TEST: Florida Police Chiefs Association: 2008 End-of-Session Legislative Report

 

FLORIDA POLICE CHIEFS ASSOCIATION
2008 END-OF SESSION LEGISLATIVE REPORT

On behalf of the Florida Police Chiefs Association (“FPCA”), Frank Meyernick Jr. and Colodny Fass, worked with Florida’s Legislature to accomplish FPCA goals and priorities.  The results are listed below:

 

FPCA LEGISLATIVE PRIORITY:  TO GROW THE CRIMINAL JUSTICE STANDARDS AND TRAINING (“CJST”) TRUST FUND

• The FPCA supports the efforts of the Criminal Justice Standards and Training Commission to properly train Florida’s law enforcement officers through increased funding of the CJST Trust Fund. Therefore, the FPCA advocates an increase in court fees and fines.

Embarking upon the second year in which FPCA has attempted to pass this legislation, we met with the Governor’s Office early in the legislative process in order to negotiate compromise language to ensure that the Governor would sign the bill this year, as opposed to having it vetoed once again.  We agreed only on raising the court costs on criminal infractions from $3 to $5. 

Representative Ron Reagan (R-Sarasota) and Senator Charlie Dean (R-Inverness) were the sponsors of our legislation (House Bill 869 and Senate Bill 1110).  Subsequently, we were successful in passing the Senate version through the Committees on Criminal Justice (7-Yes 0-No), Judiciary (9-Yes and 0-No) and Finance & Tax (4-Yes 0-No).  We also were successful in passing the House version through the Committee on Courts (6-Yes 0-No) and the Safety and Security Council (14-Yes 0-No).

Unfortunately, during budget negotiations, the Legislature decided to raise the exact Court Costs our legislation raised to fund budget deficits in the Judicial Branch.  At that point, our bill conflicted with balancing the budget and was, essentially, dead.  

We endeavored numerous times to achieve a compromise, or to revive our legislation, but our issue was considered secondary to the goal of balancing the budget, which is the only constitutional mandate that Florida’s Legislature is required to accomplish during its 60-day session. 

 

FPCA LEGISLATIVE PRIORITY:  PRIMARY SEATBELT ENFORCEMENT

• FPCA supports legislation authorizing primary enforcement of seatbelt violations.

Legislation relating to primary enforcement of seatbelt violations did not pass this year.

 

FPCA LEGISLATIVE PRIORITY:  ELIMINATING THE POSSESSION OF BULLET-RESISTANT MATERIALS

FPCA supports legislation prohibiting the possession of bullet-resistant materials by felons and delinquents.  During the 2008 Session, the following bill was passed in support of this goal:

CS/CS/HB 43 by Representative William Snyder (R-Stuart) and Senator Jeff Atwater (R-North Palm Beach) creates s. 790.231, F.S., which makes the possession of a bulletproof vest a third degree felony for anyone who has been:

• Convicted of a felony in the courts of Florida
• Found by a Florida court to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age
• Convicted of, or found to have committed, a crime against the United States which is designated as a felony
• Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult, and which was punishable by imprisonment for a term exceeding one year, and such person is under 24 years of age
• Convicted of, or found to have, committed an offense that is a felony in another state, territory, or country, and which was punishable by imprisonment for a term exceeding one year; or
• Found, pursuant to s. 874.04, F.S., to have committed any offense for the purposes of benefitting, promoting, or furthering the interests of a criminal gang
The bill specifies that the bulletproof vest prohibition does not apply to:
• Persons convicted of a felony whose civil rights have been restored; and
•  Persons who are authorized to possess a bulletproof vest by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity

 

FPCA LEGISLATIVE PRIORITY:  RED LIGHT CAMERAS

• FPCA supports legislation that enables law enforcement action-based on red light cameras.

The original versions of the 2008  red light camera bills were SB 816 by Senator Mike Bennett (R-Bradenton) and HB 351 by Representative Ron Reagan (R-Sarasota).

Both bills evolved substantially over the course of the 2008  Session, to the point where the legislation could be considered to have been diluted substantially.  Although both of these bills died during the final weeks of the Session their substance surfaced before the close of the Session within some large transportation bills.   Ultimately, the red light language did not pass the Legislature, because the House did not want to pass the diluted version of which the Senate was in favor. 

We believe this issue is almost certain to be addressed again next year.

 

FPCA LEGISLATIVE PRIORITY:   MISSING PERSONS

• FPCA supports legislation ensuring the timely reporting and identification of missing persons.

SB 502 by Senator Lee Constantine (R-Altamonte Springs) and HB 223 by Representative Evan Jenne (D-Davie) passed the Florida Legislature and creates a section for ch. 937, F.S., that defines the terms of “a missing adult,” “missing child,” and “missing endangered person.” The bill amends s. 937.021, F.S., making its provisions applicable not only to missing children, but also to missing adults.  It also:

• Requires law enforcement agencies to adopt written policies regarding the procedures to be used to investigate reports of missing children and adults, and provides that an entry concerning a missing child or missing adult may not be removed from the criminal databases solely on the basis of the age of the missing person
• Provides that a missing child or adult report must be filed with, and accepted by, the law enforcement agency with jurisdiction in the locale where the person was last seen
• Clarifies that a law enforcement agency must transmit a report of a missing child to the state and federal criminal databases within two hours of receipt of the report, and must transmit a credible report of a missing adult to the databases within two hours of receipt of the report
• Provides a similar immunity to individuals who release information during an AMBER Alert to those who release information and photographs pertaining to missing adults
• Provides that if a missing child or missing adult is not located within 90 days, the law enforcement agency that accepted the report must pursue DNA analysis.
• Requires the Florida Department of Law Enforcement (“FDLE”) to adopt rules establishing procedures for DNA analysis in cases involving missing children and missing adults, and specifies that the DNA provisions of the bill are contingent upon the availability of federal funding
• Amends s. 937.022, F.S. by renaming and expanding the scope of the existing Missing Children Information Clearinghouse (“Clearinghouse”) to include all missing endangered persons as defined by the bill
• Addresses how reports are to be submitted to the clearinghouse, and requires the law enforcement agency with jurisdiction to immediately notify the Clearinghouse and purge the databases upon location of a missing endangered person

 

FPCA LEGISLATIVE PRIORITY:  OFFENDER MONITORING

• FPCA supports legislation requiring high-risk offenders who are not in confinement to be subject to continuous electronic monitoring using a system that reports the offenders’ presence near a crime scene, entrance into prohibited areas, and departure from a geographical area(s) where his or her presence is limited.

No legislation requiring additional electronic monitoring was passed during the 2008 Legislative Session.

 

FPCA LEGISLATIVE PRIORITY:  ADEQUATE FUNDING OF THE JUVENILE JUSTICE SYSTEM

• FPCA supports and urges the Legislature to sufficiently fund all aspects of the juvenile justice system to include diversion, assessment centers, treatment, pretrial detention and commitment programs.

Facing huge revenue shortfalls for Fiscal Year (“FY”) 2008-’09, the Florida Legislature appropriated $66.2 billion for Juvenile Justice, representing a $5 billion decrease from FY 2007-‘08.

The Florida Department of Juvenile Justice (“DJJ”) survived drastic budget cuts during 2008. The majority of the cuts to DJJ came in the area of residential beds funding.  Because the number of children committing crimes has fallen over the last few years, DJJ had a surplus of unutilized residential beds.

The Juvenile Assessment Centers (“JACs”) originally were slated for a $3 million cut, which would have completely shut many of them down.  However, during the budget negotiations, this reduction was reduced to just over $300,000.  

 

FPCA LEGISLATIVE PRIORITY:  STRENGTHEN FLORIDA’S CRIMINAL GANG STATUTE

• FPCA supports legislation to strengthen the gang statute by prohibiting felons from possessing bulletproof vests, using electronic communication (internet) for benefiting or promoting gang activity and creates a civil cause of action for the state to sue criminal gang members.

House Bill 43 and Senate Bill 76 were part of the legislative package being advocated by Florida Attorney General Bill McCollum. On June 20, 2007, the Eighteenth Statewide Grand Jury was impaneled to investigate the growing problem of gang violence in Florida.  In its final form, CS/CS/HB 43 makes a variety of changes to Florida law relating to criminal gangs, encompassing many of the Statewide Grand Jury’s January 2008 recommendations.  

The bill renames chapter 874, F.S., as the “Criminal Gang Prevention Act” and replaces the term “criminal street gang” with “criminal gang” throughout the Chapter and other referencing statutes.  The bill makes it a crime for a person to:

• Knowingly initiate, organize, plan, finance, direct, manage, or supervise criminal gang-related activity
• Use electronic communication to further any criminal purpose, to intimidate or harass other persons, or to advertise his or her presence in the community for a gang-related purpose
• Possess or manufacture any unlawfully-issued identification document for a gang-related purpose
The bill also:
• Provides additional registration requirements for felons convicted of gang-related offenses and a penalty for failing to comply with such requirements
• Provides enhanced penalties if it is found that a defendant committed an offense for the purpose of benefiting, promoting, or furthering the interests of a criminal gang
• Creates a third degree felony for certain felons and delinquents to possess a bulletproof vest and increases the penalty for certain felons who have been found to have committed a gang-related offense to possess a firearm
• Requires courts to suspend the driver’s license of persons convicted of criminal gang-related offenses
• Adds criminal gang-related duties to the Florida Violent Crime and Drug Control Council and creates the Drug Control Strategy and Criminal Gangs Committee within the Council.
• Creates community supervision conditions prohibiting certain offenders from communicating with criminal gang members, except as authorized for the purpose of aiding in the investigation of criminal activity
• Adds to the list of items a court must consider when determining whether to release a defendant on bail or other conditions
• Amends the penalties for tampering and harassing witnesses.
• Authorizes the court to order the posting of a surety bond to secure the appearance of a person on community supervision at subsequent court proceedings

 

FPCA LEGISLATIVE PRIORITY:   SUPPORT THE MARIJUANA GROW HOUSE ERADICATION ACT (HB 173/SB 390)

• FPCA supports this legislation to make owning a house used for cultivating, packaging and distributing marijuana a third-degree felony, making it a second degree felony to grow 25 plants (current state law sets the threshold at 300 plants) and increases penalties for growing or concealing drugs near children.

HB 173 sponsored by State Representative Nick Thompson (R-Ft. Myers) and SB 390 by Senator Steve Oelrich (R-Gainesville) passed during the 2008 Legislative Session.  Section 893.1351, F.S. provides that a person may be convicted of a third degree felony who leases or rents any place, structure, or part thereof, trailer, or other conveyance, with the knowledge that such place, structure, trailer, or conveyance will be used for the purpose of trafficking in a controlled substance or the sale of a controlled substance.  The bill further expands this offense to include owning, as well as leasing or renting any place, structure, trailer or conveyance with the knowledge that it will be used for the purpose of manufacture of a controlled substance intended for sale or distribution to another.

The bill provides that a person may not knowingly be in actual or constructive possession of any place, structure, or part thereof, trailer or any conveyance with the knowledge that the place, structure, or part thereof, trailer or conveyance will be used for the purpose or trafficking in a controlled substance, the sale of a controlled substance or the manufacture of a controlled substance intended for sale or distribution to another.  This offense will be a second degree felony.

HB 173 further provides that a person who is found to be in actual or constructive possession of a place, structure, trailer or conveyance, with the knowledge that the place, structure, trailer or conveyance is being used to manufacture a controlled substance intended for sale or distribution to another and who knew or should have known that a minor is present or resides in the place, structure, trailer or conveyance commits a first degree felony.

In the prosecution of an offense involving the manufacture of a controlled substance, HB 173 also provides that a photograph or video recording of the manufacturing equipment used in committing the offense may be introduced as competent evidence of the existence and use of the equipment and is admissible in the prosecution of the offense to the same extent as if the property were introduced as evidence.   After a law enforcement agency documents the manufacturing equipment by photography or video recording, the manufacturing equipment may be destroyed on site and left in disrepair.

 

FPCA LEGISLATIVE PRIORITY:   INCREASED PENALTIES FOR ACQUIRING WEAPONS AND FIREARMS BY FRAUD; INCREASED PENALTIES FOR INJURING OR MURDERING ANOTHER WITH ASSAULT WEAPONS

• FPCA supports legislation (HB 425) to increase the penalties for acquiring a firearm by fraud and for injuring or killing someone with an assault weapon.

This legislation was never heard in a committee in the House and passed one committee in the Senate.

 

FPCA LEGISLATIVE PRIORITY:   FULLY FUND AND MAINTAIN THE PAROLE BOARD

• FPCA opposes the elimination of the Parole Board from its current configuration.

Although there was some interest by a few House members to eliminate the Parole Commission, it was funded and will remain intact.

 

FPCA LEGISLATIVE PRIORITY:  OPPOSE LIMITATION OF ADMINISTRATIVE INVESTIGATIONS IN ORDER TO MAINTAIN THE HIGHEST ETHICAL STANDARDS AND PUBLIC TRUST

FPCA opposes any legislation that limits the ability of law enforcement managers to conduct internal and/or administrative investigations as a responsible matter of obligation to the public trust in order to maintain the highest standards of ethics in government.

No legislation passed this year relating to administrative investigations.

 

FPCA LEGISLATIVE PRIORITY:  OPPOSE LIMITATION OF CUSTODIAL INTERROGATIONS

• FPCA opposes any legislation that limits the introduction into a court of law any evidence that would provide a jury the ability to evaluate all issues, inclusive of confessions and admissions.

No legislation passed this year relating to custodial interrogations.

 

FPCA LEGISLATIVE PRIORITY:  OPPOSE LIMITATIONS ON PROPER DART FIRING STUN GUN DEPLOYMENT

• FPCA opposes any limitations on the proper deployment of non-lethal weapons such as electronic control devices (stun guns) used to de-escalate violence on school grounds or other arbitrary considerations.

There was no legislation this year relating to stun guns or tasers.

 

OTHER LEGISLATION OF FPCA INTEREST

 

CS/HB 399 – Financial Management by Local Governments (FAILED)

This bill died on the House floor.  There was an amendment filed to the bill that would have prohibited a municipality from charging a fee or seeking reimbursement for any costs or expenses which may be incurred involving the use of police, fire, and other emergency responder services, personnel, supplies, motor vehicles, or equipment in responding to a motor vehicle accident, fire, or other emergency.

 

HB 501 – Special Risk Class Retirement Benefits (FAILED)

This bill expands Deferred Retirement Option Program (“DROP”) timeframes for the benefit of Special Risk Class members who are employed as law enforcement officers, correctional officers, and community-based correctional probation officers, as described in s. 121.0515(2), F.S., having a rank or equivalent rank of captain or below.   The bill allows participation in DROP beyond 60 months, up to the 96-month maximum participation period.  In order to qualify for this extension, members must:

• Pass the same physical examination required for new officers under s. 943.13(6), F.S.
• Provide an accompanying statement from the officer’s examining physician, physician’s assistant, or certified advanced registered nurse practitioner that the officer is capable of performing the essential functions of his or her duties as a law enforcement officer, correctional officer, or community-based correctional probation officer.

There was an additional section of HB 501 that dealt with limitations of employment after retirement. The language reads: Notwithstanding any other provision in this Section, a  member of the Special Risk Class who is employed as a law enforcement officer, correctional officer, or community-based correctional probation officer, as described in s. 121.0515(2), and who has a rank or the equivalent rank of captain or below,  at the conclusion of his or her participation in DROP, may not  be employed, re-employed, or retained in a contractual capacity by the same employing agency from which the member retired; however, the member may be retained by the employing agency as a part-time or auxiliary law enforcement officer, as those terms  are defined in s. 943.10. if the member is serving on a voluntary basis and receives no more than $1 per calendar year in remuneration for services rendered directly for the employing agency. 

Any person who is reemployed or retained in a contractual capacity in violation of this paragraph shall void his or her application for retirement benefits.  Any person who violates this paragraph and any employing agency that knowingly employs or contracts with such person in violation of this paragraph is jointly and severally liable for reimbursement to the Florida Retirement System Trust Fund for any retirement  benefits improperly paid during the reemployment or contractual period.  This provision does not otherwise limit the employment or contractual opportunities for a retiree at any other  employing agency.  This paragraph does not apply to a retiree who is elected to an office or appointed to an office by the Governor or by the Governor and Cabinet.

 

CS/SB 1588 – Property Taxation (PASSED)

In 2007, the Florida Legislature enacted two laws governing the taxation of property.

Ch. 2007-321, L.O.F., limited local governments’ property tax revenue growth by imposing maximum millage rates based upon growth in statewide per capita personal income and growth in the tax base due to new construction and additions within each jurisdiction.

Ch. 2007-339, L.O.F., implemented to the Florida Constitution the provisions of Amendment 1 that was approved by Florida voters on January 29, 2008. The amendment increased the homestead exemption by $25,000, except for school district taxes; allowed homestead property owners to transfer up to $500,000 of their Save-Our-Homes benefits to their next homestead (also known as “portability”); provided a $25,000 exemption for tangible personal property; and limited annual assessment increases for specified non-homestead real property to 10 percent, except for school district taxes.

Ch. 2007-339, L.O.F., also directed the Department of Revenue (“Department”) to report the results of the implementation of the millage rate limitations, including issues that may have needed to be addressed by the legislature and improvements in the information required to be provided by local governments, property appraisers, and tax collectors, by March 1, 2008. 

The Department’s report also must include issues that have arisen in the implementation of Amendment 1 provisions.This bill addresses the issues identified in the Department’s report, including drafting errors in the legislation, ambiguities, and unforeseen circumstances not addressed in the original bills.

In addition, CS/SB 1588 contains special provisions for determining Amendment 1 maximum millage rates for the 2008-2009 Fiscal Year.  Because Amendment 1 contained provisions that reduced the property tax base, under current law, local governments will be allowed to levy a millage rate to recover the projected tax loss by a majority vote of the governing body.  This bill will require that local governments achieve a two-thirds vote to recover the loss.

Taxing authorities that levy millage rates not exceeding the rates that can be levied by majority vote will experience a decline in ad valorem revenues relative to the millage rates that could be levied by majority vote under current law. The difference between the maximum millage rates that can be levied by majority vote under current law and under the provisions of this bill is estimated to be $1.1 billion in tax revenues in Fiscal Year 2008-‘09.

The issues addressed by the bill that were identified in the Department’s report include:

• Information needs of the Department of Revenue and the Revenue Estimating
Conference to properly oversee and administer the property tax system
• Estimate impacts
• Clarification that votes of the “membership” of the governing board are needed to
override the millage limitations
• Classification of some Downtown Development Authorities as dependent districts
• Clarification of the calculation of the special provision for the public health trust in Miami-Dade County
• Requiring a study of the effects of all the recent statutory and constitutional changes on the TRIM notice requirements
• Provision of an administrative appeal process for portability issues
• Clarification of the rules for the transfer of portability benefits when there are multiple owners
• Clarification of the rules for the application of the Tangible Personal Property $25,000 exemption
• Deletion of the application requirement for the 10 percent assessment growth limitation
• Requiring notification by the property owner to the Property Appraiser when ownership or control of property subject to the 10 percent limitation changes

Subject to the Governor’s veto powers, the effective date of this bill is upon becoming law, except as otherwise provided, and applies to the 2008 and subsequent tax rolls.

 

HB 5059 – State Agency Law Enforcement Radio System Trust Fund (PASSED)

This bill expands the purpose of the State Agency Law Enforcement Radio System Trust Fund within the Florida Department of Management Services.  The bill allows the Department to retain funds to sufficiently recover the costs and expenses incurred when assisting state and local law enforcement agencies with their regional law enforcement communications systems.  Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

HB 85 – Lewd or Lascivious Molestation (PASSED)

This bill relates to a person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits the offense of lewd or lascivious molestation. If an offender is 18 years of age or older and the victim is under the age of 12, the offense of lewd or lascivious molestation is a life felony.  This offense is punishable by a term of imprisonment for life,  or by a sentence of not less than 25 years’ imprisonment followed by probation or community control for the remainder of the offender’s natural life.  The offender must be electronically monitored during this term of probation or community control.  HB 85 requires the imposition of a life sentence for a second or subsequent violation for the offense of lewd or lascivious molestation where the victim is under the age of 12 and the offender is 18 or older.  Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

CS/SB 1792 – Criminal History Information (PASSED)

This bill increases fees for criminal history background checks by the FDLE. The current fee is $23 for each records check with the exception of background checks for vendors of the Florida Department of Children and Family Services, Department of Elder Affairs, Department of Juvenile Justice, specific checks for the Department of Agriculture and Consumer Services, and summer camps.  The new fee structure will increase the fee by $1 to $24 for the dissemination of criminal justice.  Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

CS/SB 1988 – Drivers’ Licenses/Suspended, Revoked, or Canceled (PASSED)

The bill subjects a person convicted of knowingly driving while his or her license is suspended, revoked, or cancelled for underlying violations as enumerated in the bill, to a second degree misdemeanor penalty for the first conviction and a first degree misdemeanor penalty for the second or subsequent conviction.  The underlying enumerated violations (allowing a driver to be subject to a first degree misdemeanor penalty rather than the third degree felony penalty for a third or subsequent conviction) include:

• Failing to pay child support under s. 322.245 or s. 61.13016, F.S.
• Failing to pay any other financial obligation under s. 322.245, F.S., (other than those specified criminal offenses in s. 322.245(1), F.S).
• Failing to comply with a required civil penalty (paying traffic tickets and fees) under s. 318.15, F.S.
• Failing to maintain required vehicular financial responsibility under Ch. 324, F.S.
• Failing to comply with attendance or other requirements for minors under s. 322.091, F.S.
• Having been designated a habitual traffic offender under s. 322.264(1)(d), F.S., (driving with a suspended license three times in five years) as a result of license suspensions for any of the underlying violations listed above

This newly-created first degree misdemeanor penalty only will be available to drivers who do not have a prior forcible felony conviction.  SB 1988 requires the Department of Highway Safety and Motor Vehicles, in consultation with Office of Program Policy and Government Analysis (“OPPAGA”), to study the effectiveness of suspending a person’s driver’s license for the underlying violations listed above and submit a report to the Governor and Legislature by January 2, 2009.

Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

HB 7113 – Department of Law Enforcement (PASSED)

The bill makes several changes to the policies and procedures of the Florida Department of Law Enforcement (“FDLE”) as follows:

• Allows FDLE to maintain electronic copies of all fingerprints submitted for the purpose of criminal background checks; allows FDLE to use the electronic copies in the statewide fingerprint system
• Specifically provides that FDLE may accept fingerprint submissions electronically for criminal background checks; eliminates the requirement that FDLE receive a duplicate copy of a waiver granting permission to release a person’s criminal history record
• Allows a request for an administrative expunction to be made by the arresting law enforcement agency, as well as an agency that issues a warrant that is the basis for an arrest;
• Provides judges access to sealed criminal records
• Adds the Secretary of the Department of Children and Family Services to the membership of the Criminal and Juvenile Justice Information Systems Council
• Amends the duties of the Criminal and Juvenile Justice Information Systems Council to reflect advances in technology
• Creates a “citizen support organization” to raise funds and organize events for Florida Missing Children’s Day

Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

CS/HB 151 – Radio Equipment Using Law Enforcement Frequencies (PASSED)

The bill amends section 843.16, Florida Statutes, to provide an exception that allows sworn law enforcement officers, emergency rescue personnel, and government employees that hold a valid Federal Communications Commission station license to install or transport radio equipment using specified frequencies while using personal transportation to and from work.

Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

HB 61 – Offenses Against Officers (PASSED)

Section 776.051, F.S., precludes a person from using a “justifiable use of force” defense in a criminal prosecution if the person resists an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.  This statute also precludes a law enforcement officer from using a “justifiable use of force” defense if the officer used force during an arrest that he or she knew was unlawful. The Florida Supreme Court recently held that s. 776.051, F.S., only applies to arrest situations. 

HB 61 expands s. 776.051, F.S., so that in addition to applying to arrest situations, it also applies to other police-citizen encounters. Thus, under the provisions of the bill, if a person hits a law enforcement officer who is conducting a search and is subsequently charged with “battery on a law enforcement officer,” that person may not use a “justifiable use of force” defense. The bill also precludes a law enforcement officer from using a “justifiable use of force” defense if the officer used force during an arrest or during an execution of a legal duty that he or she knew was unlawful.

Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

CS/HB 225 – Telephone Caller Identification (PASSED)

CS/HB 225 creates s. 817.487, F.S., which provides that a person may not enter or caused to be entered false information into a caller identification system with the intent to deceive, defraud, or mislead the call recipient. Additionally, the bill provides that a person may not make a telephone call knowing that false information was entered into the caller identification system with the intent to deceive, defraud, or mislead the recipient of the call. This section would not apply to the blocking of caller ID information; to law enforcement agencies; federal intelligence agencies; or a telecommunications, broadband, or voice-over-internet service provider that is acting solely as an intermediary for the transmission of telephone service between a caller and a recipient.  The bill provides that these offenses are first degree misdemeanors.

In addition, the bill provides that if the telephone call using false telephone caller information was placed during the commission of a crime or facilitated a crime, the underlying criminal offense is reclassified to the next higher degree.

In addition to criminal penalties, CS/HB 225 specifies that a violation of this section is also an unlawful trade practice under Florida’s Deceptive and Unfair Trade Practices Act found in Ch. 501, Part II, F.S. Thus, a person who violates this section could also be subject to injunctions, fines, and civil penalties.

Subject to the Governor’s veto powers, the effective date of this bill is October 1, 2008.

 

HB 313 – Dating Violence (PASSED)

Section 741.29, F.S., provides a variety of requirements for law enforcement officers who are investigating alleged incidents of domestic violence. Such requirements include providing victims notice of their legal rights and remedies, providing the victim information about local domestic violence centers, and including certain information in police reports. However, these requirements only pertain to incidents of domestic violence, and do not pertain to incidents of dating violence. Also, persons who willfully violate a condition of pretrial release, when the original arrest was for an act of domestic violence, commit a first degree misdemeanor and must be held in custody until his or her first appearance. No such penalty exists with respect to dating violence.

This bill creates the Barwick-Ruschak Act and adds the requirements of s. 741.29, F.S., to the dating violence statute so that they apply to incidents of dating violence as well as domestic violence. The bill also creates a first degree misdemeanor for the willful violation of a condition of pretrial release when the original arrest was for dating violence and requires that the offender be held in custody until his or her first appearance.
Subject to the Governor’s veto powers, the effective date of this bill is October 1, 2008.

 

CS/HB 321 – Murder of Law Enforcement Officers (PASSED)

Currently, the Law Enforcement Protection Act provides penalty enhancements for violent offenses committed against law enforcement officers, correctional officers, state attorneys, assistant state attorneys, justices, or judges. These enhancements provide for penalties ranging from seven years to life in prison dependent upon the offense and other factors evaluated at sentencing for the crimes that are the subject of this bill.

CS/HB 321 creates s. 782.065, F.S., which provides that notwithstanding the Act and other sentencing statutes, a person must be sentenced to life imprisonment without eligibility for release upon a finding by the fact finder that a person committed one of the following crimes against a law enforcement officer, part-time law enforcement officer, or auxiliary law enforcement officer engaged in the lawful performance of a legal duty:
murder in the first degree;murder in the second or third degree; attempted murder in the first or second degree; or attempted felony murder.

Subject to the Governor’s veto powers, the effective date of this bill is October 1, 2008.

 

CS/HB 537 – Offense of Voyeurism (PASSED)

Currently, s. 810.145, F.S., provides that a person who commits the offense of video voyeurism commits a first degree misdemeanor. If a person commits the offense of video voyeurism and has a prior conviction for video voyeurism, the person commits a third degree felony.

CS/HB 537 amends s. 810.145, F.S., to create additional video voyeurism offenses. The bill creates third degree felonies:

• In cases where the offender is 18 years of age or older and commits video voyeurism against:
• A child under 16 when the offender is responsible for the welfare of the victim, or
• A student at a voluntary prekindergarten program or K-12 school, whether public or private, at which the offender is employed
• If a person 24 years of age or older commits video voyeurism against a child younger than 16 years of age

The bill provides that the penalties for a violation of this subsection increase to a second degree felony if the offender has a prior conviction for video voyeurism.

Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

CS/SB 1008 – Failure to Redeliver Hired Vehicles (PASSED)

Currently, s. 817.52, F.S., provides that a person commits a third degree felony if a person rents a motor vehicle and, with intent to defraud, abandons or willfully refuses to return the rented motor vehicle. There are no provisions which specify when law enforcement must accept a report of an unreturned rental vehicle, what information is necessary to report an unreturned vehicle, nor any requirement that information about the vehicle be entered into a database.

CS/SB 1008 provides that law enforcement agencies may not require information not required by law to be supplied in order to accept a report of an unreturned rental vehicle. The bill also requires law enforcement agencies to enter the vehicle’s information as a stolen vehicle into the National Crime Information Center and Florida Crime Information Center databases.

Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

CS/HB 1363 – Controlled Substances (PASSED)

Salvia divinorum is a perennial herb in the mint family that is native to Oaxaca, Mexico. The active component is the hallucinogen Salvinorin A. In recent years, Salvia divinorum has begun to be used as a recreational drug in this country. No state or federal statute regulates the sale, purchase or possession of Salvia divinorum or Salvinorin A in Florida.

Chapter 893 classifies controlled substances into five different categories, known as schedules, in order to regulate the manufacture, distribution, preparation, and dispensing of the substances. Schedule I substances have a high potential for abuse and have no currently accepted medical use in the United States and its use under medical supervision does not meet accepted safety standards.

The bill adds Salvia divinorum and Salvinorin A to schedule I. This will make possession of these substances a third degree felony in conformity with other Schedule I hallucinogens. The offense of sale, manufacture or delivery or possession with intent to sell, manufacture or deliver Salvia divinorum or Salvinorin A will be a third degree felony. The offense of purchase of Salvia divinorum or Salvinorin A will also be a third degree felony.

Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008.

 

CS/HB 1417 – Counterfeit Goods (PASSED)

In 2005, the Federal government passed the “Stop Counterfeiting in Manufactured Goods Act,” which strengthened Federal laws against counterfeit labels and packaging and strengthened penalties for counterfeiters.  In response, the United States Chamber of Commerce prepared a model state anti-counterfeiting statute which targets those who manufacture, distribute, or possess counterfeit goods with the intent to sell, as well as those who counterfeit goods which cause bodily injury.

This bill reorganizes the provisions of ss. 831.03 and 831.05, F.S., relating to counterfeiting, and creates new sections of statutes relating to counterfeiting based upon the above-described model legislation. Specifically, the bill:

• Provides definitions
• Provides that proof of a person possessing more than 25 pieces of property that bear a counterfeit mark gives rise to an inference that such property is being possessed with the intent to offer it for sale or distribution
• Provides a tiered penalty system based on the quantity or total retail value of counterfeited goods that are knowingly sold, manufactured, distributed, or transported
• Increases the penalty for counterfeiting offenses if a person, during the commission of the offense or as a result of the offense, knowingly, or by culpable negligence, causes bodily injury, serious bodily injury, or death
• Increases the penalty for repeat offenders of counterfeiting

Subject to the Governor’s veto powers, the effective date of this bill is October 1, 2008.

 

FLORIDA TAXATION AND BUDGET REFORM COMMISSION (“Commission”)

Florida’s Constitution sets forth that the Commission “ . . . shall examine the state budgetary process, the revenue needs and expenditure processes of the State, the appropriateness of the tax structure of the State, and governmental productivity and efficiency; review policy as it relates to the ability of State and local government to tax and adequately fund governmental operations and capital facilities required to meet the State’s needs during the next twenty year period.”

Between September 20, 2007 and December 5, 2007, the Commission held a series of public hearings throughout the State between.  The purpose of the public hearings was to avail the general public of the opportunity to share its recommendations on taxation and budget issues with the Commission members.

The Commission, which meets every 20 years, completed its work and passed various constitutional proposals to be added to the 2008 General Election ballot.

On November 4, 2008, the voters of Florida will have the opportunity to vote on the following proposals.

 

Issue:   Tax Exemption for Wind Hardening and Renewable Energy Creation

• Title:   Improvements Not Affecting the Assessed Value of Residential Real Property

Would allow the Florida Legislature, by general law, to exempt from assessed value of residential homes, improvements made to protect property from wind damage and installation of a new renewable energy source device

 

Issue:  Working Waterfront

• Title:  Assessments of Working Waterfronts Property Based on Current Use

Would assess specified working waterfront properties based on current use rather than highest and best use.  This includes:
-   Land use predominantly for commercial fishing purposes;
-   Land accessible to public and used for vessel launches
-   Marinas and drystacks that are open to the public
-   Water dependant marine manufacturing facilities

 

Issue:   Tax Exemption for Conservation Property

• Title:   Property Tax Exemption of Perpetually Conserved Land; Classification and Assessment of Land for Conservation

Would provide property tax exemption for real property that is perpetually used for conservation; and, for land not perpetually encumbered, requires the Legislature to provide classification and assessment of land use for conservation purposes solely on the basis of character or use (like agriculture is today).

 

Issue:  Public Funding for Religious Institutions

• Title:   Religious Freedom

Would repeal the limit on the power of the state to spend funds directly or indirectly in aid of secretarian institution.   Commonly referred to as the Blaine Amendment, this proposal eliminates this language in the Constitution and replaces it with language that would prevent the State from excluding individuals and entities from a generally available public benefit or a contract to provide government services on the basis of religion.

 

Issue:   Community College Funding

• Title:   Local Option Community College Funding

Would authorize local option sales tax by local referendum to supplement funding for public community colleges.  Approved taxes would sunset after five years.

• Title:  Tax Swap State Required School Property Tax and Replacing with Equivalent State Revenues to Fund Education

Would eliminate the required local effort portion of property taxes by 2010, (estimated to be $9 billion).
Requires the Legislature to replace this portion by either:
-   Elimination of sales tax exemptions
-   Increase the sales tax up to one penny
-   Sending reductions
-   Other taxes
This proposal also includes a five percent assessment cap on non-homesteaded property.

 

Issue:   Sixty-five Percent Funding for Classroom Instruction and Education Funding for School Choice Programs

• Title:   Requiring 65 Percent of School Funding for Classroom Instruction; State’s Duty for Children’s Education

This proposal would require at least 65 percent of school funding received by school districts be spent on classroom instruction, rather than administration.  It also would provide that the requirement to provide a “uniform, efficient, safe, secure and high quality system of free public schools” is a minimum non-exclusive duty. This proposal would reverse legal precedent prohibiting public funding of private school alternatives to public school programs without creating an entitlement.

 

If you have any questions about this report or have any questions about the 2008 Legislative Session, please feel free to contact Frank Mayernick Jr. at 850-251-8898 or fmayernick@cftlaw.com.