over 16 years of age, shall, while wearing a mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, hold any manner of meeting, make any demon­stration upon the private property of another unless such person or persons shall have first obtained from the owner or occupier of the property his or her written permission to so do.

History.-s. 5, ch. 26542, 1951 .

876.155 Applicability; ss. 876.12-876.15.-The pro­visions of ss. 876.12-876.15 apply only if the person was wearing the mask, hood, or other device:

(1) With the intent to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the Jaws or for the pur­pose of preventing the constituted authorities of this state or any subdivision thereof from , or hindering them in, giving or securing to all persons within this state the equal protection of the laws;

(2) With the intent, by force or threat of force, to in­jure, intimidate, or interfere with any person because of his exercise of any right secured by federal, state, or lo­cal law or to intimidate such person or any other person or any class of persons from exercising any right se­cured by federal, state, or local law;

(3) With the intent to intimidate, threaten, abuse, or harass any other person; or

(4) While he was engaged in conduct that could rea­sonably lead to the institution of a civil or criminal pro­ceeding against him, with the intent of avoiding identifi­cation in such a proceeding.

History.-s. 1, ch. 81-249.

876.16 Certain exemptions.-The following per­sons are exempted from the provisions of ss. 876.11-876.15:

(1) Any person or persons wearing traditional holi­day costumes;

(2) Any person or persons engaged in trades and employment where a mask is worn for the purpose of en­suring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession ;

(3) Any person or persons using masks in theatrical productions , including use in Gasparilla celebrations and masquerade balls ;

(4) Persons wearing gas masks prescribed in emer­gency management drills and exercises.

Hlstory.-s. 6, ch. 26542, 1951 ; s. 46, ch. 83-334.

876.17 Placing burning or flaming cross in public place.-lt shall be unlawful for any person or persons to place or cause to be placed in a public place in the state a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is a whole or a part.

Hlstory.-s. 7, ch. 26542, 1951 .

876.18 Placing burning or flaming cross on proper­ty of another.-lt shall be unlawful for any person or per­sons to place or cause to be placed on the property of another in the state a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is a whole or part without first obtain­ing written permission of the owner or occupier of the premises to so do.

Hlstory.-s. 8, ch. 26542, 1951 .

876.19 Exhibits that intimidate.-lt shall be unlawful for any person or persons to place, or cause to be placed, anywhere in the state any exhibit of any kind whatsoever with the intention of intimidating any person or persons, to prevent them from doing any act which is lawful, or to cause them to do any act which is unlaw­ful.

History.-s. 9, ch. 26542, 1951 .

876.20 Wearing mask and placing exhibit to intimi­date.-lt shall be unlawful for any person or persons while wearing a mask or any device whereby the face is so covered as to conceal the identity of the wearer to place, or to cause to be placed, at, on, or in any place any exhibit of any kind whatsoever.

Hlotory.-s. 10, ch. 26542, 1951 .

876.21 Penalty.-Any person or persons violating ss. 876.11-876.20 shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlotory.-s. 11 , ch. 26542, 1951 ; s. 1142, ch. 71-136.

876.22 Definitions.-As used in ss. 876.23-876.31: (1) "Organizations" means an organization, corpora­

tion , company, partnership, association , trust, founda­tion, fund, club, society, committee, political party, or any group of persons, whether or not incorporated, per­manently or temporarily associated together for joint ac­tion or advancement of views on any subject or sub­jects.

(2) "Subversive organization" means any organiza­tion which engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or advo­cate, abet, advise, or teach activities intended to over­throw, destroy, or to assist in the overthrow or destruc­tion of the constitutional form of the Government of the United States, the constitution or government of the state, or of any political subdivision of either of them, by revolution , force , violence, or other unlawful means.

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F.S. 1987 CRIMINAL ANARCHY, TREASON, ETC. Ch.876

(3) "Foreign subversive organization" means any or­ganization directed , dominated , or controlled , directly or indirectly, by a foreign government which engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or to advocate, abet, advise, or teach , activities intended to overthrow, destroy, or to as­sist in the overthrow or destruction of the constitutional form of the Government of the United States, or of this state, or of any political subdivision of either of them , and to establish in place thereof any form of government the direction and control of which is to be vested in , or exercised by or under, the domination or control of any foreign government, organization , or individual.

(4) "Foreign government" means the government of any country, nation, or group of nations other than the Government of the United States or of one of the states thereof.

(5) "Subversive person" means any person who commits, attempts to commit , or aids in the commission , or advocates, abets, advises, or teaches by any means any person to commit, attempt to commit , or aid in the commission of any act intended to overthrow, destroy, or to assist in the overthrow or destruction of the consti ­tutional form of the Government of the United States, or of this state, or any polit ical subdivision of either of them, by revolution, force, violence, or other unlawful means; or who is a member of a subversive organization or a for­eign subversive organization .

History.-s. 1, ch. 28221, 1953.

876.23 Subversive activities unlawful; penalty.-( 1) It shall be a felony for any person knowingly and

willfully to: (a) Commit , attempt to commit, or aid in the com­

mission of any act intended to overthrow, destroy, to as­sist the overthrow or destruction of the constitutional form of the Government of the United States, or of the state, or any political subdivision of either of them , by revolution , force, violence, or other unlawful means; or

(b) Advocate , abet, advise, or teach by any means any person to commit , attempt to commit, or assist in the commission of any such act under such circum­stances as to constitute a clear and present danger to the security of the United States, or of this state, or of any political subdivision of either of them ; or

(c) Conspire with one or more persons to commit any such act ; or

(d) Assist in the formation or participate in the man­agement or to contribute to the support of any subver­sive organization or foreign subversive organization knowing said organization to be a subversive organiza­tion or a foreign subversive organization ; or

(e) Destroy any books, records, or files , or secrete any funds in this state of a subversive organization or a foreign subversive organization , knowing said organiza­tion to be such .

(2) Any person who violates any of the provisions of this section shall be guilty of a felony of the second de­gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 2, ch. 28221 , 1953; s. 1143, ch. 71- 136.

876.24 Membership in subversive organization; penalty.-lt shall be unlawful for any person after the ef-

fective date of this law to become or after July 1, 1953, to remain a member of a subversive organization or a for­eign subversive organization knowing said organization to be a subversive organization or foreign subversive or­ganization. Any person convicted of violating this sec­tion shall be guilty of a felony of the third degree, punish­able as provided ins. 775.082, s. 775.083, or s. 775.084.

Hlstory.- s. 3, ch. 28221, 1953; s. 11 44, ch. 71 - 136.

876.25 Persons convicted under s. 876.23 or s. 876.24 not to hold office or vote.-Any person convict­ed by a court of competent jurisdiction of violating any of the provisions of s. 876.23 or s. 876.24, in addition to all other penalties therein provided , shall from the date of such conviction be barred from:

(1) Holding any office, elective or appointive , or any other position of profit or trust in, or employment by, the government of the state or of any agency thereof , or of any county , municipal corporation, or other political sub­division of said state;

(2) Filing or offering for election to any public office in the state; or

(3) Voting in any election held in this state. Hlstory.-s. 4, ch. 28221 , 1953.

876.26 Unlawful for subversive organizations to ex­ist or function.-lt shall be unlawful for any subversive organization or foreign subversive organization to exist or function in the state and any organization which by a court of competent jurisdiction is found to have violat­ed the provisions of this section shall be dissolved , and if it be a corporation organized and existing under the laws of the state, a finding by a court of competent juris­diction that it has violated the provisions of this section shall constitute legal cause for forfeiture of its charter and its charter shall be forfeited , and all funds , books, records, and files of every kind and all other property of any organization found to have violated the provisions of this section shall be seized by and for the state, the funds to be deposited in the State Treasury, and the books, records , files , and other property to be turned over to the Attorney General of Florida.

History.-s. 5, ch. 28221, 1953.

876.27 Enforcement of ss. 876.22-876.31.-The Department of Legal Affairs, all state attorneys, the De­partment of State, and all law enforcement officers of this state shall each be charged with the duty of enforc­ing the provisions of ss. 876.22-876.31 .

Hlstory.-s. 6, ch. 28221, 1953; ss. 10, 11 , 35, ch. 69- 106; s. 34, ch. 73-334.

876.28 Grand jury to investigate violations of ss. 876.22-876.31.-The judge of any court exercising gen­eral criminal jurisdiction when in his discretion it appears appropriate, or when informed by the Department of Le­gal Affairs that there is information or evidence of the character described ins . 876.27 to be considered by the grand jury, shall charge the grand jury to inquire into vio­lations of ss. 876.22-876.31 for the purpose of proper action , and further to inquire generally into the pur­poses, processes , activities , and any other matters af­fecting communism or any related or other subversive organizations, associations, groups , or persons.

History.-s. 7, ch. 28221 , 1953; ss . 11, 35, ch . 69- 106.

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Ch.876 CRIMINAL ANARCHY, TREASON, ETC. F.S. 1987

876.29 Subversive person prohibited from holding office or employment.-No subversive person, as de­fined in s. 876.22, shall, after conviction, be eligible for employment in, or appointment to, any office or any posi­tion of trust or profit in the government of, or in the ad­ministration of the business of this state, or of any coun­ty, municipality, or other political subdivision of this state.

History.-s. 8~ch . 28221 , 1953.

876.30 Subversive person not to be candidate for election.-No person shall become a candidate nor shall be certified by any political party as a candidate for election to any public office created by the constitution or laws of this state if he has ever been tried and convict­ed as a subversive person as defined in s. 876.22.

History.-s. 9, ch. 28221 , 1953.

876.31 Short title; ss. 876.22-876.30.-Sections 876.22-876.30 may be cited as the "Subversive Activi­ties Law."

Hlstory.-s. 10, ch. 28221, 1953.

876.32 Treason.-Treason against the state shall consist only in levying war against the same, or in adher­ing to the enemies thereof, or giving them aid and com­fort. Whoever commits treason against this state shall be guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-ss. 1, 2, ch. 1637, 1868; RS 2372; GS 3197; RGS 5027; CGL 7129; s. 702, ch. 71-136; s. 65, ch. 74-383.

Note.-Former s. 779.01 .

876.33 Misprision of treason.-Whoever having knowledge of the commission of treason conceals the same and does not, as soon as may be, disclose and make known such treason to the Governor or one of the justices of the Supreme Court or a judge of the circuit court , shall be judged guilty of the' offense of misprision of treason, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 2, sub-ch. 2, ch. 1637, 1868; RS 2373; GS 3198; RGS 5028; CGL 7130; s. 703, ch . 71-136; s. 65, ch. 74-383.

Note.-Former s. 779.02.

876.34 Combination to usurp government.-lf two or more persons shall combine by force to usurp the government of this state, or to overturn the same, or in­terfere forcibly in the administration of the government or any department thereof, the person so offending shall be guilty of a felony of the second degree and punished as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 5, ch . 1637, 1868; RS 2374; GS 3199; RGS 5029; CGL 7131 ; s. 704, ch. 71-136; s. 65, ch. 74-383.

Note.-Former s. 779.03.

876.35 Combination against part of the people of the state.-lf two or more persons shall combine to levy war against any part of the people of this state, or to re­move them forcibly out of this state, or to remove them from their habitations to any other part of the state by force, or shall assemble for that purpose, every person so offending shall be guilty of a felony of the third de­gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 6, ch . 1637, 1868; RS 2375; GS 3200; RGS 5030; CGL 7132; s. 705, ch. 71-136; s. 65, ch. 74-383.

Note.-Former s. 779.04.

876.36 Inciting insurrection.-lf any person shall in­cite an insurrection or sedition amongst any portion or class of the population of this state, or shall attempt by writing, speaking, or by any other means to incite such insurrection or sedition, the persori so offending shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 3, ch. 1466, 1868; RS 2376; GS 3201 ; RGS 5031; CGL 7133; s. 706, ch. 71-136; s. 65, ch . 74-383.

Note.-Former s. 779.05.

876.37 Definitions.-As used in ss. 876.37-876.50: (1) "Highway" includes any private or public street,

way, or other place used for travel to or from property. (2) "Highway commissioners" means any individual,

board, or other body having authority under then exist­ing law to discontinue the use of the highway which it is desired to restrict or close to public use and travel.

(3) "Public utility" includes any pipeline, gas, electric, heat, water, oil, sewer, telephone, telegraph, radio, rail­way, railroad, airplane, transportation, communication, or other system, by whomsoever owned or operated for public use.

History.-s. 1, ch. 20252, 1941 ; s. 65, ch. 74-383; s. 246, ch. 77-104. Note.-Former s. 779.06.

876.38 Intentional injury to or interference with property.-Whoever intentionally destroys, impairs, or injures, or interferes or tampers with, real or personal property and such act hinders, delays, or interferes with the preparation of the United States, any country with which the United States shall then maintain friendly rela­tions, or any of the states for defense or for war, or with the prosecution of war by the United States, is guilty of a life felony, punishable as provided in s. 775.082.

History.-s. 2, ch . 20252, 1941 ; s. 707, ch. 71-136; s. 4, ch. 72-724; s. 65, ch. 74-383.

Note.-Former s. 779.07.

876.39 Intentionally defective workmanship.­Whoever intentionally makes or causes to be made or omits to note on inspection any defect in any article or thing with reasonable grounds to believe that such arti­cle or thing is intended to be used in connection with the preparation of the United States or of any country with which the United States shall then maintain friendly rela­tions, or any of the states for defense or for war, or for the prosecution of war by the United States, or that such article or thing is one of a number of similar articles or things, some of which are intended so to be used, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; pro­vided, if such person so acts or so fails to act with the intent to hinder, delay or interfere with the preparation of the United States or of any country with which the United States shall then maintain friendly relations, or of any of the states for defense or for war, or with the pros­ecution of war by the United States, the minimum pun­ishment shall be imprisonment in the state prison for not less than 1 year.

Hlstory.-s. 3, ch. 20252, 1941 ; s. 708, ch . 71-136; s. 65, ch. 74-383. Note.-Former s. 779.08.

876.40 Attempts.-Whoever attempts to commit any of the crimes defined by this law shall be liable to one-half the punishment by imprisonment, or by fine, or

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F.S. 1987 CRIMINAL ANARCHY, TREASON, ETC. Ch.876

both, as prescribed ins. 876.39 hereof. In addition to the acts which constitute an attempt to commit a crime un­der the law of this state, the solicitation or incitement of another to commit any of the crimes defined by this law not followed by the commission of the crime, the collec­tion or assemblage of any materials with the intent that the same are to be used then or at a later time in the commission of such crime, or the entry, with or without permission, of a building, enclosure, or other premises of another with the intent to commit any such crime therein or thereon shall constitute an attempt to commit such crime.

History--s. 4, ch . 20252, 1941 ; s. 65, ch . 74-383; s. 246, ch . 77-104. Note.-Former s. 779.09.

cf.-s. 777 .04 Attempts, solicitation, conspiracy, generally.

876.41 Conspirators.-lf two or more persons con­spire to commit any crime defined by this law, each of such persons is guilty of conspiracy and subject to the same punishment as if he had committed the crime which he conspired to commit , whether or not any act be done in furtherance of the conspiracy. It shall not con­stitute any defense or ground of suspension of judg­ment, sentence or punishment on behalf of any person prosecuted under this section, that any of his fellow con­spirators has been acquitted, has not been arrested or convicted, is not amenable to justice or has been par­doned or otherwise discharged before or after convic­tion.

History.-s. 5, ch. 20252, 1941 ; s. 65, ch . 74- 383. Note.-Former s. 779.10.

cf.-s. 777 .04 Attempts, solicitation, conspiracy, generally.

876.42 Witnesses' privileges.-No person shall be excused from attending and testifying, or producing any books, papers, or other documents before any court, magistrate, referee or grand jury upon any investigation, proceeding or trial, for or relating to or concerned with a violation of any section of this law or attempt to commit such violation, upon the ground or for the reason that the testimony or evidence, documentary or otherwise re­quired by the state may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or for­feiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evi­dence, documentary or otherwise, and no testimony so given or produced shall be received against him, upon any criminal investigation, proceeding or trial , except upon a prosecution for perjury or contempt of court, based upon the giving or producing of such testimony.

Hlstory.-s. 6, ch . 20252, 1941 ; s. 65, ch. 74-383. Note.-Former s. 779.11 .

cf.-s. 12(e), Art. V, State Const. Access by Judicial Qualifications Commission to grand jury information.

876.43 Unlawful entry on property.-Any individual, partnership, association, corporation, municipal corpo­ration or state or any political subdivision thereof en­gaged in, or preparing to engage in, the manufacture, transportation or storage of any product to be used in the preparation of the United States, or of any country with which the United States shall then maintain friendly relations, or of any of the states for defense or for war or in the prosecution of war by the United States, or the manufacture, transportation, distribution or storage of

gas, oil, coal, electricity or water, or any of said natural or artificial persons operating any public utility, whose property, except where it fronts on water or where there are entrances for railway cars , vehicles, persons or things, is surrounded by a fence or wall, or a fence or wall and buildings, may post around his or its property at each gate, entrance, dock or railway entrance and ev­ery 100 feet of waterfront a sign reading "No Entry With­out Permission." Whoever without permission of such owner shall willfully enter upon premises so posted shall be guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.082 or s. 775.083.

History.-s. 7, ch . 20252, 1941 ; s. 709, ch . 71-136; s. 65, ch . 74-383. Note.-Former s. 779.12.

876.44 Questioning and detaining suspected per­sons.-Any peace officer or any other person employed as watchman, guard , or in a supervisory capacity on premises posted as provided in s. 876.43 may stop any person found on any premises to which entry without permission is forbidden by s. 876.43 and may detain him for the purpose of demanding , and may demand, of him, his name, address and business in such place. If said peace officer or employee has reason to believe from the answers of the person so interrogated that such person has no right to be in such place, said peace officer shall forthwith release such person or he may arrest such per­son without a warrant on the charge of violating the pro­visions of s. 876.43; and said employee shall forthwith release such person or turn him over to a peace officer, who may arrest him without a warrant on the charge of violating the provisions of s. 876.43.

History.-s. 8, ch. 20252, 1941 ; s. 65, ch . 74-383; s. 246, ch. 77-104. Note.-Former s. 779.13.

876.45 Closing and restricting use of highway.­(1) Any individual, partnership, association, corpora­

tion, municipal corporation or state or any political subdi­vision thereof engaged in or preparing to engage in the manufacture, transportation or storage of any product to be used in the preparation of the United States, or of any country with which the United States shall then maintain friendly relations or any of the states for defense or for war or in the prosecution of war by the United States, or in the manufacture, transportation, distribution or storage of gas, oil, coal, electricity or water, or any of said natural or artificial persons operating any public util­ity, who has property so used which he or it believes will be endangered if public use and travel is not restricted or prohibited on one or more highways or parts thereof upon which such property abuts, may petition the high­way commissioners of any city, town or county to close one or more of said highways or parts thereof to public use and travel or to restrict by order the use and travel upon one or more of said highways or parts thereof.

(2) Upon receipt of such petition, the highway com­missioners shall set a day for hearing and give notice thereof by publication in a newspaper having general circulation in the city , town or county in which such prop­erty is located, such notice to be at least 7 days prior to the date set for hearing. If after hearing the highway commissioners determine that the public safety and the safety of the property of the petitioner so require, they shall by suitable order close to public use and travel or

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Ch. 876 CRIMINAL ANARCHY, TREASON, ETC. F.S. 1987

reasonably restrict the use of and travel upon one or more of said highways or parts thereof; provided, the highway commissioners may issue written permits to travel over the highways so closed or restricted to re­sponsible and reputable persons for such term , under such conditions and in such form as said commissioners may prescribe. Appropriate notices in letters at least 3 inches high shall be posted conspicuously at each end of any highway so closed or restricted by such order. The highway commissioners may at any time revoke or modify any order so made.

History.-s. 9, ch. 20252, 1941 ; s. 65, ch. 74- 383. Note.-Former s. 779.14.

876.46 Penalty for going upon closed or restricted highway.-Whoever violates any order made under s. 876.45 shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775 .082 or s. 775.083.

History.-s. 10, ch. 20252, 1941; s. 710, ch. 71- 136; s. 65, ch. 74-383; s. 246, ch. 77-104.

Note.-Former s. 779.15.

876.47 Rights of labor.-Nothing in this law shall be construed to impair, curtail , or destroy the rights of em­ployees and their representatives to self-organization, to form , join , or assist labor organizations, to bargain col­lectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

History.-s. 11, ch. 20252, 1941; s. 65, ch. 74-383. Note.- Former s. 779.16.

876.48 Relation to other statutes.-AII laws and parts of laws inconsistent with ss. 876.37-876.51 are hereby suspended in their application to any proceed­ings under said sections. If conduct prohibited by said

sections is also made unlawful by another or other laws, the offender may be convicted for the violation of said sections or of any other law or laws.

Hlstory.-s. 14, ch. 20252, 1941 ; s. 65, ch . 74-383; s. 246, ch. 77-104. Note.-Former s. 779.17.

876.49 Construction.-Sections 876.37-876 .51 shall be construed to the end that the greatest force and effect may be given to its provisions for the promotion of national and state safety.

Hlatory.-s. 15, ch. 20252, 1941 ; s. 65, ch . 74-383; s. 246, ch . 77-104. Note.-Former s. 779.18.

876.50 Effective period of law.-AII orders made under the provision of ss. 876.37-876.51 shall be in full force whenever the United States is at war; provided, any violation of said sections, committed while they are in force , may be prosecuted and punished thereafter, whether or not said sections are in force at the time of such prosecution and punishment.

History.-s. 16, ch. 20252, 1941 ; s. 65, ch. 74-383; s. 183, ch. 79-164. Note.-Former s. 779.19.

876.51 Short title.-Sections 876.37-876.51 may be cited as the "Florida Sabotage Prevention Law."

History.-s. 13, ch. 20252, 1941; s. 65, ch. 74-383; s. 246, ch. 77-104. Note.- Former s. 779.20.

876.52 Public mutilation of flag.-Whoever publicly mutilates, defaces, or tramples upon or burns with intent to insult any flag , standard , colors, or ensign of the Unit­ed States or of Florida shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 1, ch. 67-2200; s. 71 1, ch. 71-1 36; s. 65, ch. 74-383. Note.-Former s. 779.21.

cf.- ss. 256.06, 256.09 Mutilation or disrespect of flag; penalty.

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F.S. 1987 MISCELLANEOUS CRIMES Ch. 877

CHAPTER 877

MISCELLANEOUS CRIMES

877.01 877.02

877.03 877.04 877.05 877.06

877.061

877.08

877 .09 877.10 877.111

877.13

877.14

877 .15 877.155

877.16

877.17 877.18

Instigation of litigation; penalty. Solicitation of legal services or retainers there·

for; penalty. Breach of the peace; disorderly conduct. Tattooing prohibited; penalty. Kill ing young veal for sale; penalty; exception . Labeling of beef not slaughtered according to

state or United States standards; enforce· ment; penalty.

Marketing establishments; maintenance of scales.

Coin-operated vending machines and park· ing meters; defined; prohibited acts, penal· ties.

Tampering with or damaging sewer systems. Real property; dual contracts prohibited . Inhalation, ingestion , possession , sale, pur·

chase, or transfer of harmful chemical sub­stances; penalties.

Educational institutions or school boards ; penalty for disruption.

Merchandising of dogs; required records ; penalty for violation .

Failure to control or report dangerous fire . Report of initial treatment of burn injuries; pen·

ally for failure to report. Exhibition of deformed animals prohibited ;

penalty. Unlawful to sell dissertations, etc. Identification card or document purporting to

contain applicant's age or date of birth ; penalties for failure to comply with require· ments for sale or issuance.

877.01 Instigation of litigation; penalty.-(1) Whoever gives, promises, offers or conspires to

give, promise, or offer, to anyone any bribe, money, goods, presents, reward, or any valuable thing whatso· ever with the intent and purpose of stirring up strife and litigation; or with intent and purpose of assisting, seek· ing out, influencing, or advising the accused, sick, in· jured , uninformed, or others to bring suit or seek profes· sionallegal services or advice, shall be guilty of a misde· meaner of the first degree, punishable as provided in s. 775.082 or s. 775 083.

(2) Whoever, in any way, solicits , receives or ac· cepts or agrees to receive or accept, or who conspires to receive or accept, any bribe, money, goods, presents, reward, or any valuable thing whatsoever, or any prom· ise, contract, or agreement whatsoever, with the intent and purpose of stirring up strife and litigation ; or with the intent or purpose of seeking out , influencing , assisting, or advising the accused, sick, injured, uninformed, or others to bring suit , or seek professional legal services, counsel, or advice, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) Any person violating the provisions of this sec· lion shall not be privileged from testifying , but if he does

testify in response to a subpoena issued by the state at· torney or court having jurisdiction of such offense, noth· ing said by him in his testimony shall be admissible in any civil or criminal action against him, nor shall he be subjected to any penalty or forfeiture for or on account of any such testimony or evidence so given or produced .

(4) Nothing herein shall apply to the division of legal fees by and between attorneys at law.

(5) This section shall be taken to be cumulative and shall not be construed to amend or repeal any other val· id law, code, ordinance, rule , or penalty now in effect.

Hlstory.-ss. 1-5, ch. 59-381 ; s. 1145, ch. 71-136; s. 34, ch. 73-334.

877.02 Solicitation of legal services or retainers therefor; penalty.-

(1) It shall be unlawful for any person or his agent, employee or any person acting on his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicita· tiona retainer, written or oral, or any agreement authoriz· ing an attorney to perform or render legal service, or to make it a business to solicit or procure such business, retainers or agreements; provided , however, that noth· ing herein shall prohibit or be applicable to banks, trust companies, lawyer reference services, legal aid associa· tions, lay collection agencies, railroad companies, insur· ance companies and agencies, and real estate compa· nies and agencies, in the conduct of their lawful busi· nesses , and in connection therewith and incidental thereto forwarding legal matters to attorneys at law when such forwarding is authorized by the customers or clients of said businesses and is done pursuant to the canons of legal ethics as pronounced by the Supreme Court of Florida.

(2) It shall be unlawful for any person in the employ of or in any capacity attached to any hospital, sanitari· um, police department, wrecker service or garage, pris· on or court, or for a person authorized to furnish bail bonds, investigators, photographers, insurance or pub· lie adjusters, to communicate directly or indirectly with any attorney or person acting on said attorney's behalf for the purpose of aiding, assisting or abetting such at· torney in the solicitation of legal business or the procure· ment through solicitation of a retainer, written or oral, or any agreement authorizing the attorney to perform or render legal services.

(3) Any person violating any provision of this section shall be guilty of a misdemeanor of the first degree, pun· ishable as provided in s. 775.082 or s. 775.083.

(4) This section shall be taken to be cumulative and shall not be construed to amend or repeal any other val· id law, code, ordinance, rule, or penalty now in effect.

History.-ss. 1-4, ch. 59-391; s. 1146, ch . 71-136.

877.03 Breach of the peace; disorderly conduct­Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decen· cy , or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or en· gages in such conduct as to constitute a breach of the

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Ch. 877 MISCELLANEOUS CRIMES F.S. 1987

peace or disorderly conduct, shall be guilty of a misde­meanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 1. ch. 59-325; s. 1147, ch. 71-136; s. 2, ch. 86-174.

877.04 Tattooing prohibited; penalty.-(1) It is unlawful for any person to tattoo the body of

any human being; except that tattooing may be per­formed by a person licensed to practice medicine or dentistry under chapters 458 and 459 or chapter 466, or by a person under his direction.

(2) Any person who violates the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 1, 2, ch. 59-439; s. 1, ch. 69-118; s. 1148, ch. 71-136; s. 1, ch. 77-174.

877.05 Killing young veal for sale; penalty; excep­tion.-Whoever kills or causes to be killed for the pur­pose of sale, any calf less than 4 weeks old, and know­ingly sells, or has in his possession with intent to sell, the meat of any calf killed when less than 4 weeks old, shall be guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.083. This section shall not apply to calves slaughtered on the premises of meat packing or slaughtering establishments operating under state or federal meat inspection supervision.

History.-s. 2, ch. 1637, 1868; AS 2661 ; GS 3590; RGS 5519; CGL 7684; s. 1, ch. 59-150; s. 1149, ch. 71-136.

Note.-See former s. 585.42.

877.06 Labeling of beef not slaughtered according to state or United States standards; enforcement; pen­alty.-

(1) Every person, firm, or corporation operating a restaurant or any other eating place, or retail or whole­sale market or packinghouse, in this state, and who sells beef that has not been slaughtered and inspected ac­cording to standards established by either the Govern­ment of Florida or of the United States, shall mark, stamp, or describe the same by the following words, "slaughtered in" followed by the name of the state or country and the words "has not been slaughtered and inspected according to federal or state standards."

(2)(a) Packinghouses and wholesale and retail meat markets before sale of beef which is within the purview of subsection (1) shall plainly stamp on each carcass, each carton , each can, and each container, the words prescribed in subsection (1) and all advertising as to the sale of such beef shall include such words; provided, however, that a conspicuous sign containing the words prescribed in subsection (1) visibly displayed near the display of such beef in retail markets may be used when the stamping of individual cuts of beef is impractical.

(b) It shall be the duty of the Department of Agricul­ture and Consumer Services through its agents or in­spectors to enforce the provisions of this subsection.

(3)(a) Restaurants or other eating places advertising their meals or food , by menus or otherwise, shall set out plainly in such menus, advertisements or otherwise as to beef coming within the purview of the law the words prescribed in subsection (1 ).

(b) It shall be the duty of the Division of Hotels and Restaurants of the Department of Business Regulation

through its agents or inspectors to enforce the provi­sions of this subsection.

(4) Any person willfully and knowingly violating any of the provisions of this section or any person who fails to comply with any of the requirements hereof shall be guilty of a misdemeanor of the second degree, punish­able as provided in s. 775.082 or s. 775.083, and each day during which such a violation shall continue, shall be deemed a separate violation and a separate offense.

(5) Nothing herein shall be construed to prohibit the use of additional words in describing the grade, quality, or kind of such beef.

Hlstory.-ss. 1-5, ch. 65-29; ss. 14, 16, 35, ch. 69-106; s. 1150, ch. 71-136.

877.061 Marketing establishments; maintenance of scales.-

(1) Any milk plant , meat-processing plant, or any other marketing establishment which purchases dairy and agricultural products directly from the producer, his agent or employee on the basis of the weight of the product shall maintain scales in a location in the plant or other marketing establishment where the seller­producer and purchaser or their agent shall have the right and opportunity to attest to the weight thereof.

(2) The Department of Agriculture and Consumer Services shall designate agents to inspect such scales as often as it deems practical and necessary.

(3) Any person who willfully and knowingly violates the provisions of this section shall be guilty of a misde­meanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.- s. 1, ch . 67-119; ss. 14, 35, ch. 69- 106; s. 1151 , ch. 71-136.

877.08 Coin-operated vending machines and park­ing meters; defined; prohibited acts, penalties.-

(1) A "coin-operated vending machine" or "parking meter," for the purposes of this act, is defined to be any machine, contrivance, or device that is adapted for use in such a way that , as the result of the insertion of any piece of money, coin, or other object , the machine, con­trivance, parking meter, or device is caused to operate or may be operated and by reason of such operation the user may become entitled to receive any food, drink, telephone or telegraph service, insurance protection, parking privilege or any other personal property, service, protection , right or privilege of any kind or nature what­soever.

(2) Whoever maliciously or mischievously molests, opens, breaks, injures, damages, or inserts any part of his body or any instrument into any coin-operated vend­ing machine or parking meter of another, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3) Whoever molests , opens, breaks, injures, dam­ages, or inserts any part of his body or any instrument into any coin-operated vending machine or parking me­ter of another with intent to commit larceny is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4) Whoever violates the provisions of subsection (3) a second time, and is convicted of such second sepa­rate offense, either at the same term or a subsequent term of court , shall be guilty of a felony of the third de­gree, punishable as provided in s. 775.082, s. 775.083,

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F.S. 1987 MISCELLANEOUS CRIMES Ch. 877

or s. 775.084. History.-ss. 1, 2, 3, ch. 65-165; s. 1153, ch. 71-136.

877.09 Tampering with or damaging sewer sys­tems.-

( 1) Whoever willfully or fraudulently, without the con­sent of any person, firm, or corporation or lessee, trust­ee, or receiver owning, leasing, operating, or managing any sewer system, shall tap, make or cause to be made any connection with, injure or knowingly to suffer to be injured, tamper or meddle with, plug or in any way hin­der, use without authorization, or interfere with any lines, mains, pipes, laterals, collectors, connections, intercep­tors, manholes, appliances, or appurtenances used for or in connection with any sewer system and belonging to such person, firm, or corporation or lessee, trustee, or receiver, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) The existence of any tap, connection to, unau­thorized use of, or interference with any line, main, pipe, lateral, collector, connection, interceptor, or other appli­ance or appurtenance used for or in connection with any sewer system and belonging to any person, firm , or cor­poration or lessee, trustee, or receiver owning , leasing, operating , or managing any sewer system shall be prima facie evidence of intent to violate this law by the person receiving the direct benefit from such tap, connection, or interference.

History.-ss. 1, 2, ch . 65-232; s. 1154, ch . 71-136.

877.10 Real property; dual contracts prohibited.­(1) It is unlawful for any person to knowingly make,

issue, deliver, or receive dual contracts for the purchase or sale of real property. Dual contracts , either written or oral, are two contracts concerning the same parcel of real property, one of which states the true and actual purchase price and one of which states a purchase price in excess of the true and actual purchase price and is used as an inducement for mortgage investors to make a loan commitment on such real property in reliance upon the stated inflated value.

(2) Any violation of this section is a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083.

History.-s. 1, ch. 65-531; s. 1155, ch. 71-136.

877.111 Inhalation, ingestion, possession, sale, purchase, or transfer of harmful chemical substances; penalties.-

(1) It is unlawful for any person to inhale or ingest, or to possess with intent to breathe, inhale, or drink, any compound, liquid, or chemical containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, meth­yl ethyl ketone, trichloroethane, isopropanol, methyl iso­butyl ketone, ethylene glycol monomethyl ether acetate, cyclohexanone, nitrous oxide, diethyl ether, alkyl nitrites (butyl nitrite), or any similar substance for the purpose of inducing a condition of intoxication or which distorts or disturbs the auditory, visual, or mental processes. This section does not apply to the possession and use of these substances as part of the care or treatment of a disease or injury by a practitioner licensed under chap­ter 458, chapter 459, chapter 464, or chapter 466 or to

beverages controlled by the provisions of chapter 561, chapter 562, chapter 563, chapter 564, or chapter 565.

(2) It is unlawful for any person to possess, buy, sell , or otherwise transfer any chemical substance specified in subsection (1) for the purpose of inducing or aiding any other person to violate the provisions of subsection (1 ).

(3) Any person who violates any of the provisions of this section shall upon conviction be guilty of a misde­meanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4) Any person who violates any of the provisions of this section may, in the discretion of the trial judge, be required to participate in a drug rehabilitation program approved or regulated by the Department of Health and Rehabilitative Services pursuant to the provisions of chapter 397, provided the director of such program ap­proves the placement of the defendant in the program. Such required participation may be imposed in addition to, or in lieu of, any penalty or probation otherwise pre­scribed by law. However, the total time of such penalty, probation , and program participation shall not exceed the maximum length of sentence possible for the of­fense .

History.-s. 1, ch. 83-187.

877.13 Educational institutions or school boards; penalty for disruption.-

(1) It is unlawful for any person: (a) Knowingly to disrupt or interfere with the lawful

administration or functions of any educational institu­tion, school board, or activity on school board property in this state.

(b) Knowingly to advise, counsel, or instruct any school pupil or school employee to disrupt any school or school board function, activity on school board prop­erty, or classroom.

(c) Knowingly to interfere with the attendance of any other school pupil or school employee in a school or classroom.

(d) To conspire to riot or to engage in any school campus or school function disruption or disturbance which interferes with the educational processes or with the orderly conduct of a school campus, school, or school board function or activity on school board proper­ty.

(2) This section shall apply to all educational institu­tions , school boards, and functions or activities on school board property; however, nothing herein shall deny public employees the opportunity to exercise their rights pursuant to part II of chapter 447.

(3) Any person who violates the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 1, ch. 69-274; s. 1158, ch. 71-136; s. 1, ch. 73-177; s. 1, ch. 87-277.

877.14 Merchandising of dogs; required records; penalty for violation.-

(1) Every person engaged in the business of selling dogs shall keep a complete and true record of all trans­actions, showing the date of transaction and the name and address of the person from whom each dog was purchased or otherwise obtained and to whom it was sold. The record also should show a sufficient descrip-

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Ch. 877 MISCELLANEOUS CRIMES F.S. 1987

tion of the dog such as breed, sex, color, markings, and distinguishing features . The record shall at all times be subject to the inspection of all police and peace officers.

(2) Any person violating the provisions of this sec­tion shall be guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 1, 2, ch. 69-285: s. 1159, ch. 71-136.

877.15 Failure to control or report dangerous fire. -Any person who knows, or has reasonable grounds to believe, that a fire is endangering the life or property of another, and who fails to take reasonable measures to put out or control the fire when he can do so without sub­stantial risk to himself, or who fails to give a prompt fire alarm, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if:

(1) He knows that he is under an official , contractual, or other legal duty to control or combat the fire; or

(2) The fire was started lawfully by him or with his as­sent and was started on property in his custody or con­trol.

History.-s. 3, ch. 79-108.

877.155 Report of initial treatment of burn injuries; penalty for failure to report.-

(1) Any person who initially treats or is requested to treat a person with second-degree or third-degree burn injuries affecting 10 percent or more of the surface area of his body shall immediately report such treatment to the local sheriff's department if the treating person de­termines that the burns were caused by a flammable substance and if he suspects the injury is a result of vio­lence or unlawful activity. The report shall state the name and address of the injured person and the extent of his injuries. This section does not apply to burn inju­ries received by a member of the armed forces, or by a governmental employee, engaged in the performance of his duties .

(2) Any person who willfully fails to make the report required by subsection (1) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 1, ch. 87-219.

877.16 Exhibition of deformed animals prohibited; penalty.-Whoever shall exhibit for pay or compensa­tion any crippled or physically distorted, malformed, or disfigured beast, bird, or animal in any circus, show, or similar place, or any other place to which an admission fee is charged, whoever knowingly advertises or know­ingly causes to be advertised any such exhibition, and whoever solicits or procures the attendance of others at such exhibition with knowledge of the nature thereof, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hlatory.-s. 2, ch. 8524, 1921; CGL 7674; s. 1124, ch . 71-136. Note.-Former s. 867.02.

877.17 Unlawful to sell dissertations, etc.-(1) It shall be unlawful for any person or business en­

tity to sell, offer to sell, or advertise for sale any term pa­per, thesis, dissertation, essay, or report or any written, recorded, pictorial, artistic, or other assignment which the seller or advertiser knew or reasonably should have

known was intended for submission by a student, unal­tered to any substantial degree, in fulfillment of the re­quirements for a degree, diploma, certificate, or course of study at a university, college, academy, school, or oth­er educational institution in the state.

(2) This section shall not prevent any person or edu­cational institution from providing tutorial assistance, re­search material, information, or courses in research or writing unless this service includes the preparation, re­search, or writing of a report or paper as outlined in sub­section (1 ). No person shall be prevented by this section from selling or offering to sell services which include the typing, assembling, transcription, reproduction, or edit­ing of a manuscript or other assignment prepared by the purchaser.

(3) Any person violating the provisions of this sec­tion is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082,13. 775.083, or s. 775.084.

Hiatory.-s. 19, ch. 80-295; s. 4, ch. 80-378.

877.18 Identification card or document purporting to contain applicant's age or date of birth; penalties for failure to comply with requirements for sale or issu­ance.-

(1) It is unlawful for any person, except a govern­mental agency or instrumentality, to sell or issue, or to offer to sell or issue, in this state any identification card or document purporting to contain the age or date of birth of the person in whose name it was issued, unless:

(a) Prior to selling or issuing such card or document, the person has first obtained from the applicant and re­tains for a period of 3 years from the date of sale:

1 . An authenticated or certified copy of proof of age as provided in s. 232.03; and

2. A notarized affidavit from the applicant attesting to the applicant's age and that the proof-of-age docu­ment required by subparagraph 1. is for such applicant.

(b) Prior to offering to sell such cards in this state, the person has included in any offer for sale of identifica­tion cards or documents that such cards cannot be sold or issued without the applicants' first submitting the documents required by paragraph (a).

(c) The identification card or document contains the business name and street address of the person selling or issuing such card or document.

(2) For the purposes of this section, the term "offer to sell" includes every inducement, solicitation, attempt, or printed or media advertisement to encourage a per­son to purchase an identification card.

(3) All records required to be maintained by this sec­tion shall be available for inspection without warrant upon reasonable demand by any law enforcement offi­cer, including, but not limited to, a state attorney investi­gator or an investigator for the Division of Alcoholic Bev­erages and Tobacco.

(4) A person who violates the provisions of this sec­tion is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The failure to produce the documents required by subsec­tion (1 ), upon lawful request therefor, is prima facie evi­dence of a violation of this section.

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F.S. 1987 MISCELLANEOUS CRIMES Ch. 877

(5) The state attorney for any county in which a viola­tion of this section occurs or the Attorney General may enjoin any sale or offer for sale in violation of this section

by temporary and permanent injunction by application to any court of competent jurisdiction.

Hiatory.-s. 8, ch. 84-297 .

1685

Ch. 893 DRUG ABUSE PREVENTION AND CONTROL F.S. 1987

CHAPTER 893

DRUG ABUSE PREVENTION AND CONTROL

893.01 893.02 893.03 893.035

893.0355

893.0356

893.04 893.05

893.06

893.07 893.08 893.09 893.10 893.105

893.11

893.12 893.13 893.135

893.138

893.145 893.146 893.147

893.15

Short title. Definitions . Standards and schedules. Control of new substances; findings of fact;

delegation of authority to Attorney Gener­al to control substances by rule .

Control of scheduled substances; delega­tion of authority to Attorney General to res­chedule substance, or delete substance, by rule .

Control of new substances; findings of fact ; "controlled substance analog" defined.

Pharmacist and practitioner. Practitioners and persons administering con­

trolled substances in their absence. Distribution of controlled substances; order

forms; labeling and packaging require­ments .

Records. Exceptions. Enforcement. Burden of proof. Testing and destruction of seized sub­

stances. Suspension , revocation, and reinstatement

of business and professional licenses. Contraband; seizure, forfeiture , sale. Prohibited acts; penalties. Trafficking; mandatory sentences; suspen­

sion or reduction of sentences; conspiracy to engage in trafficking.

Local administrative action to abate drug-related public nuisances.

"Drug paraphernalia" defined. Determination of paraphernalia. Use, possession, manufacture, delivery, or

advertisement of drug paraphernalia. Rehabilitation.

893.01 Short title.-This chapter shall be cited and known as the "Florida Comprehensive Drug Abuse Pre­vention and Control Act."

History.- s. 1, ch. 73-331.

893.02 Definitions.-The following words and phrases as used in this chapter shall have the following meanings, unless the context otherwise requires :

(1) "Administer" means the direct application of a controlled substance, whether by injection, inhalation , ingestion, or any other means, to the body of a person or animal.

(2) "Analog" or "chemical analog" means a structural derivative of a parent compound that is a controlled sub­stance.

(3) "Cannabis" means all parts of any plant of the ge­nus Cannabis, whether growing or not; the seeds there­of; the resin extracted from any part of the plant ; and ev­ery compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

(4) "Controlled substance" means any substance named or described in Schedules I through V of s. 893.03. Laws controlling the manufacture, distribution, preparation, dispensing, or administrat_ion of such sub­stances are drug abuse laws.

(5) "Deliver" or "delivery" means the actual , construc­tive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

(6) "Dispense" means the transfer of possession of one or more doses of a medicinal drug by a pharmacist or other licensed practitioner to the ultimate consumer thereof or to one who represents that it is his intention not to consume or use the same but to transfer the same to the ultimate consumer or user for consumption by the ultimate consumer or user.

(7) "Distribute" means to deliver, other than by ad­ministering or dispensing, a controlled substance.

(8) "Distributor" means a person who distributes. (9) "Department" means the Department of Health

and Rehabilitative Services. (10) "Hospital" means an institution for the care and

treatment of the sick and injured, licensed pursuant to the provisions of chapter 395 or owned or operated by the state or Federal Government.

(11) "Laboratory" means a laboratory approved by the Drug Enforcement Administration as proper to be en­trusted with the custody of controlled substances for scientific , medical, or instructional purposes or to aid law enforcement officers and prosecuting attorneys in the enforcement of this chapter.

(12)(a) "Manufacture" means the production, prepara­tion, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, ei­ther directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemi­cal synthesis, and includes any packaging of the sub­stance or labeling or relabeling of its container, except that this term does not include the preparation, com­pounding, packaging, or labeling of a controlled sub­stance by:

1 . A practitioner or pharmacist as an incident to his administering or delivering of a controlled substance in the course of his professional practice.

2. A practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research , teaching, or chemical analysis, and not for sale.

(b) "Manufacturer" means and includes every person who prepares, derives, produces, compounds, or re­packages any drug as defined by the Florida Drug and Cosmetic Act . However, this definition does not apply to manufacturers of patent or proprietary preparations as defined in the Florida Pharmacy Act. Pharmacies, and pharmacists employed thereby, are specifically exclud­ed from this definition.

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F.S. 1987 DRUG ABUSE PREVENTION AND CONTROL Ch. 893

(13) "Patient" means an individual to whom a con· trolled substance is lawfully dispensed or administered pursuant to the provisions of this chapter.

(14) "Pharmacist" means a person who is licensed pursuant to chapter 465 to practice the profession of pharmacy in this state.

(15) "Potential for abuse" means that a substance has properties of a central nervous system stimulant or de· pressant or an hallucinogen that create a substantial likelihood of its being:

(a) Used in amounts that create a hazard to the user's health or the safety of the community;

(b) Diverted from legal channels and distributed through illegal channels ; or

(c) Taken on the user's own initiative rather than on the basis of professional medical advice.

Proof of potential for abuse can be based upon a show­ing that these activities are already taking place, or upon a showing that the nature and properties of the sub· stance make it reasonable to assume that there is a sub· stantial likelihood that such activities will take place, in other than isolated or occasional instances.

(16) "Practitioner" means a physician licensed pursu­ant to chapter 458, a dentist licensed pursuant to chap­ter 466, a veterinarian licensed pursuant to chapter 474, an osteopathic physician licensed pursuant to chapter 459, a naturopath licensed pursuant to chapter 462, or a podiatrist licensed pursuant to chapter 461, provided such practitioner holds a valid federal controlled sub· stance registry number.

(17) "Prescription" means and includes an order for drugs or medicinal supplies written, signed, or transmit· ted by word of mouth, telephone, telegram, or other means of communication by a duly licensed practitioner licensed by the laws of the state to prescribe such drugs or medicinal supplies, issued in good faith and in the course of professional practice, intended to be filled, compounded , or dispensed by another person licensed by the laws of the state to do so, and meeting the re· quirements of s. 893.04. The term also includes an order for drugs or medicinal supplies so transmitted or written by a physician, dentist, veterinarian, or other practitioner licensed to practice in a state other than Florida, but only if the pharmacist called upon to fill such an order deter· mines, in the exercise of his professional judgment, that the order was issued pursuant to a valid patient­physician relationship, that it is authentic, and that the drugs or medicinal supplies so ordered are considered necessary for the continuation of treatment of a chronic or recurrent illness. However, if the physician writing the prescription is not known to the pharmacist, the pharma· cist shall obtain proof to a reasonable certainty of the va· lidity of said prescription. A prescription order for a con· trolled substance shall not be issued on the same pre­scription blank with another prescription order for a con· trolled substance which is named or described in a dif· ferent schedule, nor shall any prescription order for a controlled substance be issued on the same prescrip· tion blank as a prescription order for a medicinal drug, as defined ins . 465.031(5), which does not fall within the definition of a controlled substance as defined in this act.

(18) "Wholesaler" means any person who acts as a jobber, wholesale merchant, or broker, or an agent thereof, who sells or distributes for resale any drug as defined by the Florida Drug and Cosmetic Act. However, this definition does not apply to persons who sell only patent or proprietary preparations as defined in the Flori· da Pharmacy Act. Pharmacies, and pharmacists em· ployed thereby, are specifically excluded from this defi· nition.

Hlstory.-s. 2. ch . 73-331 ; s. 1. ch. 75-18; s. 470, ch. 77-147; s. 1, ch. 77-174; s. 184, ch. 79-164; s. 1, ch. 79-325; s. 37, ch . 82-225; s. 169, ch. 83-216; s. 1, ch. 85-242. cf.-ch. 499 Florida Drug and Cosmetic Act.

893.03 Standards and schedules.-The sub· stances enumerated herein are controlled by this chap· ter. The controlled substances listed or to be listed in Schedules I, II , Ill , IV, and V are included by whatever offi· cial,.common, usual, chemical, or trade name designat· ed. The provisions of this act shall not be construed to include within any of the schedules herein contained any excluded nonprescription drugs listed within the pur· view of 21 C.F.R. s. 1308.22, styled "Excluded Sub· stances."

(1) SCHEDULE I.-A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and in its use under medical supervision does not meet accepted safety standards except for such uses provided for in 1s. 402.36. The following substances are controlled in Schedule 1:

(a) Unless specifically excepted or unless listed in another schedule, any of the following substances, in· eluding their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation:

1. Acetyl-alpha-methylfentanyl. 2. Acetylmethadol. 3. Alfentanil. Alfentanil is listed in Schedule I be·

cause it is presently scheduled in the same way in rules adopted by the United States Attorney General pursu­ant to s. 201 of the Comprehensive Drug Abuse Preven· tion and Control Act of 1970, 21 U.S.C. s. 811. Alfentanil is currently the subject of an application to the Food and Drug Administration which, if approved, will cause the United States Attorney General to consider adopting a rule rescheduling alfentanil. In order to allow medical use of alfentanil as soon as possible, alfentanil is hereby list· ed on Schedule II, and deleted from Schedule I, effective upon alfentanil being rescheduled by rule adopted by the United States Attorney General.

4. Allylprodine. 5. Alphacetylmethadol. 6. Alphamethadol. 7. Alpha-methylfentanyl (N-[1-(alpha-methyl­

betaphenyl) ethyl-4-piperidyl] propionanilide; 1-(1-methyl-2-phenylethyi)-4-(N-propanilido) piperidine).

8. Alpha-methylthiofentanyl. 9. Alphameprodine. 10. Benzethidine. 11 . Benzylfentanyl. 12. Betacetylmethadol. 13. Beta-hydroxyfentanyl.

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14. Beta-hydroxy-3-methylfentanyl. 15. Betameprodine. 16. Betamethadol. 17. Betaprodine. 18. Clonitazene. 19. Dextromoramide. 20. Diampromide. 21 . Diethylthiambutene. 22. Difenoxin . 23. Dimenoxadol. 24. Dimepheptanol. 25. Dimethylthiambutene. 26. Dioxaphetyl butyrate. 27. Dipipanone. 28. Ethylmethylthiambutene. 29. Etonitazene. 30. Extoxeridine. 31 . Furethidine. 32. Hydroxypethidine. 33. Ketobemidone. 34. Levomoramide. 35. Levophenacylmorphan. 36 . 1-Methyi-4-Phenyi-4-Propionoxypiperidine

(MPPP) . 37. 3-Methylfentanyl (N-[3-methyl-l-(2-

phenylethyl)-4-piperidyi]-N-phenylpropanamide). 38. 3- Methylthiofentanyl. 39 . 3, 4-Methylenedioxy methamphetamine

(MDMA) . 40. Morpheridine. 41. Noracymethadol. 42. Norlevorphanol. 43. Normethadone. 44. Norpipanone. 45. Para-Fiuorofentanyl. 46. Phenadoxone. 47. Phenampromide. 48. Phenomorphan. 49. Phenoperidine. 50 . 1-(2-Phenylethyi)-4-Phenyi-4-

Acetyloxypiperidine (PEPAP). 51 . Piritramide. 52. Proheptazine. 53. Properidine. 54. Propiram. 55. Racemoramide. 56. Thenylfentanyl. 57 . Thiofentanyl. 58. Tilidine. 59. Trimeperidine. (b) Unless specifically excepted or unless listed in

another schedule, any of the following substances, their salts, isomers, and salts of isomers, whenever the exist­ence of such salts, isomers, and salts of isomers is pos­sible within the specific chemical designation:

1. Acetorphine. 2. Acetyldihydrocodeine. 3. Benzylmorphine. 4. Codeine methylbromide. 5. Codeine-N-Oxide. 6. Cyprenorphine. 7. Desomorphine. 8. Dihydromorphine.

9. Drotebanol. 10. Etorphine (except hydrochloride salt) . 11 . Heroin. 12. Hydromorphinol. 13. Methyldesorphine. 14. Methyldihydromorphinone. 15. Monoacetylmorphine. 16. Morphine methylbromide. · 17. Morphine methylsulfonate. 18. Morphine-N-Oxide. 19. Myrophine. 20. Nicocodine. 21 . Nicomorphine. 22. Normorphine. 23. Pholcodine. 24. Thebacon. (c) Unless specifically excepted or unless listed in

another schedule, any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances or which contains any of their salts, isomers, and salts of isomers, whenever the exist-ence of such salts, isomers, and salts of isomers is pos­sible within the specific chemical designation:

1. 2-Amino-4-methyl-5-phenyloxazoline. 2. 4-Bromo-2,5-dimethoxyamphetamine. 3. Bufotenine. 4. Cannabis. 5. Diethyltryptamine. 6. 2,5-Dimethoxyamphetamine. 7. Dimethyltryptamine. 8. N-Ethyl-1-phenylcyclohexylamine. 9. N-Ethyl-3-piperidyl benzilate. 10. N-ethylamphetamine. 11 . Fenethylline. 12. Ibogaine. 13. Lysergic acid diethylamide. 14. Mecloqualone. 15. Mescaline. 16. 5-Methoxy-3,4-methylenedioxy-amphetamine. 17. 4- methoxyamphetamine. 18. 4-Methyl-2,5-dimethoxy-amphetamine. 19. 3,4-Methylenedioxy-amphetamine. 20. N-Methyl-3-piperidyl benzilate. 21 . Parahexyl. 22. Peyote. 23. N-(1-Phenylcyclohexyl)-pyrrolidine. 24. Psilocybin. 25. Psilocyn. 26. Tetrahydrocannabinols. 27. 1-[1-(2-Thienyl)-cyclohexyl]-piperidine. 28. 3,4,5-Trimethoxy-amphetamine. (d) Notwithstanding the aforementioned fact that

Schedule I substances have no currently accepted med­ical use, the Legislature recognizes that certain sub­stances are currently accepted for certain limited medi-cal uses in treatment in the United States but have a high potential for abuse. Accordingly, unless specifically excepted or unless listed in another schedule, any mate­rial , compound, mixture, or preparation which contains any quantity of methaqualone, including any of its salts, isomers, optical isomers, salts of their isomers, and salts of these optical isomers, is controlled in Schedule I.

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F.S. 1987 DRUG ABUSE PREVENTION AND CONTROL Ch.893

(2) SCHEDULE 11 .-A substance in Schedule II has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence. The fol­lowing substances are controlled in Schedule II:

{a) Unless specifically excepted or unless listed in another schedule, any of the following substances, whether produced directly or indirectly by extraction from substances of vegetable origin or independently by means of chemical synthesis:

1. Opium and any salt, compound , derivative, or preparation of opium, except nalmefene or isoquinoline alkaloids of opium, including but not limited to the follow­ing:

a. Raw opium. b. Opium extracts. c. Opium fluid extracts. d. Powdered opium. e. Granulated opium. f. Tincture of opium. g. Codeine. h. Ethylmorphine. i. Etorphine hydrochloride. j. Hydrocodone. k. Hydromorphone. I. Metopon. m. Morphine. n. Oxycodone. o. Oxymorphone. p. Thebaine. q. Dronabinol (synthetic) in sesame oil and encap­

sulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved drug product.

2. Any salt, compound, derivative, or preparation of a substance which is chemically equivalent to or identi­cal with any of the substances referred to in subpara­graph 1. , except that these substances shall not include the isoquinoline alkaloids of opium.

3. Any part of the plant of the species Papaver som-niferum, L.

4. Cocaine or ecgonine, including any of their ste­reoisomers , and any salt, compound, derivative, or prep­aration of cocaine or ecgonine.

(b) Unless specifically excepted or unless listed in another schedule, any of the following substances, in­cluding their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation:

1. Alphaprodine. 2. Anileridine. 3. Bezitramide. 4. Bulk dextropropoxyphene (nondosage forms). 5. Dihydrocodeine. 6. Diphenoxylate. 7. Fentanyl. 8. lsomethadone. 9. Levomethorphan . 10. Levorphanol. 11 . Metazocine. 12. Methadone.

13. Methadone-lntermediate,4-cyano-2-dimethylamino-4,4-diphenylbutane.

14. Moramide-lntermediate ,2-methyl-3-morpholoino-1 , 1-diphenylpropane-carboxylic acid.

15. Pethidine (meperidine). 16. Pethidine-lntermediate-A,4-cyano-1-methyl-

4-phenylpiperidine. 17. Pethidine-lntermediate-B ,ethyl-4-

phenylpiperidine-4-carboxylate. 18. Pethidine-Intermediate-C. 1-methyl-4-

phenyl pipe rid i ne-4-carboxyl ic acid . 19. Phenazocine. 20. Phencyclidine. 21 . 1-Phenylcyclohexylamine. 22. Piminodine. 23. 1-Piperidinocyclohexanecarbonitrile. 24. Racemethorphan . 25. Racemorphan . 26. Sufentanil. (c) Unless specifically excepted or unless listed in

another schedule, any material , compound , mixture, or preparation which contains any quantity of the following substances, including their salts, isomers, optical iso­mers, salts of their isomers, and salts of their optical iso­mers:

1. Amobarbital. 2. Amphetamine. 3. Methamphetamine. 4. Methylphenidate. 5. Pentobarbital. 6. Phenmetrazine. 7. Phenylacetone. 8. Secobarbital. (3) SCHEDULE 111.-A substance in Schedule Ill has

a potential for abuse less than the substances con­tained in Schedules I and II and has a currently accepted medical use in treatment in the United States, and abuse of the substance may lead to moderate or low physical dependence or high psychological depen­dence. The following substances are controlled in Schedule Ill :

(a) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant or stimulant effect on the nervous system:

1. Any substance which contains any quantity of a derivative of barbituric acid , including thiobarbituric acid , or any salt of a derivative of barbituric acid or thio­barbituric acid .

2. Benzphetamine. 3. Chlorhexadol. 4. Chlorphentermine. 5. Clortermine. 6. Gluthethimide. 7. Lysergic acid. 8. Lysergic acid amide. 9. Methyprylon. 10. Phendimetrazine . 11 . Sulfondiethylmethane. 12. Sulfonethylmethane. 13. Sulfonmethane.

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Ch. 893 DRUG ABUSE PREVENTION AND CONTROL F.S. 1987

(b) Nalorphine. (c) Unless specifically excepted or unless listed in

another schedule, any material , compound, mixture, or preparation containing limited quantities of any of the following controlled substances or any salts thereof:

1. Not more than 1.8 grams of codeine per 100 milli-liters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alka­loid of opium.

2. Not more than 1.8 grams of codeine per 100 milli-liters or not more than 90 milligrams per dosage unit, with recognized therapeutic amounts of one or more ac­tive ingredients which are not controlled substances.

3. Not more than 300 milligrams of dihydrocodei-none per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium.

4. Not more than 300 milligrams of dihydrocodei-none per 100 milliliters or not more than 15 milligrams per dosage unit, with recognized therapeutic amounts of one or more active ingredients which are not con­trolled substances.

5. Not more than 1.8 grams of dihydrocodeine per 100 milliliters or not more than 90 milligrams per dosage unit, with recognized therapeutic amounts of one or more active ingredients which are not controlled sub­stances.

6. Not more than 300 milligrams of ethylmorphine per 100 milliliters or not more than 15 milligrams per dos­age unit, with one or more active, nonnarcotic ingredi­ents in recognized therapeutic amounts.

7. Not more than 50 milligrams of morphine per 100 milliliters or per 100 grams, with recognized therapeutic amounts of one or more active ingredients which are not controlled substances.

(4) SCHEDULE IV.-A substance in Schedule IV has a low potential for abuse relative to the substances in Schedule Ill and has a currently accepted medical use in treatment in the United States, and abuse of the sub­stance may lead to limited physical or psychological de­pendence relative to the substances in Schedule Ill or, in the case of anabolic steroids, human chorionic gona­dotropins, or other gonadotropins, may lead to physical damage. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of iso­mers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation, are controlled in Schedule IV:

(a) Alprazolam. (b) Anabolic steroids, including testosterone and its

analogs, human chorionic gonadotropins, and other gonadotropins, but not including patent or proprietary preparations containing anabolic steroids and labeled for animal use.

(c) Barbital. (d) Bromazepam. (e) Camazepam. (f) Chloral betaine. (g) Chloral hydrate. (h) Chlordiazepoxide.

(i) Clobazam. U) Clonazepam. (k) Clorazepate. (I) Clotiazepam. (m) Cloxazolam. (n) Delorazepam. (o) Dextropropoxyphene (dosage forms). (p) Diazepam. (q) Diethylpropion. (r) Estazolam. (s) Ethchlorvynol. (t) Ethinamate. (u) Ethyl loflazepate. (v) Fenfluramine. (w) Fludiazepam. (x) Flunitrazepam. (y) Flurazepam. (z) Halazepam. (aa) Haloxazolam. (bb) Ketazolam. (cc) Loprazolam. (dd) Lorazepam. (ee) Lormetazepam. (ff) Mazindol. (gg) Mebutamate. (hh) Medazepam. (ii) Meprobamate. UD Methohexital. (kk) Methylphenobarbital . (II) Midazolam. (mm) Nimetazepam. (nn) Nitrazepam. (oo) Nordiazepam. (pp) Oxazepam. (qq) Oxazolam. (rr) Paraldehyde. (ss) Pemoline. (tt) Pentazocine. (uu) Petrichloral. (vv) Phenobarbital. (ww) Phentermine. (xx) Pinazepam. (yy) Pipradrol. (zz) Prazepam. (aaa) Quazepam. (bbb) Tetrazepam. (ccc) SPA[(-)-1 dimethylamino-1, 2 diphenyle-

thane]. (ddd) Temazepam. (eee) Triazolam. (5) SCHEDULE V.-A substance, compound, mix­

ture, or preparation of a substance in Schedule V has a low potential for abuse relative to the substances in Schedule IV and has a currently accepted medical use in treatment in the United States, and abuse of such compound, mixture, or preparation may lead to limited physical or psychological dependence relative to the substances in Schedule IV.

(a) Substances controlled in Schedule V include any compound, mixture, or preparation containing any of the following limited quantities of controlled substances, which shall include one or more active medicinal ingredi­ents which are not controlled substances in sufficient

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F.S. 1987 DRUG ABUSE PREVENTION AND CONTROL Ch. 893

proportion to confer upon the compound , mixture, or preparation valuable medicinal qualities other than those possessed by the controlled substance alone:

1. Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams.

2. Not more than 100 milligrams of dihydrocodeine per 100 milliliters or per 100 grams.

3. Not more than 100 milligrams of ethylmorphine per 100 milliliters or per 100 grams.

4. Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit.

5. Not more than 100 milligrams of opium per 100 milliliters or per 100 grams.

(b) Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material , com­pound, mixture, or preparation containing any of the fol­lowing narcotic drugs and their salts : Buprenorphine.

History.-s. 3, ch. 73- 331; s. 247, ch . 77-104; s. 1, ch. 77-174; ss. 1, 2, ch. 78-1 95; s. 2, ch. 79-325; s. 1, ch. 80- 353; s. 1, ch. 82-16; s. 1, ch. 84-89; s. 2, ch. 85- 242; s. 1, ch. 86-147; s. 2, ch. 87-243; s. 1, ch. 87-299.

1Note.-Section 402.36 was repealed by s. 9, ch. 84-115.

893.035 Control of new substances; findings of fact; delegation of authority to Attorney General to control substances by rule.-

(1)(a) New substances are being created which are not controlled under the provisions of this chapter but which have a potential for abuse similar to or greater than that for substances controlled under this chapter. These new substances are sometimes called "designer drugs" because they can be designed to produce a de­sired pharmacological effect and to evade the control­ling statutory provisions. Designer drugs are being man­ufactured, distributed, possessed, and used as substi­tutes for controlled substances.

(b) The hazards attributable to the traffic in and use of these designer drugs are increased because their un­regulated manufacture produces variations in purity and concentration.

(c) Many such new substances are untested , and it cannot be immediately determined whether they have useful medical or chemical purposes.

(d) The uncontrolled importation, manufacture, dis­tribution , possession , or use of these designer drugs has a substantial and detrimental impact on the health and safety of the people of Florida.

(e) These designer drugs can be created more rap­idly than they can be identified and controlled by action of the Legislature. There is a need for a speedy and ex­pert administrative determination of their proper classifi­cation under this chapter. It is therefore necessary to delegate to an administrative agency restricted authori­ty to identify and classify new substances that have a potential for abuse, so that they can be controlled in the same manner as other substances currently controlled under this chapter.

(2) The Attorney General shall apply the provisions of this section to any substance not currently controlled under the provisions of s. 893.03. The Attorney General may by rule :

(a) Add a substance to a schedule established by s. 893.03, or transfer a substance between schedules, if he finds that it has a potential for abuse and he makes

witli respect to it the other findings appropriate for clas­sification in the particular schedule under s. 893.03 in which it is to be placed .

(b) Remove a substance previously added to a schedule if he finds the substance does not meet the re­quirements for inclusion in that schedule.

Rules adopted under this section shall be made pursu­ant to the rulemaking procedures prescribed by chapter 120.

(3)(a) The term "potential for abuse" in this section means that a substance has properties as a central ner­vous system stimulant or depressant or a hallucinogen that create a substantial likelihood of its being:

1. Used in amounts that create a hazard to the user's health or the safety of the community;

2. Diverted from legal channels and distributed through illegal channels ; or

3. Taken on the user 's own initiative rather than on the basis of professional medical advice.

Proof of potential for abuse can be based upon a show­ing that these activities are already taking place, or upon a showing that the nature and properties of the sub­stance make it reasonable to assume that there is a sub­stantial likelihood that such activities will take place, in other than isolated or occasional instances.

(b) The terms "immediate precursor" and "narcotic drug" shall be given the same meanings as provided by s. 102 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. s. 802, as amended and in effect on April 1, 1985.

(4) In making any findings under this section, the At­torney General shall consider the following factors with respect to each substance proposed to be controlled or removed from control :

(a) Its actual or relative potential for abuse. (b) Scientific evidence of its pharmacological effect,

if known . (c) The state of current scientific knowledge regard-

ing the drug or other substance. (d) Its history and current pattern of abuse. (e) The scope, duration , and significance of abuse. (f) What, if any, risk there is to the public health. (g) Its psychic or physiological dependence liability. (h) Whether the substance is an immediate precur-

sor of a substance already controlled under this chapter.

The findings and conclusions of the United States Attor­ney General or his delegee, as set forth in the Federal Register, with respect to any substance pursuant to s. 201 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. s. 811 , as amended and in effect on April 1, 1985, shall be admissible as evi­dence in any rulemaking proceeding under this section , including an emergency rulemaking proceeding under subsection (7) .

(5) Before initiating proceedings under subsection (2) , the Attorney General shall request from the Depart­ment of Professional Regulation and the Department of Law Enforcement a medical and scientific evaluation of the substance under consideration and a recommenda­tion as to the appropriate classification , if any, of such substance as a controlled substance. In responding to

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Ch.893 DRUG ABUSE PREVENTION AND CONTROL F.S. 1987

this request, the Department of Professional Regulation and the Department of Law Enforcement shall consider the factors listed in subsection (4) . The Department of Professional Regulation and the Department of Law En­forcement shall respond to this request promptly and in writing; however, their response shall not be subject to the provisions of chapter 120. If both the Department of Professional Regulation and the Department of Law En­forcement recommend that a substance not be con­trolled, the Attorney General shall not control that sub­stance. If the Attorney General determines, based on the evaluations and recommendations of the Depart­ment of Professional Regulation and the Department of Law Enforcement and all other available evidence, that there is substantial evidence of potential for abuse, he shall initiate proceedings under paragraph (2)(a) with re­spect to that substance.

(6)(a) The Attorney General shall by rule exempt any nonnarcotic substance controlled by rule under this sec­tion from the application of this section if such sub­stance may, under the Federal Food, Drug, and Cosmet­ic Act, be lawfully sold over the counter without a pre­scription.

(b) The Attorney General may by rule exempt any compound, mixture, or preparation containing a sub­stance controlled by rule under this section from the ap­plication of this section if he finds that such compound, mixture, or preparation meets the requirements of either of the following subcategories:

1. A mixture or preparation containing a nonnarco-tic substance controlled by rule , which mixture or prepa­ration is approved for prescription use and which con­tains one or more other active ingredients which are not listed in any schedule and which are included therein in such combinations, quantity, proportion , or concentra­tion as to vitiate the potential for abuse.

2. A compound, mixture, or preparation which con-tains any substance controlled by rule, which is not for administration to a human being or animal , and which is packaged in such form or concentration, or with adulter­ants or denaturants, so that as packaged it does not present any significant potential for abuse.

(7)(a) If the Attorney General finds that the schedul­ing of a substance in Schedule I of s. 893.03 on a tempo­rary basis is necessary to avoid an imminent hazard to the public safety, he may by rule and without regard to the requirements of subsection (5) relating to the De­partment of Professional Regulation and the Depart­ment of Law Enforcement schedule such substance in Schedule I if the substance is not listed in any other schedule of s. 893.03. The Attorney General shall be re­quired to consider, with respect to his finding of immi­nent hazard to the public safety, only those factors set forth in paragraph (a) of subsection (3) and paragraphs (d) , (e) , and (f) of subsection (4) , including actual abuse, diversion from legitimate channels, and clandestine im­portation, manufacture, or distribution.

(b) The Attorney General may use emergency rule­making provisions under s. 120.54(9) in scheduling sub­stances under this subsection . Notwithstanding the pro­visions of s. 120.54(9)(c), any rule adopted under this subsection shall not expire except as provided in sub­section (9) .

(8)(a) Upon the effective date of a rule adopted pur­suant to this section adding or transferring a substance to a schedule under s. 893.03, such substance shall be deemed included in that schedule, and all provisions of this chapter applicable to substances in that schedule shall be deemed applicable to such substance.

(b) A rule adopted pursuant to this section shall con­tinue in effect until it is repealed; until it is declared inval­id in proceedings under s. 120.56 or in proceedings be­fore a court of competent jurisdiction; or until it expires under the provisions of subsection (9).

(9) The Attorney General shall report to the Legisla­ture by March 1 of each year concerning the rules adopt­ed under this section during the previous year. Each rule so reported shall expire on the following June 30 unless the Legislature adopts the provisions thereof as an amendment to this chapter.

(10) The repeal, expiration, or determination of inva­lidity of any rule shall not operate to create any claim or cause of action against any law enforcement officer or other enforcing authority for actions taken in good faith in reliance on the validity of the rule.

(11) In construing this section, due consideration and great weight should be given to interpretations of the United States Attorney General and the federal courts relating to s. 201 of the Comprehensive Drug Abuse Pre­vention and Control Act of 1970, 21 U.S.C. s. 811, as amended and in effect on April 1, 1985. All substantive rules adopted under this part shall not be inconsistent with the rules of the United States Attorney General and the decisions of the federal courts interpreting the provi­sions of s. 201 of the Comprehensive Drug Abuse Pre­vention and Control Act of 1970, 21 U.S.C. s. 811, as amended and in effect on April 1, 1985.

(12) The adoption of a rule transferring a substance from one schedule to another or removing a substance from a schedule pursuant to this section shall not affect prosecution or punishment for any crime previously committed with respect to that substance.

Hlatory.-s. 3, ch. 85-242: s. 72, ch . 87-226.

893.0355 Control of scheduled substances; dele­gation of authority to Attorney General to reschedule substance, or delete substance, by rule.-

(1) The Legislature has determined that, from time to time, additional testings, approvals, or scientific evi­dence may indicate that controlled substances listed in Schedules I, II, Ill, IV, and V hereof have a greater poten­tial for beneficial medical use in treatment in the United States than was evident when such substances were initially scheduled. It is the intent of the Legislature to quickly provide a method for an immediate change to the scheduling and control of such substances to allow for the beneficial medical use thereof so that more flexi­bility will be available than is possible through resched­uling legislatively.

(2) The Attorney General is hereby delegated the authority to adopt rules rescheduling specified sub­stances to a less controlled schedule, or deleting speci­fied substances from a schedule, upon a finding that re­duced control of such substances is in the public inter­est. In determining whether reduced control of a sub-

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F.S. 1987 DRUG ABUSE PREVENTION AND CONTROL Ch.893

stance is in the public interest, the Attorney General shall consider the following :

(a) Whether the substance has been rescheduled or deleted from any schedule by rule adopted by the Unit­ed States Attorney General pursuant to s. 201 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. s. 811 .

(b) The substance 's actual or relative potential for abuse.

(c) Scientific evidence of the substance's pharma­cological effect, if known.

(d) The state of current scientific knowledge regard­ing the substance.

(e) The substance's history and current pattern of abuse.

(f) The scope, duration , and significance of abuse. (g) What, if any, risk there is to the public health . (h) The substance's psychic or physiological depen-

dence liability. (3) In making the public interest determination, the

Attorney General shall give great weight to the schedul­ing rules adopted by the United States Attorney General subsequent to such substances being listed in Sched­ules I, II , Ill , IV, and V hereof, to achieve the original legis­lative purpose of the Florida Comprehensive Drug Abuse Prevention and Control Act of maintaining unifor­mity between the laws of Florida and the laws of the United States with respect to controlled substances.

(4) Rulemaking under this section shall be in accord­ance with the procedural requirements of chapter 120, including the emergency rule provisions found in s. 120.54. The Attorney General may initiate proceedings for adoption, amendment, or repeal of any rule on his own motion or upon the petition of any interested party.

(5) Upon the effective date of a rule adopted pursu­ant to this section, the rule's rescheduling or deletion of a substance shall be effective for all purposes under chapter 893.

(6) Rules adopted pursuant to this section shall be reviewed each year by the Legislature. Each rule shall remain in effect until the effective date of legislation that provides for a different scheduling of a substance than that set forth in such rule.

(7) The adoption of a rule rescheduling a substance or deleting a substance from control pursuant to this section shall not affect prosecution or punishment for any crime previously committed with respect to that substance.

(8) The provisions of this section apply only to sub­stances controlled expressly by statute and not to sub­stances controlled by rules adopted under the authority granted in the provisions of s. 893.035.

Hiatory.-s. 4, ch. 85-242.

893.0356 Control of new substances; findings of fact; "controlled substance analog" defined.-

(1 )(a) New substances are being created which are not controlled under the provisions of this chapter but which have a potential for abuse similar to or greater than that for substances controlled under this chapter. These new substances are called "controlled substance analogs," and can be designed to produce a desired pharmacological effect and to evade the controlling stat-

utory provisions. Controlled substance analogs are be­ing manufactured, distributed, possessed , and used as substitutes for controlled substances .

(b) The hazards attributable to the traffic in and use of controlled substance analogs are increased because their unregulated manufacture produces variations in purity and concentration .

(c) Many such new substances are untested, and it cannot be immediately determined whether they have useful medical or chemical purposes.

(d) The uncontrolled importation , manufacture, dis­tribution , possession, or use of controlled substance an­alogs has a substantial and detrimental impact on the health and safety of the people of Florida.

(e) Controlled substance analogs can be created more rapidly than they can be identified and controlled by action of the Legislature. There is a need for a speedy determination of their proper classification under this chapter. It is therefore necessary to identify and classify new substances that have a potential for abuse, so that they can be controlled in the same manner as other sub­stances currently controlled under this chapter.

(2)(a) As used in this section, "controlled substance analog" means a substance which, due to its chemical structure and potential for abuse, meets the following criteria:

1. Is substantially similar to that of a controlled sub-stance listed in Schedule I or Schedule II of s. 893.03; and

2. Has a stimulant, depressant, or hallucinogenic effect on the central nervous system or is represented or intended to have a stimulant, depressant, or halluci­nogenic effect on the central nervous system substan­tially similar to or greater than that of a controlled sub­stance listed in Schedule I or Schedule II of s. 893.03.

(b) "Controlled substance analog" does not include: 1. A controlled substance; 2. Any substance for which there is an approved

new drug application ; 3. Any compound, mixture, or preparation which

contains any controlled substance which is not for ad­ministration to a human being or animal , and which is packaged in such form or concentration, or with adulter­ants or denaturants, so that as packaged it does not present any signifiGant potential for abuse; or

4. Any substance to which an investigational ex­emption applies under s. 505 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 355, but only to the extent that conduct with respect to the substance is pursuant to such exemption .

(3) The term "potential for abuse" in this section means that a substance has properties as a central ner­vous system stimulant or depressant or a hallucinogen that create a substantial likelihood of its being:

(a) Used in amounts that create a hazard to the user's health or the safety of the community;

(b) Diverted from· legal channels and distributed through illegal channels ; or

(c) Taken on the user's own initiative rather than on the basis of professional medical advice.

Proof of potential for abuse can be based upon a show­ing that these activities are already taking place, or upon

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a showing that the nature and properties of the sub­stance make it reasonable to assume that there is a sub­stantial likelihood that such activities will take place, in other than isolated or occasional instances.

(4) The following factors shall be relevant to a find­ing that a substance is a controlled substance analog within the purview of this section:

(a) Its actual or relative potential for abuse. (b) Scientific evidence of its pharmacological effect,

if known. (c) The state of current scientific knowledge regard-

ing the substance. (d) Its history and current pattern of abuse. (e) The scope, duration , and significance of abuse. (f) What , if any, risk there is to the public health. (g) Its psychic or physiological dependence liability. (h) Its diversion from legitimate channels, and clan-

destine importation, manufacture, or distribution. (i) Whether the substance is an immediate precur­

sor of a substance already controlled under this chapter. (5) A controlled substance analog shall , for pur­

poses of drug abuse prevention and control , be treated as a controlled substance in Schedule I of s. 893.03.

(6) In construing this section, due consideration and great weight should be given to interpretations of the United States Attorney General and the federal courts relating to s. 201 of the Comprehensive Drug Abuse Pre­vention and Control Act of 1970, 21 U.S.C. s. 811 , as amended and in effect on April 1 , 1985. New substances controlled under this section shall not be treated in a manner inconsistent with the rules of the United States Attorney General and the decisions of the federal courts interpreting the provisions of s. 201 of the Comprehen­sive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. s. 811 , as amended and in effect on April1 , 1985.

(7) The treatment of a new substance as a con­trolled substance pursuant to this section shall not af­fect prosecution or punishment for any crime previously committed with respect to that substance.

History.-s. 3, ch. 87-243.

893.04 Pharmacist and practitioner.-(1) A pharmacist, in good faith and in the course of

professional practice only, may dispense controlled sub­stances upon a written or oral prescription of a practi­tioner, under the following conditions:

(a) Oral prescriptions must be promptly reduced to writing by the pharmacist.

(b) The written prescription must be dated and signed by the prescribing practitioner on the day when issued.

(c) There shall appear on the face of the prescription or written record thereof for the controlled substance the following information:

1 . The full name and address of the person for whom, or the owner of the animal for which, the con­trolled substance is dispensed.

2. The full name and address of the prescribing practitioner and his federal controlled substance regis­try number shall be printed thereon.

3. If the prescription is for an animal, the species of animal for which the controlled substance is prescribed.

4. The name of the controlled substance pre-scribed and the strength, quantity, and directions for use thereof.

5. The number of the prescription, as recorded in the prescription files of the pharmacy in which it is filled.

6. The initials of the pharmacist filling the prescrip­tion and the date filled .

(d) The prescription shall be retained on file by the proprietor of the pharmacy in which it is filled for a period of 2 years.

(e) Affixed to the original container in which a con­trolled substance is delivered upon a prescription or authorized refill thereof, as hereinafter provided, there shall be a label bearing the following information:

1. The name and address of the pharmacy from which such controlled substance was dispensed.

2. The date on which the prescription for such con­trolled substance was filled.

3. The number of such prescription, as recorded in the prescription files of the pharmacy in which it is filled.

4. The name of the prescribing practitioner. 5. The name of the patient for whom, or of the own­

er and species of the animal for which, the controlled substance is prescribed.

6. The directions for the use of the controlled sub­stance prescribed in the prescription.

7. A clear, concise warning that it is a crime to transfer the controlled substance to any person other than the patient for whom prescribed.

(f) A prescription for a controlled substance listed in Schedule II may be dispensed only upon a written pre­scription of a practitioner, except that in an emergency situation, as defined by regulation of the Department of Health and Rehabilitative Services, such controlled sub­stance may be dispensed upon oral prescription. No prescription for a controlled substance listed in Sched­ule II may be refilled .

(g) No prescription for a controlled substance listed in Schedules Ill, IV, or V may be filled or refilled more than five times within a period of 6 months after the date on which the prescription was written unless the prescrip­tion is renewed by a practitioner.

(2) The legal owner of any stock of controlled sub­stances in a pharmacy, upon discontinuance of dealing in controlled substances, may sell said stock to a manu­facturer, wholesaler, or pharmacy. Such controlled sub­stances may be sold only upon an order form, when such an order form is required for sale by the drug abuse laws of the United States or this state, or regulations pursuant thereto.

Hlatory.-s. 4, ch. 73-331 ; s. 2, ch. 75-18; s. 12, ch. 79-12.

893.05 Practitioners and persons administering controlled substances in their absence.-

(1) A practitioner, in good faith and in the course of his professional practice only, may prescribe, adminis­ter, dispense, mix, or otherwise prepare a controlled substance, or he may cause the same to be adminis­tered by a licensed nurse or an intern practitioner under his direction and supervision only. A veterinarian may so prescribe, administer, dispense, mix, or prepare a con­trolled substance for use on animals only, and may

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cause it to be administered by an assistant or orderly un­der his direction and supervision only.

(2) When any controlled substance is dispensed by a practitioner, there shall be affixed to the original con­tainer in which the controlled substance is delivered a label on which appears:

(a) The date of delivery. (b) The directions for use of such controlled sub­

stance. (c) The name and address of such practitioner. (d) The name of the patient and, if such controlled

substance is prescribed for an animal, a statement de­scribing the species of the animal.

(e) A clear, concise warning that it is a crime to transfer the controlled substance to any person other than the patient for whom prescribed .

(3) Any person who obtains from a practitioner or his agent, or pursuant to prescription, any controlled sub­stance for administration to a patient during the ab­sence of such practitioner shall return to such practition­er any unused portion of such controlled substance when it is no longer required by the patient .

History.-s. 5, ch. 73-331 .

893.06 Distribution of controlled substances; order forms; labeling and packaging requirements.-

(1) Controlled substances in Schedules I and II shall be distributed by a duly licensed manufacturer, distribu­tor , or wholesaler to a duly licensed manufacturer, wholesaler, distributor, practitioner, pharmacy, as de­fined in chapter 465, hospital, or laboratory only pursu­ant to an order form. It shall be deemed a compliance with this subsection if the parties to the transaction have complied with federal law respecting the use of order forms.

(2) Possession or control of controlled substances obtained as authorized by this section shall be lawful if in the regular course of business, occupation, profes­sion, employment, or duty.

(3) A person in charge of a hospital or laboratory or in the employ of this state or of any other state, or of any political subdivision thereof, and a master or other prop­er officer of a ship or aircraft , who obtains controlled sub­stances under the provisions of this section or other­wise, shall not administer, dispense, or otherwise use such controlled substances within this state, except within the scope of his employment or official duty, and then only for scientific or medicinal purposes and sub­ject to the provisions of this chapter.

(4) It shall be unlawful to distribute a controlled sub­stance in a commercial container unless such container bears a label showing the name and address of the man­ufacturer, the quantity, kind, and form of controlled sub­stance contained therein, and the identifying symbol for such substance, as required by federal law. No person except a pharmacist, for the purpose of dispensing a prescription, or a practitioner, for the purpose of dis­pensing a controlled substance to a patient, shall alter, deface, or remove any labels so affixed.

Hlstory.-s. 6, ch. 73-331.

893.07 Records.-(1) Every person who engages in the manufacture,

compounding, mixing, cultivating, growing, or by any

other process producing or preparing , or in the dispens­ing, importation, or, as a wholesaler, distribution, of con­trolled substances shall:

(a) On January 1, 1974, or as soon thereafter as any person first engages in such activity, and every second year thereafter, make a complete and accurate record of all stocks of controlled substances on hand. The in­ventory may be prepared on the regular physical inven­tory date which is nearest to, and does not vary by more than 6 months from, the biennial date that would other­wise apply. As additional substances are designated for control under this chapter, they shall be inventoried as provided for in this subsection.

(b) On and after January 1, 1974, maintain, on a cur­rent basis , a complete and accurate record of each sub­stance manufactured, received, sold , delivered, or oth­erwise disposed of by him, except that this subsection shall not require the maintenance of a perpetual invento­ry .

Compliance with the provisions of federal law pertaining to the keeping of records of controlled substances shall be deemed a compliance with the requirements of this subsection.

(2) The record of controlled substances received shall in every case show:

(a) The date of receipt. (b) The name and address of the person from whom

received . (c) The kind and quantity of controlled substances

received . (3) The record of all controlled substances sold , ad­

ministered, dispensed, or otherwise disposed of shall show:

(a) The date of selling, administering, or dispensing. (b) The correct name and address of the person to

whom or for whose use, or the owner and species of ani­mal for which, sold, administered , or dispensed.

(c) The kind and quantity of controlled substances sold , administered, or dispensed.

(4) Every inventory or record required by this chap­ter, including prescription records , shall be maintained:

(a) Separately from all other records of the regis­trant, or

(b) Alternatively, in the case of Schedule Ill, IV, or V controlled substances, in such form that information re­quired by this chapter is readily retrievable from the ordi­nary business records of the registrant.

In either case, records shall be kept and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.

(5) Each person shall maintain a record which shall contain a detailed list of controlled substances lost, de­stroyed , or stolen , if any; the kind and quantity of such controlled substances; and the date of the discovering of such loss , destruction, or theft.

History.-s. 7, ch. 73-331 .

893.08 Exceptions.-(1) The following may be distributed at retail without

a prescription, but only by a registered pharmacist:

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(a) Any compound , mixture , or preparation de­scribed in Schedule V.

(b) Any compound , mixture, or preparation contain­ing any depressant or stimulant substance described in s. 893.03(2)(a) or {c) except any amphetamine drug or sympathomimetic amine drug or compound designated as a Schedule II controlled substance pursuant to this chapter; in s. 893.03(3)(a); or in Schedule IV, if:

1. The compound, mixture, or preparation contains one or more active medicinal ingredients not having de­pressant or stimulant effect on the central nervous sys­tem , and

2. Such ingredients are included therein in such combinations, quantity, proportion , or concentration as to vitiate the potential for abuse of the controlled sub­stances which do have a depressant or stimulant effect on the central nervous system.

(2) No compound , mixture, or preparation may be dispensed under subsection (1) unless such substance may, under the Federal Food, Drug, and Cosmetic Act , be lawfully sold at retail without a prescription .

(3) · The exemptions authorized by this section shall be subject to the following conditions:

(a) The compounds, mixtures, and preparations re­ferred to in subsection (1) may be dispensed to persons under age 18 only on prescription. A bound volume must be maintained as a record of sale at retail of excepted compounds, mixtures, and preparations, and the phar­macist must require suitable identification from every unknown purchaser.

(b) Such compounds, mixtures, and preparations shall be sold by the pharmacist in good faith as a medi­cine and not for the purpose of evading the provisions of this chapter. The pharmacist may, in his discretion , withhold sale to any person whom he reasonably be­lieves is attempting to purchase excepted compounds, mixtures, or preparations for the purpose of abuse.

(c) The total quantity of controlled substance listed in Schedule V which may be sold to any one purchaser within a given 48- hour period shall not exceed 120 milli­grams of codeine, 60 milligrams dihydrocodeine, 30 mill i­grams of ethyl morphine, or 240 milligrams of opium.

(d) Nothing in this section shall be construed to limit the kind and quantity of any controlled substance that may be prescribed, administered, or dispensed to any person, or for the use of any person or animal, when it is prescribed , administered , or dispensed in compliance with the general provisions of this chapter .

(4) The dextrorotatory isomer of 3-methoxy- n­methylmorphinan and its salts (dextromethorphan) shall not be deemed to be included in any schedule by reason of enactment of this chapter.

History.-s. 8, ch. 73-331; s. 1, ch. 77- 174; s. 6, ch. 80-354.

893.09 Enforcement.-(1) The Department of Law Enforcement, all state

agencies which regulate professions or institutions af­fected by the provisions of this chapter, and all peace officers of the state shall enforce all provisions of this chapter except those specifically delegated, and shall cooperate with all agencies charged with the enforce­ment of the laws of the United States, this state, and all other states relating to controlled substances.

(2) Any agency authorized to enforce this chapter shall have the right to institute an action in its own name to enjoin the violation of any of the provisions of this chapter. Said action for an injunction shall be in addition to any other action, proceeding, or remedy authorized by law.

(3) All law enforcement officers whose duty it is to enforce this chapter shall have authority to administer oaths in connection with their official duties, and any person making a material false statement under oath be­fore such law enforcement officers shall be deemed guilty of perjury and subject to the same punishment as prescribed for perjury.

(4) It shall be unlawful and punishable as provided in chapter 843 for any person to interfere with any such law enforcement officer in the performance of his official duties. It shall also be unlawful for any person falsely to represent himself to be authorized to enforce the drug abuse laws of this state, the United States, or any other state.

(5) No civil or criminal liability shall be imposed by virtue of this chapter upon any person whose duty it is to enforce the provisions of this chapter, by reason of his being lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.

Hlstory.- s. 9, ch. 73- 331 ; s. 1, ch. 77-174; s. 30, ch. 79-8.

893.10 Burden of proof.-(1) It shall not be necessary for the state to negative

any exemption or exception set forth in this chapter in any indictment , information , or other pleading or in any trial , hearing , or other proceeding under this chapter, and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.

(2) In the case of a person charged under 1s. 893.14(1) with the possession of a controlled substance, the label required under s. 893.04(1) or s. 893.05(2) shall be admissible in evidence and shall be prima facie evi­dence that such substance was obtained pursuant to a valid prescription form or dispensed by a practitioner while acting in the course of his professional practice.

Hlstory.- s. 10, ch. 73-331. •Note.-Sec1ion 893.14 was repealed by s. 14, ch. 80-409.

893.105 Testing and destruction of seized sub­stances.-

(1) Any controlled substance seized as evidence may be sample tested and weighed by the seizing agen­cy after the seizure. Any such sample and the analysis thereof shall be admissible into evidence in any civil or criminal action for the purpose of proving the nature, composition , and weight of the substance seized. In ad­dition, the seizing agency may photograph or videotape, for use at trial , the controlled substance seized.

(2) Controlled substances that are not retained for sample testing as provided in subsection (1) may be de­stroyed pursuant to a court order issued in accordance with s. 893.12.

Hlstory.- s. 1, ch. 82-88.

893.11 Suspension, revocation, and reinstatement of business and professionallicenses.-Upon the con­viction in any court of competent jurisdiction of any prac-

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F.S. 1987 DRUG ABUSE PREVENTION AND CONTROL Ch.893

titioner, distributor, manufacturer, wholesaler, or phar­macist of a violation of any of the provisions of this chap­ter which constitutes a felony, the clerk of said court shall send a certified copy of the judgment of conviction to the board or officer by whom the convicted defendant has been licensed to practice his profession or to carry on his business. Such board or officer may suspend or revoke the license or registration of the convicted de­fendant to practice his profession or to carry on his busi­ness. Upon application of any such convicted defendant whose license or registration has been suspended or re­voked , and upon proper showing and for good cause, said board or officer may reinstate such license or regis­tration . Any court of competent jurisdiction in which such a defendant is convicted of a violation of any of the provisions of this chapter shall have the power, in its dis­cretion, to suspend or revoke the license or registration of the convicted defendant and may thereafter, upon proper showing and for good cause, reinstate such li­cense or registration when the same shall have been suspended or revoked by a court of competent jurisdic­tion. However, no court shall reinstate any license of such a convicted defendant which has been revoked by the board or officer by whom the convicted defendant was licensed to practice his profession or to carry on his business, except upon a proceeding brought in a court of competent jurisdiction for the purpose of setting aside or restraining such suspension or revocation of li­cense.

History.-s. 11 , ch . 73-331; s. 1, ch. 77-117; s. 19, ch. 78-95. cf.-s. 112.011 Felons; removal of disqualifications for employment, exceptions.

893.12 Contraband; seizure, forfeiture, sale.-(1) All substances controlled by this chapter which

may be handled, delivered, possessed, or distributed contrary to any provisions of this chapter and all such controlled substances the lawful possession of which is not established or the title to which cannot be ascer­tained are declared to be contraband , shall be subject to seizure and confiscation by any person whose duty it is to enforce the provisions of the chapter, and shall be disposed of as follows:

(a) Except as in this section otherwise provided, the court having jurisdiction shall order such controlled sub­stances forfeited and destroyed. A record of the place where said controlled substances were seized, of the kinds and quantities of controlled substances de­stroyed, and of the time, place, and manner of destruc­tion shall be kept, and a return under oath reporting said destruction shall be made to the court or magistrate and to the United States Drug Enforcement Administration by the officer who destroys them.

(b) Upon written application by the Department of Health and Rehabilitative Services, the court by whom the forfeiture of such controlled substances has been decreed may order the delivery of any of them to said department for distribution or destruction as hereinafter provided.

(c) Upon application by any hospital or laboratory within the state not operated for private gain, the depart­ment may, in its discretion, deliver any controlled sub­stances that have come into its custody by authority of this section to the applicant for medical use. The depart-

ment may from time to time deliver excess stocks of such controlled substances to the United States Drug Enforcement Administration or destroy same.

(d) The department shall keep a full and complete record of all controlled substances received and of all controlled substances disposed of, showing:

1. The exact kinds, quantities, and forms of such controlled substances;

2. The persons from whom received and to whom delivered;

3. By whose authority received, delivered , and de-stroyed; and

4. The dates of the receipt , disposal , or destruction ,

which record shall be open to inspection by all persons charged with the enforcement of federal and state drug abuse laws.

(2) Any vessel , vehicle , aircraft, or drug parapherna­lia as defined in s. 893.145 which has been or is being used in violation of any provision of this chapter or in, upon, or by means of which any violation of this chapter has taken or is taking place may be seized and forfeited as provided by the Florida Contraband Forfeiture Act.

(3) Any law enforcement agency is empowered to authorize or designate officers, agents, or other persons to carry out the seizure provisions of this section. It shall be the duty of any officer, agent, or other person so authorized or designated, or authorized by law, whenev­er he shall discover any vessel, vehicle, or aircraft which has been or is being used in violation of any of the provi­sions of this chapter, or in, upon, or by means of which any violation of this chapter has taken or is taking place, to seize such vessel, vehicle, or aircraft and place it in the custody of such person as may be authorized or des­ignated for that purpose by the respective law enforce­ment agency pursuant to these provisions.

(4) The rights of any bona fide holder of a duly rec­orded mortgage or duly recorded vendor's privilege on the property seized under this chapter shall not be af­fected by the seizure.

Hlstory.-s. 12, ch. 73-331 ; ss. 10, 11 , ch. 74-385; s. 471 , ch. 77-147; s. 185, ch. 79-164; s. 4, ch. 80-30; s. 9, ch. 80-68. cf.-ss . 932.701-932.704 Florida Contraband Forfeiture Act.

893.13 Prohibited acts; penalties.-(1 )(a) Except as authorized by this chapter and

chapter 499, it is unlawful for any person to sell, pur­chase, manufacture, or deliver, or possess with intent to sell, purchase, manufacture, or deliver, a controlled sub­stance. Any person who violates this provision with re­spect to:

1. A controlled substance named or described in s. 893.03(1 )(a), (1 )(b), (1 )(d), (2)(a), or (2)(b) is guilty of a fel­ony of the second degree, punishable as provided in ss. 775.082, 775.083, and 775.084.

2. A controlled substance named or described in s. 893.03(1 )(c), (2)(c), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3. A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) Except as provided in this chapter, it is unlawful to sell, purchase, deliver, or possess in excess of 10

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Ch. 893 DRUG ABUSE PREVENTION AND CONTROL F.S. 1987

grams of any substance named or described in s. sional practice or to be in actual or constructive posses-893.03(1 )(a) or (1 )(b) , or any combination thereof. Any sian of a controlled substance except as otherwise person who violates this paragraph is guilty of a felony authorized by this chapter. Any person who violates this of the first degree, punishable as provided in ss. provision is guilty of a felony of the third degree, punish-775.082, 775.083, and 775.084. able as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) 'Except as authorized by this chapter, it is unlaw- (g) If the offense is the possession or delivery with-ful for any person 18 years of age or older to deliver any out consideration of not more than 20 grams of canna­controlled substance to a person under the age of 18 bis, as defined in this chapter, that person is guilty of a years, or to use or hire a person under the age of 18 misdemeanor of the first degree, punishable as provid­years as an agent or employee in the sale or delivery of ed ins. 775.082 and s. 775.083. For the purposes of this such a substance, or to use such person to assist in subsection, "cannabis" does not include the resin ex­avoiding detection or apprehension for a violation of this tracted from the plants of the genus Cannabis, or any chapter. Any person who violates this provision with re- compound manufacture, salt , derivative, mixture, or spect to: preparation of such resin.

1. A controlled substance named or described in s. (h) Notwithstanding any provision to the contrary of 893.03(1 )(a), (1 )(b) , (1 )(d), (2)(a), or (2)(b) is guilty of a fel- the laws of this state relating to arrest, a law enforce-any of the first degree, punishable as provided in s. ment officer may arrest without warrant any person who 775.082, s. 775.083, or s. 775.084. he has probable cause to believe is violating the provi-

2. A controlled substance named or described in s. sions of this chapter relating to possession of cannabis. 893.03(1 )(c), (2)(c), (3), or (4) is guilty of a felony of the (2)(a) It is unlawful for any person: second degree, punishable as provided ins. 775.082, s. 1. To distribute or dispense a controlled substance 775.083, or s. 775.084. in violation of the provisions of this chapter relating

Imposition of sentence shall not be suspended or de- thereto. ferred, nor shall the person so convicted be placed on 2. To refuse or fail to make, keep, or furnish any rec-probation . ord, notification, order form, statement, invoice, or infor-

(d) It is unlawful for any person to bring into this mation required under this chapter. state any controlled substance unless the possession of 3. To refuse an entry into any premises for any in­such controlled substance is authorized by this chapter spection or to refuse to allow any inspection authorized or unless such person is licensed to do so by the appro- by this chapter. priate federal agency. Any person who violates this pro- 4. To distribute a controlled substance named or vision with respect to: described in s. 893.03(1) or (2) except pursuant to an or-

1. A controlled substance named or described ins. der form as required by s. 893.06. 893.03(1 )(a), (1 )(b), (1 )(d), (2)(a) , or (2)(b) is guilty of a fel- 5. To keep or maintain any store, shop, warehouse, any of the second degree, punishable as provided in s. dwelling, building, vehicle, boat, aircraft, or other struc-775.082, s. 775.083, or s. 775.084. ture or place which is resorted to by persons using con-

2. A controlled substance named or described in s. trolled substances in violation of this chapter for the pur-893.03(1 )(c), (2)(c), (3) , or (4) is guilty of a felony of the pose of using these substances, or which is used for third degree, punishable as provided in s. 775.082, s. keeping or selling them in violation of this chapter. 775.083, or s. 775.084. 6. To use to his own personal advantage, or tore-

3. A controlled substance named or described ins . veal , any information obtained in enforcement of this 893.03(5) is guilty of a misdemeanor of the first degree, chapter except in a prosecution or administrative hear-punishable as provided in s. 775.082 or s. 775.083. ing for a violation of this chapter.

(e) Except as authorized by this chapter, it is unlaw- 7. To withhold information from a practitioner from ful for any person to sell, purchase, manufacture, or de- whom he seeks to obtain a controlled substance or a liver, or to possess with the intent to sell, purchase, man- prescription for a controlled substance that such person ufacture, or deliver, a controlled substance in, on , or has received a controlled substance or a prescription for within 1 ,000 feet of the real property comprising a public a controlled substance of like therapeutic use from an­or private elementary, middle, or secondary school. Any other practitioner within the last 30 days. person who violates this paragraph with respect to: 8. To possess a prescription form which has not

1. A controlled substance named or described in s. been completed and signed by the practitioner whose 893.03(1 )(a), (1 )(b), (1 )(d), (2)(a) , or (2)(b) is guilty of a fel- name appears printed thereon , unless the person is ony of the first degree, punishable as provided in s. such practitioner, is an agent or employee of such prac-775.082, s. 775.083, or s. 775.084. titioner, is a pharmacist , or is a supplier of prescription

2. A controlled substance named or described in s. forms who is authorized by such practitioner to possess 893.03(1 )(c), (2)(c), (3), or (4) is guilty of a felony of the such forms. second degree, punishable as provided in s. 775.082, s. (b) Any person who violates the provisions of para-775.083, or s. 775.084. graph (a) is guilty of a misdemeanor of the first degree,

(f) It is unlawful for any person to be in actual or con- punishable as provided in s. 775.082, s. 775.083, or s. structive possession of a controlled substance unless 775.084; except that , upon a second or subsequent via­such controlled substance was lawfully obtained from a lation, such person is guilty of a felony of the third de­practitioner or pursuant to a valid prescription or order gree, punishable as provided in s. 775.082, s. 775.083, of a practitioner while acting in the course of his profes- or s. 775.084.

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F.S. 1987 DRUG ABUSE PREVENTION AND CONTROL Ch.893

(3)(a) It is unlawful for any person: 1. To acquire or obtain, or attempt to acquire or ob­

tain, possession of a controlled substance by misrepre­sentation , fraud , forgery, deception, or subterfuge.

2. To affix any false or forged label to a package or receptacle containing a controlled substance.

3. To furnish false or fraudulent material information in, or omit any material information from , any report or other document required to be kept or filed under this chapter or any record required to be kept by this chap­ter.

(b) Any person who violates the provisions of para­graph (a) is guilty of a felony of the third degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) The provisions of subsections (1 ), (2), and (3) are not applicable to:

(a) The delivery for medical or scientific purpose only of controlled substances to persons included in any of the classes hereinafter named, or to the agents or em­ployees of such persons, for use in the usual course of their business or profession or in the performance of their official duties.

(b) The actual or constructive possession of con­trolled substances for such use by such persons or their agents or employees, to wit:

1. Pharmacists. 2. Practitioners. 3. Persons who procure controlled substances in

good faith and in the course of professional practice only, by or under the supervision of pharmacists or prac­titioners employed by them, or for the purpose of lawful research, teaching, or testing, and not for resale.

4. Hospitals which procure controlled substances for lawful administration by practitioners, but only for use by or in the particular hospital.

5. Officers or employees of state, federal, or local governments acting in their official capacity only, or in­formers acting under their jurisdiction .

6. Common carriers. 7. Manufacturers, wholesalers, and distributors. (c) The delivery of controlled substances by a law

enforcement officer for bona fide law enforcement pur­poses in the course of an active criminal investigation.

Hlstory.-s. 13, ch. 73-331: s. 1, ch. 76-200: s. 1, ch. 77-174: s. 2, ch. 79-1: s. 3, ch. 79-325; s. 5, ch. 80-30; s. 2, ch . 80-70; s. 490, ch. 81-259; s. 2, ch. 82-16: s. 52, ch. 83-215; s. 1, ch. 84-77: s. 5, ch. 85-242: s. 4, ch. 87-243. cf.-s. 903.133 Bail on appeal; prohibited for certain first-degree felony convictions.

893.135 Trafficking; mandatory sentences; sus­pension or reduction of sentences; conspiracy to en­gage in trafficking.-

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:

(a) Any person who knowingly sells , purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 100 pounds of cannabis is guilty of a felony of the first degree, which felony shall be known as "traff­icking in cannabis." If the quantity of cannabis involved:

1. Is in excess of 100 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 calendar years and to pay a fine of $25,000.

2. Is 2,000 pounds or more, but less than 10,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of 5 calendar years and to pay a fine of $50,000.

3. Is 10,000 pounds or more, such person shall be sentenced to a mandatory minimum term of imprison­ment of 15 calendar years and to pay a fine of $200,000.

(b) Any person who knowingly sells , purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine as described in s. 893.03(2)(a)4. or of any mixture containing cocaine is guilty of a felony of the first degree, which felony shall be known as "trafficking in cocaine." If the quantity in­volved :

1. Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory mini­mum term of imprisonment of 3 calendar years and to pay a fine of $50,000.

2. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory mini­mum term of imprisonment of 5 calendar years and to pay a fine of $100,000.

3. Is 400 grams or more, such person shall be sen-tenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $250,000.

(c) Any person who knowingly sells , purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, or any salt, iso­mer, or salt of an isomer thereof, including heroin, as de­scribed in s. 893.03(1 )(b) or (2)(a) , or 4 grams or more of any mixture containing any such substance, is guilty of a felony of the first degree, which felony shall be known as "trafficking in illegal drugs ." If the quantity in­volved:

1. Is 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 calendar years and to pay a fine of $50,000.

2. Is 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory mini­mum term of imprisonment of 10 calendar years and to pay a fine of $100,000.

3. Is 28 grams or more, such person shall be sen-tenced to a mandatory minimum term of imprisonment of 25 calendar years and to pay a fine of $500,000.

(d) Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of phencyclidine or of any mixture con­taining phencyclidine, as described in s. 893.03(2)(b), is guilty of a felony of the first degree, which felony shall be known as "trafficking in phencyclidine. " If the quantity involved:

1. Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory mini­mum term of imprisonment of 3 calendar years and to pay a fine of $50,000.

2. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory mini­mum term of imprisonment of 5 calendar years and to pay a fine of $100,000.

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Ch.893 DRUG ABUSE PREVENTION AND CONTROL F.S. 1987

3. Is 400 grams or more, such person shall be sen-tenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $250,000.

(e) Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 200 grams or more of methaqualone or of any mixture con­taining methaqualone, as described ins. 893.03(1 )(d), is guilty of a felony of the first degree, which felony shall be known as "trafficking in methaqualone." If the quanti­ty involved:

1. Is 200 grams or more, but less than 5 kilograms, such person shall be sentenced to a mandatory mini­mum term of imprisonment of 3 calendar years and to pay a fine of $50,000.

2. Is 5 kilograms or more, but less than 25 kilo-grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 5 calendar years and to pay a fine of $100,000.

3. Is 25 kilograms or more, such person shall be sentenced to a mandatory minimum term of imprison­ment of 15 calendar years and to pay a fine of $250,000.

(2) A person acts knowingly under subsection ( 1) if that person intends to sell , purchase, manufacture, de­liver, or bring into this state, or to actually or construc­tively possess, any of the controlled substances listed in subsection (1 ), regardless of which controlled sub­stance listed in subsection (1) is in fact sold, purchased, manufactured, delivered, or brought into this state, or actually or constructively possessed .

(3) Notwithstanding the provisions of s. 948.01 , with respect to any person who is found to have violated this section, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this section .

(4) The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification , ar­rest, or conviction of any of his accomplices, accesso­ries, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. The ar­resting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such mo­tion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the de­fendant rendered such substantial assistance.

(5) Any person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by subsection (1) is guilty of a felony of the first degree and is punishable as if he had actually com­mitted such prohibited act. Nothing in this subsection shall be construed to prohibit separate convictions and sentences for a violation of this subsection and any vio­lation of subsection (1 ).

History.-s. 1, ch . 79-1 ; s. 1, ch. 80-70; s. 2, ch. 80-353; s. 491 , ch. 81-259; s. 1, ch. 82-2; s. 3, ch. 82-16; s. 53, ch. 83-215; s. 5, ch. 87-243. cf.-s. 903.133 Bail on appeal; prohibited for certain first-degree felony convictions.

893.138 Local administrative action to abate drug­related public nuisances.-

(1) Any place or premises which have been used on more than two occasions as the site of the unlawful sale or delivery of controlled substances may be declared to be a public nuisance, and such nuisance may be abat­ed, pursuant to the procedures provided in this section.

(2) Any county or municipality may, by ordinance, create an administrative board to hear complaints re­garding the nuisances described in subsection (1 ). Any employee, officer, or resident of the county or municipal­ity may bring a complaint before the board after giving not less than 3 days ' written notice of such complaint to the owner of the place or premises at his last known ad­dress. After a hearing in which the board may consider any evidence, including evidence of the general reputa­tion of the place or premises, and at which the owner of the premises shall have an opportunity to present evi­dence in his defense, the board may declare the place or premises to be a public nuisance as described in sub­section (1) .

(3) If the board declares a place or premises to be a public nuisance, it may enter an order immediately pro­hibiting:

(a) The maintaining of the nuisance; (b) The operating or maintaining of the place or

premises; or (c) The conduct, operation, or maintenance of any

business or activity on the premises which is conducive to such nuisance.

(4) An order entered under subsection (3) shall ex­pire after 1 year or at such earlier time as is stated in the order.

(5) The board may bring a complaint under s. 60.05 seeking a permanent injunction against any nuisance described in subsection (1 ).

(6) This section does not restrict the right of any per­son to proceed under s. 60.05 against any public nui­sance.

Hlstory.-s. 7, ch. 87-243.

893.145 "Drug paraphernalia" defined.-The term "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, culti­vating, growing, harvesting, manufacturing, compound­ing, converting, producing, processing, preparing, test­ing, analyzing, packaging , repackaging, storing, con­taining, concealing, injecting, ingesting, inhaling, or oth­erwise introducing into the human body a controlled substance in violation of this chapter. Drug parapherna­lia is deemed to be contraband which shall be subject to civil forfeiture. The term includes, but is not limited to :

(1) Kits used, intended for use, or designed for use in the planting, propagating, cultivating, growing, or har­vesting of any species of plant which is a controlled sub­stance or from which a controlled substance can be de­rived .

(2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing , or preparing controlled substances.

(3) Isomerization devices used, intended for use, or designed for use in increasing the potency of any spe­cies of plant which is a controlled substance.

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