F.S. 1987 PUBLIC NUISANCES Ch. 823

fails to comply with 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, 3, ch. 4053, 1891; GS 3694; RGS 5640; CGL 7834; s. 937, ch . 71-1 36; s. 66, ch. 74- 383; s. 1, ch. 75- 24; s. 41 , ch. 75- 298.

823.07 Iceboxes, refrigerators, deep-freeze lock­ers, clothes washers, clothes dryers, or airtight units; abandonment, discard.-

(1) The purpose of ss. 823.07-823.09 is to prevent deaths due to suffocation of children locked in aban­doned or discarded iceboxes , refrigerators , deep­freeze lockers , clothes washers , clothes dryers, or simi­lar airtight units from which the doors have not been re­moved.

(2) It is unlawful for any person knowingly to aban­don or discard or to permit to be abandoned or discard­ed on premises under his control any icebox, refrigera­tor, deep- freeze locker, clothes washer, clothes dryer, or similar airtight unit having an interior storage capacity of 11/2 cubic feet or more from which the door has not been removed .

(3) The provisions of this section shall not apply to an icebox, refrigerator , deep-freeze locker, clothes washer, clothes dryer, or similar airtight unit which is crated or is securely locked from the outside or is in the normal use on the premises of a home, or rental unit , or is held for sale or use in a place of business; provided, however, that "place of business" as used herein shall not be deemed to include a junkyard or other similar es­tablishment dealing in secondhand merchandise for sale on open unprotected premises .

(4) It shall be unlawful for any junkyard dealer or sec­ondhand furniture dealer with unenclosed premises used for display of secondhand iceboxes, refrigerators , deep-freeze lockers, clothes washers, clothes dryers, or similar airtight units to fail to remove the doors on such secondhand units having an interior storage capacity of 11/2 cubic feet or more from which the door has not been removed . This section will not apply to any dealer who has fenced and locked his premises.

History.- ss. 1, 2, ch. 29707, 1955; s. 1, ch. 67-135; s. 1, ch. 71- 11 6; s. 66, ch. 74-383; s. 1, ch. 75-24; s. 41 , ch. 75- 298.

823.08 Iceboxes, refrigerators, deep-freeze lock­ers, clothes washers, clothes dryers, or similar airtight units abandoned or discarded; attractive nuisance.­Abandoned or discarded iceboxes, refrigerators , deep­freeze lockers, clothes washers, clothes dryers, or simi­lar airtight units from which the doors have not been re­moved are declared to be an attractive nuisance to chil­dren and a menace to their health and safety when ac­cessible to them whether or not such children are tres,­passers.

History.-s. 3, ch. 29707, 1955; s. 1, ch. 67-135; s. 2, ch. 71-116; s. 66, ch. 74-383; s. 1, ch. 75-24; s. 41 , ch. 75-298.

823.09 Violation of s. 823.07; penalty.-Any person violating any provision of s. 823.07, is guilty of a misde­meanor of the second degree, punishable as provided ins. 775.082 or s. 775.083; provided, however, that in the event death of a minor child or permanent physical or mental injury to a minor child results from willful and wanton misconduct amounting to culpable negligence on the part of the person committing such violation , then

such person 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. 4, ch. 29707, 1955; s. 1, ch. 67-1 35; s. 938, ch. 71-1 36; s. 66, ch. 74- 383; s. 1, ch . 75-24; s. 41, ch . 75-298.

823.10 Place where controlled substances are ille­gally kept, sold, or used declared a public nuisance.­Any store, shop, warehouse, dwelling house, building, vehicle, ship, boat, vessel , or aircraft , or any place what­ever, which is visited by persons for the purpose of un­lawfully using any substance controlled under chapter 893 or any drugs as described in chapter 499, or which is used for the illegal keeping, selling , or delivering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nui­sance.

History.- s. 1, ch. 69- 364; s. 29, ch. 73- 331; s. 66, ch. 74-383; s. 1, ch. 75-24; s. 41, ch . 75- 298; s. 167, ch. 83-216.

823.11 Abandoned and derelict vessels; removal; penalty.-

(1) It is unlawful for any person , firm, or corporation to store or leave any vessel as defined by maritime law in a wrecked , junked, or substantially dismantled condi­tion or abandoned upon or in any public water or at any port in this state without the consent of the agency hav­ing jurisdiction thereof, or docked at any private proper­ty without the consent of the owner of such property.

(2) The Department of Natural Resources, Division of Marine Resources, is hereby designated as the agen­cy of the state authorized and empowered to remove or cause to be removed any abandoned or derelict vessel from public waters in any instance when the same ob­structs or threatens to obstruct navigation or in any way constitutes a danger to the environment. All costs in­curred by the department in the removal of any aban­doned or derelict vessel as set out above shall be recov­erable against the owner thereof.

(3) Any person , firm , or corporation violating this act is guilty of a misdemeanor of the first degree and shall be punished as provided by law.

Hlstory.- ss. 1, 2, 3, ch . 73-207.

823.12 Smoking in elevators unlawful; penalty.-lt is unlawful for any person to possess any ignited tobac­co product or other ignited substance while present in an elevator. Any person who violates 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.- s. 1, ch. 74-115; s. 15, ch. 83-145. cf.-s. 399.07 Certificates in elevators relating to prohibition of smoking in elevators.

823.13 Places where obscene materials are illegal­ly kept, sold, or used declared a public nuisance; drive-in theaters, films visible from public streets or public places.-

(1) Any store, shop, warehouse, building, vehicle, ship, boat, vessel , aircraft , or any place whatever, which is visited by persons for the purpose of unlawfully pur­chasing or viewing any obscene material or performance as described in chapter 847, or which is used for the ille­gal keeping , sell ing , or delivering of the same, shall be deemed a public nuisance. No person shall keep or

1601

Ch.823 PUBLIC NUISANCES F.S. 1987

maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance.

(2) It shall be unlawful and is hereby declared a pub­lic nuisance for any ticket seller, ticket taker, usher, mo­tion picture projection machine operator, manager, own­er, or any other person connected with or employed by any drive-in theater in the state to knowingly exhibit, or aid or assist in exhibiting, any motion picture, slide, or other exhibit which depicts nudity which is harmful to mi­nors as described ins. 847.Q13, if such motion picture, slide, or other exhibit is visible from any public street or public place, other than that place intended for the showing of such motion pictures, slides, or other exhib­its.

History.-s. 1, ch. 78-172.

823.14 Florida Right to Farm Act.-(1) SHORT TITLE.-This section shall be known and

may be cited as the "Florida Right to Farm Act." (2) LEGISLATIVE FINDINGS AND PURPOSE.-The

Legislature finds that agricultural production is a major contributor to the economy of the state; that agricultural lands constitute unique and irreplaceable resources of statewide importance; that the continuation of agricul­tural activities preserves the landscape and environ­mental resources of the state, contributes to the in­crease of tourism , and furthers the economic self­sufficiency of the people of the state; and that the en­couragement, development, improvement, and preser­vation of agriculture will result in a general benefit to the health and welfare of the people of the state. The Legis­lature further finds that agricultural activities conducted on farm land in urbanizing areas are potentially subject to lawsuits based on the theory of nuisance and that these suits encourage and even force the premature re­moval of the farm land from agricultural use. It is the pur­pose of this act to protect reasonable agricultural activi­ties conducted on farm land from nuisance suits.

(3) DEFINITIONS.-As used in this section: (a) "Farm" means the land, buildings, support facili­

ties, machinery, and other appurtenances used in the production of farm or aquaculture products.

(b) "Farm operation" means all conditions or activi­ties by the owner, lessee, agent, independent contrac­tor, and supplier which occur on a farm in connection with the production of farm products and includes, but is not limited to, the marketing of produce at roadside stands or farm markets; the operation of machinery and irrigation pumps; the generation of noise, odors, dust, and fumes; ground or aerial seeding and spraying; the application of chemical fertilizers , conditioners, insecti­cides, pesticides, and herbicides; and the employment and use of labor.

(c) "Farm product" means any plant or animal useful to man and includes, but is not limited to, any product derived therefrom.

(d) "Established date of operation" means the date the farm operation commenced. If the farm operation is subsequently expanded within the original boundaries of the farm land, the established date of operation of the expansion shall also be considered as the date the origi­nal farm operation commenced. If the land boundaries of the farm are subsequently expanded, the established

date of operation for each expansion is deemed to be a separate and independent established date of opera­tion. The expanded operation shall not divest the farm operation of a previous established date of operation.

(4) FARM OPERATION NOT TO BE OR BECOME A NUISANCE.-

(a) No farm operation which has been in operation for 1 year or more since its established date of operation and which was not a nuisance at the time of its estab­lished date of operation shall be a public or private nui­sance if the farm operation conforms to generally ac­cepted agricultural and management practices, except that the following conditions shall constitute evidence of a nuisance:

1. The presence of untreated or improperly treated human waste, garbage, offal , dead animals, dangerous waste materials, or gases which are harmful to human or animal life.

2. The presence of improperly built or improperly maintained septic tanks, water closets , or privies.

3. The keeping of diseased animals which are dan­gerous to human health, unless such animals are kept in accordance with a current state or federal disease control program.

4. The presence of unsanitary places where ani­mals are slaughtered, which may give rise to diseases which are harmful to human or animal life.

(b) No farm operation shall become a public or pri­vate nuisance as a result of a change in ownership, a change in the type of farm product being produced , or a change in conditions in or around the locality of the farm if such farm has been in operation for 1 year or more since its established date of operation and if it was not a nuisance at the time of its established date of opera­tion.

(5) WHEN EXPANSION OF OPERATION NOT PER­MITIED.- This act shall not be construed to permit an existing farm operation to change to a more excessive farm operation with regard to noise, odor, dust, or fumes where the existing farm operation is adjacent to an es­tablished homestead or business on March 15, 1982.

History.-s. 1. ch. 79-61 ; ss. 1. 2, ch. 82-24; s. 9, ch. 87-367.

823.145 Disposal by open burning of mulch plastic used in agricultural operations.-Polyethylene mulch plastic used in agricultural operations may be disposed of by open burning provided that no public nuisance or any condition affecting the public health is created thereby and that state or federal national ambient air quality standards are not violated.

Hlatory.-s. 2, ch. 87-337.

823.15 Dogs and cats released from animal shel­ters or animal control agencies; sterilization require­ment.-

(1) The Legislature has determined that uncon­trolled breeding of dogs and cats in the state results in the production of many more puppies and kittens than are needed to replace pet animals which have died or become lost or to provide pet animals for new owners. This leads to many dogs, cats , puppies, and kittens be­ing unwanted, becoming strays and suffering privation and death, being impounded and destroyed at great ex­pense to the community, and constituting a public nui-

1602

F.S. 1987 PUBLIC NUISANCES Ch.823

sance and public health hazard . It is therefore declared to be the public policy of the state that every feasible means of reducing the production of unneeded and un­wanted puppies and kittens be encouraged .

(2) In furtherance of this policy, provision shall be made for the sterilization of all dogs and cats sold or re­leased for adoption from any public or private animal shelter or animal control agency operated by a humane society or by a county, city, or other incorporated politi­cal subdivision, by either:

(a) Providing sterilization by a licensed veterinarian before relinquishing custody of the animal; or

(b) Entering into a written agreement with the adop­ter or purchaser guaranteeing that sterilization will be performed within 30 days or prior to sexual maturity. The shelter or animal control agency shall require a sufficient deposit from the adopter or purchaser, which deposit shall be refundable upon presentation to the shelter or animal control agency of written evidence by the veteri­narian performing the sterilization that the animal has been sterilized . The deposit or donation may be based upon recommended guidelines established by the Flori-

da Federation of Humane Societies. Failure by either party to comply with the provisions of this paragraph shall be a noncriminal violation as defined in s. 775.08(3), punishable by a fine , forfeiture, or other civil penalty, and , in addition thereto, the deposit or donation shall be forfeited to the shelter or animal control agency. Any le­gal fees or court costs used for the enforcement of this paragraph are the responsibility of the adopter. Upon the request of a licensed veterinarian , and for a valid rea­son, the shelter or animal control agency shall extend the time limit within which the animal must be sterilized.

(3) All costs of sterilization pursuant to this section shall be paid by the prospective adopter unless other­wise provided for by ordinance of the local governing body, with respect to animal control agencies or shelters operated or subsidized by a unit of local government, or provided for by the humane society governing body, with respect to an animal control agency or shelter oper­ated solely by the humane society and not subsidized by public funds.

History.-ss. 1. 2, 3, ch. 80-87.

1603

Ch.826 BIGAMY; INCEST F.S. 1987

CHAPTER 826

BIGAMY; INCEST

826.01 826.02 826.03

826.04

Bigamy; punishment. Exceptions. Knowingly marrying husband or wife of anoth­

er. Incest.

826.01 Bigamy; punishment-Whoever, having a husband or wife living, marries another person shall, ex­cept in the cases mentioned in s. 826.02, 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. 4, sub-ch. 8, ch . 1637, 1868; RS 2603; GS 3526; RGS 5416; CGL 7559; s. 775, ch. 71-136; s. 44, ch. 74-383; s. 30, ch. 75-298.

Note.-Former s. 799.01 .

826.02 Exceptions.-The provisions of s. 826.01 shall not extend to any person:

(1) Who reasonably believes that the prior spouse is dead .

(2) Whose prior spouse has voluntarily deserted him and remained absent for the space of 3 years continu­ously, the party marrying again not knowing the other to be living within that time.

(3) Whose bonds of matrimony have been dis­solved.

(4) Who violates its provisions because a domestic or foreign court has entered an invalid judgment purport-

ing to terminate or annul the prior marriage and the de­fendant does not know that judgment to be invalid.

(5) Who reasonably believes that he is legally eligi­ble to remarry.

Hlstory.-s. 5, sub-ch. 8, ch. 1637, 1868; RS 2604; s. 1, ch. 4963, 1901 ; GS 3527; RGS 5417; CGL 7560; s. 1, ch. 73-300; s. 45, ch. 74-383.

Note.-Former s. 799.02.

826.03 Knowingly marrying husband or wife of an­other.-Whoever knowingly marries the husband or wife of another person, knowing him or her to be the spouse of another person , 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. 39, Feb. 10, 1632; RS 2605; GS 3528; RGS 5418; CGL 7561 ; s. 776, ch. 71-136; s. 46, ch . 74-383; s. 30, ch. 75-298.

Note.-Former s. 799.03.

826.04 lncest.-Whoever knowingly marries or has sexual intercourse with a person to whom he is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece, commits incest , which constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. "Sexual intercourse" is the penetration of the female sex organ by the male sex organ, however slight; emission of semen is not re­quired.

Hlstory.-s. 47, ch . 74-383; s. 30, ch. 75-298. cf.-s. 775.15 Time limitations.

1604

F.S. 1987 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS Ch. 827

CHAPTER 827

ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS

827 .01 827 .03 827.04 82705 827 .06 827 071 827 .08

Definitions. Aggravated child abuse. Child abuse. Negligent treatment of children. Persistent nonsupport. Sexual performance by a child ; penalties. Misuse of child support money.

827.01 Definitions.-As used in this chapter: (1) "Child" means any person under the age of 18

years. (2) "Placement" means the giving or transferring of

possession or custody of a child by any person to anoth­er person for adoption or with the intent or purpose of surrendering the control of the child .

(3) "Torture" means every act , omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused .

History.- s. 48, ch. 74-383; s. 1, ch. 77-1 74.

827.03 Aggravated child abuse.-(1) "Aggravated child abuse" is defined as one or

more acts committed by a person who: (a) Commits aggravated battery on a child ; (b) Willfully tortures a child ; (c) Maliciously punishes a child ; or (d) Willfully and unlawfully cages a child . (2) A person who commits aggravated child abuse

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. 1, ch. 4721 , 1899; s. 1, ch. 4971, 1901; GS 3236, 3238; RGS 5069, 5071; s. 1, ch. 9331, 1923; CGL 7171 , 7173; s. 1, ch. 65-11 3; s. 1, ch. 70-8; s. 940, ch. 71-1 36; s. 49, ch. 74-383; s. 30, ch. 75- 298; s. 1, ch. 84-238.

Note.-Former s. 828.04. cf.-ss. 415.502-41 5.51 4 Protection of children from abuse.

s. 450.151 Hiring and employing children. s. 787.01 Kidnapping . s. 787 .02 False Imprisonment. s. 91 4.16 Child abuse and sexual abuse victims under age 16; limits on inter·

views .

827.04 Child abuse.-(1) Whoever, willfully or by culpable negligence, de­

prives a child of, or allows a child to be deprived of, nec­essary food , clothing , shelter, or medical treatment, or who, knowingly or by culpable negligence, permits physical or mental injury to the child , and in so doing causes great bodily harm, permanent disability, or per­manent disfigurement to such child , shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever, willfully or by culpable negligence, de­prives a child of, or allows a child to be deprived of, nec­essary food , clothing , shelter , or medical treatment, or who, knowingly or by culpable negligence , permits physical or mental injury to the child, shall be guilty of a misdemeanor of the first degree , punishable as provid­ed in s. 775.082, s. 775.083, or s. 775.084.

(3) Any person who commits any act which thereby causes or tends to cause or encourage any person un­der the age of 18 years to become a delinquent or de­pendent child , as defined under the laws of Florida, or which contributes thereto, or any person who shall , by

act , threats , commands, or persuasion, induce or en­deavor to induce any person under the age of 18 years to do or to perform any act , to follow any course of con­duct, or so to live, as would cause or tend to cause such person under the age of 18 years to become or to remain a dependent or delinquent child , as defined under the laws of this state, is guilty of a misdemeanor of the first degree , punishable as provided in s. 775 .082 , s. 775.083, or s. 775.084. It shall not be necessary for any court exercising juvenile jurisdiction to make an adjudi­cation that any child is delinquent or dependent in order to prosecute a parent or any other person under this section . An adjudication that a child is delinquent or de­pendent shall not preclude a subsequent prosecution of a parent or any other person who contributes to the de­linquency or dependency of the child .

History.- s. 50, ch. 74- 383; s. 30, ch. 75-298; s. 1, ch. 77- 73; s. 1, ch. 77-429. cf.-ss. 415.502-415.514 Protection of children from abuse and neglect.

s. 914.16 Child abuse and sexual abuse victims under age 16; limits on inter· views.

827.05 Negligent treatment of children.-Whoever, though financially able, negligently deprives a child of, or allows a child to be deprived of, necessary food , cloth­ing , shelter, or medical treatment or permits a child to live in an environment, when such deprivation or envi­ronment causes the child's physical or emotional health to be significantly impaired or to be in danger of being significantly impaired shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 2, ch. 65-11 3; s. 942. ch . 71-1 36; s. 51 , ch. 74-383; s. 30, ch . 75-298; s. 2, ch. 77- 429.

Note.-Former s. 828.042. cf.-ss. 41 5.502-415.514 Protection of children from abuse and neglect.

827.06 Persistent nonsupport.-(1) Any person who, after notice, fails to provide

support which he is able to provide to children or spouse whom he knows he is legally obligated to support , and over whom no court has jurisdiction in any proceedings for child support or dissolution of marriage, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Prior to commencing prosecution under this sec­tion, the state attorney must advise the person responsi­ble for support by certified mail , return receipt request­ed , that a prosecution under this section will be com­menced against him unless he makes such delinquent support payments or provides a satisfactory explanation as to why he has not made such payments .

History.-s. 52, ch . 74-383; s. 31, ch. 75-298.

827.071 Sexual performance by a child; penalties. (1) As used in this section, the following definitions

shall apply: (a) "Deviate sexual intercourse" means sexual con­

duct between persons not married to each other con­sisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

1605

Ch. 827 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS F.S. 1987

(b) "Performance" means any play, motion picture, photograph , or dance or any other visual representation exhibited before an audience.

(c) "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, trans­mute, publish, distribute, circulate, disseminate, pres­ent, exhibit, or advertise or to offer or agree to do the same.

(d) "Sadomasochistic abuse" means flagellation or torture by or upon a person, or the condition of being fet­tered, bound , or otherwise physically restrained , for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.

(e) "Sexual battery" means oral , anal, or vaginal pen­etration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, "sexual battery" does not include an act done for a bona fide medical purpose.

(f) "Sexual bestiality" means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

(g) "Sexual conduct" means actual or simulated sex­ual intercourse, deviate sexual intercourse, sexual bes­tiality , masturbation , or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person 's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female , breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be commit­ted.

(h) "Sexual performance" means any performance or part thereof which includes sexual conduct by a child of less than 18 years of age.

(i) "Simulated" means the explicit depiction of con­duct set forth in paragraph (g) which creates the appear­ance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

(2) A person is guilty of the use of a child in a sexual performance if , knowing the character and content thereof, he employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) A person is guilty of promoting a sexual perform­ance by a child when , knowing the character and con­tent thereof, he produces, directs, or promotes any per­formance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhi­bition , show , representat ion , or other presentation which, in whole or in part, includes any sexual conduct by a child . The possession of three or more copies of such photograph, motion picture, representation , or pre­sentation is prima facie evidence of an intent to pro­mote. Whoever violates this subsection is guilty of a felo­ny of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5) It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, repre­sentation , or other presentation which, in whole or in part , he knows to include any sexual conduct by a child . Whoever violates 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.

Hietory.- s. 4, ch . 83-75; s. 1, ch. 85-273; s. 1, ch. 86-38. cf.- ss. 41 5.502-415.514 Protection of children from abuse.

827.08 Misuse of child support money.-Any per­son who willfully misapplies funds paid by another or by any governmental agency for the purpose of support of a child shall , for the first offense, be guilty of a misde­meanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and for a second or subsequent conviction under this section, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person shall be deemed to have misapplied child support funds when such funds are spent for any purpose other than for necessary and proper home, food , clothing, and the necessities of life, which expenditure results in depriving the child of the above named necessities. All public welfare agencies shall give notice of the provisions of this section at least once to each payee of any public grant made for the benefit of any child and shall report violations of this sec­tion to the proper prosecuting officer.

Hietory.- s. 1, ch. 61-21 6; s. 956, ch. 71 - 136; s. 65, ch. 74-383. Note.-Former s. 828.201 .

1606

F.S. 1987 CRUEL TV TO ANIMALS Ch.828

CHAPTER 828

CRUELTY TO ANIMALS

828.02 828.03

828.05

828.055

828.058 828.073

828.08 828.12 828.121 828.122

828.125

828.13

828.14

828.16 828.161

828.17 828.22 828.23 828.24 828.25

828.26 828.27

Definition of "animal." Agents of counties, societies, etc., may prose­

cute violators. Killing an injured or diseased domestic ani­

mal. Sodium pentobarbital ; permits for use in eu­

thanasia of domestic animals. Euthanasia of dogs and cats. Animals found in distress; when agent may

take charge; hearing; disposition; sale. Penalty for exposing poison. Cruelty to animals. Conduct of simulated bullfighting exhibitions. Fighting or baiting animals; offenses; penal-

ties. Killing or aggravated abuse of registered

breed horses or cattle; offenses; penalties. Confinement of animals without sufficient

food, water, or exercise; abandonment of animals.

Water and food for stock on trains, vessels , etc.

Contagious diseases. Prohibiting artificial coloring and sale of cer-

tain animals and fowls; construction . Officer to arrest without warrant. Humane slaughter requirement. Definitions. Prohibited acts; exemption. Administration; rules and regulations; inspec­

tion; fees. Penalty. Local animal control or cruelty ordinances;

penalty.

828.02 Definition of "animal."-ln this chapter, and in every law of the state relating to or in any way affect­ing animals, the word "animal" shall be held to include every living dumb creature; the words "torture, " "tor­ment," and "cruelty" shall be held to include every act, omission, or neglect whereby unnecessary or unjustifi­able pain or suffering is caused, except when done in the interest of medical science, permitted, or allowed to continue when there is reasonable remedy or relief; and the words "owner" and "person" shall be held to include corporations, and the knowledge and acts of agents and employees of corporations in regard to animals trans­ported, owned , employed by or in the custody of a cor­poration, shall be held to be the knowledge and act of such corporation.

History.-s. 10, ch . 4971,1901 : GS3156: RGS4982: CGL 7071 : s. 2, ch. 86-179.

828.03 Agents of counties, societies, etc., may prosecute violators.-

(1) Any county or any society or association for the prevention of cruelty to children or animals, organized under the laws of this state, may appoint agents for the purpose of investigating violations of any of the provi­sions of this chapter or any other law of the state for the

purpose of protecting children and animals or prevent­ing any act of cruelty thereto.

(2) All appointments of such agents by such socie­ties or corporations must have the approval of the mayor of the city in which the society or association exists, and if the society or association exists or works outside of any city, the appointment must be approved by the county court judge or the judge of the circuit court for the county, and the mayor or judge shall keep a record of such appointment. The approval of the appointment of any agent by a county for either the incorporated or unincorporated areas of such county shall be by the county commission.

History.-s. 12, ch . 4971, 1901 ; GS 3158: RGS 4984: CGL 7073: s. 32, ch. 73-334; s. 1, ch. 75-223: s. 1, ch. 76-102: s. 1, ch. 77-17 4.

828.05 Killing an injured or diseased domestic ani­mal.-

(1) The purpose of this section is to provide a swift and merciful means whereby domestic animals which are suffering and imminently near death from injury or disease may be destroyed without unconscionable de­lay.

(2) As used in this section , the term "officer" means: (a) Any law enforcement officer; (b) Any veterinarian; and (c) Any officer or agent of any municipal or county

animal control unit or of any society or association for the prevention of cruelty to animals, or the designee of such an officer or agent.

(3) Whenever any domestic animal is so injured or diseased as to appear useless and is in a suffering con­dition, and it reasonably appears to an officer that such animal is imminently near death and cannot be cured or rendered fit for service and the officer has made a rea­sonable and concerted , but unsuccessful , effort to lo­cate the owner, the owner's agent, or a veterinarian, then such officer, acting in good faith and upon reason­able belief, may immediately destroy such animal by shooting the animal or injecting it with a barbiturate drug. If the officer locates the owner or the owner's agent, he shall notify him of the animal's location and condition. If the officer locates only a veterinarian, the of­ficer shall destroy the animal only upon the advice of the veterinarian.

(4) No officer or veterinarian acting in good faith and with due care pursuant to this section will be liable either criminally or civilly for such act, nor will any civil or crimi­nal liability attach to the employer of the officer or veteri­narian.

(5) A court order is not necessary to carry out the provisions of this section .

Hlstory.-s. 2, ch. 4151 , 1893; GS 3159: RGS 4985: CGL 7074: s. 1, ch. 80-188; s. 1, ch. 84-105.

828.055 Sodium pentobarbital; permits for use in euthanasia of domestic animals.-

(1) The Board of Pharmacy shall adopt rules provid­ing for the issuance of permits authorizing the purchase, possession , and use of sodium pentobarbital and sodi-

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Ch.828 CRUELTY TO ANIMALS F.S. 1987

um pentobarbital with lidocaine by county or municipal animal-control agencies or humane societies registered with the Secretary of State for the purpose of euthaniz­ing injured, sick, or abandoned domestic animals which are in their lawful possession . The rules shall set forth guidelines for the proper storage and handling of sodi­um pentobarbital and sodium pentobarbital with lido­caine and such other provisions as may be necessary to ensure that the drugs are used solely for the purpose set forth in this section . The rules shall also provide for an application fee not to exceed $50 and a biennial re­newal fee not to exceed $50.

(2) Any county or municipal animal-control agency or any humane society registered with the Secretary of State may apply to the Department of Professional Reg­ulation for a permit to purchase, possess, and use sodi­um pentobarbital or sodium pentobarbital with lidocaine pursuant to subsection (1 ). Upon certification by the board that the applicant meets the qualifications set forth in the rules, the department shall issue the permit.

(3) The board may revoke or suspend the permit upon a determination that the permittee is using sodium pentobarbital or sodium pentobarbital with lidocaine for any purpose other than that set forth in this section or if the permittee fails to follow the rules of the board re­garding proper storage and handling .

History.-s. 1, ch. 79-346; s. 35, ch. 82- 225; s. 1, ch. 87-398. Note.-Former s. 500.1518.

828.058 Euthanasia of dogs and cats.-(1 )(a) Sodium pentobarbital or a derivative of it shall

be used as the preferred method for euthanasia of dogs and cats by public or private animal shelters or other fa­cilities which are operated for the collection and care of stray, neglected, abandoned , or unwanted animals. Ale­thal solution shall be used in the following order of pref­erence:

1. Intravenous injection by hypodermic needle; 2. Intraperitoneal injection by hypodermic needle; 3. lntracardial injection by hypodermic needle; or 4. Solution or powder added to food. (b) Notwithstanding any other section of this act to

the contrary , a substance or procedure which acts on the central nervous system and is clinically proven to be as humane as sodium pentobarbital may be used to per­form euthanasia on dogs or cats.

(2) A dog or cat may be tranquilized with an ap­proved and humane substance before euthanasia is per­formed .

(3) Succinylcholine chloride, curare, curariform mix­tures, any substance which acts as a neuromuscular blocking agent, or a chamber which causes a change in body oxygen may not be used on a dog or cat for any purpose, except that the use of a chamber using com­mercially bottled carbon monoxide gas is permitted.

(4)(a) Euthanasia shall be performed by a licensed veterinarian or a lay person who is humane and profi­cient in the method used.

(b) No dog or cat may be left unattended between the time euthanasia procedures are first begun and the time death occurs, nor may its body be disposed of until death is confirmed by a qualified person.

(5) The state attorney may bring an action to enjoin any violation of this act.

(6) Any person who violates the provisions of this act is guilty of a misdemeanor of the first degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

History.- ss. 2, 3, 4, 5, 6, 7, 8, 9, ch. 84-105.

828.073 Animals found in distress; when agent may take charge; hearing; disposition; sale.-

(1) The purpose of this section is to provide a means by which a neglected or mistreated animal can be re­moved from its present custody and given protection and an appropriate and humane disposition made.

(2) Any law enforcement officer or any agent of any county or of any society or association for the prevention of cruelty to animals appointed under the provisions of s. 828.03 may lawfully take custody of any animal found neglected or cruelly treated and shall forthwith petition the county court judge of the county wherein the animal is found for a hearing, to be set within 30 days after the date of seizure of the animal and held not more than 15 days after the setting of such date, to determine wheth­er the owner, if known , is able to provide adequately for the animal and is fit to have custody of the animal. The hearing shall be concluded and the court order entered thereon within 60 days after the date the hearing is com­menced. No fee shall be charged for the filing of the peti­tion . Nothing herein is intended to require court action for the taking into custody and making proper disposi­tion of stray or abandoned animals as lawfully performed by animal-control agents.

(3) The officer or agent of any county or of any soci­ety or association for the prevention of cruelty to animals taking charge of any animal pursuant to the provisions of this section shall have written notice served , at least 5 days prior to the hearing set forth in subsection (2), upon the owner of the animal, if he is known and is resid­ing in the county where the animal was taken, in con­formance with the provisions of chapter 48 relating to service of process. The sheriff of the county shall not charge a fee for service of such notice. If the owner of the animal is known but is residing outside of the county wherein the animal was taken , notice of the hearing shall be by publication in conformance with the provisions of chapter 49.

(4)(a) The officer or agent of any county or of any so­ciety or association for the prevention of cruelty to ani­mals taking charge of an animal as provided for in this section shall provide for the animal until either:

1. The owner is adjudged by the court to be able to provide adequately for, and have custody of, the ani­mal, in which case the animal shall be returned to the owner upon payment by the owner for the care and pro­vision for the animal while in the agent 's or officer's cus­tody; or

2. The animal is turned over to the officer or agent as provided in paragraph (c) and a humane disposition of the animal is made.

(b) If the court determines that the owner is able to provide adequately for , and have custody of, the animal, the order shall provide that the animal in the possession of the officer or agent be claimed and removed by the owner within 7 days after the date of the order.

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F.S. 1987 CRUEL TV TO ANIMALS Ch.828

(c) Upon the court's judgment that the owner of the animal is unable or unfit to adequately provide for the an­imal:

1 . The court shall order the animal to be sold by the sheriff at public auction, and shall provide in its order that the current owner shall have no further custody of the animal and that any animal not bid upon shall be re­manded to the custody of the Society for the Prevention of Cruelty to Animals, the Humane Society, the county, or any agency or person the judge deems appropriate, to be disposed of as the agency or person sees fit; or

2. The court may order the animal destroyed or re-manded directly to the custody of the Society for the Prevention of Cruelty to Animals, the Humane Society, the county, or any agency or person the judge deems appropriate, to be disposed of as the agency or person sees fit, upon the testimony of the agent who took custo­dy of the animal, or upon the testimony of other qualified witnesses, that the animal requires destruction or other disposition for humanitarian reasons or is of no commer­cial value.

3. Upon proof of costs incurred by the agent or offi-cer, the court may require that the owner pay for the care of the animal while in the custody of the agent or officer. A separate hearing may be held.

4. The court may order that other animals that are in the custody of the owner and that were not seized by the officer or agent be turned over to the officer or agent, if the court determines that the owner is unable or unfit to adequately provide for the animals. The court may en­join the owner's further possession or custody of other animals.

(5) In determining the person 's fitness to have cus­tody of an animal under the provisions of this act, the court may consider, among other matters:

(a) Testimony from the agent or officer who seized the animal and other witnesses as to the condition of the animal when seized and as to the conditions under which the animal was kept.

(b) Testimony and evidence as to the veterinary care provided to the animal.

(c) Testimony and evidence as to the type and amount of care provided to the animal.

(d) Expert testimony as to the community standards for proper and reasonable care of the same type of ani­mal.

(e) Testimony from any witnesses as to prior treat­ment or condition of this or other animals in the same custody.

(f) The owner's past record of judgments under the provisions of this chapter.

(g) Convictions under the statutes prohibiting cruel­ty to animals.

(h) Any other evidence the court considers to bema­terial or relevant.

(6) If the evidence indicates a lack of proper and rea­sonable care of the animal, the burden is on the owner to demonstrate by clear and convincing evidence that he is able and fit to have custody of and provide ade­quately for the animal.

(7) In any case in which an animal is offered for auc­tion under the provisions of this section, the proceeds shall be:

(a) Applied , first , to the cost of the sale. (b) Applied, secondly, to the care and provision for

the animal by the officer or agent of any county or of any society or association for the prevention of cruelty to ani­mals taking charge.

(c) Applied, thirdly, to the payment of the owner for the sale of the animal.

(d) Paid over to the court if the owner is not known. History.-s. 2. ch. 75-223; s. 2. ch. 76-102; s. 1, ch. 78-12; s. 1, ch. 79-234; s.

1, ch. 87-389.

828.08 Penalty for exposing poison.-Whoever leaves or deposits any poison or any substance contain­ing poison, in any common street, alley, lane, or thor­oughfare of any kind , or in any yard or enclosure other than the yard or enclosure occupied or owned by such person , shall be guilty of a misdemeanor of the first de­gree, punishable as provided ins. 775.082 or s. 775.083.

History.-s. 8, ch. 4971 , 1901 ; GS 3399; RGS 5248; CGL 7367; s. 945, ch. 71-136; s. 66, ch . 74-383; s. 1, ch. 75-24; s. 41, ch. 75-298.

828.12 Cruelty to animals.-Whoever unnecessarily overloads, overdrives, tortures, torments , deprives of necessary sustenance or shelter, or unnecessarily or cruelly beats , mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle , or otherwise, any animal in a cruel or inhuman manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both .

History.-s. 4, ch. 4971 , 1901 ; GS 3395; RGS 5244; CGL 7363; s. 2, ch . 70-50; s. 4, ch. 71-12; s. 949, ch. 71-136; s. 1, ch. 82-116.

828.121 Conduct of simulated bullfighting exhibi­tions.-/! shall be unlawful, and punishable as a misde­meanor, for any person to conduct or engage in a simu­lated or bloodless bullfighting exhibition.

History.-s. 3, ch. 71-12.

828.122 Fighting or baiting animals; offenses; pen­alties.-

(1) This act may be cited as "The Animal Fighting Act."

(2) As used in this section: (a) "Baiting" means to attack with violence, to pro­

voke, or to harass an animal with one or more animals for the purpose of training an animal for, or to cause an animal to engage in , fights with or among other animals. In addition , "baiting" means the use of live animals in the training of racing greyhounds.

(b) "Person" means every natural person, firm, co­partnership, association, or corporation.

(3) Any person who commits any of the following acts is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:

(a) Baiting , or using any animal for the purpose of fighting or baiting any other animal.

(b) Knowingly owning, managing , or operating any facility kept or used for the purpose of fighting or baiting any animal.

(c) Promoting, staging, advertising, or charging any admission fee to a fight or baiting between two or more animals.

(4) Any person who willfully commits any of the fol­lowing acts is guilty of a misdemeanor of the first de-

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Ch.828 CRUEL TV TO ANIMALS F.S. 1987

gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:

(a) Betting or wagering any money or other valuable consideration on the fighting or baiting of animals; or

(b) Attending the fighting or baiting of animals. (5) Whenever an indictment is returned or an infor­

mation is filed charging a violation of s. 828.12 or of this section and, in the case of an information, a magistrate finds probable cause that a violation has occurred, the court shall order the animals seized and held until final disposition of the charges and shall provide for appropri­ate and humane care or disposition of the animals. This provision shall not be construed as a limitation on the power to seize animals as evidence at the time of arrest. If the animal is unable to survive humanely the final dis­position of the charges, the court may order termination of the animal's life. Upon conviction of the persons charged , the animals involved shall become the proper­ty of the state, and the court shall order a humane dispo­sition of them.

(6) The provisions of subsection (3) and paragraph (4)(b) shall not apply to:

(a) Any person simulating a fight for the purpose of using the simulated fight as part of a motion picture which will be used on television or in a motion picture, provided s. 828.12 is not violated.

(b) Any person using animals to pursue or take wild­life or to participate in any hunting regulated or subject to being regulated by the rules and regulations of the Game and Fresh Water Fish Commission .

(c) Any person using animals to work livestock for agricultural purposes.

(d) Any person violating s. 828.121 . (e) Any person using animals to hunt wild hogs or to

retrieve domestic hogs. (7) Nothing in this section shall be construed to pro­

hibit, impede, or otherwise interfere with recognized ani­mal husbandry and training techniques or practices not otherwise specifically prohibited by law.

History.-ss. 1, 2, ch. 76-59: s. 1, ch . 81-224: s. 2, ch. 82-116: s. 1, ch. 85-289: ss. 1, 3, ch . 86-179.

828.125 Killing or aggravated abuse of registered breed horses or cattle; offenses; penalties.-Any other provisions of this chapter to the contrary notwithstand­ing:

(1) Any person who willfully and unlawfully, by any means whatsoever, kills, maims, mutilates, or causes great bodily harm or permanent breeding disability to 1any animal of any registered breed of the genus Equus (horse) or genus 8os (cattle), or any recognized regis­tered hybrid of the specified genera, shall be guilty of a felony of the second degree, punishable as provided by s. 775.082, s. 775.083, or s. 775.084.

(2) Any person who individually attempts or solicits, or jointly agrees, conspires, combines, or confederates with another person to commit , any act prohibited by subsection (1) and does an act in furtherance of said at­tempt, solicitation , or conspiracy shall be guilty of a felo­ny of the second degree and is punishable as if the per­son or persons had actually committed such prohibited act as enumerated in subsection (1 ), notwithstanding any provisions found ins. 777.04. Nothing in this subsec-

tion shall be construed to prohibit separate convictions and sentences for a violation of this subsection and any violation of subsection (1 ).

(3) Any person who verbally or in writing threatens to commit any act prohibited by subsection (1) and has the apparent ability to carry out such threat and places the owner or custodian of said animal in fear that such an act as described in subsection (1) is about to take place shall be guilty of a felony of the third degree, pun­ishable as provided by s. 775.082, s. 775.083 or s. 775.084.

(4) In addition to any other fines or penalties author­ized by law, a person found guilty of violating any provi­sion of subsection (1 ), subsection (2), or subsection (3) may be ordered by the court to make restitution to the aggrieved party in an amount not to exceed twice the gross fair market value of the said Equus or Bas killed or abused in an aggravated manner, or up to twice the gross loss caused, whichever is greater, plus attorney's fees and any and all related costs. Upon notice the court shall hold a hearing to determine the amount of fines, restitution, or costs to be imposed under this section, if not agreed upon by the parties.

(5) This section shall not be construed to abridge, impede, prohibit, or otherwise interfere in any way with the application, implementation , or conduct of recog­nized livestock husbandry practices or techniques by or at the direction of the owner of the livestock so hus­banded .

Hlstory.-s. 1, ch. 86-14. 1Note.-The words "any animal or were inserted by the editors.

828.13 Confinement of animals without sufficient food, water, or exercise; abandonment of animals.­

(1) As used in this section: (a) "Abandon" means to forsake an animal entirely or

to neglect or refuse to provide or perform the legal obli­gations for care and support of an animal by its owner.

(b) "Owner" includes any owner, custodian, or other person in charge of an animal.

(2) Whoever: (a) Impounds or confines any animal in any place

and fails to supply the animal during such confinement with a sufficient quantity of good and wholesome food and water,

(b) Keeps any animals in any enclosure without wholesome exercise and change of air, or

(c) Abandons to die any animal that is maimed, sick, infirm, or diseased,

is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or by both imprisonment and a fine, or as provid­ed in s. 775.084.

(3) Any person who is the owner or possessor, or has charge or custody, of any animal who abandons such animal to suffer injury or malnutrition or abandons any animal in a street, road, or public place without pro­viding for the care, sustenance, protection, and shelter of such animal is guilty of a misdemeanor of the first de­gree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or by both imprisonment and a fine, or as provided in s. 775.084.

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F.S. 1987 CRUEL TV TO ANIMALS Ch. 828

History.-ss. 2, 4, ch. 3921, 1889; RS 2510; GS 3396; RGS 5245; CGL 7364; s. 950, ch . 71-136; s. 1, ch. 81-17 ; s. 3, ch. 82-116.

828.14 Water and food for stock on trains, vessels, etc.-

(1) No person or corporation, or agent of either, en­gaged in transporting livestock on railway trains or on steam or sailing vessels, or otherwise, shall detain such stock for a longer continuous period than 28 hours after the same are so placed without supplying the same with necessary food, water, and attention, or shall permit them to be crowded so as to overlie, crush, wound, or kill each other; and any person or agent as aforesaid 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, and any corporation vi­olating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as pro­vided in s. 775.083.

(2) Nothing in this section shall apply to owners, offi­cers, or crew of water craft detained on the navigable waters of this state by storms and prevented by bad weather from reaching port.

History.-s. 6, ch. 4971 , 1901 ; GS 3397; RGS 5246; CGL 7365; s. 951 , ch. 71-136.

82.8.16 Contagious diseases.-Whoever, being the owner, or having the charge of any animal, knowing the same to have any contagious or infectious disease, or to have been recently exposed thereto, sells, barters, or disposes of such animal without first disclosing to the person to whom the same is sold, bartered, or disposed of, that such animal is so diseased, or has been ex­posed, as aforesaid, or knowingly permits such animal to run at large, or knowing such animal to be diseased as aforesaid, knowingly allows the same to come into contact with any such animal of another person without his knowledge or permission, shall be guilty of a misde­meanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 9, ch. 4971, 1901 ; GS 3400; RGS 5249; CGL 7368; s. 952, ch. 71-136.

828.161 Prohibiting artificial coloring and sale of certain animals and fowls; construction.-

(1) It is unlawful for any person to dye or color artifi­cially any animal or fowl, including but not limited to rab­bits, baby chickens, and ducklings, or to bring any dyed or colored animal or fowl into this state.

(2) It is unlawful for any person to sell, offer for sale, or give away as merchandising premiums, baby chick­ens, ducklings, or other fowl under 4 weeks of age or rabbits under 2 months of age to be used as pets, toys or retail premiums.

(3) This section shall not be construed to apply to any animal or fowl, including but not limited to rabbits, baby chickens, and ducklings to be used or raised for agricultural purposes by persons with proper facilities to care for them or for poultry or livestock exhibitions.

(4) Any person violating 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.

History.-s. 1, ch . 67-177; s. 953, ch. 71-136.

828.17 Officer to arrest without warrant.-Any sheriff or any other peace officer of the state, or any po­lice officer of any city or town of the state, shall arrest without warrant any person found violating any of the provisions of 1ss. 828.04, 828.08, 828.12, and 828.13-828.16, and the officer making the arrest shall hold the offender until a warrant can be procured, and he shall use proper diligence to procure such warrant.

History.-s. 15, ch. 4971 , 1901 ; GS 3401; RGS 5250; CGL 7369; s. 1, ch. 28060, 1953; s. 32, ch . 73-334.

1Note.-Section 828.04 was transferred to s. 827 .03 by s. 49, ch. 74-383. cf.-s. 901 .15 When arrest without warrant is lawful.

828.22 Humane slaughter requirement.-(1) The Legislature of this state finds that the use of

humane methods in the slaughter of livestock prevents needless suffering, results in safer and better working conditions for persons engaged in the slaughtering in­dustry, brings about improvement of products and economy in slaughtering operations, and produces oth­er benefits for producers, processors, and consumers which tend to expedite the orderly flow of livestock and their products.

(2) It is therefore declared to be the policy of this state to require that the slaughter of all livestock and the handling of livestock in connection with slaughter shall be carried out only by humane methods and to provide that methods of slaughter shall conform generally to those employed in other states where humane slaughter is required by law and to those authorized by the Feder­al Humane Slaughter Act of 1958, and regulations there­under.

(3) Nothing in this act shall be construed to prohibit, abridge, or in any way hinder the religious freedom of any person or group. Notwithstanding any other provi­sion of this act , in order to protect freedom of religion, ritual slaughter and the handling or other preparation of livestock for ritual slaughter are exempted from the terms of this act. For the purposes of this action the term "ritual slaughter" means slaughter in accordance with s. 828.23(7)(b).

History.-s. 1, ch. 61-254.

828.23 Definitions.-As used in ss. 828 .22 to 828.26, the following words shall have the meaning indi­cated:

(1) "Department" means the Department of Agricul­ture and Consumer Services.

(2) "Person" means any individual , partnership, cor­poration, or association doing business in this state, in whole or in part.

(3) "Siaughterer" means any person regularly en­gaged in the commercial slaughtering of livestock.

(4) "Livestock" means cattle, calves, sheep, swine, horses, mules, goats, and any other animal which can or may be used in and for the preparation of meat or meat products.

(5) "Packer" means any person engaged in the busi­ness of slaughtering, or of manufacturing or preparing meat or meat products for sale, either by such person or others; or of manufacturing or preparing livestock products for sale by such person or others.

(6) "Stockyard" means any place, establishment, or facility commonly known as a stockyard, conducted or

1611

Ch. 828 CRUELTY TO ANIMALS F.S. 1987

operated for compensation or profit as a public market, consisting of pens, or other enclosures, and their appur­tenances, for the handling, keeping, and holding of live­stock for the purpose of sale or shipment.

(7) "Humane method" means either: (a) A method whereby the animal is rendered insen­

sible to pain by mechanical, electrical , chemical, or other means that are rapid and effective, before being shack­led, hoisted, thrown, cast, or cut; or

(b) A method in accordance with ritual requirements of any religious faith whereby the animal suffers loss of consciousness by anemia of the brain caused by the si­multaneous and instantaneous severance of the carotid arteries with a sharp instrument.

History.-s. 1, ch. 61-254; ss. 14, 35, ch. 69-106; s. 282, ch. 71-377.

828.24 Prohibited acts; exemption.-(1) No slaughterer, packer, or stockyard operator

shall shackle, hoist, or otherwise bring livestock into po­sition for slaughter, by any method which shall cause in­jury or pain.

(2) No slaughterer, packer, or stockyard operator shall bleed or slaughter any livestock except by a hu­mane method.

(3) This act shall not apply to any person, firm or cor­poration slaughtering or processing for sale within the state not more than 20 head of cattle nor more than 35 head of hogs per week.

History.-s. 1, ch . 61-254; ss. 14, 35, ch. 69-106; s. 241 , ch. 77-104.

828.25 Administration; rules and regulations; in­spection; fees.-

(1) The department shall administer the provisions of this act. It shall promulgate and may from time to time revise rules and regulations which shall conform sub­stantially to the rules and regulations promulgated by the Secretary of Agriculture of the United States pursu­ant to the Federal Humane Slaughter Act of 1958, Pub. L. No. 85-765, 72 Stat. 862, and any amendments there­to; provided, however, that the use of a manually operat­ed hammer, sledge or poleax is declared to be an inhu­mane method of slaughter within the meaning of this act.

(2) The department may appoint any member of its staff as an official inspector for the purposes of this act. Such inspector shall have the power to enter the prem­ises of any slaughterer for the purposes of verifying com­pliance or noncompliance with the provisions of this act.

(3) As soon as practicable after October 1, 1961 , an inspection shall be made of the premises of each slaughterer. Additional inspections shall be made not less frequently than quarterly. No fee shall be charged for such inspection.

History.-s. 1, ch. 61-254; ss. 14, 35, ch. 69-106.

828.26 Penalty.-(1) No slaughterer found by the department in ac­

cordance with the above not to be in compliance with the provisions of this act shall sell any meat or meat products to any public agency in the state, or to any in­stitution supported by state, county, or municipal funds. Failure to comply with this provision shall be a misde­meanor of the second degree, punishable as provided in s. 775.083.

(2) Upon failure to be in compliance with the provi­sions of this act after a period of 1 year from the date of the first inspection required under s. 828.25, the de­partment shall direct the slaughterer to cease slaughter­ing livestock. Failure to comply with this directive shall be a misdemeanor of the second degree, punishable as provided in s. 775.083, and constituting a separate of­fense for each day of continued slaughtering operations beyond the first week following mailing of such directive to the slaughterer by the department.

History.-s. 1, ch . 61-254; ss. 14, 35, ch . 69-106; s. 958, ch . 71-136.

828.27 Local animal control or cruelty ordinances; penalty.-

(1) 1 As used in this section, 1the term: (a) "Animal" means any living dumb creature. (b) "Animal control officer" means any person em­

ployed or appointed by a county or municipality who is authorized to investigate, on public or private property, civil infractions relating to animal control or cruelty and to issue citations as provided in this section. An animal control officer is not authorized to bear arms or make ar­rests .

(c) "Control" means the regulation of the possession, ownership, care, and custody of animals.

(d) "Cruelty" means any act of neglect, torture, or tor­ment that causes unjustifiable pain or suffering of an ani­mal.

(e) "Officer" means any law enforcement officer de­fined ins. 943.10, any veterinarian defined ins . 474.202, or any animal control officer.

(f) "Citation" means a written notice, issued to a per­son by an officer, that the officer has probable cause to believe that the person has committed a civil infraction in violation of a duly enacted ordinance and that the county court will hear the charge. The citation shall con­tain:

1. The date and time of issuance. 2. The name and address of the person. 3. The date and time the civil infraction was com-

mitted. 4. The facts constituting probable cause. 5. The ordinance violated . 6. The name and authority of the officer. 7. The procedure for the person to follow in order

to pay the civil penalty or to contest the citation . 8. The applicable civil penalty if the person elects

to contest the citation. 9. The applicable civil penalty if the person elects

not to contest the citation. 10. A conspicuous statement that if the person fails

to pay the civil penalty within the time allowed , or fails to appear in court to contest the citation, he shall be deemed to have waived his right to contest the citation and that , in such case, judgment may be entered against the person for an amount up to the maximum civil penalty.

(g) "Ordinance" means any ordinance relating to the control of or cruelty to animals enacted by the governing body of a county or municipality 2the violation of which is a civil infraction.

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F.S. 1987 CRUELTY TO ANIMALS Ch. 828

(2) The governing body of a county or municipality is authorized to enact ordinances relating to animal con­trol or cruelty, which ordinances shall provide:

(a) That a violation of such an ordinance is a civil in­fraction.

(b) A maximum civil penalty not to exceed $500. (c) A civil penalty of less than the maximum civil pen­

alty if the person who has committed the civil infraction does not contest the citation .

(d) For the issuance of a citation by an officer who has probable cause to believe that a person has commit­ted an act in violation of an ordinance.

(e) For the contesting of a citation in the county court.

(f) Such procedures and provisions 3as are neces-

sary to implement any ordinances enacted under the au­thority of this section.

(3) Any person who willfully refuses to sign and ac­cept a citation issued by an officer shall be guilty of a misdemeanor of the second degree, punishable as pro­vided by s. 775.082, s. 775.083, or s. 775.084.

(4) Nothing contained in this section shall prevent any county or municipality from enacting any ordinance relating to animal control or cruelty which is identical to the provisions of this chapter or any other state law, ex­cept as to penalty. However, no county or municipal or­dinance relating to animal control or cruelty shall conflict with the provisions of this chapter or any other state law.

Hlatory.-s. 1, ch. 86-96. •Note.-The words "As used· and ' the term' were inserted by the editors. •Note.-The words •the violation of which' were substituted by the editors for the

word ' that: 'Note.-The words "as are~ were inserted by the editors.

1613

Ch. 831 FORGERY AND COUNTERFEITING F.S. 1987

CHAPTER 831

FORGERY AND COUNTERFEITING

831.01 831.02 831.025

831.03 831 .04

831.05 831 .06 831.07 831.08 831.09 831.10 831.11 831.12

831.13 831.14 831.15

831.16

831.17

831.18 831.19

831.20

831.21

831.22 831.23 831.24 831.25

831.26

831.27 831 .29

831.30 831.31

Forgery. Uttering forged instruments. Evidence in prosecution for forgery or coun­

terfeiting. Forging or counterfeiting private labels. Penalty for changing or forging certain instru-

ments of writing. Vending goods with counterfeit labels. Fictitious signature of officer of corporation. Forging bank bills or promissory notes. Having forged notes, etc., in possession. Uttering forged bills . Second conviction of uttering forged bills . Bringing into the state forged bank bills . Fraudulently connecting parts of genuine in-

strument. Having in possession uncurrent bills. Uttering uncurrent bills . Counterfeiting coin ; having 10 or more such

coins in possession with intent to utter. Having less than 10 counterfeit coins in pos­

session, with intent to utter. Having less than 10 counterfeit coins, etc.;

second conviction. Making instruments for forging bills, etc. Making or having instruments for counterfeit­

ing coin. Counterfeit bills and counterfeiters ' tools to

be seized. Forging or counterfeiting doctor's certificate

of examination. Damaging bank bills . Impeding circulation. Issuing shop bills similar to bank notes. Bringing private bills similar to bank bills into

the state. Circulating any substitute for regular curren­

cy. Issuing notes. Making or having instruments and material for

counterfeiting operators' or chauffeurs ' li­censes.

Medicinal drugs; fraud in obtaining . Counterfeit controlled substance; sale, manu­

facture, delivery, or possession with intent to sell, manufacture, or deliver.

831.01 Forgery.-Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, re­turn or attestation of any clerk or register of a court , pub­lic register, notary public , town clerk or any public offi­cer, in relation to a matter wherein such certificate, re­turn or attestation may be received as a legal proof; or a charter, deed, will, testament, bond, or writing obliga­tory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquit­tance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods

or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, 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. 1, ch. 1637, 1868; RS 2479; s. 6, ch. 4702, 1899; GS 3359; RGS 5206; CGL 7324; s. 1, ch. 59-31 ; s. 1, ch. 61 - 98; s. 959, ch. 71-136; s. 32, ch. 73-334. cf.-s. 319.33 Alteration or forgery of certificate of title.

s. 703.17 Alteration of abstracts, etc., in clerk's office.

831.02 Uttering forged instruments.-Whoever ut­ters and publishes as true a false , forged or altered rec­ord, deed, instrument or other writing mentioned in s. 831.01 knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any per­son , 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. 2, ch. 1637, 1868; RS 2480; GS 3360; RGS 5208; CGL 7326; s. 2, ch. 59-31 : s. 2. ch. 61-98; s. 960, ch. 71-136.

831.025 Evidence in prosecution for forgery or counterfeiting.-ln prosecutions for forging or counter­feiting notes or bills of banks, or for uttering, publishing, or tendering in payment as true, any forged or counter­feit bank bills, or notes, or for being possessed thereof with intent to utter and pass the same as true, the testi­mony of the president and cashier of such banks may be dispensed with, if their place of residence is out of the state or more than 40 miles from the place of trial ; and the testimony of any person acquainted with the signature of such president or cashier, or who has knowledge of the difference in the appearance of the true and counterfeit bills or notes of such banks may be admitted to prove that such bills or notes are counterfeit.

Hletory.-s. 122g, ch. 19554, 1939; CGL 1940 Supp. 8663(128); s. 179, ch. 70-339.

Note--Former s. 906.22.

831.03 Forging or counterfeiting private labels.­Whoever, knowingly and willfully, forges or counterfeits, or causes or procures to be forged or counterfeited upon any goods, wares or merchandise, the private label, stamps or trademark of any mechanic or manufac­turer, knowing the same to be forged or counterfeited, without disclosing the fact to the purchaser, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory--s. 1, ch . 3621, 1685; RS 2481; GS 3361 ; RGS 5209; CGL 7327; s. 961 , ch. 71-136. cf.-ch. 506 Stamped or marked containers and baskets.

831.04 Penalty for changing or forging certain in­struments of writing.-

(1) Any person making any erasure, alteration, inter­lineation or interpolation in any writing or instrument mentioned ins. 92.28, and made admissible in evidence, with the fraudulent intent to change the same in any substantial manner after the same has once been made, shall be guilty of the crime of forgery, which, for the pur­poses of this section , constitutes a felony of the third de­gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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F.S. 1987 FORGERY AND COUNTERFEITING Ch. 831

(2) Any person who may be in the business of mak­ing writings or written entries, maps or plats concerning or relating to lands or real estate, in any county in this state to which said sections apply, and of furnishing to persons applying therefor abstracts or copies of such writing or written entries, maps or plats as aforesaid, for a fee, reward or compensation therefor, and shall make the same with an alteration or interpolation in any matter of substance, with fraudulent intent to alter or change the same in any material manner or matter of substance, shall be guilty of the crime of forgery, and shall be pun­ished as provided in subsection (1 ).

History.-s 6, ch. 4951 , 1901 ; GS 3362; RGS 5210; CGL 7328; s. 962, ch. 71-136.

831.05 Vending goods with counterfeit labels.­Whoever vends any goods, wares or merchandise hav­ing thereon a forged or counterfeit starpp, label or trade­mark of any mechanic or manufacturer, knowing the same to be forged or counterfeited, without disclosing the fact to the purchaser, shall be guilty of a misdemean­or of the first degree, punishable as provided as s. 775.082 or s. 775.083.

History.-s. 52, ch . 1637, 1868; RS 2482; GS 3363; RGS 5211 ; CGL 7329; s. 963, ch . 71-136.

831.06 Fictitious signature of officer of corpora­tion.-lf a fictitious or pretended signature, purporting to be the signature of an officer or agent of a corpora­tion, is fraudulently affixed to any instrument or writing purporting to be a note, draft or evidence of debt issued by such corporation, with intent to pass the same as true, it shall be deemed a forgery, though no such per­son may ever have been an officer or agent of such cor­poration, or ever have existed.

History.-s. 12, ch. 1637, 1868; RS 2483; GS 3364; RGS 5212; CGL 7330.

831.07 Forging bank bills or promissory notes.­Whoever falsely makes, alters, forges or counterfeits a bank bill or promissory note payable to the bearer there­of, or to the order of any person, issued by an incorporat­ed banking company established in this state, or within the United States, or any foreign province, state or gov­ernment, with intent to injure any person, 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. 4, ch . 1637, 1868; RS 2485; GS 3366; RGS 5214; CGL 7332; s. 964, ch . 71-136.

831.08 Having forged notes, etc., in possession.­Whoever has in his possession 10 or more similar false, altered, forged or counterfeit notes, bills of credit, bank bills or notes, such as are mentioned in any of the pre­ceding sections of this chapter, payable to the bearer thereof or to the order of any person, knowing the same to be false, altered, forged or counterfeit, with intent to utter and pass the same as true, and thereby to injure or defraud any person, 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. 5, ch. 1637, 1868; RS 2486; GS 3367; RGS 5215; CGL 7333; s. 965, ch. 71-136.

831.09 Uttering forged bills.-Whoever utters or passes or tenders in payment as true, any such false, altered, forged or counterfeit note, or any bank bill or promissory note, payable to the bearer thereof or to the

order of any person, issued as aforesaid, knowing the same to be false, altered, forged or counterfeit, with in­tent to injure or defraud any person, 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 2487; GS 3368; RGS 5216; CGL 7334; s. 966, ch . 71-136.

831.10 Second conviction of uttering forged bills. -Whoever, having been convicted of the offense men­tioned in s. 831.09 is again convicted of the like offense committed after the former conviction, and whoever is at the same term of the court convicted upon three dis­tinct charges of such offense, shall be deemed a com­mon utterer of counterfeit bills, and shall be punished as provided in s. 775.084.

History.-s. 7, ch. 1637, 1868; RS 2468; GS 3369; RGS 5217; CGL 7335; s. 967, ch. 71-136.

831.11 Bringing into the state forged bank bills.­Whoever brings into this state or has in his possession a false, forged or counterfeit bill or note in the similitude of the bills or notes payable to the bearer thereof or to the order of any person issued by or for any bank or banking company established in this state, or within the United States, or any foreign province, state or govern­ment, with intent to utter and pass the same or to render the same current as true, knowing the same to be false, forged or counterfeit, 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. 8, ch. 1637, 1868; RS 2489; GS 3370; RGS 5218; CGL 7336; s. 968, ch . 71-136.

831.12 Fraudulently connecting parts of genuine instrument-Whoever fraudulently connects together parts of several banknotes or other genuine instruments in such a manner as to produce one additional note or instrument, with intent to pass all of them as genuine, shall be deemed guilty of forgery in like manner as if each of them had been falsely made or forged.

History.-s. 19, ch. 1637, 1868; RS 2490; GS 3371 ; RGS 5219; CGL 7337.

831.13 Having in possession uncurrent bills.­Whoever has in his possession at the same time five or more uncurrent bank bills or notes, knowing the same to be worthless, or has papers, not bank bills or notes but made in the similitude of bank bills or notes of any bank which has never existed, knowing the character of such papers, with intent to pass, utter or circulate the same, or to procure any other person to do so, for the purpose of injuring or defrauding, 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. 22, ch. 1637, 1868; RS 2491 ; GS 3372; RGS 5220; CGL 7338; s. 969, ch . 71-136.

831.14 Uttering uncurrent bills.-Whoever utters, or passes or tenders in payment as true, any such worth· less and uncurrent bank bill or note, or any paper not a bank bill or note but made in the similitude of a bank bill or note, or any paper purporting to be the bill or note of any bank which has never existed, knowing the same to be worthless and uncurrent, as aforesaid, with intent to injure and defraud, shall be guilty of a felony of the third degree , punishable as provided in s. 775.082 , s .

1615

Ch. 831 FORGERY AND COUNTERFEITING F.S. 1987

775.083, or s. 775.084. History.-s. 23, ch. 1637, 1868; AS 2492; GS 3373; AGS 5221 ; CGL 7339; s. 970,

ch. 71-136.

831.15 Counterfeiting coin; having 10 or more such coins in possession with intent to utter.-Whoever counterfeits any gold , silver, or any metallic money coin , current by law or usage within this state, or has in his possession at the same time 10 or more pieces of false money, or coin counterfeited in the similitude of any gold, silver or metallic coin ; current as aforesaid, know­ing the same to be false and counterfeit, and with intent to utter or pass the same as true, 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. 14, ch. 1637, 1868; AS 2493; GS 3374; AGS 5222; CGL 7340; s. 971 , ch. 71 -1 36.

831.16 Having less than 10 counterfeit coins in possession, with intent to utter.-Whoever has in his possession any number of pieces less than 10 of the counterfeit coin mentioned in the preceding section , knowing the same to be counterfeit, with intent to utter or pass the same as true, or who utters, passes or tend­ers in payment as true any such counterfeit coin , know­ing the same to be false and counterfeit , shall be pun­ished by imprisonment in the state prison not exceeding 10 years, or in the county jail not exceeding 12 months, or by fine not exceeding $1 ,000.

History.- s. 15, ch. 1637, 1868; AS 2494; GS 3375; AGS 5223; CGL 7341.

831.17 Having less than 10 counterfeit coins, etc.; second conviction.-Whoever having been convicted of either of the offenses mentioned in the preceding sec­tion , is again convicted of either of the same offenses, committed after the former conviction, and whoever is at the same term of the court convicted upon three dis­tinct charges of said offenses, shall be deemed a com­mon utterer of counterfeit coin and punished by impris­onment in the state prison not exceeding 20 years.

History.-s. 16, ch. 1637, 1868; AS 2495; GS 3376; AGS 5224; CGL 7342.

831.18 Making instruments for forging bills, etc.­Whoever engraves, makes or amends, or begins to en­grave, make or amend, any plate, block, press, or other tool , instrument or implement, or makes or provides any paper or other material, adapted and designed for the making of a false and counterfeit note, certificate, or oth­er bill of credit , purporting to be issued by lawful authori­ty for a debt of this state, or a false or counterfeit note or bill , in the similitude of the notes or bills issued by any bank or banking company established in this state, or within the United States, or in any foreign province, state or government; and whoever has in his possession any such plate or block engraved in any part, or any press or other tool, instrument or any paper or other material adapted and designed as aforesaid, with intent to issue the same, or to cause or permit the same to be used in forging or making any such false and counterfeit certifi­cates, bills or notes, shall be punished by imprisonment in the state prison not exceeding 10 years , or by fine not exceeding $1 ,000.

History.-s. 9, ch. 1637, 1868; AS 2496; GS 3377; AGS 5225; CGL 7343.

831.19 Making or having instruments for counter­feiting coin.-Whoever casts , stamps, engraves, makes or amends , or knowingly has in his possession any mould , pattern, die, puncheon , engine, press or other tool or instrument, adapted and designed for coining or making counterfeit coin in the similitude of any gold, sil­ver or metallic coin, current by law or usage in this state, with intent to use or employ the same, or to cause or to permit the same to be used or employed in coining and making any such false and counterfeit coin as aforesaid, shall be punished by imprisonment in the state prison not exceeding 10 years , or by fine not exceeding $1,000.

History.-s. 17, ch . 1637, 1868; AS 2497 ; GS 3378; AGS 5226; CGL 7344.

831.20 Counterfeit bills and counterfeiters' tools to be seized.-When false , forged or counterfeit bank bills or notes, or plates, dies or other tools, instruments or im­plements used by counterfeiters , designed for the forg­ing or making of false or counterfeit notes, coin or bills, or worthless and uncurrent bank bills or notes described in this chapter shall come to the knowledge of any sher­iff, police officer or other officer of justice in this state, such officer shall immediately seize and take posses­sion of and deliver the same into the custody of the court having jurisdiction of the offense of counterfeiting in the county, and the court shall , as soon as the ends of jus­tice will permit , cause the same to be destroyed by an officer of the court who shall make return to the court of his doings in the premises.

History.-s 25, ch . 1637, 1868; AS 2498; GS 3379; AGS 5227 ; CGL 7345; s. 32, ch. 73-334.

831 .21 Forging or counterfeiting doctor's certifi­cate of examination.-Whoever falsely makes, alters, forges or counterfeits any doctor's certificate or record of examination to an application for a policy of insurance, or knowing such doctor's certificate or record of exami­nation to be falsely made, altered, forged or counterfeit­ed, shall pass, utter or publish such certificate as true, with intent to injure or defraud any person, shall be deemed guilty of forgery , and upon conviction thereof shall be punished by imprisonment in the state peniten­tiary not exceeding 5 years, or by fine not exceeding $500.

History.-s. 1, ch. 4525, 1897; GS 3380; AGS 5228; CGL 7346.

831.22 Damaging bank bills.-Whoever willfully and maliciously cuts , or in any manner damages and impairs the usefulness for circulation of any bank bill or note of any bank in this state, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083, but the possession or uttering of a bill so damaged shall not be evidence against the party charged, unless con­nected with other circumstances tending to prove that the note or bill was damaged by him.

History.-s. 20, ch. 1637, 1868; AS 2725; GS 3717; AGS 5700; CGL 7914; s. 972, ch. 71-136.

831.23 Impeding circulation.-Whoever maliciously gathers up or retains or maliciously does any gathering up or retaining any bills or notes of any bank or banking company current by law or usage in this state for the purpose of endangering or impeding the circulation or business of such bank or banking company, or to com­pel it to do any act whatever out of its usual course of

1616

F.S. 1987 FORGERY AND COUNTERFEITING Ch. 831

business, shall be guilty of a misdemeanor of the first de­gree, punishable as provided ins . 775.082 or s. 775.083. In the prosecution of any such offense it will not be nec­essary to set out and describe each bill , but it shall be sufficient to aver and prove any amount of the bills of any bank which has been gathered up or retained .

History.- s. 21, ch. 1637, 1868; RS 2726; GS 3718; RGS 5701; CGL 7915; s. 973, ch. 71- 136.

831.24 Issuing shop bills similar to bank notes.­Whoever engraves, prints, issues, utters or circulates a shop bill or advertisement in the similitude, form and ap­pearance of a bank bill , on paper similar to paper used for bank bills , with vignettes, figures or decoration used on bank bills , or having the general appearance of a bank bill , shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.- s. 24, ch. 1637, 1868; RS 2727; GS 3719; RGS 5702; CGL 7916; s. 974, ch. 71-136.

831.25 Bringing private bills similar to bank bills into the state.-Whoever brings into this state, with in­tent to pass the same therein , any bills or notes in the likeness of banknotes , which said bills or notes are or have been issued by private individuals or private unin­corporated companies in any or either of the states in the United States, shall be guilty of a misdemeanor of the second degree , punishable as provided in s. 775.083.

History.-s. 1, Dec. 22, 1824; RS 2728; GS 3720; RGS 5703; CGL 7917; s. 975, ch. 71- 136.

831.26 Circulating any substitute for regular cur­rency.-Whoever issues or circulates, or causes to be issued or circulated , or assists in issuing or circulating as a substitute in any respect for the currency recog­nized by law, any scrip, notes, bills , or any other written , engraved or lithographed paper payable in anything oth­er than money, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083.

History.-s. 1, ch. 31 40, 1879; RS 2729; GS 3721; RGS 5704; CGL 7918; s. 976, ch . 71- 136; s. 242, ch. 77- 104.

831.27 Issuing notes.-Whoever issues any note, bill, order or check, other than foreign bills of exchange and notes or bills of some bank or company incorporat­ed by the laws of this state, or by the laws of the United States, or by the laws of either of the British provinces in North America, with intent that the same shall be cir­culated as currency, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083.

History.- s. 18, ch. 1637, 1868; RS 2730; GS 3722; RGS 5705; CGL 7919; s. 977, ch. 71 - 136.

831.29 Making or having instruments and material for counterfeiting operators' or chauffeurs' licenses.­Whoever has control , custody, or possession of any plate, block, press, stone, or other tool , instrument, or implement, or any part thereof, or whoever engraves, makes, or amends , or begins to engrave, make, or amend any plate, block, press, stone, or other tool , in­strument, or implement, or whoever brings into the state any such plate, block, press, stone, or other tool , instru­ment or implement or any part thereof in the similitude

of the operators ' or chauffeurs ' licenses issued by the Department of Highway Safety and Motor Vehicles or its duly authorized agents or those of any state or jurisdic­tion which issues licenses recognized in this state for the operation of a motor vehicle , or whoever has control , custody, possession or makes or provides any paper or other material adapted and designed for the making of a false and counterfeit operator's or chauffeur 's license purporting to be issued by the Department of Highway Safety and Motor Vehicles or its duly authorized agents , or those of any state or jurisdiction which issues licenses recognized in this state for the operation of a motor vehi­cle; or whoever has in his possession , control or custody any such plate or block engraved in any part , or any press or other tool , instrument or any paper or other ma­terial adapted and designed as aforesaid, with intent to sell , issue, publish , pass or utter the same or to cause or permit the same to be used in forging or making any such false or counterfeit operator's or chauffeur's li ­cense; or whoever prints, photographs or in any manner makes or executes any engraved photograph print or impression by any process whatsoever in the similitude of any such licenses with the intent to sell , issue, publish or utter the same or to cause or permit the same to be used in forging or making any such false and counterfeit operator's or chauffeur 's license of this state or any state or jurisdiction which issues licenses recognized in this state for the operation of a motor vehicle 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. 1, ch. 65-278; s. 1, ch . 69-313; ss. 24, 35, ch. 69-106; s. 978, ch. 71-136; s. 32, ch . 73-334.

831.30 Medicinal drugs; fraud in obtaining.-Who­ever:

(1) Falsely makes , alters, or forges any prescription , as defined in 1s. 465.031 (2), for a medicinal drug other than a drug controlled by chapter 893;

(2) Knowingly causes such prescription to be falsely made, altered , forged, or counterfeited ; or

(3) Passes, utters or publishes such prescription or otherwise knowingly holds out such false or forged pre­scription as true,

with intent to obtain such drug , shall be guilty of a mis­demeanor of the second degree, punishable as provid­ed in s. 775.082 or s. 775.083. A second or subsequent conviction shall constitute a misdemeanor of the first de­gree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 1, ch. 71-331; s. 1, ch. 72-234; s. 30, ch. 73- 331. ' Note.- Section 465.031 was repealed by s. 4, ch. 79- 226.

831.31 Counterfeit controlled substance; sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver.-

(1) It is unlawful for any person to sell , manufacture, or deliver, or to possess with intent to sell, manufacture, or deliver, a counterfeit controlled substance. Any per­son who violates this subsection with respect to:

(a) A controlled substance named or described in s. 893.03(1 ), (2), (3) , or (4) is guilty of a felony of the third degree , punishable as prov ided in s. 775 .082 , s. 775.083, or s. 775.084.

(b) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second de-

1617

Ch. 831 FORGERY AND COUNTERFEITING F.S. 1987

gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) For purposes of this section, "counterfeit con­trolled substance" means:

(a) A controlled substance named or described in s. 893.03 which, or the container or labeling of which, with­out authorization bears the trademark, trade name, or

other identifying mark, imprint, or number, or any like­ness thereof, of a manufacturer other than the person who in fact manufactured the controlled substance; or

{b) Any substance which is falsely identified by its container or labeling as a controlled substance named or described in s. 893.03.

Hiatory.- s. 2, ch. 81-53.

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F.S. 1987 ISSUING WORTHLESS CHECKS AND DRAFTS Ch. 832

CHAPTER 832

ISSUING WORTHLESS CHECKS AND DRAFTS

832.04

832.041 832.05

832.06

832.062

832.07 832.08

Stopping payment; purchase of farm or grove products.

Stopping payment with intent to defraud. Knowingly drawing, making, uttering, issuing,

delivering , or using worthless checks , drafts, and debit card orders; obtaining property in return for worthless instru­ments; penalty; duty of drawee; evidence.

Prosecution for worthless checks given tax collector for licenses, etc., relative to motor vehicles and motorboats, etc .; refunds.

Prosecution for worthless checks, drafts, or debit card orders given to pay any tax, pen­alty, interest, or associated amounts admin­istered by the Department of Revenue.

Prima facie evidence of intent; identity. State attorney bad check diversion program;

fees for collections.

832.04 Stopping payment; purchase of farm or grove products.-

(1) Whoever, with intent to defraud any producer of farm or grove products or product of such products or product shall, in person or by agent, make, draw, utter, deliver, or give to such producer any check, draft, or written order for the payment of money upon any bank, person , or corporation and secure from such producer such products or product for or on account of such check, draft, or written order, whether such products or product are valued at the amount of such check, draft, or written order or at a greater or lesser value, and who shall, pursuant to and in furtherance of such intent to de­fraud, stop payment on such check, draft, or written or­der, shall be deemed to be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, if the value of the products or product se­cured for or on account of such check, draft, or written order is $150 or more; and if the value of the products or product secured for or on account of such check, draft, or written order is less than $150, he shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) In all prosecutions under this section, the intro­duction in evidence of any unpaid and dishonored check, draft, or written order for the payment of money upon any bank, person, or corporation, bearing the drawee's refusal to pay the same because of payment having been stopped, stamped, or written thereon or at­tached thereto, shall be prima facie evidence of the mak­ing or uttering of said check, draft, or written order, and of due presentation to the drawee for payment, and of the dishonor thereof, and that the same was properly dishonored because of payment thereof having been stopped by the maker or drawer. And, as against the maker or drawer thereof, the stopping of payment of any such check, draft, or written order made, drawn, uttered, delivered, or given to a producer of farm or grove prod­ucts or product in payment for any such products or product, the possession or control of which shall have

been transferred upon faith of payment of such check, draft, or written order, whether such products or product be valued at the amount of such check, draft, or written order or at a greater or lesser amount, shall be prima fa­cie evidence that such maker or drawer had the above mentioned intent to defraud such producer, if such mak­er or drawer, or his agent, shall have personally inspect­ed such products or product at or before such transfer of possession or control.

(3) This section shall be taken to be cumulative and shall not be construed to repeal any other statute now in effect.

Hlstory.-ss. 1, 2, 4, ch. 26884, 1951 ; s. 979, ch. 71-136; s. 7, ch. 86-161 .

832.041 Stopping payment with intent to defraud. (1) Whoever, with intent to defraud any person shall,

in person or by agent, make, draw, utter, deliver, or give any check, draft, or written order for the payment of money upon any bank, person, or corporation and se­cure from such person goods or services for or on ac­count of such check, draft, or written order, whether such goods or services are valued at the amount of such check, draft, or written order or at a greater or lesser val­ue, and who shall , pursuant to and in furtherance of such intent to defraud, stop payment on such check, draft, or written order, shall be deemed to be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the value of the goods or services secured for or on account of such check, draft, or written order is $150 or more; and if the value of the goods or services secured for or on account of such check, draft, or written order is less than $150, he shall be guilty of a misdemeanor of the second de­gree, punishable as provided ins. 775.082 or s. 775.083.

(2) This section shall be taken to be cumulative and shall not be construed to repeal any other statute now in effect.

Hlstory.-ss. 1, 2, ch. 65-413; s. 980, ch. 71-136; s. 8, ch. 86-161 .

832.05 Knowingly drawing, making, uttering, issu­ing, delivering, or using worthless checks, drafts, and debit card orders; obtaining property in return for worthless instruments; penalty; duty of drawee; evi­dence.-

(1) PURPOSE.-The purpose of this section is to remedy the evil of giving checks, drafts, bills of ex­change, debit card orders, and other orders on banks without first providing funds in or credit with the deposi­tories on which the same are made or drawn to pay and satisfy the same, which tends to create the circulation of worthless checks, drafts, bills of exchange, debit card orders, and other orders on banks, bad banking, check kiting, and a mischief to trade and commerce.

(2) WORTHLESS CHECKS, DRAFTS, OR DEBIT CARD ORDERS; PENALTY.-

(a) It is unlawful for any person, firm, or corporation to draw, make, utter, issue, or deliver to another any check, draft, or other written order on any bank or de­pository, or to use a debit card, for the payment of mon­ey or its equivalent, knowing at the time of the drawing,

1619

Ch.832 ISSUING WORTHLESS CHECKS AND DRAFTS F.S. 1987

making , uttering , issuing , or delivering such check or draft , or at the time of using such debit card, that the maker or drawer thereof has not sufficient funds on de­posit in or credit with such bank or depository with which to pay the same on presentation; except that this section does not apply to any check when the payee or holder knows or has been expressly notified prior to the drawing or uttering of the check, or has reason to be­lieve, that the drawer did not have on deposit or to his credit with the drawee sufficient funds to ensure pay­ment as aforesaid, nor does this section apply to any postdated check.

(b) A violation of the provisions of this subsection constitutes a misdemeanor of the second degree, pun­ishable as provided in s. 775.082 or s. 775.083, unless the check, draft , debit card order, or other written order drawn, made, uttered , issued, or delivered is in the amount of $150, or its equivalent, or more and the payee or a subsequent holder thereof receives something of value therefor. In that event, the violation constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775 084.

(3) CASHING OR DEPOSITING ITEM WITH INTENT TO DEFRAUD; PENALTY.-

(a) It is unlawful for any person , by act or common scheme, to cash or deposit any item, as defined in s. 674.104(1)(g), in any bank or depository with intent to defraud .

(b) A violation of the provisions of this subsection constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) OBTAINING PROPERTY OR SERVICES IN RE­TURN FOR WORTHLESS CHECKS, DRAFTS, OR DEBIT CARD ORDERS; PENALTY.-

(a) It is unlawful for any person , firm, or corporation to obtain any services, goods, wares, or other things of value by means of a check, draft , or other written order upon any bank, person , firm, or corporation , knowing at the time of the making , drawing , uttering , issuing, or de­livering of such check or draft that the maker thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon pre­sentation . However, no crime may be charged in respect to the giving of any such check or draft or other written order when the payee knows, has been expressly noti­fied , or has reason to believe that the drawer did not have on deposit or to his credit with the drawee suffi­cient funds to ensure payment thereof.

(b) It is unlawful for any person to use a debit card to obtain money, goods, services, or anything else of val­ue knowing at the time of such use that he does not have sufficient funds on deposit with which to pay for the same or that the value thereof exceeds the amount of credit which is available to him through an overdraft financing agreement or prearranged line of credit which is accessible by the use of the card .

(c) A violation of the provisions of this subsection, if the check, draft, other written order, or debit card order is for an amount less than $150 or its equivalent , consti­tutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A violation of the provisions of this subsection , if the check, draft, other written order, or debit card order is in the amount of

$150, or its equivalent , or more, constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5) PAYMENT NO DEFENSE.-Payment of a dishon­ored check, draft , bill of exchange, or other order does not constitute a defense or ground for dismissal of charges brought under this section .

(6) "CREDIT," "DEBIT CARD" DEFINED.-(a) The word "credit" as used herein shall be con­

strued to mean an arrangement or understanding with the drawee for the payment of such check, draft , or oth­er written order.

(b) As used in this section , the term "debit card" means a card , code, or other device, other than a check, draft, or similar paper instrument, by the use of which a person may order, instruct, or authorize a financial in­stitution to debit a demand deposit , savings deposit, or other asset account.

(7) REASON FOR DISHONOR, DUTY OF DRAWEE. -It is the duty of the drawee of any check, draft, or oth­er written order, before refusing to pay the same to the holder thereof upon presentation , to cause to be written, printed , or stamped in plain language thereon or at­tached thereto the reason for the drawee's dishonor or refusal to pay it. In any prosecution under this section , the introduction in evidence of any unpaid and dishon­ored check, draft, or other written order having the draw­ee 's refusal to pay stamped or written thereon or at­tached thereto, with the reason therefor as aforesaid, is prima facie evidence of the making or uttering of such check, draft , or other written order, of the due presenta­tion to the drawee for payment and the dishonor thereof , and that the same was properly dishonored for the rea­sons written , stamped , or attached by the drawee on such dishonored check, draft, or other written order. As against the maker or drawer thereof, the withdrawing from deposit with the drawee named in the check, draft, or other written order of the funds on deposit with such drawee necessary to ensure payment of such check, draft , or other written order upon presentation within a reasonable time after negotiation or the drawing, mak­ing , uttering , or delivering of a check, draft , or written or­der, payment of which is refused by the drawee, is prima facie evidence of knowledge of insufficient funds in or credit with such drawee. However, if it is determined at the trial in a prosecution hereunder that the payee of any such check, draft , or written order, at the time of accept­ing such check, draft , or written order, had knowledge of or reason to believe that the drawer of such check, draft ,.or other written order did not have sufficient funds on deposit in or credit with such drawee, then the payee instituting such criminal prosecution shall be assessed all costs of court incurred in connection with such prose­cution .

(8) COSTS.-When a prosecution is initiated under this section before any committing magistrate, the party applying for the warrant shall be held liable for costs ac­cruing in the event the case is dismissed for want of prosecution. No costs shall be charged to the county in such dismissed cases.

History.- ss. 1, 2, ch. 28096, 1953; s. 1, ch. 61- 284; s. 1, ch. 61-185; s. 981 , ch. 71-136; s. 1, ch. 79-98; s. 9, ch. 84-297; s. 9, ch. 86-1 61 . cf.- ch. 812 Theft, robbery, and related crimes.

1620

F.S. 1987 ISSUING WORTHLESS CHECKS AND DRAFTS Ch. 832

832.06 Prosecution for worthless checks given tax collector for licenses, etc., relative to motor vehicles and motorboats, etc.; refunds.-

(1) Whenever any person, firm, or corporation vio­lates the provisions of s. 832.05 by drawing , making, ut­tering, issuing, or delivering to any county tax collector any check, draft, or other written order on any bank or depository for the payment of money or its equivalent for any tag, title , lien , tax (except ad valorem taxes) , penal­ty, or fee relative to a boat, airplane, or motor vehicle; any occupational license, beverage license, or sales or use tax; or any hunting or fishing license, the county tax collector, after the exercise of due diligence to locate the person , firm , or corporation which drew, made, uttered, issued, or delivered the check, draft, or other written or­der for the payment of money, or to collect the same by the exercise of due diligence and prudence, shall swear out a complaint in the proper court against the person, firm, or corporation for the issuance of the worthless check or draft. If the state attorney cannot sign the infor­mation due to lack of proof, as determined by the state attorney in good faith , for a prima facie case in court , he shall issue a certificate so stating to the tax collector . If payment of the dishonored check , draft, or other written order, together with court costs expended, is not re­ceived in full by the county tax collector within 30 days after service of the warrant, 30 days after conviction , or 60 days after the collector swears out the complaint or receives the certificate of the state attorney, whichever is first, the county tax collector shall make a written re­port to this effect to the Department of Highway Safety and Motor Vehicles relative to airplanes and motor vehi­cles, to the Department of Natural Resources relative to boats, to the Department of Revenue relative to occupa­tional licenses and the sales and use tax, to the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation relative to beverage licenses, or to the Game and Fresh Water Fish Commission relative to hunting and fishing licenses, containing a statement of the amount remaining unpaid on the worthless check or draft. If the information is not signed, the certificate of the state attorney is issued, and the written report of the amount remaining unpaid is made, the county tax collector may request the sum be forthwith refunded by the appropriate governmental entity, agency, or depart­ment. If a warrant has been issued and served, he shall certify to that effect , together with the court costs and amount remaining unpaid on the check. The county tax collector may request that the sum of money certified by him be forthwith refunded by the Department of High­way Safety and Motor Vehicles, the Department of Natu­ral Resources, the Department of Revenue, the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation, or the Game and Fresh Water Fish Commission to the county tax collector. Within 30 days after receipt of the request, the Department of Highway Safety and Motor Vehicles, the Department of Natural Resources , the Department of Revenue, the Di­vision of Alcoholic Beverages and Tobacco of the De­partment of Business Regulation , or the Game and Fresh Water Fish Commission, upon being satisfied as to the correctness of the certificate of the tax collector, or the report , shall refund to the county tax collector the

sums of money so certified or reported . If any officer of any court issuing the warrant is unable to serve it within 60 days after the issuance and delivery of it to the officer for service, the officer shall make a written return to the county tax collector to this effect. Thereafter , the county tax collector may certify that the warrant has been is­sued and that service has not been had upon the de­fendant and further certify the amount of the worthless check or draft and the amount of court costs expended by the county tax collector, and the county tax collector may file the certificate with the Department of Highway Safety and Motor Vehicles relative to motor vehicles and airplanes, with the Department of Natural Resources rel­ative to boats, with the Department of Revenue relative to occupational licenses and the sales and use tax, with the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation relative to beverage licenses, or with the Game and Fresh Water Fish Com­mission relative to hunting and fishing licenses, together with a request that the sums of money so certified be forthwith refunded by the Department of Highway Safe­ty and Motor Vehicles, the Department of Natural Re­sources, the Department of Revenue, the Division of Al­coholic Beverages and Tobacco of the Department of Business Regulation , or the Game and Fresh Water Fish Commission to the county tax collector, and within 30 days after receipt of the request, the Department of Highway Safety and Motor Vehicles, the Department of Natural Resources, the Department of Revenue, the Di­vision of Alcoholic Beverages and Tobacco of the De­partment of Business Regulation , or the Game and Fresh Water Fish Commission, upon being satisfied as to the correctness of the certificate, shall refund the sums of money so certified to the county tax collector.

(2) The provisions of this act shall be liberally con­strued in order to effectively carry out the purposes of this act in the interest of the public.

History.-ss. 1, 2, ch. 63-343; s. 6, ch. 65-190; s. 1, ch. 69-77 ; ss. 16, 21 , 24, 25, 35, ch. 69- 106; s. 1, ch . 74-348; s. 1, ch. 77-174; s. 34, ch . 79-11.

832.062 Prosecution for worthless checks, drafts, or debit card orders given to pay any tax, penalty, inter­est, or associated amounts administered by the De­partment of Revenue.-

(1) It is unlawful for any person , firm , or corporation to draw, make, utter, issue, or deliver to the Department of Revenue any check, draft , or other written order on any bank or depository, or to use a debit card , for the payment of any taxes, penalties, interest, fees , or asso­ciated amounts administered by the Department of Rev­enue, knowing at the time of the drawing, making, utter­ing , issuing, or delivering such check, draft , 1or other written order, or at the time of using such debit card, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation ; except that this section does not apply to any check when the Depart­ment of Revenue knows or has been expressly notified prior to the drawing or uttering of the check, or has rea­son to believe, that the drawer did not have on deposit or to his credit with the drawee sufficient funds to ensure payment as aforesaid , nor does this section apply to any postdated check.

1621

Ch.832 ISSUING WORTHLESS CHECKS AND DRAFTS F.S. 1987

(2) A violation of the provisions of this section consti­tutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, unless the check, draft, debit card order, or other written order drawn, made, uttered , issued, or delivered is in the amount of $150 or more. In that event, the violation con­stitutes a felony of the third degree, punishable as pro­vided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 11 , ch. 87-102. 'Note.-The words "or other written order" were added by the editors.

832.07 Prima facie evidence of intent; identity.­(1) INTENT.-(a) In any prosecution or action under this chapter,

the making, drawing, uttering, or delivery of a check, draft, or order, payment of which is refused by the draw­ee because of lack of funds or credit, shall be prima facie evidence of intent to defraud or knowledge of insuffi­cient funds in, or credit with, such bank, banking institu­tion, trust company, or other depository, unless such maker or drawer, or someone for him, shall have paid the holder thereof the amount due thereon, together with a service charge not to exceed $10 or an amount of up to 5 percent of the face amount of the check, whichever is greater, within 7 days after receiving written notice that such check, draft, or order has not been paid to the hold­er thereof, and bank fees incurred by the holder. In the event of legal action for recovery, the maker or drawer may be additionally liable for court costs and reasonable attorney's fees. Notice mailed by certified or registered mail , evidenced by return receipt, to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the maker or drawer, whether such notice shall be returned undelivered or not. The form of such notice shall be substantially as follows:

"You are hereby notified that a check, numbered _ _ , issued by you on~. drawn upon cnameofbankl , and payable to __ , has been dishonored. Pursuant to Flori­da law, you have 7 days from receipt of this notice to ten­der payment of the full amount of such check plus a ser­vice charge of $10 or an amount of up to 5 percent of the face amount of the check, whichever is greater, the total amount due being $ __ and _ _ cents. Unless this amount is paid in full within the time specified above, the holder of such check may turn over the dis­honored check and all other available information relat­ing to this incident to the state attorney for criminal pros­ecution. You may be additionally liable in a civil action for triple the amount of the check, but in no case less than $50 or more than $2500, together with the amount of the check, a service charge, court costs, reasonable attorney fees, and incurred bank fees, as provided in s. 68.065."

Any party holding a worthless check and giving notice in a substantially similar form to that provided above shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such no­tice.

(b) When a check is drawn on a bank in which the maker or drawer has no account or a closed account, it shall be presumed that such check was issued with in-

tent to defraud, and the notice requirement set forth in this section shall be waived.

(2) IDENTITY.-(a) In any prosecution or action under the provisions

of this chapter, a check, draft, or order for which the in­formation required in paragraph (b), paragraph (d), para­graph (e) , or paragraph (f) is available at the time of issu­ance shall constitute prima facie evidence of the identity of the party issuing the check, draft, or order and that such person was a party authorized to draw upon the named account.

(b) To establish this prima facie evidence, the follow­ing information regarding the identity of the party pre­senting the check shall be obtained by the party accept­ing such check: The full name, residence address, home phone number, business phone number, place of em­ployment, sex, date of birth , height, and race. This infor­mation shall be written upon the check.

(c) The information required in paragraph (b) may be provided by either of two methods:

1. Such information may be recorded upon the check itself; or

2. The number of a check-cashing identification card issued by the accepting party may be recorded on the check. Such check-cashing identification card shall be issued only after the information required in para­graph (b) has been placed on file by the accepting party.

(d) If a check is received by a payee through the mail or by delivery to a representative of the payee, the prima facie evidence referred to in paragraph (a) may be es­tablished by presenting the original contract, order, or request for services which the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy on file by the accepting party of the information required in paragraph (b) togeth­er with the signature of the person presenting the check.

(e) If a check is received by a payee and the drawer or maker has a check-cashing identification card on file with the payee, the prima facie evidence referred to in paragraph (a) may be established by presenting the sig­nature found on the check-cashing identification card bearing the signature of the person who signed the check.

(f) If a check is received by the Department of Reve­nue through the mail or by delivery to a representative of the Department of Revenue, the prima facie evidence referred to in paragraph (a) may be established by pre­senting the original tax return, certificate, license, appli­cation for certificate or license, or other document relat­ing to amounts owed by that person or taxpayer which the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy on file by the accepting party of the information re­quired in paragraph (b) together with the signature of the person presenting the check. Use of taxpayer infor­mation relating to the identity of a person who has violat­ed the provisions of this paragraph shall be considered for official purposes.

Hlatory.-s. 1, ch. 75-189; s. 1, ch. 77-174; s. 1, ch . 79-345; s. 1, ch. 80-301 ; s. 2, ch. 86-89; s. 10, ch . 86-161 ; s. 1, ch. 86-198; s. 12, ch. 87-102. cf.-s. 28.243 Clerk of circuit court or comptroller; exemption from identity informa­

tion requirement. ss. 125.0105, 166.251 Service fee for dishonored check.

1622

F.S. 1987 ISSUING WORTHLESS CHECKS AND DRAFTS Ch. 832

832.08 State attorney bad check diversion pro­gram; fees for collections.-

(1) In any judicial circuit where a bad check diver­sion program is not in existence as of October 1, 1986, the state attorney may establish such a program, either within his office or through an independent contractor, for the purpose of diverting from prosecution certain persons accused of a violation of s. 832.04, s. 832.041, s. 832.05, or s. 832.06. The use of such a diversion pro­gram shall not affect the authority of the state attorney to prosecute any person for any such violation.

(2) Upon receipt of a complaint alleging any such vi­olation, the state attorney shall determine if the case is appropriate for referral to the bad check diversion pro­gram by considering:

(a) The amount of the bad check. (b) The prior criminal record of the defendant. (c) Whether or not there are other bad check com­

plaints currently pending against the defendant. (d) The strength of the evidence of intent to defraud

the victim. (3) Upon referral of a complaint to the bad check di­

version program, the state attorney shall forward a no­tice of the complaint by mail to the defendant. The no­tice shall contain all of the following:

(a) The date and amount of the check. (b) The name of the payee. (c) The date before which the defendant must con­

tact the bad check office concerning the complaint. (d) A statement of the penalty for issuance of a bad

check.

(4) If the state attorney allows the defendant to enter into a diversion program, the state attorney shall enter

1 into a written agreement with the defendant to divert him on bad check charges. The diversion agreement shall include all of the following conditions, which must be accepted by the defendant:

(a) Attendance at a program designed to assist and educate persons who have violated the provisions of this chapter.

(b) Full restitution on the check. (c) Full payment of fees due under subsection (5). (d) Any individual who does not fulfill the agree-

ments for diversion could then be prosecuted under the appropriate section.

(e) A knowing and intelligent waiver of his right to a speedy trial for the period of his diversion.

(5) To fund the diversion program, the state attorney may collect a fee on each check that is collected through his office, whether it is collected through prose­cution or through the diversion program. However, the state attorney may not collect such a fee on any check collected through a diversion program which was in ex­istence in another office prior to October 1, 1986. A fee may be collected by an office operating such a preexist­ing diversion program for the purpose of funding such program. The amount of the fee for each check shall not exceed:

(a) Twenty dollars, if the face value does not exceed $50.

(b) Thirty dollars, if the face value is more than $50 but less than $300.

(c) Forty dollars, if the face value is more than $300. History.-s. 1. ch. 86-232.

1623

Ch.836 DEFAMATION; LIBEL; THREATENING LETIERS, ETC. F.S. 1987

CHAPTER 836

DEFAMATION; LIBEL; THREATENING LETTERS AND SIMILAR OFFENSES

836.01 836.02 836.03 836.04 836.05 836.06

836.07

836.08

836.09

836.10

836.11

Punishment for libel. Must give name of the party written about. Owner or editor of the paper also guilty. Defamation . Threats; extortion . Punishment for making derogatory statements

concerning banks and building and loan as­sociations.

Notice condition precedent to prosecution for libel.

Correction , apology, or retraction by newspa­per.

Communicating libelous matter to newspa­pers; penalty.

Written threats to kill or do bodily injury; punish­ment.

Publications which tend to expose persons to hatred, contempt , or ridicule prohibited .

836.01 - Punishment for libei.-Any person convict­ed of the publication of a libel shall be guilty of a misde­meanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 15, sub-ch. 7, ch. 1637, 1868; RS 241 8; GS 3256; RGS 5087 ; CGL 7189; s . 987, ch. 71-136. cf.-ch. 770 Civil actions for libel.

836.02 Must give name of the party written about. (1) No person shall print , write, publish, circulate or

distribute within this state any newspaper, magazine, periodical , pamphlet , or other publication of any charac­ter, either wri tten or printed , wherein the alleged immoral acts of any person are stated or pretended to be stated , or wherein it is intimated that any person has been guilty of any immorality, unless such written or printed publica­tion shall in such article publish in full the true name of the person intended to be charged with the commission of such acts of immorality.

(2) Any person convicted of any 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. Any person who shall aid in any way in the writing or printing of any literature in violation of this section shall be pun­ished in the same manner as the principal might be pun­ished upon conviction ; provided, nothing in this section shall apply to mechanical employees in printing offices, or to newsboys.

Hlstory.-ss. 1, 2, 3, ch. 4733, 1899; GS 3257; RGS 5088; CGL 7190; s. 988, ch. 71-136.

836.03 Owner or editor of the paper also guilty.­Any owner, manager, publisher or editor of any newspa­per or other publication who permits any anonymous communication or communications such as is signed otherwise than with the true name of the writer, and such name published therewith to appear in the col­umns of his publication in which said communication any person is attacked in his good name, or it is attempt­ed to bring disgrace or ridicule upon any person, such owner, manager, publisher or editor shall be guilty of a misdemeanor of the first degree, punishable as provid-

ed in s. 775.082 or s. 775.083. History.-s. 4, ch. 4733, 1899; GS 3258; RGS 5089; CGL 7191 ; s. 989, ch. 71-1 36.

836.04 Defamation.- Whoever speaks of and con­cerning any woman , married or unmarried , falsely and maliciously imputing to her a want of chastity , shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-s. 1, ch. 3460, 1883; RS 2419; GS 3260; RGS 5091; CGL 71 93; s. 990, ch. 71-136.

836.05 Threats; extortion.-Whoever, either verbal­ly or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person , property or reputation of another, or mali­ciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chasti ty to another, with intent there­by to extort money or any pecuniary advantage whatso­ever, or with intent to compel the person so threatened, or any other person , to do any act or refrain from doing any act against his will , shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.- s. 42, sub-ch. 3, ch. 1637, 1868; RS 2420; GS 3261; RGS 5092; CGL 7194; s. 1, ch. 57-254; s. 991 , ch. 71-136. cf.- s. 639.11 Extort ion by officers of the state.

836.06 Punishment for making derogatory state­ments concerning banks and building and loan associ­ations.-Any person who shall willfully and maliciously make, circulate or transmit to another or others any false statement, rumor or suggestion, written , printed or by word of mouth , which is directly or by inference deroga­tory to the financial condition or affects the solvency or financial standing of any banking institution or building and loan association doing business in this state, or who shall counsel , aid, procure or induce another to start , transmit or circulate any such statement or rumor, shall be guilty of a misdemeanor, and upon conviction thereof shall be guilty of a misdemeanor of the first degree, pun­ishable as provided in s. 775.082 or s. 775.083.

Hlstory.-s. 1, ch. 6819, 1915; RGS 5093; s. 1, ch. 11 866, 1927; CGL 7195, 7315; s. 992, ch. 71 - 136. cf.- s. 817.16 False reports by officers of banks, etc. , with in tent to defraud.

836.07 Notice condition precedent to prosecution for libei.-Before any criminal action is brought for publi­cation , in a newspaper periodical , of a libel, the prosecu­tor shall at least 5 days before instituting such action serve notice in writing on defendant, specifying the arti­cle and the statements therein which he alleges to be false and defamatory.

Hlatory.- s. 1, ch. 16070, 1933; CGL 1936 Supp. 7064(1). cf. - ch. 770 Civil actions for libel.

836.08 Correction, apology, or retraction by news­paper.-

(1) If it appears upon the trial that said article was published in good faith ; that its falsity was due to an hon­est mistake of the facts ; that there were reasonable grounds for believing that the statements in said article

1624

F.S. 1987 DEFAMATION; LIBEL; THREATENING LETTERS, ETC. Ch.836

were true; and that , within the period of time specified in subsection (2), a full and fair correction , apology, and retraction was published in the same editions or corre­sponding issues of the newspaper or periodical in which said article appeared , and in as conspicuous place and type as was said original article, then any criminal pro­ceeding charging libel based on an article so retracted shall be discontinued and barred .

(2) Full and fair correction , apology, or retraction shall be made:

(a) In the case of a broadcast or a daily or weekly newspaper or periodical , within 10 days after service of notice;

(b) In the case of a newspaper or periodical pub­lished semimonthly, within 20 days after service of no­tice;

(c) In the case of a newspaper or periodical pub­lished monthly, within 45 days after service of notice; and

(d) In the case of a newspaper or periodical pub­lished less frequently than monthly, in the next issue, provided that notice is served no later than 45 days prior to such publication .

History.-s. 2, ch. 16070, 1933; CGL 1940 Supp. 7064(2); s. 993, ch. 71-136; s. 2, ch. 80- 34.

836.09 Communicating libelous matter to newspa­pers; penalty.-lf any person shall state, deliver, or transmit by any means whatever, to the manager, editor , publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement con­cerning any person , then and there known by such per­son to be false or libelous, and thereby secure the publi­cation of the same he 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. 5142, 1903; GS 3259; RGS 5090; CGL 7192; s. 3, ch. 16070, 1933; CGL 1936 Supp. 7064(3); s. 994, ch. 71-136.

836.10 Written threats to kill or do bodily injury; punishment.-lf any person writes or composes and also sends or procures the sending of any letter or in­scribed communication , so written or composed , wheth­er such letter or communication be signed or anony­mous, to any person , containing a threat to kill or to do bodily injury to the person to whom such letter or com­munication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent, the person so writing or composing and so sending or procuring the sending of such letter or communication , 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. 1, ch. 6503, 1913; RGS 5094; CGL 7196; s. 995, ch. 71-136.

836.11 Publications which tend to expose persons to hatred, contempt, or ridicule prohibited.-

(1) It shall be unlawful to print , publish , distribute or cause to be printed, published or distributed by any means, or in any manner whatsoever, any publication, handbill , dodger, circular, booklet , pamphlet, leaflet, card, sticker, periodical, literature, paper or other printed material which tends to expose any individual or any reli­gious group to hatred , contempt , ridicule or obloquy un­less the following is clearly printed or written thereon:

(a) The true name and post-office address of the person , firm , partnership, corporation or organization causing the same to be printed , published or distribut­ed; and ,

(b) If such name is that of a firm, corporation or orga­nization, the name and post-office address of the indi­vidual acting in its behalf in causing such printing, publi­cation or distribution .

(2) Any person, firm or corporation violating any of the sections of this statute shall be guilty of a misde­meanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 1, 2, ch. 22744, 1945; s. 996, ch. 71-136.

1625

Ch.837 PERJURY F.S. 1987

CHAPTER 837

PERJURY

837.011 837.Q12 837.02 837.021 837.05 837.06

Definitions. Perjury when not in an official proceeding . Perjury in official proceedings. Perjury by contradictory statements. False reports to law enforcement authorities. False official statements.

837.011 Definitions.-ln this chapter, unless a dif­ferent meaning plainly is required:

(1) "Official proceeding" means a proceeding heard, or which may be or is required to be heard, before any legislative, judicial , administrative, or other governmen­tal agency or official authorized to take evidence under oath , including any referee, master in chancery, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding.

(2) "Oath" includes affirmation or any other form of attestation required or authorized by law by which a per­son acknowledges that he is bound in conscience or law to testify truthfully in an official proceeding or other offi­cial matter.

(3) "Material matter" means any subject, regardless of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. Whether a matter is material in a given factual situation is a question of law.

History.-s. 53, ch. 7 4-383.

837.012 Perjury when not in an official proceeding. (1) Whoever makes a false statement, which he

does not believe to be true, under oath , not in an official proceeding , in regard to any material matter shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant's mis­taken belief that his statement was not material is not a defense.

History.-s. 2, ch . 1637, 1868; RS 2560; GS 3472; RGS 5341 ; CGL 7474; s. 997, ch. 71-136; s. 54, ch. 74-383; s. 32, ch . 75-298.

Note.-Former s. 637.01 . cf.-s. 11.05 By person appearing before legislative committee.

s. 319.33 In connection with title certificate to motor vehicle. s. 322.33 In connection with driver's license.

837.02 Perjury in official proceedings.-(1) Whoever makes a false statement, which he

does not believe to be true, under oath in an official pro· ceeding in regard to any material matter shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant's mis­taken belief that his statement was not material is not a defense.

Hlstory.-s. 1, sub-ch. 6, ch. 1637, 1868; RS 2561 ; GS 3473; RGS 5343; CGL 7477; s. 998, ch. 71-136; s. 55, ch. 74-383; s. 33, ch. 75-298.

837.021 Perjury by contradictory statements.-(1) Whoever, in one or more official proceedings,

willfully makes two or more material statements under oath when in fact two or more of the statements contra· diet each other is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The prosecution may proceed in a single count by setting forth the willful making of contradictory state· ments under oath and alleging in the alternative that one or more of them are false.

(2) The question of whether a statement was materi· al is a question of law to be determined by the court.

(3) In any prosecution for perjury by contradictory statements under this section, it is not necessary to prove which , if any, of the statements is not true.

(4) In any prosecution under this section for perjury by contradictory statements, it shall be a defense that the accused believed each statement to be true at the time he made it.

(5) A person may not be prosecuted under this sec· tion for making contradictory statements in separate proceedings if the contradictory statement made in the most recent proceeding was made under a grant of im· munity under s. 914.04; but such person may be prose· cuted under s. 837.02 for any false statement made in that most recent proceeding, and the contradictory statements may be received against him upon any crimi· nal investigation or proceeding for such perjury.

Hlstory.-s. 1, ch. 72-314; s. 56, ch. 74-383; s. 34, ch. 75-298; s. 2, ch. 85-41 .

837.05 False reports to law enforcement authori­ties.-Whoever knowingly gives false information to any law enforcement officer concerning the alleged commis· sion of any crime is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084

History.-s. 57, ch. 74-363; s. 34, ch. 75-298.

837.06 False official statements.-Whoever know· ingly makes a false statement in writing with the intent to mislead a public servant in the performance of his offi· cial duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 58, ch. 74-383; s. 34, ch. 75-298.

1626

F.S. 1987 BRIBERY; MISUSE OF PUBLIC OFFICE Ch. 838

CHAPTER 838

BRIBERY; MISUSE OF PUBLIC OFFICE

838.014 838.015 838 016

838021 838.1 2

Definitions. Bribery. Unlawful compensation or reward for official

behavior. Corruption by threat against public servant. Bribery in athletic contests.

838.014 Definitions.-For the purposes of this chapter, unless a different meaning plainly is required:

(1) "Benefit" means gain or advantage, or anything regarded by the person to be benefited as a gain or ad­vantage, including the doing of an act beneficial to any person in whose welfare he is interested .

(2) "Pecuniary benefit" is benefit in the form of any commission , gift, gratuity, property, commercial inter­est , or any other thing of economic value.

(3) "Harm" means loss, disadvantage, or injury to the person affected, including loss, disadvantage, or injury to any other person in whose welfare he is interested.

(4) "Public servant" means any public officer, agent, or employee of government, whether elected or appoint­ed, including, but not limited to, any executive, legisla­tive, or judicial officer; any person who holds an office or position in a political party or political party commit­tee, whether elected or appointed ; and any person par­ticipating as a special master, receiver, auditor, juror, ar­bitrator, umpire, referee, consultant, or hearing examin­er, or person acting on behalf of any of these, in perform­ing a governmental function ; but the term does not in­clude witnesses. Such term shall include a candidate for election or appointment to any such office, including any individual who seeks or intends to occupy any such of­fice . It shall include any person appointed to any of the foregoing offices or employments before and after he qualifies.

(5) "Government" includes the state government and any city or county government or any branch, politi­cal subdivision , or agency of the state, county, or city government.

(6) "Corruptly" means done with a wrongful intent and for the purpose of obtaining or compensating or re­ceiving compensation for any benefit resulting from some act or omission of a public servant which is incon­sistent with the proper performance of his public duties.

History.-s. 59, ch. 74-383.

838.015 Bribery.-(1) "Bribery" means corruptly to give, offer, or prom­

ise to any public servant, or, if a public servant, corruptly to request , solicit, accept, or agree to accept for himself or another, any pecuniary or other benefit with an intent or purpose to influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of a public servant, in violation of a public duty, or in per­formance of a public duty.

(2) Prosecution under this section shall not require any allegation or proof that the public servant ultimately sought to be unlawfully influenced was qualified to act in the desired way, that he had assumed office, that the

matter was properly pending before him or might by law properly be brought before him, that he possessed juris­diction over the matter, or that his official action was necessary to achieve the person 's purpose.

(3) Any person who commits bribery is guilty of a fel­ony in the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 60, ch. 74-383; s. 35, ch. 75-298.

838.016 Unlawful compensation or reward for offi­cial behavior.-

(1) It is unlawful for any person corruptly to give, of­fer, or promise to any public servant, or, if a public ser­vant, corruptly to request , solicit , accept, or agree to ac­cept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, non­performance, or violation of any act or omission which the person believes to have been , or the public servant represents as having been , either within the official dis­cretion of the public servant, in violation of a public duty, or in performance of a public duty. Nothing herein shall be construed to preclude a public servant from accept­ing rewards for services performed in apprehending any criminal.

(2) It is unlawful for any person corruptly to give, of­fer, or promise to any public servant, or, if a public ser­vant , corruptly to request, solicit , accept, or agree to ac­cept , any pecuniary or other benefit not authorized by law for the past , present, or future exertion of any influ­ence upon or with any other public servant regC~rding any act or omission which the person believes to have been , or which is represented to him as having been , ei­ther within the official discretion of the other public ser­vant , in violation of a public duty, or in performance of a public duty.

(3) Prosecution under this section shall not require that the exercise of influence or official discretion , or vio­lation of a public duty or performance of a public duty, for which a pecuniary or other benefit was given, of­fered, promised, requested , or solicited was accom­plished or was within the influence, official discretion , or public duty of the public servant whose action or omis­sion was sought to be rewarded or compensated.

(4) Whoever violates 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.

Hlatory.- s. 60, ch . 74-383; s. 36, ch. 75-298.

838.021 Corruption by threat against public ser­vant.-

(1) Whoever unlawfully harms or threatens unlawful harm to any public servant, to his immediate family, or to any other person with whose welfare he is interested, with the intent or purpose:

(a) To influence the performance of any act or omis­sion which the person believes to be, or the public ser­vant represents as being, within the official discretion of the public servant, in violation of a public duty, or in per­formance of a public duty.

1627

Ch.838 BRIBERY; MISUSE OF PUBLIC OFFICE F.S. 1987

(b) To cause or induce him to use or exert, or pro­cure the use or exertion of, any influence upon or with any other public servant regarding any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in perform­ance of a public duty.

(2) Prosecution under this section shall not require any allegation or proof that the public servant ultimately sought to be unlawfully influenced was qualified to act in the desired way, that he had assumed office, that the matter was properly pending before him or might by law properly be brought before him, that he possessed juris­diction over the matter, or that his official action was necessary to achieve the person's purpose.

(3)(a) Whoever unlawfully harms any public servant or any other person with whose welfare he is interested shall be guilty of a felony of the second degree, punish­able as provided ins. 775.082, s. 775.083, or s. 775.084.

(b) Whoever threatens unlawful harm to any public servant or to any other person with whose welfare he is interested 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. 61, ch. 74-383; s. 37, ch. 75-298.

838.12 Bribery in athletic contests.-(1) Whoever gives, promises, offers or conspires to

give, promise or offer, to anyone who participates or ex­pects to participate in any professional or amateur game, contest, match, race or sport ; or to any umpire, referee, judge or other official of such game, contest, match, race or sport; or to any owner, manager, coach or trainer of, or to any relative of, or to any person having any direct, indirect, remote or possible connection with, any team, individual, participant or prospective partici-

pant in any such professional or amateur game, contest, match, race or sport , or the officials aforesaid, any bribe, money, goods, present, reward or any valuable thing whatsoever, or any promise , contract or agreement whatsoever, with intent to influence him or them to lose or cause to be lost any game, contest, match , race or sport , or to limit his or their or any person 's or any team's margin of victory in any game, contest, match, race, or sport , or to fix or throw any game, contest, match , race or sport , shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any participant or prospective participant in any professional or amateur game, contest, match, race or sport ; or any umpire, referee, judge or other official of such game, contest , match , race or sport; or any owner, manager, coach or trainer of, or any relative of, or any person having any direct, indirect, remote or possible connection with , any team, individual, participant or pro­spective participant in any such professional or amateur game, contest , match, race or sport , or the officials aforesaid; who in any way solicits , receives or accepts, or agrees to receive or accept, or who conspires to re­ceive or accept, any bribe, money, goods, present, re­ward or any valuable thing whatsoever, or any promise, contract or agreement whatsoever, with intent to lose or cause to be lost any game, contest , match , race or sport , or to limit his, their or any person's or any team's margin of victory in any game, contest , match, race or sport, or to fix or throw any game, contest, match , race or sport, 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 . 28024, 1953; s. 1010, ch. 71-136.

1628

F.S. 1987 OFFENSES BY PUBLIC OFFICERS AND EMPLOYEES Ch.839

CHAPTER 839

OFFENSES BY PUBLIC OFFICERS AND EMPLOYEES

839.04

839.05

839.06

839.08

83909

839.091

839.10 839.11 839.12 839.13 839.14 839.15 839.16 839.17

839.18

839.19 839.20 839.21 839.23 839.24

839.25 839.26

County officers not to speculate in county warrants or certificates.

Municipal officers not to speculate in munici­pal scrip.

Collectors not to deal in warrants , etc.; remov­al.

Public officer not to purchase supplies for public use from himself.

Boards not to purchase supplies from mem­bers of boards.

Purchasing supplies ; exemption from penal-ties.

No officer or board to bid for public work. Extortion by officers of the state. Officer failing to keep record of costs . Falsifying records. Officer withholding records from successor. Judicial officer withholding records. Fraud of clerk in drawing jury. Misappropriation of moneys by commission-

ers to make sales. Penalty for officer assuming to act before

qualification. Failure to execute process generally. Refusal to execute criminal process. Refusal to receive prisoner. Officer taking insufficient bail. Penalty for failure to perform duty required of

officer. Official misconduct. Misuse of confidential information.

839.04 County officers not to speculate in county warrants or certificates.-Any county court judge, clerk of the circuit court, sheriff, tax collector, property ap­praiser or their deputies, county commissioner, school board members, superintendent of schools, or any other county officer who buys up at a discount, or in any man­ner, directly or indirectly, speculates in jurors' or wit­nesses ' certificates or in any warrants drawn upon the county treasurer for the payment of money out of any public fund of this state or of any county, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and shall be re­moved from office.

History.-ss. 1, 2, ch. 3419, 1883; AS 2558; GS 3465; AGS 5334; CGL 7467; s. 1, ch. 69-300; s. 1014, ch. 71- 136; s. 32, ch . 73-334; s. 1, ch. 77-102.

839.05 Municipal officers not to speculate in mu­nicipal scrip.-Any mayor, marshal, treasurer, clerk , tax collector or other officer of any incorporated city or town, or any deputy of such officer, who buys up at a discount, or in any manner, directly or indirectly, speculates in any scrip or other evidence of indebtedness issued by the municipal corporation of which he is an officer, shall be guilty of a misdemeanor of the second degree, punish­able as provided in s. 775.082 or s. 775.083, and shall be removed from office.

Hlstory.- ss. 1, 2, ch. 3464, 1883; AS 2559; GS 3466; AGS 5335; CGL 7468; s. 1015, ch. 71-136; s. 242, ch. 77-1 04.

839.06 Collectors not to deal in warrants, etc.; re­movai.-No tax collector of any county shall, either di­rectly or indirectly, purchase or receive in exchange any Comptroller 's warrants, county orders, jurors ' certifi ­cates or school district orders for a less amount than ex­pressed on the face of such orders or demand, and any such person so offending shall , for each offense, be deemed guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083, and be removed from office.

History.-Ch. 4010, 1891 ; s. 40, ch. 4322, 1895; GS 3467; s. 39, ch. 5596, 1907; AGS 5336; CGL 7469; s. 1016, ch. 71- 136.

839.08 Public officer not to purchase supplies for public use from himself.-No state or county officer shall purchase supplies or materials for public use from himself or from any fi rm or corporation in which he is in­terested, nor in any manner share in the proceeds of such purchase. Any person violating this section 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. 5186, 1903; GS 3469; AGS 5338; CGL 7471 ; s. 1018, ch. 71 - 136.

839.09 Boards not to purchase supplies from mem­bers of boards.-No state or county board or municipal board or council shall purchase supplies, goods or mate­rials for public use from any firm or corporation in which any member of such board is either directly or indirectly interested, nor shall any such board pay for such sup­plies, goods or materials so purchased . Any person vio­lating the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provid­ed ins. 775 082 or s. 775.083; provided , that no member of any board aforesaid who shall have recorded his vote against such illegal purchase, or who shall have been absent at the taking of the vote thereon, shall be con­victed of a violation of this section .

History.-s. 2, ch . 5186, 1903; GS 3470; s. 1, ch. 5692, 1907; AGS 5339; CGL 7472; s. 1019, ch. 71-1 36.

839.091 Purchasing supplies; exemption from pen­alties.-

(1) No person shall be subject to prosecution under ss. 839.08 and 839.09 when such purchases are:

(a) Made from the lowest bidder under sealed bids; (b) Where such purchases are made at current mar­

ket prices under a rotation system by which purchases are rotated among the different suppliers; or

(c) Where purchases are made at current market prices and are for an aggregate amount in any calendar year of not more than $1,000.

(d) For utility services, newspaper advertising, tele­phone or telegraph service, insurance premiums, or sim­ilar services.

(2) The provisions of this section shall not apply to counties of the state with population of more than 100,000.

Hlstory.-ss. 1, 3, ch. 26934, 1951.

839.10 No officer or board to bid for public work.­No state or county officer nor member of any state or

1629

Ch.839 OFFENSES BY PUBLIC OFFICERS AND EMPLOYEES F.S. 1987

county board shall bid for, or enter into, or be in any man­ner interested in any contract for public work for which the said officer or state or county board is or may be a party to the letting . Any person violating the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083; provided, that no member of any board afore­said who shall have recorded his vote against the letting of such contract , or who shall have been absent at the taking of the vote thereon , shall be convicted of a viola­tion of this section.

History.-s. 3, ch. 5186, 1903; GS 3471; RGS 5340; CGL 7473; s. 1020, ch. 71-136.

839.11 Extortion by officers of the state.-Any offi­cer of this state who willfully charges, receives, or col­lects any greater fees or services than he is entitled to charge, receive, or collect by law is guilty of a misde­meanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-RS 2569; GS 3481 ; RGS 5354; CGL 7489; s. 1021 , ch. 71-136; s. 1, ch. 79-132; s. 9, ch. 79-163.

839.12 Officer failing to keep record of costs.-lf any clerk of a court, sheriff, or county court judge ne­glects or refuses to keep a record book of the costs which he charges, he shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083. Such record book shall be prima facie evidence in the courts of the amounts charged therein, in all cases in which any such officer is prosecuted for charging more costs than are allowed by law.

History.-ss. 3, 4, ch. 3252, 1881; RS 2570; GS 3482; RGS 5355; CGL 7490; s. 1022, ch. 71-136; s. 32, ch. 73-334. cf.-s. 116.04 Failure of officer to make sworn report of fees .

839.13 Falsifying records.-(1) If any judge, justice, mayor, alderman , clerk,

sheriff, coroner, or other public officer, or any person whatsoever, shall steal, embezzle, alter, corruptly with­draw, falsify or avoid any record , process, charter, gift, grant, conveyance, or contract, or any paper filed in any judicial proceeding in any court of this state, or shall knowingly and willfully take off, discharge or conceal any issue, forfeited recognizance, or other forfeiture, or other paper above mentioned, or shall forge, deface, or falsify any document or instrument recorded, or filed in any court, or any registry, acknowledgment, or certificate, or shall fraudulently alter, deface, or falsify any minutes, documents, books, or any proceedings whatever of or belonging to any public office within this state; or if any person shall cause or procure any of the offenses afore­said to be committed, or be in anywise concerned there­in, the person so offending shall be guilty of a misde­meanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) In any prosecution under this section, it shall not be necessary to prove the ownership or value of any pa­per or instrument involved .

History.-s. 19, Feb. 10, 1832; RS 2571 ; GS 3483; RGS 5357; CGL 7492; s. 1023, ch. 71-136. cf.-s. 703.18 Refusing to· make abstract.

s. 703.19 Filing untrue copies of abstracts.

839.14 Officer withholding records from succes­sor.-lf any officer, after the expiration of the time for which he may have been appointed or elected, or in

case of his death, his executors and administrators, or the person in possession thereof, shall willfully and un­lawfully withhold or detain from his successors the rec­ords, papers, documents, or other writings appertaining and belonging to his office, or mutilate, destroy, take away, or otherwise prevent the complete possession by his successors of said records, documents, papers, or other writings, he shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 21 , Feb. 10, 1832; RS 2572; GS 3485; RGS 5360; CGL 7495; s. 1024, ch. 71-136.

839.15 Judicial officer withholding records.-Any justice of the Supreme Court or judge of the circuit court who, upon resignation or on being impeached, fails to file all papers and records in his possession belonging to his court with the proper clerk shall be guilty of a mis­demeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 3, ch. 3007, 1877; RS 2573; GS 3486; RGS 5361; CGL 7496; s. 1025, ch. 71-136; s. 32, ch. 73-334.

839.16 Fraud of clerk in drawing jury.-lf the clerk of any court shall be guilty of any fraud, either by practic­ing on a jury box previous to a draft, or in drawing a juror, or in returning into the box any juror which had been law­fully drawn out and drawing or substituting another in his stead, or in any other way in the drawing of jurors, he shall be guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.083.

Hlstory.-RS 2575; GS 3491 ; RGS 5371 ; CGL 7505; s. 1026, ch. 71-136.

839.17 Misappropriation of moneys by commis­sioners to make sales.-Any commissioner or master in chancery , having received the purchase money or the securities resulting from any of the sales authorized by law, who shall fail to deliver such moneys and securities, or either of them , to the executor or administrator, or the person entitled to receive the same, upon the order of the court , unless he is rendered unable to do so by some cause not attributable to his own default or neglect, shall be fined in a sum equal to the amount received from the purchaser, and 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. 30, ch. 1628, 1868; RS 2576; GS 3492; RGS 5372; CGL 7506; s. 1027, ch. 71-136.

839.18 Penalty for officer assuming to act before qualification.-Whoever being elected, or appointed, to any office assumes to perform any of the duties thereof before qualification, according to law, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-RS 2737; GS 3732; RGS 5757; CGL 7987; s. 1028, ch. 71-136.

839.19 Failure to execute process generally.-Any sheriff or other officer authorized to execute process, who willfully or corruptly refuses or neglects to execute and return , according to law, any process delivered to him, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.- RS 2577; GS 3497; RGS 5362; CGL 7421; s. 1029, ch. 71-136. ct.- s. 30.15 Execution of process.

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F.S. 1987 OFFENSES BY PUBLIC OFFICERS AND EMPLOYEES Ch.839

839.20 Refusal to execute criminal process.-lf any officer authorized to serve process , willfully and cor­ruptly refuses to execute any lawful process to him di­rected and requiring him to apprehend and confine any person convicted or charged with an offense, or willfully and corruptly omits or delays to execute such process, whereby such person escapes and goes at large, he shall be guilty of a misdemeanor of the first degree, pun­ishable as provided in s. 775.082 or s. 775.083.

History.-s 15, ch. 1637, 1868; RS 2578; GS 3498; RGS 5383; CGL 7522; s. 1030, ch. 71-136. cf.- s. 30.15 Execution of process.

839.21 Refusal to receive prisoner.-Any jailer or other officer, who willfully refuses to receive into the jail or into his custody a prisoner lawfully directed to be committed thereto on a criminal charge or conviction , or any lawful process whatever, shall be guilty of a misde­meanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 14, ch. 1637, 1868; RS 2579; GS 3499; RGS 5384; CGL 7523; s. 1031 , ch. 71-136. cf.-ch. 950 Jails and jai lers.

839.23 Officer taking insufficient baii.-An official who takes bail which he knows is not sufficient , accepts a surety he knows does not have the qualifications re­quired by law, or accepts as a surety a professional bondsman who is not registered with the clerk of the cir­cuit court and qualified to act as surety shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083. An official convicted of violating this section may be removed from office by the Governor.

History.-s 78, ch. 19554, 1939; CGL 1940 Supp. 8663(78); s. 175, ch. 70-339; s. 1032, ch. 71 - 136.

Note.-Former s. 903.35.

839.24 Penalty for failure to perform duty required of officer.-A sheriff, county court judge, prosecuting officer, court reporter, stenographer, interpreter, or oth­er officer required to perform any duty under the criminal procedure law who willfully fails to perform his duty shall be guilty of a misdemeanor of the second degree, pun-

ishable as provided in s. 775.082 or s. 775.083. History.- s. 317, ch. 19554, 1939; CGL 1940 Supp. 8663(330); s. 176, ch . 70-339;

s. 1033, ch. 71-136; s. 32, ch. 73- 334; s. 1, ch. 77-119. Note.-Former s. 925.01.

839.25 Official misconduct.-(1) "Official misconduct" means the commission of

one of the following acts by a public servant, with cor­rupt intent to obtain a benefit for himself or another or to cause unlawful harm to another:

(a) Knowingly refraining, or causing another to re­frain , from performing a duty imposed upon him by law; or

(b) Knowingly falsifying , or causing another to falsi ­fy, any official record or official document.

(2) "Corrupt" means done with knowledge that act is wrongful and with improper motives.

(3) Official misconduct under this section is a felony of the th ird degree , punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 62, ch. 74-383; s. 38, ch. 75-298; s. 10, ch. 79-163. Note.-Former s. 838.031 .

839.26 Misuse of confidential information.-Any public servant who, in contemplation of official action by himself or by a governmental unit with which he is asso­ciated , or in reliance on information to which he has ac­cess in his official capacity and which has not been made public , commits any of the following acts :

(1) Acquisition of a pecuniary interest in any proper­ty, transaction , or enterprise or gaining of any pecuniary or other benefit which may be affected by such informa­tion or official action;

(2) Speculation or wagering on the basis of such in­formation or action; or

(3) Aiding another to do any of the foregoing ,

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

History.- s. 63, ch. 74-383; s. 39, ch. 75-298. Note.- Former s. 838.041 .

1631

Ch.843 OBSTRUCTING JUSTICE F.S. 1987

CHAPTER 843

OBSTRUCTING JUSTICE

843.01 843.02

843.025

843.03 843.04

843.05 843.06 843.08 843.09 843.10 843.11

843.12 843.13

843.14 843.15 843.16

843.165

843.17

843.18

843.19

Resisting officer with violence to his person . Resisting officer without violence to his per­

son . Depriving officer of means of protection or

communication . Obstruction by disguised person. Refusing to assist prison officers in arresting

escaped convicts . Resisting timber agent. Neglect or refusal to aid peace officers. Falsely personating officer, etc. Voluntary escape by officer. Escape by negligence of officer. Conveying tools into jail to aid escape; forc­

ible rescue. Aiding escape. Aiding escape of inmates of state training

schools . Compounding felony. Failure of defendant on bail to appear. Unlawful to install radio equipment using as-

signed frequency of state or law enforce­ment officers; definitions; exceptions; pen­alties.

Unauthorized transmissions on police or fire radio frequencies prohibited ; penalties; ex­ceptions.

Publishing name and address of law enforce­ment officer.

Boats; fleeing or attempting to elude a law en­forcement officer.

Injuring or ki lling police dog or police horse prohibited; penalty .

843.01 Resisting officer with violence to his per­son.-Whoever knowingly and willfully resists , ob­structs, or opposes any sheriff, deputy sheriff , officer of the Florida Highway Patrol , municipal police officer, county or municipal correctional officer, beverage en­forcement agent , officer of the Game and Fresh Water Fish Commission , officer of the Department of Natural Resources, weight and safety officer of the Department of Transportation, member of the Florida Parole and Pro­bation Commission or any administrative aide or super­visor employed by said commission, parole and proba­tion supervisor or parole and probation officer employed by the Department of Corrections , county probation offi­cer, personnel or representative of the Department of Law Enforcement, or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or do­ing violence to the person of such officer or legally authorized person, is guilty of a felony of the third de­gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 3276, 1881 ; RS 2580; GS 3500; RGS 5385; CGL 7524; s. 1, ch. 281 18, 1953; s. 1, ch. 61- 66; s. 1, ch. 63-234; s. 1, ch. 63- 433; ss. 1, chs. 65-198, 65-226; s. 3, ch. 67- 2207; ss. 20, 25, 33, 35, ch. 69-106; s. 1034, ch. 71-136; s. 32, ch. 73- 334; s. 1, ch. 77-174; s. 1, ch. 78-116; s. 20, ch. 79- 3; s. 26, ch. 79-8; s. 1, ch. 79-1 49; s. 5, ch. 85-87. cf.- s. 933.15 Search warran1 , obs1ructing service.

843.02 Resisting officer without violence to his per­son.-Whoever shall obstruct or oppose any such offi­cer, beverage enforcement agent , weight and safety of­ficer of the Department of Transportation , member of the Florida Parole and Probation Commission or any ad­ministrative aide or supervisor employed by said com­mission , parole and probation supervisor or parole and probation officer employed by the Department of Cor­rections , personnel or representative of the Department of Law Enforcement, or legally authorized person in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 2, ch . 3276, 1881 ; RS 2581 ; GS 3501 ; RGS 5386; CGL 7525; s. 1, ch. 63-433; s. 1, ch. 65-226; s. 3, ch . 67-2207; ss. 20, 33, 35, ch. 69-106; s. 1035, ch. 71-136; s. 1, ch. 77-174; s. 2, ch. 78- 116; s. 21, ch. 79-3; s. 27, ch. 79-8; s. 6, ch. 85-87.

843.025 Depriving officer of means of protection or communication.- lt is unlawful for any person to de­prive a law enforcement officer of his weapon or radio or to otherwise deprive him of the means to defend him­self or summon assistance. Any person who violates this section is guilty of a felony of the third degree, punish­able as provided ins . 775.082, s. 775.083, or s. 775 .084.

History.- s. 2, ch. 84-187 .

843.03 Obstruction by disguised person.-Whoev­er in any manner disguises himself with intent to ob­struct the due execution of the law, or with the intent to intimidate, hinder, or interrupt any officer, beverage en­forcement agent , or other person in the legal perform­ance of his duty or the exercise of his rights under the constitution or laws of this state, whether such intent is effected or not, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 19, ch. 1637, 1868; RS 2582; GS 3502; RGS 5387; CGL 7526; s. 1, ch . 63-433; s. 1036, ch . 71-136. cf.- s. 30.15 Refusal or neglect to aid sheriff.

843.04 Refusing to assist prison officers in arrest­ing escaped convicts.-

(1) All prison officers and guards shall immediately arrest any convict , held under the provisions of law, who may have escaped . Any such officer or guard may call upon the sheriff or other officer of the state, or of any county or municipal corporation , or any citizen, to make search and arrest such convict.

(2) Any officer or citizen refusing to assist shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 17, ch. 6530, 1917; RGS 5389; CGL 7528; s. 1037, ch. 71-136. ct.- s. 901.18 Officer may summon assistance.

843.05 Resisting timber agent.-Whoever ob­structs, resists , or opposes a timber agent in the dis­charge of his duties, or attempts so to do, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083.

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F.S. 1987 OBSTRUCTING JUSTICE Ch.843

History.-s. 5, ch. 3020, 1877; RS 2584; GS 3504; RGS 5390; CGL 7529; s. 1038, ch. 71-136.

843.06 Neglect or refusal to aid peace officers.­Whoever, being required in the name of the state by any officer of the Florida Highway Patrol, police officer, bev­erage enforcement agent, or watchman, neglects or re­fuses to assist him in the execution of his office in a crim­inal case, or in the preservation of the peace, or the ap­prehending or securing of any person for a breach of the peace, or in case of the rescue or escape of a person arrested upon civil process, shall be guilty of a misde­meanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 16, ch. 1637, 1868; RS 2585; GS 3505; RGS 5391 ; CGL 7530; s. 2, ch. 28118, 1953; s. 1, ch. 63-433; s. 1039, ch. 71-136; s. 32, ch. 73-334. cf.-s. 901.18 Officer may summon assistance.

843.08 Falsely personating officer, etc.-Whoever falsely assumes or pretends to be a sheriff, officer of the Florida Highway Patrol, officer of the Game and Fresh Water Fish Commission, officer of the Department of Natural Resources, deputy sheriff, coroner, police offi­cer, beverage enforcement agent, or watchman, or any member of the Florida Parole and Probation Commission and any administrative aide or supervisor employed by said commission, or any personnel or representative of the Department of Law Enforcement, and takes upon himself to act as such, or to require any person to aid or assist him in a matter pertaining to the duty of any such officer, shall be deemed guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 18, ch. 1637, 1868; RS 2587; GS 3507 ; RGS 5395; CGL 7535; s. 3, ch . 28118, 1953; s. 1, ch . 63-433; ss. 1, chs. 65-148, 65-199; s. 3, ch. 67-2207; ss. 20, 25, 33, 35, ch . 69-106; s. 1041 , ch. 71-136; s. 32, ch. 73-334; s. 1, ch. 77-174; s. 28, ch. 79-8.

843.09 Voluntary escape by officer.-lf a jailer or other officer voluntarily suffers a prisoner in his custody, upon conviction of any criminal charge, to escape, he 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. 13, ch. 1637, 1868; RS 2588; GS 3509; RGS 5395; CGL 7535; s. 1042, ch. 71-136.

843.10 Escape by negligence of officer.-lf a jailer or other officer, through negligence, suffers a prisoner in his custody upon conviction of any criminal charge to escape, he shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775 .082 or s. 775.083.

History.-s. 14, ch. 1637, 1868; RS 2589; GS 3510; RGS 5396; CGL 7536; s. 1043, ch. 71-136.

843.11 Conveying tools into jail to aid escape; forc­ible rescue.-Whoever conveys into a jail or other like place of confinement , any disguise, instrument, tool, weapon, or other thing adapted or useful to aid a prison­er in making his escape, with intent to facilitate the es­cape of any prisoner there lawfully committed or de­tained, or, by any means whatever, aids or assists such prisoner in his endeavors to escape therefrom, whether such escape is effected or attempted or not; and whoev­er forcibly rescues any prisoner held in custody upon any conviction or charge of an offense, shall be guilty of a felony of the second degree, punishable as provided

in s. 775.082, s. 775.083, or s. 775.084; or if the person whose escape or rescue was effected or intended, was charged with an offense not capital nor punishable by imprisonment in the state prison , then a person who as­sists a prisoner as described in this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083; or if the prisoner while his escape or rescue is being effected or attempt­ed commits any crime with the weapon, tool, or instru­ment conveyed to him, the person conveying the weap­on, tool, or instrument to him shall be subject to whatev­er fine, imprisonment, or other punishment the law im­poses for the crime committed, as an accessory before the fact.

History.-s. 11 , ch . 1637, 1868; RS 2590; GS 3511 ; RGS 5397; CGL 7537; s. 1, ch. 29895, 1955; s. 1044, ch . 71-136.

843.12 Aiding escape.-Whoever knowingly aids or assists a person in escaping, attempting to escape, or who has escaped, from an officer or person who has or is entitled to the lawful custody of such person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 12, ch . 1637, 1868; RS 2591; s. 1, ch . 5154, 1903; GS3512; RGS 5398; CGL 7538; s. 1, ch. 65-221 ; s. 1045, ch. 71-136.

843.13 Aiding escape of inmates of state training schools.-Whoever in any manner knowingly aids or as­sists any inmate of any correctional institution for boys or girls in the state to escape therefrom, or who knowing­ly, or having good reason to believe that any person is an inmate of such schools and is escaping or attempting to escape therefrom, aids or assists such inmate to make his escape or to avoid detention or recapture, 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. 9138, 1923; CGL 7539; s. 1, ch. 63-128; s. 1046, ch. 71-136.

843.14 Compounding felony.-Whoever, having knowledge of the commission of an offense punishable with death or by imprisonment in the state prison, takes money or a gratuity or reward, or an engagement there­for, upon an agreement or understanding, expressed or implied, to compound or conceal such offense, or not to prosecute therefor, or not to give evidence thereof, shall when such offense of which he has knowledge is pun­ishable with death or imprisonment in the state prison for life, be guilty of a felony of the third degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084; and where the offense of which he so had knowledge was punishable in any other manner, he shall be guilty of a misdemeanor of the first degree, punishable as pro­vided in s. 775.082 or s. 775.083.

History.-s 20, ch. 1637, 1868; RS 2592; GS 3513; RGS 5399; CGL 7540; s. 1047, ch. 71-136.

843.15 Failure of defendant on bail to appear.­(1) Whoever, having been released pursuant to

chapter 903, willfully fails to appear before any court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for his release and, in addition, shall:

(a) If he was released in connection with a charge of felony or while awaiting sentence or pending review by certiorari after conviction of any offense, be guilty of a

1633

Ch.843 OBSTRUCTING JUSTICE F.S. 1987

felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, or;

(b) If he was released in connection with a charge of misdemeanor, be guilty of a misdemeanor of the first de­gree, punishable as provided in s. 775.082 or s. 775.083.

(2) Nothing in this section shall interfere with or pre­vent the exercise by any court of its power to punish for contempt.

History.-ss. 1, 2, ch . 8468. 1921 ; CGL 7545, 7546; s. 1, ch. 69-152; s. 1048, ch. 71-136. cf.-s. 903.26 Forfeiture of undertaking .

843.16 Unlawful to install radio equipment using assigned frequency of state or law enforcement offi­cers; definitions; exceptions; penalties.-

(1) No person, firm, or corporation shall install in any motor vehicle or business establishment, except an emergency vehicle or crime watch vehicle as herein de­fined or a place established by municipal, county, state, or federal authority for governmental purposes, any fre­quency modulation radio receiving equipment so adjust­ed or tuned as to receive messages or signals on fre­quencies assigned by the Federal Communications Commission to police or law enforcement officers of any city or county of the state or to the state or any of its agencies. Provided, nothing herein shall be construed to affect any radio station licensed by the Federal Commu­nications System.

(2) As used in this section, the term: (a) "Emergency vehicle" shall specifically mean: 1. Any motor vehicle used by any law enforcement

officer or employee of any city, any county, the state, the Federal Bureau of Investigation, or the Armed Forces of the United States while on official business;

2. Any fire department vehicle of any city or county of the state or any state fire department vehicle ;

3. Any motor vehicle designated as an emergency vehicle by the Department of Highway Safety and Motor Vehicles when said vehicle is to be assigned the use of frequencies assigned to the state;

4. Any motor vehicle designated as an emergency vehicle by the sheriff of any county in the state when said vehicle is to be assigned the use of frequencies as­signed to the said county;

5. Any motor vehicle designated as an emergency vehicle by the chief of police of any city in the state when said vehicle is to be assigned the use of frequencies as­signed to the said city.

(b) "Crime watch vehicle" means any motor vehicle used by any person participating in a citizen crime watch or neighborhood watch program when such pro­gram and use are approved in writing by the appropriate sheriff or chief of police where the vehicle will be used and the vehicle is assigned the use of frequencies as­signed to the county or city. Such approval shall be re­newed annually.

(3) This section shall not apply to any holder of a val­id amateur radio operator or station license issued by the Federal Communications Commission.

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

History.-ss. 1-4, ch. 26886, 1951 ; ss. 24, 35, ch. 69-106; s. 1049, ch. 71-136; s. 1, ch. 86-55.

843.165 Unauthorized transmissions on police or fire radio frequencies prohibited; penalties; excep­tions.-

(1) No person shall transmit, or cause to be transmit­ted, over any radio frequency with knowledge that such frequency is assigned to a fire or police agency, any sounds, jamming device, or speech unless authorized in writing to do so by the head of such agency.

(2) Any person who violates 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.

(3) It is not unlawful for any person to transmit, or cause to be transmitted, speech or sounds over any authorized transmitter assigned to police or fire frequen­cies when :

(a) Such person has been commanded to do so by an authorized operator of the transmitter; or

(b) Such person is acting to summon assistance for the authorized operator who, for any reason, is unable to make the transmission .

History.- s. 1, ch. 79-63.

843.17 Publishing name and address of law en­forcement officer.-Any person who shall maliciously, with intent to obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his du­ties, publish or disseminate the residence address or telephone number of any law enforcement officer while designating the officer as such, without authorization of the agency which employs the officer, shall be guilty of a misdemeanor of the first degree, punishable as provid­ed in s. 775.082 or s. 775.083.

Hlstory.- s. 1, ch. 72-85.

843.18 Boats; fleeing or attempting to elude a law enforcement officer.-

(1) It is unlawful for the operator of any boat plying the waters of the state, having knowledge that he has been directed to stop such vessel by a duly authorized law enforcement officer, willfully to refuse or fail to stop in compliance with such directive or, having stopped in knowing compliance with such a directive, willfully to flee in an attempt to elude such officer. Any person vio­lating 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.

(2) Any violation of this section with respect to any vessel shall constitute such vessel as contraband which may be seized by a law enforcement agency and which shall be subject to forfeiture pursuant to ss. 932.701-932.704.

History.-s. 1, ch. 80-160; s. 1, ch. 82-210; s. 29, ch. 87-243; s. 11 , ch . 87-392.

843.19 Injuring or killing police dog or police horse prohibited; penalty.-

(1) As used in this section, the term "police dog" means any dog, and the term "police horse" means any horse, which is owned , or the service of which is em­ployed, by a law enforcement agency for the principal

1634

F.S. 1987 OBSTRUCTING JUSTICE Ch.843

purpose of aiding in the detection of criminal activity, en­forcement of laws, or apprehension of offenders.

(2) Any person who knowingly and willfully and with­out lawful cause or justification inflicts great bodily harm,

permanent disability, or death upon a police dog or po­lice horse is guilty of a felony of the third degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 1, ch. 81-43; s. 1, ch . 84-187.

1635

Ch.847 OBSCENE LITERATURE; PROFANITY F.S. 1987

CHAPTER 847

OBSCENE LITERATURE; PROFANITY

847 .001 847 .011

847.Q12

847.0125

847.Q13

847 .0135 847.02 847 .03 847 .06

847 .07

847.08

847.09 847.201

Definitions. Prohibition of certain acts in connection wi th

obscene, lewd, etc., materials; penalty. Prohibition of sale or other distribution of

harmful materials to persons under 18 years of age; penalty.

Retail display of materials harmful to minors prohibited.

Exposing minors to harmful motion pictures, exhibitions, shows, presentations, or rep­resentations.

Computer pornography; penalties. Confiscation of obscene material. Officer to seize obscene material. Obscene matter; transportation into state

prohibited ; penalty. Wholesale promotion of obscene materials;

penalties. Hearings for determination of probable

cause. Legislative intent. Obscene programming on cable television

during promotional period unlawful ; penal­ty; applicability.

847.001 Definitions.-When used in this chapter: (1) "Computer" means an electronic, magnetic, opti­

cal , electrochemical , or other high-speed data process­ing device performing logical , arithmetic, or storage functions and includes any data storage facility or com­munications facility directly related to or operating in conjunction with such device.

(2) "Deviate sexual intercourse" means sexual con­duct between persons not married to each other con­sisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

(3) "Harmful to minors" means that quality of any de­scription , exhibition , presentation, or representation , in whatever form, of nudity, sexual conduct, or sexual ex­citement when it:

(a) Predominantly appeals to the prurient , shameful , or morbid interest of minors;

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(c) Taken as a whole, is without serious literary, ar­tistic , political , or scientific value for minors.

(4) "Minor" means any person under the age of 18 years.

(5) "Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering ; the showing of the female breast with less than a fully opaque covering of any por­tion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state.

(6) "Person" includes individuals, firms , associations, corporations, and all other groups and combinations .

(7) "Obscene" means the status of material which : (a) The average person , applying contemporary

community standards, would find , taken as a whole, ap­peals to the prurient interest;

(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein ; and

(c) Taken as a whole, lacks serious literary, artistic , political , or scientific value.

(8) "Sadomasochistic abuse" means flagellation or torture by or upon a person , or the condition of being fet­tered , bound , or otherwise physically restrained , for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.

(9) "Sexual battery" means oral , anal , or vaginal pen­etration by, or union with , the sexual organ of another or the anal or vaginal penetration of another by any other object ; however, "sexual battery" does not include an act done for a bona fide medical purpose.

(1 0) "Sexual bestiality" means any sexual act between a person and an animal involving the sex organ of the one and the mouth , anus, or vagina of the other.

(11) "Sexual conduct" means actual or simulated sex­ual intercourse, deviate sexual intercourse, sexual bes­tiality , masturbation , or sadomasochistic abuse; actual lewd exhibition of the genitals ; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be commit­ted.

(12) "Sexual excitement" means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.

(13) "Simulated" means the explicit depiction of con­duct set forth in subsection 1(11) which creates the ap­pearance of such conduct and which exhibits any un­covered portion of the breasts, genitals, or buttocks .

History.-s. 1, ch. 86-238. 1Note.-Reference 1o subsection (11) was substituted by the editors for a refer­

ence to subsection (10); see ss. 2, 3, and 4 of ch. 86-38 in which the cross-reference is to "sexual conduct. ~

847.011 Prohibition of certain acts in connection with obscene, lewd, etc., materials; penalty.-

(1)(a) Any person who knowingly sells, lends, gives away, distributes, transmits , shows, or transmutes, or offers to sell , lend, give away, distribute, transmit, show, or transmute, or has in his possession, custody, or con­trol with intent to sell , lend, give away, distribute, trans­mit , show, transmute, or advertise in any manner, any obscene book, magazine, periodical , pamphlet , news­paper, comic book, story paper, written or printed story or article, writing , paper, card , picture, drawing , photo­graph , motion-picture film , figure, image, phonograph record , or wire or tape or other recording , or any written , printed , or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual , or sensory representa­tions of such character, or any article or instrument for obscene use, or purporting to be for obscene use or pur­pose; or who knowingly designs, copies, draws, photo­graphs, poses for, writes, prints, publishes, or in any

1636

F.S. 1987 OBSCENE LITERATURE; PROFANITY Ch. 847

manner whatsoever manufactures or prepares any such material, matter, article, or thing of any such character; or who knowingly writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered, any advertisement or notice of any kind, giving information , directly or indirectly, stating, or purporting to state, where, how, of whom, or by what means any, or what purports to be any, such material, matter, article, or thing of any such character can be purchased , obtained , or had; or who in any manner knowingly hires, employs, uses, or permits any person knowingly to do or assist in doing any act or thing mentioned above, is guilty of a misdemeanor of the first degree, punishable as provid­ed in s. 775.082 or s. 775.083. A person who, after having been convicted of a violation of this subsection, thereaf­ter violates any of its provisions, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) The knowing possession by any person of three or more identical or similar materials, matters, articles, or things coming within the provisions of paragraph (a) is prima facie evidence of the violation of said para­graph.

(2) A person who knowingly has in his possession, custody, or control any obscene book, magazine, peri­odical, pamphlet , newspaper, comic book, story paper, written or printed story or article, writing, paper, card , picture, drawing , photograph , motion-picture film, film, figure , image, phonograph record, or wire or tape or oth­er recording , or any written , printed, or recorded matter of any such character which may or may not require me­chanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument for obscene use, or purporting to be for obscene use or purpose, without intent to sell, lend , give away, distribute, transmit, show, transmute, or advertise the same, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A person who, after having been convicted of violating this subsection, thereafter violates any of its provisions is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In any prosecution for such possession , it shall not be necessary to allege or prove the absence of such intent.

(3) No person shall as a condition to a sale, alloca­tion, consignment, or delivery for resale of any paper, magazine, book, periodical, or publication require that the purchaser or consignee receive for resale any other article, paper, magazine, book, periodical, or publication reasonably believed by the purchaser or consignee to be obscene, and no person shall deny or threaten to deny or revoke any franchise or impose or threaten to impose any penalty, financial or otherwise, by reason of the failure of any person to accept any such article, pa­per, magazine, book, periodical, or publication, or by reason of the return thereof. Whoever violates 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.

(4) Any person who knowingly promotes, conducts, performs, or participates in an obscene show, exhibition , or performance by live persons or a live person before an audience is guilty of a misdemeanor of the first de-

gree, punishable as provided ins. 775.082 or s. 775.083. Any person who, after having been convicted of violat­ing this subsection, thereafter violates any of its provi­sions and is convicted thereof is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5) Every act , thing, or transaction forbidden by this section shall constitute a separate offense and shall be punishable as such .

(6) Proof that a defendant knowingly committed any act or engaged in any conduct referred to in this section may be made by showing that at the time such act was committed or conduct engaged in he had actual knowl­edge of the contents or character of the material , matter, article, or thing possessed or otherwise dealt with , by showing facts and circumstances from which it may fair­ly be inferred that he had such knowledge, or by show­ing that he had knowledge of such facts and circum­stances as would put a man of ordinary intelligence and caution on inquiry as to such contents or character.

(7) There shall be no right of property in any of the materials, matters, articles, or things possessed or oth­erwise dealt with in violation of this section; and, upon the seizure of any such material , matter, article, or thing by any authorized law enforcement officer, the same shall be delivered to and held by the clerk of the court having jurisdiction to try such violation . When the same is no longer required as evidence, the prosecuting offi­cer or any claimant may move the court in writing for the disposition of the same and , after notice and hearing , the court , if it finds the same to have been possessed or otherwise dealt with in violation of this section , shall order the sheriff to destroy the same in the presence of the clerk; otherwise, the court shall order the same re­turned to the claimant if he shows that he is entitled to possession . If destruction is ordered , the sheriff and clerk shall file a certificate of compliance.

(8)(a) The circuit court has jurisdiction to enjoin a threatened violation of this section upon complaint filed by the state attorney or attorney for a municipality in the name of the state upon the relation of such state attor­ney or attorney for a municipality.

(b) After the filing of such a complaint , the judge to whom it is presented may grant an order restraining the person complained of until final hearing or further order of the court. Whenever the relator state attorney or attor­ney for a municipality requests a judge of such court to set a hearing upon an application for such a restraining order, such judge shall set such hearing for a time within 3 days after the making of such request. No such order shall be made unless such judge is satisfied that suffi­cient notice of the application therefor has been given to the party restrained of the time when and place where the application for such restraining order is to be made; however, such notice shall be dispensed with when it is manifest to such judge, from the sworn allegations of the complaint or the affidavit of the plaintiff or other compe­tent person, that the apprehended violation will be com­mitted if an immediate remedy is not afforded.

(c) The person sought to be enjoined shall be enti­tled to a trial of the issues within 1 day after joinder of issue, and a decision shall be rendered by the court within 2 days of the conclusion of the trial.

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Ch. 847 OBSCENE LITERATURE; PROFANITY F.S. 1987

(d) In any action brought as provided in this subsec­tion, no bond or undertaking shall be required of the state attorney or the municipality or its attorney before the issuance of a restraining order provided for by para­graph (b), and there shall be no liability on the part of the state or the state attorney or the municipality or its attor­ney for costs or for damages sustained by reason of such restraining order in any case where a final decree is rendered in favor of the person sought to be enjoined.

(e) Every person who has possession, custody, or control of, or otherwise deals with, any of the materials, matters, articles, or things described in this section, af­ter the service upon him of a summons and complaint in an action for injunction brought under this subsection, is chargeable with knowledge of the contents and char­acter thereof.

(9) The several sheriffs and state attorneys shall vig­orously enforce this section within their respective juris­dictions.

(1 0) This section shall not apply to the exhibition of motion-picture films permitted by s. 847.D13.

History.-ss. 1, 2, 3, 4, 5, 6. 7, 8, 9, 10, 11, ch. 61-7; s. 1053, ch. 71-136; ss. 1A, 2A, 3A, 4, 5A, 6, ch. 71-337; s. 171 , ch. 71-355; s. 34, ch. 73-334; s. 2, ch. 86-238. cf.-s. 235.09 Obscenity on educational buildings.

s. 933.02 Issuance of search warrant.

1847.012 Prohibition of sale or other distribution of harmful materials to persons under 18 years of age; penalty.-

(1) As used in this section, "knowingly" means hav­ing the general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

(a) The character and content of any material de­scribed herein which is reasonably susceptible of exami­nation by the defendant, and

(b) The age of the minor; however, an honest mis­take shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

(2) It is unlawful for any person knowingly to sell or loan for monetary consideration to a minor:

(a) Any picture, photograph, drawing, sculpture, motion-picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity or sexual conduct and which is harmful to minors, or

(b) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which con­tains any matter defined in s. 847.001, explicit and de­tailed verbal descriptions or narrative accounts of sexual excitement, or sexual conduct and which, is harmful to minors.

(3) Any person violating any provision 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.

(4) Every act, thing, or transaction forbidden by this section constitutes a separate offense and is punishable as such.

(5)(a) The circuit court has jurisdiction to enjoin a vi­olation of this section upon complaint filed by the state attorney in the name of the state upon the relation of such state attorney.

(b) After the filing of such a complaint, the judge to whom it is presented may grant an order restraining the person complained of until final hearing or further order of the court. Whenever the relator state attorney re­quests a judge of such court to set a hearing upon an application for such a restraining order, such judge shall set such hearing for a time within 3 days after the mak­ing of such request. No such order shall be made unless such judge is satisfied that sufficient notice of the appli­cation therefor has been given to the party restrained of the time when and place where the application for such restraining order is to be made.

(c) The person sought to be enjoined shall be enti­tled to a trial of the issues within 1 day after joinder of issue, and a decision shall be rendered by the court within 2 days of the conclusion of the trial.

(d) In the event that a final decree of injunction is en­tered, it shall contain a provision directing the defendant having the possession, custody, or control of the materi­als, matters, articles, or things affected by the injunction to surrender the same to the sheriff and requiring the sheriff to seize and destroy the same. The sheriff shall file a certificate of his compliance.

(e) In any action brought as provided in this section, no bond or undertaking shall be required of the state or the state attorney before the issuance of a restraining order provided for by paragraph (b), and there shall be no liability on the part of the state or the state attorney for costs or for damages sustained by reason of such re­straining order in any case where a final decree is ren­dered in favor of the person sought to be enjoined.

(f) Every person who has possession, custody, or control of, or otherwise deals with, any of the materials, matters, articles, or things described in this section, af­ter the service upon him of a summons and complaint in an action for injunction brought under this section, is chargeable with knowledge of the contents and charac­ter thereof.

(6) The several sheriffs and state attorneys shall vig­orously enforce this section within their respective juris­dictions.

(7) This section does not apply to the exhibition of motion pictures, shows, presentations, or other repre­sentations regulated under the provisions of s. 847.013.

Hiatory.-ss. 1, 2, 3, 4, 5, 6, 7, ch. 67 -153; ss. 1, 2, ch. 69-41; s. 1054, ch. 71-136; s. 171, ch. 71-355; s. 34, ch. 73-334; s. 1, ch. 83-77; s. 2, ch. 86-38; s. 3, ch. 86-238.

1Note.-This section as published incorporates amendments from s. 3, ch. 86-238; this section was also amended by s. 2, ch. 86-38, and, as amended by that act, would read:

847.012 Prohibition of sale or other distribution of harmful materials to per­sons under 18 years of age; penalty.-

(1) As used in this section: (a) ' Deviate sexual intercourse' means sexual conduct between persons not

married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

(b) 'Juvenile' means any person under the age of 18 years. (c) "Nudity" means the showing of the human male or female genitals, pubic area,

or buttocks with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state.

(d) "Sadomasochistic abuse' means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.

(e) "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, •sexual battery~ does not include an act done for a bona fide medi­cal purpose.

(f) "Sexual bestiality" means any sexual act between a person and an animal in­volving the sex organ of the one and the mouth, anus , or vagina of the other.

(g) "Sexual conduct" means actual or simulated sexual intercourse, deviate sexu­al intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual

1638

F.S. 1987 OBSCENE LITERATURE; PROFANITY Ch.847

lewd exhibition of the genitals; actual physical contact with a person's clothed or un· clothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed .

(h) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(i) "Simulated" means the explicit depiction of conduct set forth in paragraph (g) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

(j) "Harmful to juveniles" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, or sexual excitement when it:

1. Predominantly appeals to the prurient, shameful, or morbid interest of juve· niles;

2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles; and

3. Is, considered as a whole, without serious literary, artistic, political, or scientif· ic value for juveniles.

(k) "Knowingly" means having general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

1. The character and content of any material described herein which is reason-ably susceptible of examination by the defendant, and

2. The age of the juvenile; however, an honest mistake shall constitute an ex· cuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such juvenile.

(2) It is unlawful for any person knowingly to sell or loan for monetary consider· ation to a juvenile:

(a) Any picture, photograph, drawing , sculpture, motion-picture film, or similar visual representation or image of a person or portion of the human body which de· picts nudity or sexual conduct and which is harmful to juveniles, or

(b) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (a) or explicit and detailed verbal descriptions or narrative accounts of sexual excitement or sexual conduct and which, taken as a whole, is harmful to juveniles.

(3) Any person violating any provision 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.

(4) Every act, thing, or transaction forbidden by this section constitutes a sepa· rate offense and is punishable as such.

(5)(a) The circuit court has jurisdiction to enjoin a violation of this section upon complaint filed by the state attorney in the name of the state upon the relation of such state attorney.

(b) After the filing of such a complaint, the judge to whom it is presented may grant an order restraining the person complained of until final hearing or further order of the court. Whenever the relator state attorney requests a judge of such court to set a hearing upon an application for such a restraining order, such judge shall set such hearing for a time within 3 days after the making of such request. No such order shall be made unless such judge is satisfied that sufficient notice of the application therefor has been given to the party restrained of the time when and place where the application for such restraining order is to be made.

(c) The person sought to be enjoined shall be entitled to a trial of the issues with· in 1 day after joinder of issue, and a decision shall be rendered by the court within 2 days of the conclusion of the trial.

(d) In the event that a final decree of injunction is entered, it shall contain a provi· sion directing the defendant having the possession, custody, or control of the materi· als, matters, articles, or things affected by the injunction to surrender the same to the sheriff and requiring the sheriff to seize and destroy the same. The sheriff shall file a certificate of his compliance.

(e) In any action brought as provided in this section, no bond or undertaking shall be required of the state or the state attorney before the issuance of a restraining or· der provided for by paragraph (b), and there shall be no liability on the part of the state or the state attorney for costs or for damages sustained by reason of such re· straining order in any case where a final decree is rendered in favor of the person sought to be enjoined .

(f) Every person who has possession, custody, or control of, or otherwise deals wi th, any of the materials, matters, articles, or things described in this section , after the service upon him of a summons and complaint in an action for injunction brought under this section, is chargeable with knowledge of the contents and character thereof.

(6) The several sheriffs and state attorneys shall vigorously enforce this section within their respective jurisdictions.

(7) For the purposes of this section, the word "person" includes individuals, firms, associations, corporations, and all other groups and combinations.

(8) This section does not apply to the exhibition of motion pictures, shows, pre· sentations, or other representations regulated under the provisions of s. 847.013. cf.-s. 827 .071 Sexual performance by a child : penalties.

1847.0125 Retail display of materials harmful to mi­nors prohibited.-

(1) "KNOWINGLY" DEFINED.-As used in this sec­tion , "knowingly" means having general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

(a) The character and content of any material de­scribed herein which is reasonably susceptible of exami­nation by the defendant, and

(b) The age of the minor; however, an honest mis­take shall constitute an excuse from liability hereunder

if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

(2) OFFENSES AND PENAL TIES.-(a) It is unlawful for anyone offering for sale in a retail

establishment open to the general public any book, magazine, or other printed material, the cover of which depicts material which is harmful to minors, to knowingly exhibit such book, magazine, or material in such estab· lishment in such a way that it is on open display to, or within the convenient reach of, minors who may frequent the retail establishment. Such items shall, however, be displayed, either individually or collectively, behind an opaque covering which conceals the book, magazine, or other printed material.

(b) It is unlawful for anyone offering for sale in a retail establishment open to the general public any book, magazine, or other printed material, the content of which exploits, is devoted to, or is principally made up of de· scriptions or depictions of material which is harmful to minors, to knowingly exhibit such book, magazine, or material in such establishment in such a way that it is within the convenient reach of minors who may frequent the retail establishment.

(c) A violation of any provision of this section consti­tutes a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 1, ch. 78-273; s. 1, ch . 79-96: s. 2, ch. 83-77; s. 3, ch. 86-38: s. 4, ch. 86-238.

1Note.-This section as published incorporates amendments from s. 4, ch. 86-238; this section was also amended by s. 3, ch . 86-38, and , as amended by that act, would read:

847.0125 Retail display of material• harmful to minors prohlblted.­(1) DEFINITIONS.-As used in this section: (a) "Deviate sexual intercourse~ means sexual conduct between persons not

married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

(b) "Minor" means any person under the age of 18 years. (c) "Nudity" means the showing of the human male or female genitals, pubic area,

or buttocks with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state.

(d) "Sadomasochistic abuse" means flagellation or torture by or upon a person, or the condition of being fettered, bound , or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself .

(e) "Sexual battery" means oral , anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, "sexual battery" does not include an act done for a bona fide med1· cal purpose. . .

(f) "Sexual bestiality" means any sexual act between a person and an ammal1n· volving the sex organ of the one and the mouth, anus, or vagina of the other.

(g) "Sexual conduct" means actual or simulated sexual intercourse, deviate sexu­al intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or un· clothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

(h) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(i) "Simulated" means the explicit depiction of any of the conduct set forth in paragraph (g) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals , or buttocks.

(j) "Harmful to minors" means that quality of any description, exhibition, presen· tation, or representation, in whatever form, of nudity, sexual conduct, or sexual ex­citement when it:

1. Predominantly appeals to the prurient, shameful, or morbid interest of minors; 2. Is patently offensive to prevailing standards in the adult commumty as a

whole with respect to what is suitable material for minors: and 3. Is without serious literary, artistic, political, or scientific value for minors. (k) "Knowingly" means having general knowledge of, reason to know, or a belief

or ground for belief which warrants further inspection or inquiry of both: 1. The character and content of any material described herein which is reason·

ably susceptible of examination by the defendant, and 2. The age of the minor: however, an honest mistake shall constitute an excuse

from liability hereunder if the defendant made a reasonable bona fide attempt to as· certain the true age of such minor.

(2) OFFENSES AND PENALTIES.-(a) It is unlawful for anyone offering for sale in a retail establishment open to the

general public any book, magazine, or other pnnted matenal , the cover of wh1ch de· picts nudity which is harmful to minors, to knowingly _exhibit such book, magazine, or material in such establishment in such a way that 11 IS on open d1splay to, or w1th1n

1639

Ch.847 OBSCENE LITERATURE; PROFANITY F.S. 1987

the convenient reach of, minors who may frequent the retail establishment. Such 1tems may, however, be displayed behind an opaque covering which conceals the nud1ty, prov1ded such ttems are not within the convenient reach of minors who may frequent the retail establishment.

(b) It is unlawful for anyone offering for sale in a retail establishment open to the general public any book, magazine, or other printed material, the content of which explOits, IS devoted to, or is principally made up of descriptions or depictions of nudi· ty wh1ch are harmful to minors, to knowingly exhibit such book, magazine, or material 1n such establishment 1n such a way that it is within the convenient reach of minors who may frequent the retail establishment. . (c) A violation of any provision of this section constitutes a misdemeanor of the

first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

1847.013 Exposing minors to harmful motion pic­tures, exhibitions, shows, presentations, or represen­tations.-

(1) "KNOWINGLY" DEFINED.-As used in this sec­tion "knowingly" means having general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

(a) The character and content of any motion picture described herein which is reasonably susceptible of ex­amination by the defendant, or the character of any exhi­bitiOn, presentat;on, representation, or show described herein, other than a motion-picture show, which is rea­sonably susceptible of being ascertained by the defend­ant, and

(b) The age of the minor; however, an honest mis­take shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

(2) OFFENSES AND PENALTIES.-(a) It is unlawful for any person knowingly to exhibit

for a monetary consideration to a minor or knowingly sell to a m1nor an admission ticket or pass or knowingly ad­m;t a m1nor for a monetary consideration to premises whereon there is exhibited a motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts nudity, sexual conduct, sexual excitement, or sadomasochistic abuse and which is harmful to minors.

(b) The provisions of paragraph (a) do not apply to a m;nor when he IS accompanied by his parents or either of them.

(c) It is unlawful for any minor to falsely represent to the owner of any premises mentioned in paragraph (a), or to h1s agent, that such minor is 17 years of age or older, w1th the 1ntent to procure such minor's admission to such premises for a monetary consideration.

(d) It is unlawful for any person to knowingly make a false representation to the owner of any premises mentioned in paragraph (a), or to his agent, that he is the parent of any minor or that any minor is 17 years of age or older, w1th 1ntent to procure such minor's admission to such premises or to aid such minor in procuring ad­miSSion thereto for a monetary consideration.

(e) A violation of any provision of this 2subsection constitutes a misdemeanor of the first degree, punish­able as provided in s. 775.082 or s. 775.083.

(3) INJUNCTIVE PROCEEDINGS.-(a) The circuit court has jurisdiction to enjoin a

threatened violation of subsection (2) upon complaint f1led by the state attorney in the name of the state upon the relation of such state attorney.

(b) After the filing of such a complaint, the judge to whom 1t IS presented may grant an order restraining the

person or persons complained of until final hearing or further order of the court. Whenever the relator requests a JUdge of such court to set a hearing upon an applica­tion for such a restraining order, such judge shall set such hearing for a time within 3 days after the making of such request. No such order shall be made unless such judge is satisfied that sufficient notice of the appli­cation therefor has been given to the person or persons restrained of the time when and place where the appli­cation for such restraining order is to be heard. Howev­er, such notice shall be dispensed with when it is mani­fest to such judge, from the allegations of a sworn com­plaint or independent affidavit, sworn to by the relator or by some person associated with him in the field of law enforcement and filed by the relator, that the appre­hended violation will be committed if an immediate rem­edy is not afforded.

(c) The person or persons sought to be enjoined shall be entitled to a trial of the issues within 1 day after JOinder of 1ssue, and a decision shall be rendered by the court w1th1n 2 days after the conclusion of the trial.

(d) In any action brought as provided in this section, no bond or undertaking shall be required of the state or the relator state attorney before the issuance of a re­straining order provided for by this section, and there shall be no liability on the part of the state or the relator state attorney for costs or damages sustained by reason of such restraining order in any case in which a final de­cree is rendered in favor of the person or persons sought to be enjoined.

(e) Every person who has possession, custody, or control_ of, or otherwise deals with, any motion picture, exh;b;t;on, show, representation, or presentation de­scribed in this section, after the service upon him of a summons and complaint in an action for injunction brought under this section , is chargeable with knowl­edge of the contents or character thereof.

(4) . LEGISLATIVE INTENT.-In order to make the ap­pl;cat;on and enforcement of this section uniform throughout the state, it is the intent of the Legislature to preempt the field, to the exclusion of counties and mu­nicipalities, insofar as it concerns exposing persons un­der 17 years of age to harmful motion pictures, exhibi­tions, shows, representations, and presentations. To that end, it is hereby declared that every county ordi­nance and every municipal ordinance adopted prior to July 1, 1969, and relating to such subject shall stand ab­rogated and unenforceable on and after such date and that no county, municipality, or consolidated county­municipal government shall have the power to adopt any ordinance relating to that subject on or after such effec­tive date.

History.-ss. 1, 2, 3, 4, ch. 69-10; s. 1055, ch. 71-136; s. 34, ch . 73-334; s. 3, ch. 83-77; s. 4, ch. 86-38; s. 5, ch . 86-238.

1 Not~.-Th~s section as published incorporates amendments from s. 5, ch. 86-238; th1s sect1on was also amended by s. 4, ch. 86-38, and, as amended by that act -~re~ '

847.013 Exposing minors to harmful motion pictures, exhibitions, shows presentations, or representations.- '

(1) DEFINITIONS.-As used in this section : (a~ woeviate sexual inte~c~urse" means sexual conduct between persons not

marned to each other cons1sbng of contact between the penis and the anus the mouth and the penis, or the mouth and the vulva. '

(b) "Minor" means any person under the age of 18 years. (c) "Nudity" means the showing of the human male or female genitals, pubic area,

or buttocks w1th less than a fully opaque covering; the showing of the female breast w1th less than a fully opaque covering of any portion thereof below the top of the n1pple; or the dep1c11on of covered male genitals in a discernibly turgid state.

1640

F.S. 1987 OBSCENE LITERATURE; PROFANITY Ch.847

(d) "Sadomasochistic abuse" means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.

(e) "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

(f) "Sexual bestiality" means any sexual act between a person and an animal in­volving the sex organ of the one and the mouth , anus, or vagina of the other.

(g) "Sexual conduct" means actual or simulated sexual intercourse, deviate sexu­al intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or un­clothed genitals, pubic area, buttocks, or, if such person is a female, breast or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

(h) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(i) "Simulated" means the explicit depiction of any of the conduct set forth in paragraph (g) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

(j) "Harmful to minors~ means that quality of any description, exhibition. presen· tation, or representation, in whatever form, of nudity, sexual conduct, or sexual ex· citement when it:

1. Predominantly appeals to the prurient , shameful, or morbid interest of minors; 2. Is patently offensive to prevailing standards in the adult community as a

whole with respect to what is suitable for minors; and 3. Is without serious literary, artistic, political, or scientific value for minors. (k) "Knowingly" means having general knowledge of, reason to know, or a belief

or ground for belief which warrants further inspection or inquiry of both: 1. The character and content of any motion picture described herein which is

reasonably susceptible of examination by the defendant or the character of any exhi­bition, presentation , representation, or show described herein, other than a motion­picture show, which is reasonably susceptible of being ascertained by the defend­ant, and

2. The age of the minor; however, an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to as­certain the true age of such minor.

(2) OFFENSES AND PENALTIES.-(a) It is unlawful for any person knowingly to exhibit for a monetary consideration

to a minor or knowingly sell to a minor an admission ticket or pass or knowingly admit a minor for a monetary consideration to premises whereon there is exhibited a mo­tion picture, exhibition , show, representation , or other presentation which , in whole or in part, depicts nudi.ty, sexual conduct, or sexual excitement and which is harmful to minors.

(b) The provisions of paragraph (a) do not apply to a minor when he is accompa­nied by his parents or either of them.

(c) It is unlawful for any minor to falsely represent to the owner of any premises mentioned in paragraph (a), or to his agent, that such minor is 17 years of age or older, with the intent to procure such minor's admission to such premises for a mone­tary consideration .

(d) It is unlawful for any person to knowingly make a false representation to the owner of any premises mentioned in paragraph (a), or to his agent, that he is the parent of any minor or that any minor is 17 years of age or older, with intent to procure such minor's admission to such premises or to aid such minor in procuring admission thereto for a monetary consideration.

(e) A violation of any provision of this section constitu tes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) INJUNCTIVE PROCEEOINGS.-(a) The circuit court has jurisdiction to enjoin a threatened violation of subsection

(2) upon complaint filed by the state attorney in the name of the state upon the rela­tion of such state attorney.

(b) After the filing of such a complaint, the judge to whom it is presented may grant an order restraining the person or persons complained of until final hearing or further order of the court. Whenever the relator requests a judge of such court to set a hearing upon an application for such a restraining order, such judge shall set such hearing for a time within 3 days after the making of such request . No such order shall be made unless such judge is satisfied that sufficient notice of the application therefor has been given to the person or persons restrained of the time when and place where the application for such restraining order is to be heard. However, such notice shall be dispensed with when it is manifest to such judge, from the allegations of a sworn complaint or independent affidavit sworn to by the relator or by some per­son associated with him in the field of law enforcement and filed by the relator, that the apprehended violation will be committed if an immediate remedy is not afforded .

(c) The person or persons sought to be enjoined shall be entitled to a trial of the issues within 1 day after joinder of issue, and a decision shall be rendered by the court within 2 days after the conclusion of the trial.

(d) In any action brought as provided in this section, no bond or undertaking shall be required of the state or the relator state attorney before the issuance of a restrain­ing order provided for by this section, and there shall be no liability on the part of the state or the relator state attorney for costs or damages sustained by reason of such restraining order in any case in which a final decree is rendered in favor of the person or persons sought to be enjoined .

(e) Every person who has possession, custody, or control of , or otherwise deals with, any motion picture, exhibition, show, representation, or presentation described in this section, after the service upon him of a summons and complaint in an action for injunction brought under this section, is chargeable with knowledge of the con­tents or character thereof.

(4) LEGISLATIVE INTENT.-In order to make the application and enforcement of this section uniform throughout the state, it is the intent of the Legislature to pre· empt the field , to the exclusion of counties and municipalities, insofar as it concerns exposing persons under 17 years of age to harmful motion pictures, exhibitions, shows, representations, and presentations. To that end, it is hereby declared that

every county ordinance and every municipal ordinance adopted prior to July 1, 1969, and relating to such subject shall stand abrogated and unenforceable on and after such date and that no county, municipality, or consolidated county-municipal gov­ernment shall have the power to adopt any ordinance relating to that subject on or after such effective date.

•Note.- The word "subsection" was substituted by the editors for the word "sec­tion: cf.-s. 827.071 Sexual performance by a child; penalties.

847.0135 Computer pornography; penalties.-(1) SHORT TITLE.-This section shall be known and

may be cited as the "Computer Pornography and Child Exploitation Prevention Act of 1986."

(2) COMPUTER PORNOGRAPHY .-A person is guilty of a violation of this section if he knowingly com­piles, enters into, or transmits by means of computer, or makes, prints, publishes, or reproduces by other com· puterized means, or knowingly causes or allows to be entered into or transmitted by means of computer, or buys, sells, receives, exchanges, or disseminates any notice, statement, or advertisement, or any minor's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying infor­mation, for purposes of facilitating , encouraging, offer­ing, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct.

(3) PENAL TIES.-Any person who violates the pro­visions of this section is guilty of a misdemeanor of the first degree, punishable as provided for ins . 775.082, s. 775.083, or s . 775.084.

Hlstory.-s. 1 t , ch. 86-238.

847.02 Confiscation of obscene materiai.-When­ever anyone is convicted under s. 847.011, the court in awarding sentence shall make an order confiscating said obscene material and authorize the sheriff of the county in which the material is held to destroy the same. The sheriff shall file with the court a certificate of his compliance.

History.-s. 2, ch . 7359, 1917; RGS 5439; CGL 7582; s. 6, ch. 86-238.

847.03 Officer to seize obscene materiai.-When­ever any officer arrests any person charged with any of­fense under s. 847.011 , he shall seize said obscene ma­terial and take the same into his custody to await the sentence of the court upon the trial of the offender.

History.-s. 3, ch. 7359, 1917; RGS 5440; CGL 7583; s. 7, ch. 86-238.

847.06 Obscene matter; transportation into state prohibited; penalty.-

( 1) Whoever knowingly transports into the state or within the state for the purpose of sale or distribution any obscene book; magazine; periodical; pamphlet ; newspaper; comic book; story; paper; written or printed story or article; writing; paper; card; picture; drawing; photograph; motion-picture film ; figure ; image; phono­graph record , or wire or tape or other recording, or other article capable of producing sound; or any other matter of obscene character shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) When any person is convicted of a violation of this section, the court in its judgment of conviction may, in addition to the penalty prescribed, order the confisca­tion and disposal of such items described herein which were found in the possession or under the immediate

1641

Ch.847 OBSCENE LITERATURE; PROFANITY F.S. 1987

control of such person at the time of his arrest. History.-s. 1, ch . 29849, 1955; s. 1058, ch. 71-136; s. 1, ch. 79-134; s. 8, ch.

86-238.

847.07 Wholesale promotion of obscene materials; penalties.-

(1) As used in this section, "wholesale promote" means to manufacture, issue, sell, provide, deliver, transfer, transmit, publish, distribute, circulate, or dis­seminate, or offer or agree to do the same, with or with­out consideration, for purposes of resale or redistribu­tion.

(2) Any person who knowingly wholesale promotes any obscene matter or performance, or in any manner knowingly hires, employs, uses, or permits any person to wholesale promote or assist in wholesale promoting any obscene matter or performance, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) No person shall, as a condition to sale, allocation, consignment, or delivery for resale of any matter or per­formance , require that the purchaser or consignee re­ceive for resale any other matter or performance reason­ably believed by the purchaser or consignee to be ob­scene; and no person shall deny or revoke any franchise, or threaten to do so, or impose or threaten to impose any penalty, financial or otherwise, by reason of the refusal or failure of any person to accept any such matter or by reason of the return thereof. Whoever violates 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.

Hlstory.-s. 1, ch. 73-120; s. 4, ch. 83-77; s. 9, ch. 86-238.

847.08 Hearings for determination of probable cause.-Whenever an indictment, information, or affida­vit is filed under the provisions of ss. 847.07-847.09, the state attorney or his duly appointed assistant may apply to the court for the issuance of an order directing the de­fendant or his principal agent or bailee or other like per­son to produce the allegedly obscene materials at a time and place so designated by the court for the purpose of determining whether there is probable cause to believe said f11aterial is obscene. After hearing the parties on the issue, if the court determines probable cause exists, it may order the material held by the clerk of the court pending further order of the court. This section shall not be construed to prohibit the seizure of obscene materi­als by any other lawful means.

Hlatory.-s. 2, ch. 73-120; s. 10, ch. 86-238.

847.09 Legislative intent.-(1) In order to make the application and enforcement

of ss. 847.07-847.09 uniform throughout the state, it is the intent of the Legislature to preempt the field, to the exclusion of counties and municipalities, insofar as it concerns exposing persons over 17 years of age to harmful motion pictures, exhibitions, shows, representa­tions, and presentations. T 0 that end, it is hereby de-

clared that every county ordinance and every municipal ordinance adopted prior to July 1, 1973, and relating to said subject shall stand abrogated and unenforceable on and after such date and that no county, municipality, or consolidated county-municipal government shall have the power to adopt any ordinance relating to the subject on or after such effective date. If ss. 847.07-847.09 are declared to be illegal, unconstitutional, or oth­erwise unenforceable, any county or municipal ordi­nance abrogated before ss. 847 .07-847.09 were de­clared unconstitutional shall be in full force and effect, and each county, municipality, and consolidated coun­ty-municipal government shall have the power to adopt ordinances relating to this subject.

(2) Nothing in ss. 847.07-847.09 shall be construed to repeal or in any way supersede the provisions of s. 847.011 , s. 847.D12, or s. 847.D13.

(3) Nothing herein shall be construed to limit the free exercise of free speech or picketing by any organization, group, or individual for the purpose of upholding com­munity standards.

Hlatory.-ss. 3, 4, 6, ch. 73-120.

847.201 Obscene programming on cable television during promotional period unlawful; penalty; applica­bility.-

( 1) It is unlawful for any owner or operator of any ca­ble television service to provide on any basic cable channel during a promotional "free weekend" or other advertising period obscene programming or program­ming otherwise unprotected by the Constitution of the United States.

(2) Any person who violates the provisions of sub­section (1) is guilty of a misdemeanor of the first degree, punishable by a fine of up to $2,000.

(3) This section shall not apply to any owner or oper­ator of any cable television service who:

(a) Provides to its subscribers of basic cable chan­nels at least once annually, and to its new subscribers of basic cable channels at the time of subscription, at least 30 days' advance written notice that such afore­said programming may be shown, which notice shall in­clude the dates and times such programming may be shown; and

(b) Upon request of the subscribers of basic cable channels and during such promotional period, electroni­cally "locks out" the aforesaid programming from the ba­sic cable channels so that it is not received in the televi­sion receivers of such subscribers requesting not to re­ceive such programming, or makes available at no cost to the subscribers of basic cable channels parental con­trol devices, sometimes known as "lock boxes," which devices shall have the capability of "locking out" or deny­ing reception to the television receivers of such afore­said subscribers requesting same.

Hlstory.-s. 1, ch . 87-215.

1642

F.S. 1987

849.01 849.02

849.03 849.04

849.05 849.07

849.08 849.09 849.091

849.0915 849.092

849.093

849.0935

849.094

849.10 849.11 849.12 849.13 849.14

849.141

849.15

849.16

849.161

849.17

849.18 849.19 849.20

849.21 849.22 849.23 849.231

849.232

849.233 849.235

849.25

849.26

849.29

GAMBLING Ch. 849

CHAPTER 849

GAMBLING

Keeping gambling houses, etc. Agents or employees of keeper of gambling

house. Renting house for gambling purposes. Permitting minors and persons under guard­

ianship to gamble. Prima facie evidence. Permitting gambling on billiard or pool table

by holder of license. Gambling . Lottery prohibited ; exceptions. Chain letters, pyramid clubs, etc. , declared

a lottery; prohibited; penalties. Referral selling . Retail merchandising business; certain activ­

ities permitted. Charitable, nonprofit , or veterans' organiza­

tions; certain endeavors permitted . Charitable, nonprofit organizations ; draw­

ings by chance; required disclosures; un­lawful acts and practices; penalties.

Game promotion in connection with sale of consumer products or services.

Printing lottery tickets, etc ., prohibited . Plays at games of chance by lot. Money and prizes to be forfeited . Punishment on second conviction . Unlawful to bet on result of trial or contest of

skill , etc. Bowling tournaments exempted from chap­

ter. Manufacture , sale , possession, etc ., of

coin-operated devices prohibited . Machines or devices which come within pro­

visions of law defined. Amusement games or machines ; when

chapter inapplicable. Confiscation of machines by arresting offi-

cer. Disposition of machines upon conviction . Property rights in confiscated machine. Machines and devices declared nuisance;

place of operation subject to lien for fine. Injunction to restrain violation . Fees of clerk of circuit court and sheriff. Penalty for violations of ss. 849.15-849.22. Gambling devices; manufacture, sale, pur-

chase or possession unlawful. Property right in gambling devices; confisca­

tion . Penalty for violation of s. 849.231 . Possession of certain gambling devices; de­

fense. "Bookmaking" defined; penalties ; excep­

tions. Gambling contracts declared void; excep­

tion. Persons against whom suits may be brought

to recover on gambling contracts.

849.30

849.31

849.32 849.33

849.34

849.35 849.36

849.37

849.38

849.39 849.40 849.41 849.42 849.43 849.44 849.45 849.46

Plaintiff entitled to writs of attachment, gar­nishment and replevin .

Loser's testimony not to be used against him.

Notice to state attorney; prosecution of suit. Judgment and collection of money; execu­

tion . Loser's judgment; recovery of property; writ

of assistance. Definitions. Seizure and forfeiture of property used in the

violation of lottery and gambling statutes. Disposition and appraisal of property seized

under this chapter. Proceedings for forfeiture; notice of seizure

and order to show cause. Delivery of property to claimant. Proceeding when no claim filed . Proceeding when claim filed . State attorney to represent state. Judgment of forfeiture. Disposition of proceeds of forfeiture . Fees for services. Exercise of police power.

849.01 Keeping gambling houses, etc.-Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming ta­ble or room , or gaming implements or apparatus, or house, booth, tent , shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or manage­ment, either exclusively or with others, procures, suffers or permits any person to play for money or other valu­able thing at any game whatever, whether heretofore prohibited or not, 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. 1, ch . 3764, 1887; RS 2644; GS 3572; RGS 6499; CGL 7657 ; s. 1059, ch. 71- 136. cf.- s. 901 .19 Disposi tion of apparatus.

s. 933.02 Search warrants, implements and appliances.

849.02 Agents or employees of keeper of gambling house.-Whoever acts as servant, clerk , agent, or em­ployee of any person in the violation of s. 849.01 shall be punished in the manner and to the extent therein men­tioned .

Hletory.-s. 2, ch. 3764, 1887; RS 2645; GS 3573; RGS 5500; CGL 7658.

849.03 Renting house for gambling purposes.­Whoever, whether as owner or agent, knowingly rents to another a house, room, booth, tent, shelter or place for the purpose of gaming shall be punished in the man­ner and to the extent mentioned in s. 849.01 .

Hlstory.- s. 3, ch. 3764, 1887; RS 2646; GS 3574; RGS 5501 ; CGL 7659.

849.04 Permitting minors and persons under guardianship to gamble.-Whoever being the propri­etor, owner or keeper of any E. 0 ., keno or pool table, or billiard table , wheel of fortune , or other game of

1643

Ch.849 GAMBLING F.S. 1987

chance, kept for the purpose of bett ing , willfully and knowingly allows any minor or person non compos men­tis or under guardianship to play at such game or to bet on such game of chance or whoever aids or abets or oth­erwise encourages such playing or betting of any money or other valuable thing upon the result of such game of chance by any minor, person non compos mentis or un­der guardianship shall be guilty of a felony of third de­gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 3145, 1879; RS 2647; s. 9, ch. 4322, 1895; GS 3575; RGS 5502; CGL 7660; s. 1060, ch. 71-136. ct.- s. 1.01 Definition of 'minor.'

849.05 Prima facie evidence.-lf any of the imple­ments, devices or apparatus commonly used in games of chance in gambling houses or by gamblers, are found in any house, room , booth , shelter or other place it shall be prima facie evidence that the said house, room , booth , shelter or other place where the same are found is kept for the purpose of gambling.

History.-s. 4, ch. 3764, 1887; RS 2648; GS 3576; RGS 5503; CGL 7661; s. 243, ch. 77-104. ct. - s. 901.19 Seizure of gambling instruments.

849.07 Permitting gambling on billiard or pool table by holder of license.-lf any holder of a license to oper­ate a billiard or pool table shall permit any person to play billiards or pool or any other game for money, or any oth­er thing of value, upon such tables, he shall be deemed guilty of a misdemeanor of the second degree, punish­able as provided in s. 775.082 or s. 775.083.

History.-s. 14, ch. 6421 , 1913; RGS 5505; CGL 7663; s. 1062, ch. 71-136.

849.08 Gambling.-Whoever plays or engages in any game at cards, keno, roulette , faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be guilty of a misdemeanor of the second degree , punishable as provided in s. 775.082 or s. 775.083.

History.-RS 2651 ; s. 1, ch. 4514, 1895; GS 3579; RGS 5508; CGL 7666; s. 1063, ch. 71-136. ct.- s. 901.1 9 Seizure of gambling implements.

849.09 Lottery prohibited; exceptions.-(1) It is unlawful for any person in this state to: {a) Set up, promote, or conduct any lottery for mon­

ey or for anything of value; (b) Dispose of any money or other property of any

kind whatsoever by means of any lottery; (c) Conduct any lottery drawing for the distribution

of a prize or prizes by lot or chance, or advertise any such lottery scheme or device in any newspaper or by circulars, posters , pamphlets , radio , telegraph , tele­phone, or otherwise;

(d) Aid or assist in the setting up, promoting , or con­ducting of any lottery or lottery drawing , whether by writ­ing , printing , or in any other manner whatsoever, or be interested in or connected in any way with any lottery or lottery drawing;

(e) Attempt to operate, conduct , or advertise any lottery scheme or device;

(f) Have in his possession any lottery wheel , imple­ment, or device whatsoever for conducting any lottery or scheme for the disposal by lot or chance of anything of value;

(g) Sell, offer for sale, or transmit , in person or by mail or in any other manner whatsoever, any lottery tick­et , coupon, or share, or any share in or fractional part of any lottery ticket , coupon, or share, whether such ticket, coupon , or share represents an interest in a live lottery not yet played or whether it represents, or has repre­sented , an interest in a lottery that has already been played ;

(h) Have in his possession any lottery ticket , or any evidence of any share or right in any lottery ticket, or in any lottery scheme or device, whether such ticket or evi­dence of share or right represents an interest in a live lottery not yet played or whether it represents, or has represented , an interest in a lottery that has already been played ;

(i) Aid or assist in the sale, disposal , or procurement of any lottery ticket , coupon , or share, or any right to any drawing in a lottery; or

(j) Have in his possession any lottery advertise-ment, circular, poster, or pamphlet, or any list or sched­ule of any lottery prizes, gifts , or drawings.

(k) Have in his possession any so-called "run down sheets ," tally sheets, or other papers, records , instru­ments, or paraphernalia designed for use, either directly or indirectly, in , or in connection with , the violation of the laws of this state prohibiting lotteries and gambling.

Provided , that nothing in this section shall prohibit par­ticipation in any nationally advertised contest, drawing, game or puzzle of skill or chance for a prize or prizes un­less it can be construed as a lottery under this section ; and, provided further, that this exemption for national contests shall not apply to any such contest based upon the outcome or results of any horse race, harness race, dog race, or jai alai game.

(2) Any person who is convicted of violating any of the provisions of paragraph (a) , paragraph (b) , para­graph (c) , or paragraph (d) of subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Any person who is convicted of violating any of the provisions of paragraph (e) , paragraph (f) , paragraph (g) , paragraph (i) , or paragraph (k) of subsection (1) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who, having been convicted of violating any provision thereof, thereafter violates any provision thereof is guilty of a fel­ony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The provisions of this section do not apply to bingo or guest games as provid­ed for in s. 849.093

(4) Any person who is convicted of violating any of the provisions of paragraph (h) or paragraph U) of sub­section (1) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who, having been convicted of violating any pro­vision thereof , thereafter violates any provision thereof is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 4373, 1895; GS 3582; RGS 5509; CGL 7667 ; s. 1, ch. 26765, 1951 ; s. 1, ch. 67-72; s. 1, ch. 67-435; ss. 1, 2, ch . 69-91 ; s. 1064, ch . 71 - 136; s. 168, ch. 83-216.

1644

F.S. 1987 GAMBLING Ch.849

849.091 Chain letters, pyramid clubs, etc., de­clared a lottery; prohibited; penalties.-The organiza­tion of any chain letter club, pyramid club, or other group organized or brought together under any plan or device whereby fees or dues or anything of material value to be paid or given by members thereof are to be paid or given to any other member thereof, which plan or device in­cludes any provision for the increase in such member­ship through a chain process of new members securing other new members and thereby advancing themselves in the group to a position where such members in turn receive fees, dues or things of material value from other members, is hereby declared to be a lottery, and whoev­er shall participate in any such lottery by becoming a member of, or affiliating with, any such group or organi­zation or who shall solicit any person for membership or affiliation in any such group or organization shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 25096, 1949; s. 1065, ch. 71-136.

849.0915 Referral selling.-(1) Referral selling, whereby the seller gives or offers

a rebate or discount to the buyer as an inducement for a sale in consideration of the buyer's providing the seller with the names of prospective purchasers, is declared to be a lottery if earning the rebate or discount is contin­gent upon the occurrence of an event subsequent to the time the buyer agrees to buy.

(2) Any person conducting a lottery by referral sell­ing is guilty of a misdemeanor of the first degree, punish­able as provided in s. 775.082 or s. 775.083.

(3) In addition to the penalty provided herein, the At­torney General and his assistants, the state attorneys and their assistants, and the Division of Consumer Ser­vices of the Department of Agriculture and Consumer Services are authorized to apply to the circuit court with­in their respective jurisdictions, and such court shall have jurisdiction , upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating the provisions of this section, whether or not there exists an adequate remedy at law, and such injunction shall issue without bond.

History.-s. 1, ch. 72-110; s. 34. ch. 73-334.

849.092 Retail merchandising business; certain activities permitted.-The provisions of s. 849.09 shall not be construed to prohibit or prevent persons who are licensed to conduct business under s. 206.404, from giv­ing away prizes to persons selected by lot, if such prizes are made on the following conditions:

(1) Such gifts are conducted as advertising and pro­motional undertakings, in good faith, solely for the pur­pose of advertising the goods, wares, merchandise and business of such licensee; and

(2) The principal business of such licensee is the business permitted to be licensed under s. 206.404; and

(3) No person to be eligible to receive such gift shall ever be required to:

(a) Pay any tangible consideration to such licensee in the form of money or other property or thing of value, or

(b) Purchase any goods, wares, merchandise or anything of value from such licensee.

(4) The person selected to receive any such gift or prize offered by any such licensee in connection with any such advertising or promotion is notified of his selec­tion at his last known address. Newspapers, magazines, television and radio stations may, without violating any law, publish and broadcast advertising matter describ­ing such advertising and promotional undertakings of such licensees which may contain instructions pursuant to which persons desiring to become eligible for such gifts or prizes may make their name and address known to such licensee.

(5) All brochures, advertisements, promotional ma­terial, and entry blanks promoting such undertakings shall contain a clause stating that residents of Florida are entitled to participate in such undertakings and are eligible to win gifts or prizes .

History.-s. 1, ch. 63-553; s. 1, ch . 65-261 ; s. 1, ch. 71-287; s. 244, ch. 77-104.

849.093 Charitable, nonprofit, or veterans' organi­zations; certain endeavors permitted.-

(1) As used in this section: (a) "Bingo game" means and refers to the activity,

commonly known as "bingo," in which participants pay a sum of money for the use of one or more bingo cards. When the game commences, numbers are drawn by chance, one by one, and announced. The players cover or mark those numbers on the bingo cards which they have purchased until a player receives a given order of numbers in sequence that has been preannounced for that particular game. This player calls out "bingo" and is declared the winner of a predetermined prize. More than one game may be played upon a bingo card, and num­bers called for one game may be used for a succeeding game or games.

(b) "Bingo card" means and refers to the flat piece of paper or thin pasteboard employed by players en­gaged in the game of bingo. The bingo card shall have not fewer than 24 playing numbers printed on it. These playing numbers shall range from 1 through 75, inclu­sive. More than one set of bingo numbers may be print­ed on any single piece of paper.

(c) "Charitable, nonprofit, or veterans' organization" means an organization which has qualified for exemp­tion from federal income tax as an exempt organization under the provisions of s. 501 (c) of the Internal Revenue Code of 1954; which is engaged in charitable, civic, community, benevolent, religious, or scholastic works or other similar activities; and which has been in existence and active for a period of 3 years or more.

(d) "Objects" means a set of 75 balls or other preci­sion shapes that are imprinted with letters and numbers in such a way that numbers 1 through 15 are marked with the letter "B," numbers 16 through 30 are marked with the letter "1," numbers 31 through 45 are marked with the letter "N," numbers 46 through 60 are marked with the letter "G," and numbers 61 through 75 are marked with the letter "0."

(e) "Rack" means the container in which the objects are placed after being drawn and announced.

(f) "Receptacle" means the container from which the objects are drawn or ejected.

(g) "Session" means a designated set of games played in a day or part of a day.

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Ch.849 GAMBLING F.S. 1987

(2)(a) None of the provisions of this chapter shall be construed to prohibit or prevent charitable, nonprofit, or veterans' organizations engaged in charitable, civic, community, benevolent, religious, or scholastic works or other similar endeavors, which organizations have been in existence and active for a period of 3 years or more, from conducting bingo games, provided the entire pro­ceeds derived from the conduct of such games, less ac­tual business expenses for articles designed for and es­sential to the operation, conduct , and playing of bingo, are donated by such organizations to the endeavors mentioned above. In no case may the net proceeds from the conduct of such games be used for any other pur­pose whatsoever. The proceeds derived from the con­duct of bingo games shall not be considered solicitation of public donations.

(b) It is the express intent of the Legislature that no charitable, nonprofit, or veterans ' organization serve as a sponsor of a bingo game conducted by another, but such organization may only be directly involved in the conduct of such a game as provided in this act.

(3) If an organization is not engaged in efforts of the type set out above, its right to conduct bingo games hereunder is conditioned upon the return of all the pro­ceeds from such games to the players in the form of prizes. If at the conclusion of play on any day during which a bingo game is allowed to be played under this section there remain proceeds which have not been paid out as prizes, the organization conducting the game shall at the next scheduled day of play conduct bingo games without any charge to the players and shall continue to do so until the proceeds carried over from the previous days played have been exhausted. This provision in no way extends the limitation on the number of prize or jackpot games allowed in 1 day as provided for in subsection (5).

(4) The number of days per week during which orga­nizations authorized hereunder may conduct bingo games may not exceed 2.

(5) No jackpot shall exceed the value of $250 in actu­al money or its equivalent, and there shall be no more than three jackpots in any one session of bingo.

(6) There shall be no more than three jackpots on any one day of play. All other game prizes shall not ex­ceed $50.

(7) Each person involved in the conduct of any bingo game must be a resident of the community where the organization is located and a bona fide member of the organization sponsoring such game and may not be compensated in any way for operation of such bingo game. When bingo games are conducted by a charita­ble, nonprofit, or veterans ' organization, the organiza­tion conducting the bingo games shall be required to designate up to three members of that organization to be in charge of the games, one of whom shall be present during the entire session at which the bingo games are conducted. The organization conducting the bingo games is responsible for posting a notice, which notice states the name of the organization and the designated member or members, in a conspicuous place on the premises at which the session is held. In no event may a caller in a bingo game be a participant in that bingo game.

(8) Every charitable, nonprofit , or veterans' organi­zation involved in the conduct of a bingo game must be located in the county, or within a 15-mile radius of, where the bingo game is located.

(9)(a) No one under 18 years of age shall be allowed to play any bingo game or be involved in the conduct of a bingo game in any way.

(b) Any organization conducting bingo open to the public may refuse entry to any person who is objection­able or undesirable to the sponsoring organization, but such refusal of entry shall not be on the basis of race, creed, color, religion, sex, national origin, marital status, or physical handicap.

(10) Bingo games may be held only on the following premises:

(a) Property owned by the charitable, nonprofit, or veterans ' organization :

(b) Property owned by the charitable, nonprofit , or veterans' organization that will benefit by the proceeds;

(c) Property leased for a period of not less than 1 year by a charitable, nonprofit , or veterans' organization, providing the lease or rental agreement does not pro­vide for the payment of a percentage of the proceeds generated at such premises to the lessor or any other party and providing the rental rate for such premises does not exceed the rental rates charged for similar premises in the same locale;

(d) Property owned by and leased from another charitable, nonprofit, or veterans' organization as de­fined in this section ; or

(e) Property owned by a municipality or a county when the governing authority has, by appropriate ordi­nance or resolution , specifically authorized the use of such property for the conduct of such games.

(11) Each bingo game shall be conducted in accord­ance with the following rules :

(a) The objects, whether drawn or ejected, shall be essentially equal as to size, shape, weight, and balance and as to all other characteristics that may control their selection from the receptacle. The caller shall cancel any game if, during the course of a game, the mechanism used in the drawing or ejection of objects becomes jammed in such a manner as to interfere with the accu­rate determination of the next number to be announced or if the caller determines that more than one object is labeled with the same number or that there is a number to be drawn without a corresponding object. Any player in a game canceled pursuant to this paragraph shall be permitted to play the next game free of charge.

(b) Prior to commencement of any bingo session, the member in charge shall cause a verification to be made of all objects to be placed in the receptacle and shall inspect the objects in the presence of a disinterest­ed person to ensure that all objects are present and that there are no duplications or omissions of numbers on the objects. Any player shall be entitled to call for a verifica­tion of numbers before, during, and after a session .

(c) The card or sheet on which the game is played shall be part of a deck, group, or series, no two of which may be alike in any given game.

(d) All numbers shall be visibly displayed after being drawn and before being placed in the rack.

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F.S. 1987 GAMBLING Ch.849

(e) A bona fide bingo shall consist of a predesig­nated arrangement of numbers on a card or sheet that correspond with the numbers on the objects drawn from the receptacle and announced. Errors in numbers an­nounced or misplaced in the rack may not be recog­nized as a bingo.

(f) When a caller has started to vocally announce a number, he shall complete the call. If any player has ob­tained a bingo on a previous number, such player will share the prize with the player who gained bingo on the last number called.

(g) Numbers on the winning cards or sheets shall be announced and verified in the presence of another play­er. Any player shall be entitled at the time the winner is determined to call for a verification of numbers drawn. The verification shall be in the presence of the member designated to be in charge of the occasion or, if such person is also the caller, in the presence of an officer of the licensee.

(h) Upon determining a winner, the caller shall ask, "Are there any other winners?" If no one replies, the caller shall declare the game closed. No other player is entitled to share the prize unless he has declared a bingo prior to this announcement.

(i) Seats may not be held or reserved by an organi­zation or person involved in the conduct of any bingo game for players not present, nor may any cards be set aside, held , or reserved from one session to another for any player.

(12) Any organization or other person who willfully and knowingly violates any provision of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. For a second or subsequent offense, the organization or other person is guilty of a felony of the third degree, punishable as pro­vided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 67-178; s. 1, ch. 73-229; s. 69, ch. 77-121; s. 1, ch. 78-21; s. 1, ch. 79-318; s. 489, ch. 81-259; s. 1, ch. 83-309; ss. 1, 4, ch. 84-247 ; s. 1, ch. 86-57 ; s. 1, ch. 87-255.

849.0935 Charitable, nonprofit organizations; drawings by chance; required disclosures; unlawful acts and practices; penalties.-

(1) As used in this section, the term: (a) "Drawing by chance" or "drawing" means an en­

terprise in which , from the entries submitted by the pub­lic to the operator of the drawing, one or more entries are selected by chance to win a prize. The term "drawing" does not include those enterprises, commonly known as "matching ," "instant winner," or "preselected sweep­stakes," which involve the distribution of winning num­bers, previously designated as such, to the public.

(b) "Operator" means an organization qualified under 26 U.S.C. s. 501(c)(3), and its agents, officers, or em­ployees, which promotes, operates, or conducts a draw­ing by chance.

(2) The provisions of s. 849.09 shall not be con­strued to prohibit an organization qualified under 26 U.S .C. s. 501(c)(3) from conducting drawings by chance, provided the operator has complied with all ap­plicable provisions of chapter 496.

(3) All brochures, advertisements, notices, or entry blanks used in connection with a drawing by chance shall conspicuously disclose:

(a) The rules governing the conduct and operation of the drawing.

(b) The full name of the organization or operator, and its principal place of business.

(c) The source of the funds used to award cash prizes or to purchase prizes.

(4) It is unlawful for any operator who, pursuant to the authority granted by this section, promotes, oper­ates, or conducts a drawing by chance:

(a) To design , engage in , promote, or conduct any drawing in which the winner is predetermined by means of matching, instant win, or preselected sweepstakes or otherwise or in which the selection of the winners is in any way rigged;

(b) To require an entry fee, payment, proof of pur­chase, or contribution as a condition of entering the drawing or of being selected to win a prize;

(c) To arbitrarily remove, disqualify, disallow, or re­ject any entry or to discriminate in any manner between entrants who gave contributions to the operator and those who did not give such contributions;

(d) To fail to promptly notify, at the address set forth on the entry blank, any person , whose entry is selected to win, of the fact that he won ;

(e) To fail to award all prizes offered in the manner and at the time stated; and

(f) To print , publish , or circulate literature or adver­tising material used in connection with the drawing which is false , deceptive, or misleading .

(5) Any operator who engages in any act or practice in violation 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.- s. 1, ch. 84-181 .

849.094 Game promotion in connection with sale of consumer products or services.-

( 1) As used in this section, the term : (a) "Game promotion" means, but is not limited to , a

contest , game of chance, or gift enterprise, conducted within or throughout the state and other states in con­nection with the sale of consumer products or services, and in which the elements of chance and prize are pres­ent. However, "game promotion" shall not be construed to apply to bingo games or guest games conducted pur­suant to s. 849.093.

(b) "Operator" means any person , firm, corporation, or association or agent or employee thereof who pro­motes, operates, or conducts a game promotion, except any charitable nonprofit organization.

(2) It is unlawful for any operator: (a) To design, engage in, promote, or conduct such

a game promotion, in connection with the promotion or sale of consumer products or services, wherein the win­ner may be predetermined or the game may be manipu­lated or rigged so as to:

1. Allocate a winning game or any portion thereof to certain lessees, agents, or franchises ; or

2. Allocate a winning game or part thereof to a par­ticular period of the game promotion or to a particular geographic area;

(b) Arbitrarily to remove, disqualify, disallow, or re­ject any entry;

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Ch.849 GAMBLING F.S. 1987

(c) To fail to award prizes offered ; (d) To print, publish , or circulate literature or adver­

tising material used in connection with such game pro­motions which is false , deceptive, or misleading ; or

(e) To require an entry fee, payment, or proof of pur­chase as a condition of entering a game promotion.

(3) The operator of a game promotion in which the total announced value of the prizes offered is greater than $5,000 shall file with the Department of State a copy of the rules and regulations of the game promotion and a list of all prizes and prize categories offered at least 30 days before the commencement of the game promotion . Such rules and regulations may not thereaf­ter be changed , modified , or altered. The operator of a game promotion shall conspicuously post the rules and regulations of such game promotion in each and every retail outlet or place where such game promotion may be played or participated in by the public and shall also publish the rules and regulations in all advertising copy used in connection therewith . Radio and television an­nouncements may indicate that the rules and regula­tions are available at retail outlets or from the operator of the promotion . A nonrefundable filing fee of $100 shall accompany each filing and shall be deposited into the Division of Licensing Trust Fund to be used to pay the costs incurred in administering and enforcing the provi­sions of this section.

(4)(a) Every operator of such a game promotion in which the total announced value of the prizes offered is greater than $5,000 shall establish a trust account, in a national or state-chartered financial institution , with a balance sufficient to pay or purchase the total value of all prizes offered . On a form supplied by the Department of State, an official of the financial institution holding the trust account shall set forth the dollar amount of the trust account, the identity of the entity or individual es­tablishing the trust account, and the name of the game promotion for which the trust account has been estab­lished. Such form shall be filed with the Department of State at least 30 days in advance of the commencement of the game promotion . In lieu of establishing such trust account, the operator may obtain a surety bond in an amount equivalent to the total value of all prizes offered; and such bond shall be filed with the Department of State at least 30 days in advance of the commencement of the game promotion.

1 . The moneys held in the trust account may be withdrawn in order to pay the prizes offered only upon certification to the Department of State of the name of the winner or winners and the amount of the prize or prizes and the value thereof.

2. If the operator of a game promotion has obtained a surety bond in lieu of establishing a trust account, the amount of the surety bond shall equal at all times the to­tal amount of the prizes offered.

(b) The Department of State may waive the provi­sions of this subsection for any operator who has con­ducted game promotions in the state for not less than 5 consecutive years and who has not had any civil , crimi­nal, or administrative action instituted against him by the state or an agency of the state for violation of this sec­tion within that 5-year period . Such waiver may be re­voked upon the commission of a violation of this section

by such operator, as determined by the Department of State.

(5) Every operator of a game promotion in which the total announced value of the prizes offered is greater than $5,000 shall provide the Department of State with a certified list of the names and addresses of all per­sons, whether from this state or from another state, who have won prizes which have a value of more than $25, the value of such prizes, and the dates when the prizes were won within 60 days after such winners have been finally determined. The operator shall provide a copy of the list of winners, without charge, to any person who requests it. In lieu of the foregoing , the operator of a game promotion may, at his option , publish the same in­formation about the winners in a Florida newspaper of general circulation within 60 days after such winners have been determined and shall provide to the Depart­ment of State a certified copy of the publication contain­ing the information about the winners. The operator of a game promotion is not required to notify a winner by mail or by telephone when the winner is already in pos­session of a game card from which the winner himself can determine that he has won a designated prize. All winning entries shall be held by the operator for a period of 90 days after the close or completion of the game.

(6) The Department of State shall keep the certified list of winners for a period of at least 6 months after re­ceipt of the certified list. The department thereafter may dispose of all records and lists .

(7) No operator shall force, directly or indirectly, a lessee, agent, or franchise dealer to purchase or partici­pate in any game promotion. For the purpose of this sec­tion , coercion or force shall be presumed in these cir­cumstances in which a course of business extending over a period of 1 year or longer is materially changed coincident with a failure or refusal of a lessee, agent, or franchise dealer to participate in such game promotions. Such force or coercion shall further be presumed when an operator advertises generally that game promotions are available at its lessee dealers or agent dealers.

(8)(a) The Department of State shall have the power to promulgate such rules and regulations respecting the operation of game promotions as it may deem advisable.

(b) Whenever the Department of State or the De­partment of Legal Affairs has reason to believe that a game promotion is being operated in violation of this section , it may bring an action in the circuit court of any judicial circuit in which the game promotion is being op­erated in the name and on behalf of the people of the state against any operator thereof to enjoin the contin­ued operation of such game promotion anywhere within the state.

(9)(a) Any person , firm, or corporation, or associa­tion or agent or employee thereof, who engages in any acts or practices stated in this section to be unlawful , or who violates any of the rules and regulations made pursuant to this section , is guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083.

(b) Any person , firm , corporation , association, agent, or employee who violates any provision of this section or any of the rules and regulations made pursu­ant to this section shall be liable for a civil penalty of not

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F.S. 1987 GAMBLING Ch.849

more than $1,000 for each such violation, which shall ac­crue to the state and may be recovered in a civil action brought by the Department of State or the Department of Legal Affairs.

(1 0) This section does not apply to actions or transac­tions regulated by the Department of Business Regula­tion or to the activities of nonprofit organizations or to any other organization engaged in any enterprise other than the sale of consumer products or services.

History.-ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, ch. 71-304; s. 1, ch. 73-292; s. 1, ch. 81-38; s. 1, ch. 83- 118; s. 1, ch. 85-197.

849.10 Printing lottery tickets, etc., prohibited.­(1) It is unlawful for any person, in any house, office,

shop or building in this state to write, typewrite, print, or publish any lottery ticket or advertisement, circular, bill, poster, pamphlet, list or schedule, announcement or no­tice, of lottery prizes or drawings or any other matter or thing in any way connected with any lottery drawing, scheme or device, or to set up any type or plate for any such purpose, to be used or distributed in this state, or to be sent out of this state.

(2) It is unlawful for the owner or lessee of any such house, shop or building knowingly to permit the printing, typewriting , writing or publishing therein of any lottery ticket or advertisement, circular, bill, poster, pamphlet, list, schedule, announcement or notice of lottery prizes or drawings, or any other matter or thing in any way con­nected with any lottery drawing, scheme or device, or knowingly to permit therein the setting up of any type or plate for any such purpose to be used or distributed in this state, or to be sent out of the state.

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

History.-s. 2, ch. 4373, 1895; GS 3583; RGS 5510; CGL 7668; s. 1066, ch. 71-136.

849.11 Plays at games of chance by lot.-Whoever sets up, promotes or plays at any game of chance by lot or with dice, cards, numbers, hazards or any other gam­bling device whatever for, or for the disposal of money or other thing of value or under the pretext of a sale, gift or delivery thereof, or for any right, share or interest therein, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775 .082 or s. 775.083.

History.-s. 3, ch. 4373, 1895; GS 3584; RGS 5511; CGL 7669; s. 1067, ch. 71-136.

849.12 Money and prizes to be forfeited.-AII sums of money and every other valuable thing drawn and won as a prize, or as a share of a prize, or as a share, percent­age or profit of the principal promoter or operator, in any lottery, and all money, currency or property of any kind to be disposed of, or offered to be disposed of, by chance or device in any scheme or under any pretext by any person, and all sums of money or other thing of val­ue received by any person by reason of his being the owner or holder of any ticket or share of a ticket in a lot­tery, or pretended lottery, or of a share or right in any such schemes of chance or device and all sums of mon­ey and other thing of value used in the setting up, con­ducting or operation of a lottery, and all money or other thing of value at stake, or used or displayed in or in con-

nection with any illegal gambling or any illegal gambling device contrary to the laws of this state, shall be forfeit­ed, and may be recovered by civil proceedings, filed, or by action for money had and received, to be brought by the Department of Legal Affairs or any state attorney, or other prosecuting officer, in the circuit courts in the name and on behalf of the state; the same to be applied when collected as all other penal forfeitures are dis­posed of.

History.-s. 4, ch. 4373, 1895; GS 3585; RGS 5512; CGL 7670; s. 1, ch . 28088, 1953; ss. 11 , 35, ch. 69-106.

849.13 Punishment on second conviction.-Who­ever, after being convicted of an offense forbidden by law in connection with lotteries, commits the like of­fense, shall be guilty of a misdemeanor of the first de­gree, punishable as provided ins. 775.082 or s. 775.083.

History.-s. 4, sub-ch. 10, ch. 1637, 1868; RS 2655; GS 3586; RGS 5513; CGL 7671 ; s. 1068, ch . 71-136.

849.14 Unlawful to bet on result of trial or contest of skill, etc.-Whoever stakes, bets or wagers any mon­ey or other thing of value upon the result of any trial or contest of skill , speed or power or endurance of man or beast, or whoever receives in any manner whatsoever any money or other thing of value staked, bet or wa­gered, or offered for the purpose of being staked, bet or wagered, by or for any other person upon any such result, or whoever knowingly becomes the custodian or depositary of any money or other thing of value so staked, bet, or wagered upon any such result , or whoev­er aids, or assists, or abets in any manner in any of such acts all of which are hereby forbidden, 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 . 5959, 1909; s. 1, ch. 6188, 1911 ; RGS 5514; CGL 7672; s. 1069, ch. 71-136. cf.-s. 550.16 Pari-mutuel pool authorized within enclosure of racetrack.

s. 551.09 Pari-mutuel pool permitted within enclosure of Ironton.

849.141 Bowling tournaments exempted from chapter.-

(1) Nothing contained in this chapter shall be appli­cable to participation in or the conduct of a bowling tour­nament conducted at a bowling center which requires the payment of entry fees, from which fees the winner receives a purse or prize.

(2) As used in this section, the term : (a) "Bowling tournament" means a contest in which

participants engage in the sport of bowling, wherein a heavy ball is bowled along a bowling lane in an attempt to knock over bowling pins, 10 in number, set upright at the far end of the lane, according to specified regula­tions and rules of the American Bowling Congress, the Womens International Bowling Congress, or the Bowling Proprietors Association of America.

(b) "Bowling center" means a place of business hav­ing at least 12 bowling lanes on the premises which are operated for the entertainment of the general public for the purpose of engaging in the sport of bowling .

History.-s. 1, ch. 85-24.

849.15 Manufacture, sale, possession, etc., of coin-operated devices prohibited.-lt is unlawful:

(1) To manufacture, own , store, keep, possess, sell , rent, lease, let on shares, lend or give away, transport ,

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Ch.849 GAMBLING F.S. 1987

or expose for sale or lease, or to offer to sell, rent , lease, let on shares, lend or give away, or permit the operation of, or for any person to permit to be placed, maintained, or used or kept in any room, space, or building owned, leased or occupied by him or under his management or control, any slot machine or device or any part thereof; or

(2) To make or·to permit to be made with any person any agreement with reference to any slot machine or de­vice, pursuant to which the user thereof, as a result of any element of chance or other outcome unpredictable to him, may become entitled to receive any money, cred­it , allowance, or thing of value or additional chance or right to use such machine or device, or to receive any check, slug , token or memorandum entitling the holder to receive any money, credit , allowance or thing of value.

Hlstory.-s. 1, ch. 18143, 1937; CGL 1940 Supp. 4151(405-a).

849.16 Machines or devices which come within provisions of law defined.-Any machine or device is a slot machine or device within the provisions of this chapter if it is one that is adapted for use in such a way that, as a result of the insertion of any piece of money, coin , or other object , such machine or device is caused to operate or may be operated and if the user, by reason of any element of chance or of any other outcome of such operation unpredictable by him, may:

(1) Receive or become entitled to receive any piece of money, credit, allowance, or thing of value, or any check, slug, token , or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be giv­en in trade; or

(2) Secure additional chances or rights to use such machine, apparatus, or device, even though it may, in addition to any element of chance or unpredictable out­come of such operation, also sell , deliver, or present some merchandise, indication of weight , entertainment, or other thing of value.

History.-s. 2, ch. 18143, 1937; CGL 1940 Supp. 4151(405-b); s. 1, ch. 67-203; s. 1, ch . 77-275; s. 2, ch. 84- 247.

849.161 Amusement games or machines; when chapter inapplicable.-

(1) Nothing contained in this chapter shall be taken or construed as applicable to an arcade amusement center having amusement games or machines which op­erate by means of the insertion of a coin and which by application of skill may entitle the person playing or op­erating the game or machine to receive points or cou­pons which may be exchanged for merchandise only, excluding cash and alcoholic beverages, provided the cost value of the merchandise or prize awarded in ex­change for such points or coupons does not exceed 75 cents on any game played. Nothing in this subsection shall be taken or construed as applicable to a coin­operated game or device designed and manufactured only for bona fide amusement purposes which game or device may by application of skill entitle the player to re­play the game or device at no additional cost , if the game or device: can accumulate and react to no more than 15 free replays; can be discharged of accumulated free replays only by reactivating the game or device for one additional play for such accumulated free replay ;

can make no permanent record , directly or indirectly, of free replays; and is not classified by the United States as requiring a federal gambling tax stamp under applica­ble provisions of the Internal Revenue Code.

(2) The term "arcade amusement center" as used in this section means a place of business having at least 50 coin-operated amusement games or machines on premises which are operated for the entertainment of the general public and tourists as a bona fide amuse­ment facility.

Hlstory.-s. 3, ch. 84-247.

849.17 Confiscation of machines by arresting offi­cer.-Upon the arrest of any person charged with the violation of any of the provisions of ss. 849.15-849.23 the arresting officer shall take into his custody any such machine, apparatus or device, and its contents, and the sheriff, at the place of seizure, shall make a complete and correct list and inventory of all such things so taken into his custody, and deliver to the person from whom such article or articles may have been seized, a true copy of the list of all such articles. Upon making such a seizure the sheriff shall , forthwith and without delay, deliver each and every item of the things taken into his custody to the clerk of the circuit court of the county in which such seizure is made, and upon delivery, deliver therewith to said clerk the original list and inventory so made by said sheriff at the time and place of such sei­zure; and upon such delivery the clerk shall verify said list and inventory and mark each item for identification and make a complete and correct list and inventory of the things delivered to him by the sheriff, in duplicate, duly certified by him officially, and deliver one copy thereof to the sheriff, and deposit one copy in proper safety files in his office. The clerk of the circuit court shall keep and preserve all things so delivered to him and have the same forthcoming at any investigation , prose­cution or other proceedings, incident to charges of viola­tion of any of the provisions of ss. 849.15-849.23.

Hlstory.-s. 4, ch. 18143, 1937; CGL 1940 Supp. 4151(405-c).

849.18 Disposition of machines upon conviction.­Upon conviction of the person arrested for the violation of any of the provisions of ss. 849.15-849.23, the judge of the court trying the case, after such notice to the per­son convicted , and any other person whom the judge may be of the opinion is entitled to such notice, and as the judge may deem reasonable, shall issue to the sher­iff of the county a written order adjudging and declaring any such machine, apparatus or device forfeited , and di­recting such sheriff to destroy the same, with the excep­tion of the money. The order of the court shall state the time and place and the manner in which such property shall be destroyed, and the sheriff shall destroy the same in the presence of the clerk of the circuit court of such county.

Hlstory.-s. 5, ch. 181 43, 1937; CGL 1940 Supp. 4151 (405-d).

849.19 Property rights in confiscated machine.­The right of property in and to any machine, apparatus or device as defined in s. 849.16 and to all money and other things of value therein, is declared not to exist in any person , and the same shall be forfeited and such money or other things of value shall be forfeited to the

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