F.S. 1981 THEFT, ROBBERY, AND RELATED CRIMES Ch. 812

(6) Any aggrieved person may institute a pro­ceeding under subsection (1). In such proceeding, re­lief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of special or irreparable damage to the person shall have to be made. Upon the execution of proper bond against damages for an injunction im­providently granted and a showing of immediate danger of significant loss or damage, a temporary re­straining order and a preliminary injunction may be issued in any such action before a final determination on the merits.

(7) Any person who is injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 shall have a cause of action for three-fold the actual damages sustained and, when appropriate, punitive damages. Such person shall also recover attorneys' fees in the trial and appellate courts and costs of investigation and litigation.

(8) A final judgment or decree rendered in favor of the state in any criminal proceeding under ss. 812.012-812.037 shall estop the defendant in any sub­sequent civil action or proceeding as to all matters as to which such judgment or decree would be an estop­pel as between the parties.

(9) The Department of Legal Affairs may, upon timely application, intervene in any civil action or proceeding brought under subsection (6) or subsec­tion (7) if he certifies that, in his opinion, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled .to the same relief as if the Department of Legal Affairs had instituted this action or proceeding.

(10) Notwithstanding any other provision of law, a criminal or civil action or proceeding under ss. 812.012-812.037 may be commenced at any time within 5 years after the cause of action accrues. If a criminal prosecution or civil action or other proceed­ing is brought, or intervened in, to punish, prevent, or restrain any violation of the provisions of ss. 812.012-812.037, the running of the period of limita­tions prescribed by this section with respect to any cause of action arising under subsection (6) or sub­section (7) which is based in whole or in part upon any matter complained of in any such prosecution, action, or proceeding shall be suspended during the pendency of such prosecution, action, or proceeding and for 2 years following its termination.

(11) The application of one civil remedy under any provision of ss. 812.012-812.037 shall not pre­clude the application of any other remedy, civil or criminal, under ss. 812.012-812.037 or any other sec­tion of the Florida Statutes.

History.- s. 12, ch. 77-342; s. 293, ch. 79-400.

812.037 Construction of ss. 812.012-812.037. -Notwithstanding s. 775.021, ss. 812.012-812.037 shall not be construed strictly or liberally, but shall be construed in light of their purposes to achieve their remedial goals.

vehicle, aircraft, boat, or boat motor without the au­thority of the owner or his representative, or who shall knowingly be a party to such unauthorized use, shall, upon conviction, be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Nothing in this section shall be construed to apply to any case in which the taking of the property of another is with intent to steal the same or in which the taking is under a claim of right or with the pre­sumed consent of the owner or other person having the legal control, care, or custody of the same.

History.- s. I, ch. 70-19; s. 841, ch. 71-136; s. 3A, ch. 71-342; s. 42, ch. 74-:l83; s. 27, ch. 75-298.

Note.-Former s. 814.04.

812.049 Definitions.-As used ins. 812.051: (1) "Junk" means old or scrap metals. (2) "Junk dealer" means any person who engages

in the business of storing, keeping, buying, or selling junk.

(3) "Metals" means any copper wire which is or can be used for transmission or distribution in a utili­ty or communications system and any railroad track and accessories.

(4) "Precious metals" means any item previously sold at retail, containing any gold, silver, or platinum.

(5) "Person dealing in secondhand goods" means any person who engages in the business of buying or selling precious metals.

(6) "Scrap-metal processor" means a person maintaining and operating machinery and equipment used to process scrap metals to specifications pre­scribed by, and for sale to, mills and foundries.

(7) "Foundry" means a person who uses, casts, or consumes metals of any kind.

History.- s. I, ch. 75-118; s. I, ch. 80-309; s. I, ch. 81-121.

812.051 Records required of junk dealers, scrap-metal processors, persons dealing in sec­ondhand goods, and foundries; holding period for precious metals; prohibited purchases from minors.-

(1) Every junk dealer, scrap-metal processor, per­son dealing in secondhand goods, or foundry shall keep a record of purchases of all metals as defined in s. 812.049(3) and precious metals as defined in s. 812.049(4), which record shall contain:

(a) The name and address of each person from whom the metals are purchased, including the signa­ture of the person selling the same, together with the person's driver's license number or other identifying number.

(b) The full name, residence address, home phone number, business phone number, place of em­ployment, age, race, and sex of each person from whom the precious metals are purchased, including the signature of the person selling the same, together with the person's driver's license number and one other identifying number and either a photograph or thumbprint of the seller.

History.- s. 13, ch. 77-342; s. 294, ch. 79-400. (c) A general description of the type of utility copper wire purchased, and a specific description of

812.041 Unauthorized temporary use of mo- any item containing gold, silver, or platinum, which tor vehicle, aircraft, boat, or boat motor.- description shall be accurate and as reasonably com-

(1) Any person who temporarily uses any motor plete as the nature of the item permits and shall

1301

Ch.812 THEFT, ROBBERY, AND RELATED CRIMES F.S. 1981

make reference to any permanent marking on the item, including, but not limited to, a brand, mono­gram, or hallmark.

(d) The quantity of metals or precious metals purchased.

(e) The date of the purchase. (2) The records shall at all times be subject to in­

spection by all law enforcement officers and shall be preserved for a period of 3 years after purchase.

(3) The records of purchases of precious metals, utility copper wire, or railroad track and accessories shall be submitted to the sheriff of the county and the municipal police department of the municipality in which the business is operated within 24 hours af­ter purchase.

(4) The provisions of subsection (3) do not apply to scrap-metal processors purchasing metals from governmental entities, public utility companies, or railroad companies or from dealers certifying in writ­ing that a report for the metals being purchased has previously been filed as required by this act.

(5) No articles containing precious metals shall be sold, melted, altered, or otherwise disposed of in any manner by any person dealing in secondhand goods until 15 days have elapsed from the time the sheriff of the county or the municipal law enforce­ment agency of the municipality in which the busi­ness is operated has had the records of purchase sup­plied to him as required by subsection (3). Such arti­cles may not be transferred to another county during the 15-day period. The items shall be made available for inspection by any law enforcement officer upon request.

(6) It is unlawful for any person dealing in sec­ondhand goods to knowingly buy, take, or receive by way of purchase or exchange any precious metals from any person under the age of 18 years.

(7) The provisions of this section apply only to purchases of metals as defined in s. 812.049(3) and precious metals as defined ins. 812.049(4). However, the provisions of this section do not apply to the pur­chase of:

(a) Any coin with an intrinsic value less than its numismatic value;

(b) Any gold bullion coin; (c) Any gold, silver, or platinum bullion that has

been assayed and is properly marked as to its weight and fineness; or

(d) Any coin which is mounted in a jewelry set­ting.

(8) Any person who violates the provisions of this section 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, ch. 70-9 1; s. 819, ch. 71- 136; ss. 43, 65, ch. 74-383; s. 2, ch. 75- 118; s. 28, ch. 75-298; s. 2, ch. 80-309; s. 2, ch. 81-121.

Note.-Former s . 811 .165.

812.052 Certain purchases prohibited.-It shall be unlawful for any person to purchase any ob­ject used to commemorate a deceased person or placed in memory of a deceased person, or any part of such object, unless the same is sold by an author­ized representative of the deceased person or of the cemetery in which such object was placed. Violation of this provision shall be a misdemeanor of the sec-

ond degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 3, ch. 75- 118.

812.055 Physical inspection of junkyards, scrap metal processing plants, salvage yards, li­censed motor vehicle dealers, repair shops, parking lots, public garages.-

(!) Any law enforcement officer shall have the right to inspect any junkyard, scrap metal processing plant, motor vehicle salvage yard, licensed motor ve­hicle dealer's lot, motor vehicle repair shop, parking lot, public garage, or other establishment dealing with salvaged motor vehicle parts.

(2) Such physical inspection shall be conducted during normal business hours and shall be for the purpose of locating stolen vehicles, investigating the titling and registration of vehicles, inspecting vehi­cles wrecked or dismantled, or inspecting records re­quired in s. 319.30.

History.- s. 7, ch. 78-41 2.

812.061 Larceny; return of property to own­er; procedure.-In every instance in which any money or motor vehicle shall have been taken from its rightful owner under circumstances constituting larceny of such money or motor vehicle and such money or motor vehicle is being held by state, county or municipal officials as evidence, the rightful owner of such money or motor vehicle may obtain the re­turn and possession thereof in the following manner:

(I) The rightful owner shall file a petition in the court having criminal jurisdiction describing the money or motor vehicle, the time and manner in which the same was taken from the rightful owner, the value thereof if the same is money or motor vehi­cle, and that the petitioner is the true and lawful owner thereof. Such petition shall be under oath, sworn to by the petitioner or, if the petitioner if a corporation, by a duly authorized officer or agent thereof, or by such person other than the petitioner who shall have actual knowledge of the facts alleged in such petition.

(2) Notice of the filing of such petition and a copy thereof shall be served upon any person charged with the larceny of the money or motor vehicle involved in the same manner and for the same fee as the service of a summons.

(3) If no person has been charged by indictment or information with larceny of the money or motor vehicle involved, or if a person has been so charged and cannot be found within the jurisdiction of the court out of which capias has issued and that fact has been noted on the return of such capias, then the pe­titioner shall publish in a newspaper of general circu­lation within the county in which the alleged larceny occurred once a week for 2 consecutive weeks, two publications being sufficient, notice of the filing of such petition. Such notice shall describe the money or motor vehicle involved and the time and particular place of its taking.

(4) Copies of the mentioned petition shall be fur­nished the officer having custody of the money or motor vehicle involved and also the prosecuting offi­cer of the court having criminal jurisdiction and such

1302

F.S. 1981 THEFT, ROBBERY, AND RELATED CRIMES Ch.812

officers shall be notified of any hearings and proceed­ings had upon such petition.

(5) Within 5 days after receipt of service of the notice hereinabove provided or within 10 days after the last publication of the mentioned notice, any per­son other than the petitioner claiming title or right of possession to the money or motor vehicle involved shall file his objections to the granting of such peti­tion. Such objections shall be under oath of the per­son making them and shall set forth facts showing that the petitioner is not the rightful owner or not en­titled to possession. If the person interposing objec­tions to the petition desires that the question of own­ership or right to possession be resolved by a jury, he shall make and file a demand for a jury trial at the time of filing his objections. If the objector fails to demand a jury trial at such time he shall be deemed to have waived such right.

(6) If objections are filed, as herein provided, the court having criminal jurisdiction may order the pleadings transferred to the court having civil juris­diction of the cause where the same shall be adjudi­cated upon the pleadings, or he may defer hearing the matter until the criminal case has been adjudicat­ed.

(7) If no objections are filed within the time here­in provided, the court having criminal jurisdiction shall hear the matter and may, if satisfied that the petitioner is the rightful owner of the money or motor vehicle involved, order such money or motor vehicle returned to the petitioner. The court may, in its dis­cretion, require the petitioner to post a bond in such amount as the court shall deem proper, conditioned that the petitioner will return the motor vehicle or the value of the money to the court within such time as shall be fixed by the court in the event it should be subsequently determined in judicial proceedings that the petitioner is not the rightful owner of such money or motor vehicle.

(8) When money or motor vehicle is returned to the rightful owner, as hereinabove provided, the court shall direct the clerk to make a detailed inven­tory description of such money or motor vehicle. The clerk in compliance with such direction shall make such inventory and description, including photo­graphs of the motor vehicle involved where practica­ble and certify the same as being a true and correct inventory and description. The certified inventory and description shall then be filed by the clerk among the records of his office.

(9) In any trial involving the larceny of money or motor vehicle which has been returned to the rightful owner, as hereinabove provided, and it shall be neces­sary therein to adduce testimony concerning such money or motor vehicle, secondary evidence, includ­ing the certified inventory and description thereof shall be admissible in the same manner and to the same effect as would the admission of the said money or motor vehicle, had the same not been returned.

(10) The fact that any person charged with the larceny of money or motor vehicle has failed to object to the return of such money or motor vehicle to the alleged rightful owner thereof, or the fact that such money or motor vehicle has been returned to the al­leged rightful owner thereof under the provisions of this law, shall not be offered, received or considered

as evidence either for or against the defendant in such criminal action.

History.-ss. I, 2, ch. 29677, 1955; s. 65, ch. 74-:383. Note.-Formers. 811.201.

812.062 Notification to owner and law en­forcement agency initiating stolen motor vehi­cle report upon recovery of stolen vehicle. -Whenever any law enforcement agency recovers a motor vehicle which has been unlawfully taken from its owner, the agency shall notify the owner of record by any means available or by certified letter, return receipt requested, if other notification has not been made within 72 hours. The law enforcement agency which initiated the stolen vehicle report shall also be notified of the recovery by either teletype message or certified letter, return receipt requested, within 72 hours.

History.-s. 3, ch. 80-309; s. I, ch. 81-274.

812.081 Trade secrets; theft, embezzlement; unlawful copying; definitions; penalty.-

(1) As used in this section: (a) "Article" means any object, device, machine,

material, substance, or composition of matter, or any mixture or copy thereof, whether in whole or in part, including any complete or partial writing, record, re­cording, drawing, sample, specimen, prototype mod­el, photograph, microorganism, blueprint, map, or copy thereof.

(b) "Representing" means completely or partially describing, depicting, embodying, containing, consti­tuting, reflecting, or recording.

(c) "Trade secret" means the whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an op­portunity to obtain an advantage, over those who do not know or use it. "Trade secret" includes any scien­tific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the busi­ness, art, or field to which the subject matter per­tains, a trade secret is considered to be:

1. Secret; 2. Of value; 3. For use or in use by the business; and 4. Of advantage to the business, or providing an

opportunity to obtain an advantage, over those who do not know or use it

when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limit­ed purposes.

(d) "Copy" means any facsimile, replica, photo­graph, or other reproduction in whole or in part of an article and any note, drawing, or sketch made of or from an article or part or portion thereof.

(2) Any person who, with intent to deprive or withhold from the owner thereof the control of a trade secret, or with an intent to appropriate a trade secret to his own use or to the use of another, steals

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Ch.812 THEFT, ROBBERY, AND RELATED CRIMES F.S. 1981

or embezzles an article representing a trade secret or without authority makes or causes to be made a copy of an article representing a trade secret is guilty of a misdemeanor of the first degree, punishable as pro­vided ins. 775.082 or s. 775.083.

(3) In a prosecution for a violation of the provi­sions of this section, it is no defense that the person so charged returned or intended to return the article so stolen, embezzled, or copied.

History.-ss. 1, 2, 3, ch. 74-136.

812.13 Robbery.-(1) "Robbery" means the taking of money or oth­

er property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.

(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weap­on, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felo­ny of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) An act shall be deemed "in the course of com­mitting the robbery" if it occurs in an attempt to commit robbery or in flight after the attempt or com­mission.

History.-s. 1, ch. 282 17, 1953; s. 1, ch. 29930, 1955; s. 839, ch. 71 -136; s. 38, ch. 74-383; s. 29, ch. 75-298.

Note.- Former s. 813.011.

812.14 Trespass and larceny with relation to utility or cable television fixtures.-

(1) As used in this section, "utility" includes any person, firm, corporation, or association, whether pri­vate, municipal, or cooperative, which is engaged in the sale, generation, provision, or delivery of gas, electricity, heat, water, oil, sewer service, telephone service, telegraph service, radio service, or communi­cation service.

(2) It is unlawful to: (a) Willfully alter, tamper with, injure, or know­

ingly suffer to be injured any meter, meter seal, pipe, conduit, wire, line, cable, transformer, amplifier, or other apparatus or device belonging to a utility or a cable television service or community antenna line service in such a manner as to cause loss or damage or to prevent any meter installed for registering electric­ity, gas, or water from registering the quantity which otherwise would pass through the same; or to alter the index or break the seal of any such meter; or in any way to hinder or interfere with the proper action or just registration of any such meter or device; or knowingly to use, waste, or suffer the waste of cable television service or communication antenna line ser­vice, by any means, or electricity or gas or water pass­ing through any such meter, wire, pipe, or fitting, or other appliance or appurtenance connected with or

belonging to any such utility or cable television ser­vice or community antenna line service, after such meter, wire, pipe or fitting, or other appliance or ap­purtenance has been tampered with, injured, or al­tered.

(b) Make or cause to be made any connection with any wire, main, service pipe or other pipes, ap­pliance, or appurtenance in such manner as to use, without the consent of the utility or cable television service or community antenna line service, any ser­vice or any electricity, gas, or water, or to cause to be supplied any service or electricity, gas, or water from a utility or a cable television service or community antenna line service to any person, firm, or corpora­tion or any lamp, burner, orifice, faucet, or other out­let whatsoever, without such service being reported for payment or such electricity, gas, or water passing through a meter provided by the utility and used for measuring and registering the quantity of electricity, gas, or water passing through the same.

(c) Use or receive the direct benefit from the use of a utility, cable television service, or community an­tenna line service knowing, or under such circum­stances as would induce a reasonable person to be­lieve, that such direct benefits have resulted from any tampering with, altering of, or injury to any con­nection, wire, conductor, meter, pipe, conduit, line, cable, transformer, amplifier, or other apparatus or device owned, operated, or controlled by such utility or cable television service or community antenna line service, for the purpose of avoiding payment.

(3) The presence on property in the actual pos­session of a person of any device or alteration which effects the diversion or use of the services of a utility, cable television service, or community antenna line service so as to avoid the registration of such use by or on a meter installed by the utility or so as to other­wise avoid the reporting of use of such service for payment shall be prima facie evidence of the viola­tion of this section by such person; however, this pre­sumption shall not apply unless:

(a) The presence of such a device or alteration can be attributed only to a deliberate act in further­ance of an intent to avoid payment for utility ser-vices;

(b) The person charged has received the direct benefit of the reduction of the cost of such utility ser­vices; and

(c) The customer or recipient of the utility ser­vices has received the direct benefit of such utility service for at least one full billing cycle.

( 4) Any person who willfully violates this section shall be guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

(5) Whoever is found in a civil action to have vio­lated the provisions hereof shall be liable to the utili­ty involved in an amount equal to 3 times the amount of services unlawfully obtained or $1,000, whichever is greater.

(6) Nothing in this act shall be construed to ap­ply to licensed and certified electrical contractors while performing usual and ordinary service in ac­cordance with recognized standards.

History.-s. 1, ch. 76-64; s. 1, ch. 78-262; s. 7, ch. 79-163; s. 1, ch. 79-294.

1304

F.S. 1981 COMPUTER-RELATED CRIMES Ch.815

CHAPTER 815

COMPUTER-RELATED CRIMES

815.01 815.02 815.03 815.04 815.05

815.06 815.07

Short title. Legislative intent. Definitions. Offenses against intellectual property. Offenses against computer equipment or

supplies. Offenses against computer users. This chapter not exclusive.

815.01 Short title.-The provisions of this act shall be known and may be cited as the "Florida Computer Crimes Act."

History.-s. I, ch. 78-92.

815.02 Legislative intent.-The Legislature finds and declares that:

(1) Computer-related crime is a growing problem in government as well as in the private sector.

(2) Computer-related crime occurs at great cost to the public since losses for each incident of comput­er crime tend to be far greater than the losses associ­ated with each incident of other white collar crime.

(3) The opportunities for computer-related crimes in financial institutions, government pro­grams, government records, and other business enter­prises through the introduction of fraudulent records into a computer system, the unauthorized use of computer facilities, the alteration or destruction of computerized information or files, and the stealing of financial instruments, data, and other assets are great.

(4) While various forms of computer crime might possibly be the subject of criminal charges based on other provisions of law, it is appropriate and desir­able that a supplemental and additional statute be provided which proscribes various forms of computer abuse.

History.-s. l, ch. 78-92.

815.03 Definitions.-As used in this chapter, unless the context clearly indicates otherwise:

(1) "Intellectual property" means data, including programs.

(2) "Computer program" means an ordered set of data representing coded instructions or statements that when executed by a computer cause the comput­er to process data.

(3) "Computer" means an internally pro­grammed, automatic device that performs data pro­cessing.

(4) "Computer software" means a set of computer programs, procedures, and associated documentation concerned with the operation of a computer system.

(5) "Computer system" means a set of related, connected or unconnected, computer equipment, de­vices, or computer software.

(6) "Computer network" means a set of related, remotely connected devices and communication facil­ities including more than one computer system with capability to transmit data among them through communication facilities.

(7) "Computer system services" means providing a computer system or computer network to perform useful work.

(8) "Property" means anything of value as de­fined in s. 812.011 and includes, but is not limited to, financial instruments, information, including elec­tronically produced data and computer software and programs in either machine-readable or hu­man-readable form, and any other tangible or intan­gible item of value.

(9) "Financial instrument" means any check, draft, money order, certificate of deposit, letter of credit, bill of exchange, credit card, or marketable se­curity.

(10) "Access" means to approach, instruct, com­municate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network.

History.-s. I, ch. 78-92.

815.04 Offenses against intellectual proper­ty.-

(1) Whoever willfully, knowingly, and without authorization modifies data, programs, or supporting documentation residing or existing internal or exter­nal to a computer, computer system, or computer network commits an offense against intellectual property.

(2) Whoever willfully, knowingly, and without authorization destroys data, programs, or supporting documentation residing or existing internal or exter­nal to a computer, computer system, or computer network commits an offense against intellectual property.

(3) Whoever willfully, knowingly, and without authorization discloses or takes data, programs, or supporting documentation which is a trade secret as defined ins. 812.081 or is confidential as provided by law residing or existing internal or external to a com­puter, computer system, or computer network com­mits an offense against intellectual property.

(4)(a) Except as otherwise provided in this sub­section, an offense against intellectual property is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) If the offense is committed for the purpose of devising or executing any scheme or artifice to de­fraud or to obtain any property, then the offender 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. I, ch. 78-92.

815.05 Offenses against computer equip­ment or supplies.-

(1)(a) Whoever willfully, knowingly, and without authorization modifies equipment or supplies used or intended to be used in a computer, computer system, or computer network commits an offense against computer equipment or supplies.

(b)l. Except as provided in this paragraph, an of-

1305

Ch.815 COMPUTER-RELATED CRIMES F.S. 1981

fense against computer equipment or supplies as pro­vided in paragraph (a) is a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

2. If the offense is committed for the purpose of devising or executing any scheme or artifice to de­fraud or to obtain any property, then the offender is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)(a) Whoever willfully, knowingly, and without authorization destroys, takes, injures, or damages equipment or supplies used or intended to be used in a computer, computer system, or computer network; or whoever willfully, knowingly, and without authori­zation destroys, injures, or damages any computer, computer system, or computer network commits an offense against computer equipment or supplies.

(b)l. Except as provided in this paragraph, an of­fense against computer equipment or supplies as pro­vided in paragraph (a) is a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

2. If the damage to such computer equipment or supplies or to the computer, computer system, or computer network is greater than $200 but less than $1,000, then the offender is guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

3. If the damage to such computer equipment or supplies or to the computer, computer system, or computer network is $1,000 or greater, or if there is an interruption or impairment of governmental oper­ation or public communication, transportation, or supply of water, gas, or other public service, then the

offender is guilty of a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 78-92.

815.06 Offenses against computer users.­(1) Whoever willfully, knowingly, and without

authorization accesses or causes to be accessed any computer, computer system, or computer network; or whoever willfully, knowingly, and without authoriza­tion denies or causes the denial of computer system services to an authorized user of such computer sys­tem services, which, in whole or part, is owned by, under contract to, or operated for, on behalf of, or in conjunction with another commits an offense against computer users.

(2)(a) Except as provided in this subsection, an offense against computer users is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) If the offense is committed for the purposes of devising or executing any scheme or artifice to de­fraud or to obtain any property, then the offender 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. 78-92.

815.07 This chapter not exclusive.-The pro­visions of this chapter shall not be construed to pre­clude the applicability of any other provision of the criminal law of this state which presently applies or may in the future apply to any transaction which vio­lates this chapter, unless such provision is inconsis­tent with the terms of this chapter.

History.-s. 1, ch. 78-92.

1306

F.S. 1981 FRAUDULENT PRACTICES Ch. 817

CHAPTER 817

FRAUDULENT PRACTICES

PART I FALSE PRETENSES AND FRAUDS, GENERALLY (ss. 817.02-817.563)

PART II CREDIT CARD CRIMES (ss. 817.57-817.68)

PART I 817.30

FALSE PRETENSES AND FRAUDS, GENERALLY

817.31

817.311 817.32

Punishment for unlawful use of badge of certain orders and organizations.

Unlawful use of insignia of American Le­gion; penalty.

817.02 817.03

817.035 817.036 817.04

817.05

817.06

817.061

817.08

817.11

817.12 817.13

817.14

817.15

817.16

817.17 817.18 817.19

817.20

817.21 817.22 817.23 817.233 817.234 817.235

817.24

817.25 817.26 817.27

817.28

817.29

Obtaining property by false personation. Making false statement to obtain property

or credit. Schemes to defraud; proof; penalties. Organized fraud defined; penalties. Making false statements; venue of prosecu-

tion. False statements to merchants as to finan­

cial condition. Misleading advertisements prohibited;

penalty. Misleading solicitation of payments pro­

hibited. Receiving money or property upon false

promises of services as seaman or sponge fisherman.

Obtaining property by fraudulent promise to furnish inside information.

Penalty for violation of s. 817.11. Paraphernalia as evidence of violation of s.

817.11. Procuring assignments of produce upon

false representations. Making false entries, etc., on books of cor­

poration. False reports, etc., by officers of banks,

trust companies, etc., under supervision of Department of Banking and Finance with intent to defraud.

Wrongful use of city's name. Wrongful stamping, marking, etc.; penalty. Fraudulent issue of certificate of stock of

corporation. Issuing stock or obligation of corporation

beyond authorized amount. Books to be evidence in such cases. Making false invoice to defraud insurer. Making false affidavit to defraud insurer. Burning to defraud the insurer. False and fraudulent insurance claims. Personal property; removing or altering

identification marks. Unlawful to add or alter or deface existing

brand. Fraudulently marking or branding. Fraudulently changing marks on animal. Cutting off ears or head of animal before

same is dressed. Fraudulent obtaining of property by gam­

ing. Cheating.

817.33

817.34

817.35 817.36

817.37

817.38 817.39

817.40

817.41 817.411 817.415 817.416

817.43 817.44 817.45 817.47 817.481

817.482

817.483

817.49

817.50

817.51

817.52

817.53

1307

Unlawful use of badges, etc. Fraudulent operation of coin-operated de­

vices. Manufacture, etc., of slugs to be used in

coin-operated devices prohibited. False entries and statements by invest­

ment companies offering stock or securi­ty for sale.

Sale of cemetery lots, etc.; promises. Resale of tickets of common carriers,

places of amusement, etc. Touting; defining; providing punishment;

ejection from racetracks. Simulated process. Simulated forms of court or legal process,

or official seal or stationery; publication, sale or circulation unlawful; penalty.

False, misleading and deceptive advertis-ing and sales; definitions.

Misleading advertising prohibited. False information; advertising. Florida Free Gift Advertising Law. Franchises and distributorships; misrepre-

sentations. Exemption. Intentional false advertising prohibited. Penalty. Insurance advertising exempt. Credit cards; obtaining goods by use of

false, expired, etc.; penalty. Possessing or transferring device for theft

of telecommunications service; conceal­ment of destination of telecommunica­tions service.

Transmission or publication of information regarding schemes, devices, means, or methods for theft of communication ser­vices.

False reports of commission of crimes; pen­alty.

Fraudulently obtaining goods, services, etc., from hospital.

Obtaining groceries, retail poultry, dairy, bakery, and other retail products; intent to defraud.

Obtaining vehicles with intent to defraud, failing to return hired vehicle, or tamper­ing with mileage device of hired vehicle.

False charges for radio and television re­pairs and parts; penalty.

Ch.817 FRAUDULENT PRACTICES F.S. 1981

817.54

817.55

817.559 817.56

817.561 817.562 817.563

Obtaining of mortgage, mortgage note, promissory note, etc., by false represen­tation.

Tourist attraction advertisement; mislead­ing use of the word "free."

Television picture tube labels; definitions. Misrepresentations of television picture

tubes prohibited, penalty; definitions. Violations may be enjoined. Fraud involving a security interest. Controlled substance named or described

in s. 893.03; sale of substance in lieu thereof.

817.02 Obtaining property by false person­ation.-Whoever falsely personates or represents an­other, and in such assumed character receives any property intended to be delivered to the party so per­sonated, with intent to convert the same to his own use, shall be punished as if he had been convicted of larceny.

History.-s. 49, sub-ch. 4, ch. 1637, 1868; RS 2466; GS 3321; RGS 5156; CGL 1259.

817.03 Making false statement to obtain property or credit.-Any person who shall make or cause to be made any false statement, in writing, re­lating to his financial condition, assets or liabilities, or relating to the financial condition, assets or liabili­ties of any firm or corporation in which such person has a financial interest, or for whom he is acting, with a fraudulent intent of obtaining credit, goods, money or other property, and shall by such false statement obtain credit, goods, money or other property, 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. 5134, 1903; RS 3322; s. 1, ch. 6869, 1915; RGS 5160; CG L 'i263; s. 843, ch. 71-136. cf.-s. 509.151 Obtaining lodging with intent to defraud.

817.035 Schemes to defraud; proof; penal­ties.-

(1) Any person who engages in a scheme consti­tuting a systematic, ongoing course of conduct with intent to defraud more than one person, or to obtain property from more than one person by false or fraudulent pretenses, representations, or promises, and who so obtains property from one or more of such persons is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any person who engages in a scheme consti­tuting a systematic, ongoing course of conduct with intent to defraud 10 or more persons, or to obtain property from 10 or more persons by false or fraudu­lent pretenses, representations, or promises, and who so obtains property from 1 or more of such persons is guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

(3) In any prosecution under this section, it shall be necessary to prove the identity of at least one per­son from whom the defendant so obtained property, but it shall not be necessary to prove the identity of any intended victim.

History.-s. 1, ch. 77-348.

817.036 Organized fraud defined; penalties.

(1) As used in this section, the term "organized fraud" means a scheme or operation by fraud or mis­representation whereby any person obtains any prop­erty of an aggregate value of $50,000 or more from five or more victims.

(2) Any person who commits the crime of orga­nized fraud shall, upon conviction, be guilty of a felo­ny of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 78-210.

817.04 Making false statements; venue of prosecution.-Prosecutions under s. 817.03 may be begun in the county where the statement was written, or purports to have been written.

History.- s. 2, ch. 5134, 1903; GS 3323; RGS 5161; CGL 7264. cf.-s. 910.03 Place of trial generally.

817.05 False statements to merchants as to financial condition.-Any merchant in the state, before extending credit to any person applying for the same, may require such applicant to furnish a statement in writing showing the property owned and the salary being earned by said applicant, and if said statement, or any part thereof, is false, provided the same be made willfully, and signed by applicant in presence of two witnesses, and any person obtains credit from any merchant by reason of the merchant relying on and being deceived by said false state­ment, or any part thereof, then said person so obtain­ing credit or goods shall be deemed guilty of obtain­ing money or goods under false pretenses and 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. 19487, 1939; CGL 1940 Supp. 7264(1); s. 844, ch. 71-136.

817.06 Misleading advertisements prohibit­ed; penalty.-

(1) No person, persons, association, copartner­ship, or institution shall, with intent to offer or sell or in anywise dispose of merchandise, securities, certifi­cates, diplomas, documents, or other credentials pur­porting to reflect proficiency in any trade, skill, pro­fession, credits for academic achievement, service or anything offered by such person, persons, associa­tion, copartnership, corporation, or institution di­rectly or indirectly, to the public, for sale or distribu­tion or issuance, or with intent to increase the con­sumption or use thereof, or with intent to induce the public in any manner to enter into any obligation re­lating thereto, or to acquire title thereto, or any inter­est therein, or ownership thereof, knowingly or inten­tionally make, publish, disseminate, circulate or place before the public, or cause, directly or indirect­ly, to be made, published, disseminated or circulated or placed before the public in this state in a newspa­per or other publication or in the form of a book, no­tice, handbill, poster, bill, circular, pamphlet or letter or in any other way, an advertisement of any sort re­garding such certificate, diploma, document, creden­tial, academic credits, merchandise, security, service or anything so offered to the public, which advertise­ment contains any assertion, representation or state-ment which is untrue, deceptive, or misleading.

1308

F.S. 1981 FRAUDULENT PRACTICES Ch. 817

(2) Any person, persons, association, copartner­ship, corporation, or institution found guilty of a vio­lation of subsection (1) shall be guilty of a misdemea­nor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

His tory.-ss. 1. 2, ch. 11827, 1927; CGL 7311 , 7312; ss. I, 2, ch. 57-410; s. 846, ch. 71-136.

Note.- Former s. 817.07.

817.061 Misleading solicitation of payments prohibited.-

(1) It is unlawful for any person, company, corpo­ration, agency, association, partnership, institution, or charitable entity to solicit payment of money by another by means of a statement or invoice, or any writing that would reasonably be interpreted as a statement or invoice, for goods not yet ordered or for services not yet performed and not yet ordered, un­less there appears on the face of the statement or in­voice or writing in 30-point boldfaced type the fol­lowing warning:

"This is a solicitation for the order of goods or ser­vices, and you are under no obligation to make pay­ment unless you accept the offer contained herein."

(2) Any person damaged by noncompliance with this section, in addition to other remedies, is entitled to damages in the amount equal to 3 times the sum solicited.

(3) Any person, company, corporation, agency, association, partnership, institution, or charitable en­tity that violates this section is guilty of a misdemea­nor of the second degree, punishable as provided in s. 775.083.

History.-ss. I, 2, ch. 69-246; s. 845, ch. 71-136.

817.08 Receiving money or property upon false promises of services as seaman or sponge fisherman.-Whoever enters into a written agree­ment with any master or owner of a vessel to perform certain services upon said vessel as seaman or sponge fisherman for a contemplated voyage, and receives or accepts any money or goods, wares or merchandise, as advances or bounty for the performance of said services, and shall willfully and without just cause re­fuse to perform said services, or to go on said vessel at the time of the sailing of the same, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. I , ch. 5161, 1903; GS 3324; RGS 5162; CGL 7265; s. 847, ch. 71-136.

817.11 Obtaining property by fraudulent promise to furnish inside information.-No per­son shall defraud or attempt to defraud any individu­al out of any thing of value by assuming to have or be able to obtain any secret, advance or inside informa­tion regarding any person, transaction, act or thing, whether such person, transaction, act or thing exists or not.

History.-s. I, ch. 8466, 192 1; CGL 7308.

817.12 Penalty for violation of s. 817.11. -Any person guilty of violating the provisions of s. 817.11 shall be deemed guilty of a felony of the third degree , punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 2, ch. 8466, 192 1; CGL 7309; s. 848, ch. 71-136.

817.13 Paraphernalia as evidence of viola­tion of s. 817.11.-All paraphernalia of whatsoever kind in possession of any person and used in defraud­ing or attempting to defraud as specified ins. 817.11 shall be held and accepted by any court of competent jurisdiction in this state as prima facie evidence of guilt.

History.-s. 3, ch. 8466, 1921; CGL 7310.

817.14 Procuring assignments of produce upon false representations.-Any person acting for himself or another, who shall procure any con­signment of produce grown in this state, to himself or such other, for sale on commission or for other com­pensation by any knowingly false representation as to the prevailing market price at such time for such pro­duce at the point to which it is consigned, or as to the price which such person for whom he is acting is at said time paying to other consignors for like produce at said place, or as to the condition of the market for such produce at such time and place, and any such person acting for another who shall procure any con­signment for sale as aforesaid by false representation of authority to him by such other to make a guaran­teed price to the consignor, shall be guilty of a misde­meanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. I , ch. 5141, 1903; GS 3325; RGS 5163; CGL 7266; s. 849, ch. 71 -136.

817.15 Making false entries, etc., on books of corporation.-Any officer, agent, clerk or servant of a corporation who makes a false entry in the books thereof, with intent to defraud, and any person whose duty it is to make in such books a record or entry of the transfer of stock, or of the issuing and canceling of certificates thereof, or of the amount of stock is­sued by such corporation, who omits to make a true record or entry thereof, with intent to defraud, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

His tory.-s. 47, ch. 1637, 1868; RS 2467; GS 3326; RGS 5164; CG L 7267; s. 850, ch. 71 -136.

817.16 False reports, etc., by officers of banks, trust companies, etc., under supervision of Department of Banking and Finance with in­tent to defraud.-Any officer, director, agent or clerk of any bank, trust company, building and loan association, small loan licensee, credit union, or other corporation under the supervision of the Department of Banking and Finance, who willfully and knowingly subscribes or exhibits any false paper with intent to deceive any person authorized to examine as to the records of such bank, trust company, building and loan association, small loan licensee, credit union, or other corporation under the supervision of the De­partment of Banking and Finance, or willfully and knowingly subscribes to or makes any false reports to the Department of Banking and Finance or causes to be published any false report, shall be guilty of a felo­ny of the third degree, punishable as provided s. 775.082 or s. 775.083.

History.-s. I, ch. 15876, 1933; CG L 1936 Supp. 7315(1); ss. 12, 35, ch. 69- 106; s. 851, ch. 71-136.

1309

Ch. 817 FRAUDULENT PRACTICES F.S. 1981

817.17 Wrongful use of city's name.-No per­son or persons engaged in manufacturing in this state, shall cause to be printed, stamped, marked, en­graved or branded, upon any of the articles manufac­tured by them, or on any of the boxes, packages, or bands containing such manufactured articles, the name of any city in the state, other than that in which said articles are manufactured; provided, that nothing in this section shall prohibit any person from offering for sale any goods having marked thereon the name of any city in Florida other than that in which said goods were manufactured, if there be no manufactory of similar goods in the city the name of which is used.

History.-s. I, ch. 41 45, 1893; GS 3327; RGS 5167; CGL 7270.

817.18 Wrongful stamping, marking, etc.; penalty.-

(1) No person shall knowingly sell or offer for sale, within the state, any manufactured articles which shall have printed, stamped, marked, en­graved, or branded upon them, or upon the boxes, packages, or bands containing said manufactured ar­ticles, the name of any city in the state, other than that in which such articles were manufactured; pro­vided, that nothing in this section shall prohibit any person from offering for sale any goods, having marked thereon the name of any city in Florida, oth­er than that in which said goods are manufactured, if there be no manufactory of similar goods in the city the name of which is used.

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

History.-s. 2, ch. 41 45, 1893; GS 3328; RGS 5168; CGL 7271; s. 852, ch. 71-136.

817.19 Fraudulent issue of certificate of stock of corporation.-Any officer, agent, clerk or servant of a corporation, or any other person, who fraudulently issues or transfers a certificate of stock of a corporation to any person not entitled thereto, or fraudulently signs such certificate, in blank or other­wise, with the intent that it shall be so issued or transferred by himself or any other 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. 46, ch. 1637, 1868; RS 2468; GS 3329; RGS 5169; CGL 7272; s. 853, ch. 71-136.

817.20 Issuing stock or obligation of corpo­ration beyond authorized amount.-Any officer, agent, clerk or servant of a corporation, or any other person, who issues, or signs with intent to issue, any certificate of stock in a corporation, or who issues, signs or endorses with intent to issue any bond, note, bill or other obligation or security in the name of such corporation, beyond the amount authorized by law, or limited by the legal votes of such corporation or its proper officers; or negotiates, transfers or dis­poses of such certificate, with intent to defraud, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

His tory.-s. 45, ch. 1637, 1868; RS 2469; GS 3330; RGS 5170; CGL 7273; s. 854, ch. 71-136.

817.21 Books to be evidence in such cases. -On the trial of any person under ss. 817.19 and 817.20 the books of any corporation to which such person has access or the right of access shall be ad­missible in evidence.

History.- s. 48, ch. 1637, 1868; RS 2470; GS 3331; RGS 5171; CGL 7274.

817.22 Making false invoice to defraud in­surer.-If the owner of a ship or vessel or of proper­ty laden or pretended to be laden on board the same, or if any other person concerned in the lading or fit­ting out of a ship or vessel, makes out or exhibits, or causes to be made out or exhibited, a false or fraudu­lent invoice, bill of lading, bill or parcels or other false estimates of any goods or property laden or pre­tended to be laden, on board such ship or vessel, with intent to injure and defraud an insurer of such ship, vessel or property, or of any part thereof, 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. 72, ch. 1637, 1868; RS 2471; GS 3332; RGS 5172; CGL 7275; s. 7, ch. 22858, 1945; s. 855, ch. 71-136.

817.23 Making false affidavit to defraud in­surer.-If a master, other officer, or mariner of a ship or vessel, makes or causes to be made, or swears to any false affidavit or protest, or if an owner or oth­er person concerned in such ship or vessel or in the goods and property laden on board the same, pro­cures any such false affidavits or protest to be made, or exhibits the same, with intent to injure, deceive or defraud an insurer of such ship or vessel, or of any goods or property laden on board the same, he 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. 73, ch. 1637, 1868; RS 2472; GS 3333; RGS 5173; CGL 7276; s. 856, ch. 71-136.

817.233 Burning to defraud the insurer. -Any person who willfully and with intent to injure or defraud the insurer sets fire to or burns or at­tempts so to do or who causes to be burned or who aids, counsels or procures the burning of any build­ing, structure or personal property, of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any person against loss or damage by fire, shall be guilty of a felony of the third degree, punishable as provid­ed ins. 775.082, s. 775.083, or s. 775.084.

History.-s. I , ch. 15602, 1931; CGL 1936 Supp. 7208(1 2); s. 791 , ch. 71-1:16; s. 65, ch. 74-383.

Note.- Former s. 806.06.

817.234 False and fraudulent insurance claims.-

(1)(a) Any person who, with the intent to injure, defraud, or deceive any insurance company, includ­ing, but not limited to, any motor vehicle, life, dis­ability, credit life, credit, casualty, surety, workers' compensation, title, premium finance, reinsurance, fraternal benefit, or home or automobile warranty company:

1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insur­ance policy, knowing that such statement contains

1310

F.S. 1981 FRAUDULENT PRACTICES Ch. 817

any false, incomplete, or misleading information con­cerning any fact or thing material to such claim; or

2. Prepares or makes any written or oral state­ment that is intended to be presented to any insur­ance company in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading infor­mation concerning any fact or thing material to such claim,

is guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

(b) All claims forms shall contain a statement in a form approved by the Department of Insurance that clearly states in substance the following: "Any person who knowingly and with intent to injure, de­fraud, or deceive any insurance company files a: state­ment of claim containing any false, incomplete, or misleading information is guilty of a felony of the third degree."

(2) Any physician licensed under chapter 458, os­teopath licensed under chapter 459, chiropractor li­censed under chapter 460, or other practitioner li­censed under the laws of this state who knowingly and willfully assists, conspires with, or urges any in­sured party to fraudulently violate any of the provi­sions of this section or part XI of chapter 627, or any person who, due to such assistance, conspiracy, or urging by said physician, osteopath, chiropractor, or practitioner, knowingly and willfully benefits from the proceeds derived from the use of such fraud, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In the event that a physician, osteopath, chiropractor, or practitioner is adjudicated guilty of a violation of this section, the Board of Medical Examiners as set forth in chapter 458, the Board of Osteopathic Medical Ex­aminers as set forth in chapter 459, the Board of Chi­ropractic as set forth in chapter 460, or other appro­priate licensing authority shall hold an administra­tive hearing to consider the imposition of administra­tive sanctions as provided by law against said physi­cian, osteopath, chiropractor, or practitioner.

(3) Any attorney who knowingly and willfully as­sists, conspires with, or urges any claimant to fraudu­lently violate any of the provisions of this section or part XI of chapter 627, or any person who, due to such assistance, conspiracy, or urging on such attor­ney's part, knowingly and willfully benefits from the proceeds derived from the use of such fraud, is guilty of a felony of the third degree, punishable as provid­ed ins. 775.082, s. 775.083, or s. 775.084.

(4) No person or governmental unit licensed un­der chapter 395 to maintain or operate a hospital, and no administrator or employee of any such hospi­tal, shall knowingly and willfully allow the use of the facilities of said hospital by an insured party in a scheme or conspiracy to fraudulently violate any of the provisions of this section or part XI of chapter 627. Any hospital administrator or employee who 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. Any adjudication of guilt for a violation of this subsection, or the use of business

practices demonstrating a pattern indicating that the spirit of the law set forth in this section or part XI of chapter 627 is not being followed, shall be grounds for suspension or revocation of the license to operate the hospital or the imposition of an administrative penalty of up to $5,000 by the licensing agency, as set forth in chapter 395.

(5) Any insurance company damaged as a result of a violation of any provision of this section when there has been a criminal adjudication of guilt shall have a cause of action to recover compensatory dam­ages, plus all reasonable investigation and litigation expenses, including attorneys' fees, at the trial and appellate courts.

(6) For the purposes of this section, "statement" includes, but is not limited to, any notice, statement, proof of loss, bill of lading, invoice, account, estimate of property damages, bill for services, diagnosis, pre­scription, hospital or doctor records, X ray, test re­sult, or other evidence of loss, injury, or expense.

(7) The provisions of this section shall also apply as to any insurer or adjusting firm or its agents or re­presentatives who, with intent, injure, defraud, or de­ceive any claimant with regard to any claim. The claimant shall have the right to recover the damages provided in this section.

(8) It is unlawful for any person, in his individual capacity or in his capacity as a public or private em­ployee, or for any firm, corporation, partnership, or association, to solicit any business in or about city re­ceiving hospitals, city and county receiving hospitals, county hospitals, justice courts, or municipal courts; in any public institution; in any public place; upon any public street or highway; in or about private hos­pitals, sanitariums, or any private institution; or upon private property of any character whatsoever for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits re­quired by s. 627.736. Any person who violates the provisions of this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(9) It is unlawful for any attorney to solicit any business relating to the representation of persons in­jured in a motor vehicle accident for the purpose of filing a motor vehicle tort claim or a claim for person­al injury protection benefits required by s. 627.736. Any attorney who violates the provisions of this sub­section is guilty of a felony of the third degree, pun­ishable as provided in s. 775.082, s. 775.083, or s. 775.084. Whenever any circuit or special grievance committee acting under the jurisdiction of the Su­preme Court shall find probable cause to believe that an attorney is guilty of a violation of this section, such committee shall forward to the appropriate

·state attorney a copy of the finding of probable cause and the report being filed in the matter. This section shall not be interpreted to prohibit advertising by at­torneys which is permitted by the Code of Profes­sional Responsibility as promulgated by the Florida Supreme Court.

History.-s. 7, ch. 76-266; s. 36, ch. 77-468; s. 3, ch. 78-258; s. I , ch. 79-81; s. 487, ch. 81-259.

Note.-Formers. 627.7375.

1311

Ch.817 FRAUDULENT PRACTICES F.S. 1981

817.235 Personal property; removing or al­tering identification marks.-

(1) Except as otherwise provided by law, any per­son who, with intent to prevent identification by the true owner, removes, erases, defaces, or otherwise al­ters any serial number or other mark of identification placed on any item of personal property by the man­ufacturer or owner thereof is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Any person who possesses any item of person­al property with the knowledge that the serial num­ber or other mark of identification placed thereon by the manufacturer or owner thereof has been re ­moved, erased, defaced, or otherwise altered with in­tent to prevent identification by the true owner is guilty of a misdemeanor of the first degree, punish­able as provided in s. 775.082 or s. 775.083.

History.-s. I, ch. 74-6.

817.24 Unlawful to add or alter or deface existing brand.-It is unlawful for anyone to add to or alter or deface any existing brand on any animal not his own or without the consent of the owner, with a fraudulent intent to claim the same, any bar, letter, figure, or character of any kind. 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.

His tory.-ss. I, 3, ch. 4734, 1899; GS 3334; RGS 5174; CGL 7277; s. 857, ch. 71- 136.

817.25 Fraudulently marking or branding. - Whoever shall fraudulently mark or brand any un­marked or unbranded animal with the intent to claim the same or to prevent identification by the true owner or owners thereof, shall be punished as provid­ed ins. 817.24.

History.-s. 4, ch. 4734, 1899; GS 3335; RGS 5175; CGL 7278.

817.26 Fraudulently changing marks on ani­maL-If any person shall fraudulently alter or change the marks of any animal, not his own, with in­tent to claim the same or to prevent identification by the true owner thereof, the person so offending shall be guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

History.-s. I, ch. 5663, 1907; RGS 5176; CGL 7279; s. 858, ch. 71 -136.

817.27 Cutting off ears or head of animal be­fore same is dressed.- No person shall cut the ears or head off of any hogs, sheep, beef, or other domestic animal until the same has been dressed. Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083.

History.-ss. I , 2, ch. 5157, 1903; GS 3336; RGS 5177; CGL 7280; s. 859, ch. 71-136.

817.28 Fraudulent obtaining of property by gaming.- Whoever, by the game of three-card mon­te, so-called, or any other game, device, sleight-of-hand, pretensions to fortunetelling, or oth­er means whatever by the use of cards or other imple­ment or implements, fraudulently obtains from an-

other person property of any description, shall be punished as if he had been convicted of larceny.

History.-s. 53, ch. 1637, 1868; RS 2473; GS 3343; RGS 5186; CGL 7289.

817.29 Cheating.-Whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

History.-s. 54, ch. 1637, 1868; RS 2475; GS 3344; RGS 5187; CGL 7290; s. 860, ch. 71 -136.

817.30 Punishment for unlawful use of badge of certain orders and organizations.-Any person who willfully wears the badge or button of the Grand Army of the Republic, the insignia, badge or rosette of the Military Order of the Loyal Legion of the United States, or of the Military Order of Foreign Wars of the United States, or of the Patrons of Hus­bandry, or the Benevolent and Protective Order of Elks of the United States of America, or of the Wood­men of the World, or of any society, order or organi­zation of 5 years' standing in the state, or uses the the same to obtain aid or assistance within this state, or willfully uses the name of such society, order or orga­nization, the titles of its officers, or its insignia, ritual or ceremonies, unless entitled to use or wear the same under the constitution and bylaws, rules and regula­tions of such order or of such society, order ot organi­zation, is guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. I, ch. 6502, 1913; RGS 5197; CG L 7300; s. 862, ch. 71-136.

817.31 Unlawful use of insignia of American Legion; penalty.-Any person who willfully wears the badge, button or other insignia of the American Legion shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; provided, that the provisions of this section shall not apply to any member of the American Le­gion.

History.-s. I , ch. 8464, 1921; CGL 7301; s. 861 , ch. 71-136.

817.311 Unlawful use of badges, etc.-(1) From and after May 9, 1949, any person who

shall wear or display a badge, button, insignia or oth­er emblem, or shall use the name of or claim to be a member of any benevolent, fraternal, social, humane, or charitable organization, which organization is enti­tled to the exclusive use of such name and such badge, button, insignia or emblem either in the iden­tical form or in such near resemblance thereto as to be a colorable imitation thereof, unless such person is entitled so to do under the laws, rules and regulations of such organization, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) This section shall be cumulative to any and all laws now in force in the state.

History.-s. I , ch. 25025, 1949; s. 863, ch. 71 -136.

817.32 Fraudulent operation of coin-operated devices.-Any person who shall op­erate or cause to be operated, or who shall attempt to operate, or attempt to cause to be operated, any auto­matic vending machine, slot machine, coinbox tele-

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F.S. 1981 FRAUDULENT PRACTICES Ch. 817

phone, or other receptacle designed to receive lawful coin of the United States in connection with the sale, use or enjoyment of property or service, by means of a slug or any false, counterfeited, mutilated, sweated, or foreign coin, or by any means, method, trick, or de­vice whatsoever not lawfully authorized by the own­er, lessee, or licensee of such machine, coinbox tele­phone or receptacle, or who shall take, obtain or re­ceive from or in connection with any automatic vend­ing machine, slot machine, coinbox telephone or oth­er receptacle designed to receive lawful coin of the United States in connection with the sale, use, or en­joyment of property or service, any goods, wares, merchandise, gas, electric current, article of value, or the use or enjoyment of any telephone or telegraph facilities or service, or of any musical instrument, phonograph, or other property, without depositing in and surrendering to such machine, coinbox telephone or receptacle lawful coin of the United States to the amount required therefor by the owner, lessee, or li­censee of such machine, coinbox telephone or recep­tacle, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. l , ch. 12267, 1927; CGL 73 13; s. 864, ch. 71·136. cf.- s. 849. 15 Possession of slot machines unlawful.

817.33 Manufacture, etc., of slugs to be used in coin-operated devices prohibited.-Any person who, with intent to cheat or defraud the owner, les­see, licensee, or other person entitled to the contents of any automatic vending machine, slot machine, coinbox telephone or other receptacle, depository, or contrivance designed to receive lawful coin of the United States in connection with the sale, use, or en­joyment of property or service, or who, knowing that the same is intended for unlawful use, shall manufac­ture for sale, or sell or give away any slug, device or substance whatsoever intended or calculated to be placed or deposited in any such automatic vending machine, slot machine, coinbox telephone or other such receptacle, depository or contrivance, shall be guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.082 or s. 775.083.

History.-s. 2, ch. 12267, 1927; CGL 73 14; s. 865, ch. 71· 136.

817.34 False entries and statements by in­vestment companies offering stock or security for sale.-Any person who shall knowingly subscribe to or make or cause to be made, any false statements or false entry in any book of any investment company or exhibit any false paper with the intention of de­ceiving any person authorized to examine into the af­fairs of any investment company, or shall make, utter or publish any false statement of the financial condi­tion of any investment company, or the stock, bonds or other securities by it offered for sale, shall be guilty of a felony of the third degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

History.- s. 9. ch. 6422, 191 3; RGS 5748; CGL 7975; s. 866, ch. 71 · 136.

817.35 Sale of cemetery lots, etc.; promises.

(1) It shall be unlawful for any person, firm or corporation, to sell, offer for sale, or advertise for sale, cemetery lots or mausoleum space, upon the

guarantee, promise, representation or inducement to the purchaser that the same may be sold or repur­chased at a financial profit.

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

History.- ss. l, 2, ch. 22080, 1943; s. 7B, ch. 24337, 1947; s. 867, ch. 71·136.

817.36 Resale of tickets of common carriers, places of amusement, etc.-

(1) Whoever shall offer for sale or sell any ticket good for passage or accommodations on any common carrier in this state, or good for admission to any sporting exhibition, athletic contest, theater, or any exhibition where an admission price is charged, and request or receive a price in excess of $1 above the price charged therefor by the original seller of said ticket shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) The provisions of this law shall not apply to travel agencies that have an established place of busi­ness in this state, which place of business is required to pay state, county, and city occupational license taxes.

History.-ss. l, Ia, ch. 22726, 1945; s. 868, ch. 71 · 136.

817.37 Touting; defining; providing punish­ment; ejection from racetracks.-

(!) Any person who knowingly and designedly by false representation attempts to, or does persuade, procure or cause another person to wager on a horse in a race to be run in this state or elsewhere, and upon which money is wagered in this state, and who asks or demands compensation as a reward for infor­mation or purported information given in such case is a tout, and is guilty of touting.

(2) Any person who is a tout, or who attempts or conspires to commit touting, shall be guilty of a mis­demeanor of the second degree, punishable as provid­ed in s. 775.082 or s. 775.083.

(3) Any person who in the commission of touting falsely uses the name of any official of the Florida Di­vision of Pari-mutuel Wagering, its inspectors or at­taches, or of any official of any racetrack association, or the names of any owner, trainer, jockey, or other person licensed by the Florida Division of Pari-mutuel Wagering, as the source of any informa­tion or purported information shall be 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 has been convicted of touting by any court, and the record of whose conviction on such charge is on file in the office of the Florida Divi­sion of Pari-mutuel Wagering, any court of this state, or of the Federal Bureau of Investigation, or any per­son who has been ejected from any racetrack of this or any other state for touting or practices inimical to the public interest shall be excluded from all race­tracks in this state and if such person returns to a racetrack he shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any such person who refuses to leave such track when ordered to do so by inspectors of the Florida Division of Pari-mutuel Wagering or by any

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Ch.817 FRAUDULENT PRACTICES F.S. 1981

peace officer, or by an accredited attache of a race­track or association shall be guilty of a separate of­fense which shall be a misdemeanor of the second de­gree, punishable as provided in s. 775.083.

History.-ss. 1-4. ch. 24344, 1947; s. 10, ch. 26484, 1951; s. I, ch. 67-233; s. 2, ch. 71-98; s. 869, ch. 71-136.

817.38 Simulated process.-(1) CIRCULATION PROHIBITED.-It is un­

lawful for any person, firm, or corporation to send or deliver, or cause to be sent or delivered any letter, pa­per, document, notice of intent to bring suit, or other notice or demand, which simulates a summons, com­plaint, writ, or other court process, or any letter, pa­per, or document which simulates the seal of the state or the stationery of any state agency or ficti­tious state agency with intent to lead the recipient or sendee to believe that the same is genuine, for the purpose of obtaining any money or thing of value, or that a state agency is the sending party. The sending of such simulating document shall be prima facie evi­dence of such intent, and it shall be no defense to show that the document bears any statement to the contrary, nor shall it be a defense to show that the money or thing of value sought to be obtained was to apply as payment on a valid obligation.

(2) EVIDENCE OF DELIVERY.-In prosecu­tions for violation of this section, the prosecution may show that the simulating document was deposit­ed in the post office for mailing or was delivered to any person with intent to be forwarded, and such showing shall be sufficient proof of the sending or de­livery.

(3) VENUE.-Any person violating this section may be tried therefor in the county where such simu­lating document was so deposited, or the county where the same was received.

(4) EXCEPTION.-Nothing in this section shall be construed to prohibit the printing, publication or distribution of blank forms of genuine summons and other court process.

(5) PENAL TIES.-Any person, firm or corpora­tion violating this section shall be guilty of a misde­meanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-ss. 1-5, ch. 57-73; s. I, ch. 65-336; s. 870, ch. 71-136.

817.39 Simulated forms of court or legal process, or official seal or stationery; publica­tion, sale or circulation unlawful; penalty.-

(1) Any person, firm, or corporation who shall print, for the purpose of sale or distribution and for use in the state, or who shall circulate, publish, or of­fer for sale any letter, paper, document, notice of in­tent to bring suit, or other notice or demand, which simulates a form of court or legal process, or any per­son who without authority of the state shall print, for the purpose of sale or distribution for use in the state, or who without authority of the state shall cir­culate, publish, use, or offer for sale any letters, pa­pers, or documents which simulate the seal of the state, or the stationery of a state agency or fictitious state agency is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) It shall be no defense that the paper or other instrument referred to in subsection (1) shall dec'are that it is not a court or legal process.

(3) Nothing in this section shall prevent the printing, publication, sale or distribution of genuine legal forms for the use of attorneys or clerks of courts.

History.-ss. 1-3, ch. 57-265; s. 2, ch. 65-336; s. 871, ch. 71-136; s. 240, ch. 77-104.

817.40 False, misleading and deceptive ad­vertising and sales; definitions.-When constru­ing ss. 817.40, 817.41,817.42-817.47, and each and ev­ery word, phrase or part thereof, where the context will permit:

(1) The word or term "wholesale" or- "wholesale sale" shall extend to and include an "at-cost sale," "below-cost sale," and terms of similar purport, and embraces all sales purporting to be made at or below the seller's net delivered cost price, or below the aver­age wholesale cost of the items sold or to be sold, but which are in fact made for a price in excess of the av­erage wholesale of like items.

(2) The word or term "retail" means the sale or offering for sale of individual items of merchandise to the ultimate consumer.

(3) The term or word "retailer" means one who acquires for the purpose of sale, keeps for sale, offers or exposes for sale, or sells individual units of mer­chandise to the ultimate consumer and not for resale.

(4) The term or word "merchandise" includes goods, wares and merchandise, as generally under­stood, and in addition thereto services and other things of value.

(5) The phrase "misleading advertising" includes any statements made, or disseminated, in oral, writ­ten or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise of reasonable care or investiga­tion could or might have been ascertained, to be un­true or misleading, and which are or were so made or disseminated with the intent or purpose, either di­rectly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services.

(6) The definitions contained ins. 1.01, insofar as the context of this act will permit, shall be applicable hereto.

History.-s. I, ch. 59-301 .

817.41 Misleading advertising prohibited.

(1) It shall be unlawful for any person to make or disseminate or cause to be made or disseminated be­fore the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall con­stitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.

(2) It shall be unlawful for any person to adver­tise, in any way or by any medium whatsoever, any sale as a "wholesale sale," "below cost sale," or terms

1314

F.S. 1981 FRAUDULENT PRACTICES Ch. 817

of similar purport, unless the goods, wares or mer­chandise offered for sale thereby are offered by the seller at or below his delivered net cost price, or be­low the average wholesale price of such goods, wares, or merchandise. Such advertising of goods, wares, or merchandise for sale shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.

(3) Any retailer using the term or phrase "whole­sale sale," "below cost sale," or terms of similar pur­port, in connection with the sale of goods, wares, or merchandise at retail, shall, upon demand by a cus­tomer, forthwith make available, unless the same shall have theretofore been made available, to the Better Business Bureau, the Merchant's Division of the Chamber of Commerce, or to the state attorney's office for inspection, invoices, or shipping charges or true and correct copies thereof, of any goods, wares, or merchandise so offered for sale, described or rep­resented, indicating the delivery net cost to the seller of the particular goods, wares or merchandise sold or offered for sale, from which the seller's delivered net cost may be determined. The said retailer shall also and at the same time give all reasonable assistance in determining and ascertaining his net cost price of said goods, wares, or merchandise. The said Better Business Bureau, Merchant's Division of the Cham­ber of Commerce or state attorney, upon determining the said delivered net cost, shall forthwith issue a certificate evidencing such delivered net cost, as de­termined, and deliver the same to the retailer for de­livery or exhibition to the customer. Unless such cer­tificate shall show a delivered net cost equal to or in excess of the advertised price, the retailer shall be presumed to have violated this law.

(4) There shall be a rebuttable presumption that the person named in or obtaining the benefits of any misleading advertisement or any such sale is respon­sible for such misleading advertisement or unlawful sale.

(5) No retailer shall knowingly and willfully ad­vertise merchandise for sale at a special or wholesale price, in any way or by any medium whatsoever, if he does not have sufficient quantities of the advertised merchandise to meet the reasonably foreseeable de­mand, unless the fact of limited quantity and the ap­proximate number of items is stated in the advertise­ment, or unless the retailer provides a means by which the consumer may obtain the advertised item at the advertised price within a reasonable time or a value equivalent thereto.

(6) Any person prevailing in a civil action for vio­lation of this section shall be awarded costs, includ­ing reasonable attorney's fees, and may be awarded punitive damages in addition to actual damages proven. This provision is in addition to any other remedies prescribed by law.

History.-s. 2, ch. 59-301; s. 1, ch. 73-60; s. 2, ch. 77-304.

817.411 False information; advertising.-No person, firm or corporation shall knowingly publish, disseminate, circulate, or place before the public, or cause directly or indirectly, to be made, published, disseminated, circulated, or placed before the public,

in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, any advertisement, announcement, or statement containing any assertion, representation, or statement that commodities, mortgages, promisso­ry notes, securities, or other things of value offered for sale are covered by insurance guaranties where such insurance is nonexistent or does not in fact in­sure against the risks covered.

History.-s. I, ch. 61 -110.

817.415 Florida Free Gift Advertising Law.

(I) LEGISLATIVE INTENT.-(a) The Legislature of the State of Florida recog­

nizes that the deceptive misuse of the term "free" and words of similar meaning and intent in advertising by the unscrupulous has resulted in deception of con­sumers, leading them unknowingly to assume con­tractual obligations which were initially concealed by the deception.

(b) It is the intent of the Legislature to prevent such deception by requiring disclosure of all contin­gent conditions, obligations, or considerations in any form in connection with the advertising of goods or services using the term "free" or words of similar meaning and intent.

(c) It is not the intent of the Legislature to pro­hibit the use of gifts in legitimate promotions of trade so long as the advertising of such gifts and promo­tions makes full disclosure of any requirement for purchase or contractual obligations to be assumed in order to qualify for the gift.

(2) SHORT TITLE.-This act may be cited as the "Florida Free Gift Advertising Law."

(3) DEFINITIONS.-As used in this act: (a) "Person" includes an individual, partnership,

corporation, association, or other entity doing busi­ness in the state.

(b) "Free" includes the use of terms such as "a­warded," "prize," "absolutely without charge," "free of charge," and words or groups of words of similar in­tent which reasonably lead a person to believe that he may receive, or has been selected to receive, some­thing of value, entirely or in part without a require­ment of compensation in any form from the recipi­ent.

(c) "Item" means goods, services, or any tangible or intangible thing of value and the rights therein.

(d) "Advertisement" and "advertising" includes every form of communication which offers for sale, or attempts to induce the creation of obligations in ex­change for, any item or rights therein.

(4) RESTRICTIONS ON USE OF WORD "FREE."-Any item or portion of an item uncondi­tionally offered as "free" shall in fact be free, without obligation or requirement of consideration in any form, when accepted in writing within the time limit set forth in the advertisement or within a reasonable time, if no time limit is so set. However, any person so receiving and accepting such offer may be required to pay any necessary transportation or delivery charges directly to the United States Postal Service or other regulated public carrier.

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Ch.817 FRAUDULENT PRACTICES F.S. 1981

(5) TYPE REQUIREMENTS IN ADVERTISE­MENTS.-Advertising in which items are offered as free with conditions or obligations necessary to ac­ceptance shall include a statement of any such condi­tions or obligations with equal prominence and type size at least half that of the term "free," and advertis­ing in compliance herewith shall not be considered deceptive.

(6) VIOLATIONS.-Any violation of this section is declared to be a deceptive trade practice and un­lawful.

(7) INJUNCTIONS.-The Commissioner of Ag­riculture or the Attorney General may bring an ac­tion for injunction to prohibit practices in violation of this law, and any such injunction shall be issued without bond. Such suit may be brought in any cir­cuit court of this state having jurisdiction over the party or parties defendant.

History.-ss. 1·5, ch. 70-164; s. 1, ch. 70-439; ss. 1-6, ch. 72-4.

817.416 Franchises and distributorships; misrepresentations.-

(!) DEFINITIONS.-For the purpose of this sec­tion:

(a) The term "person" means an individual, part­nership, corporation, association, or other entity do­ing business in Florida.

(b) The term "franchise or distributorship" means a contract or agreement, either expressed or implied, whether oral or written, between two or more persons:

1. Wherein a commercial relationship of definite duration or continuing indefinite duration is in­volved;

2. Wherein one party, hereinafter called the "franchisee," is granted the right to offer, sell, and distribute goods or services manufactured, processed, distributed or, in the case of services, organized and directed by another party;

3. Wherein the franchisee as an independent business constitutes a component of franchiser's dis­tribution system; and

4. Wherein the operation of the franchisee's busi­ness franchise is substantially reliant on franchisers for the basic supply of goods.

(c) The term "goods" means any article or thing without limitation, or any part of such article or thing, including any article or thing used or con­sumed by a franchisee in rendering a service estab­lished, organized, directed, or approved by a fran­chiser.

(2) DECLARATIONS.-(a) It is unlawful, when selling or establishing a

franchise or distributorship, for any person: 1. Intentionally to misrepresent the prospects or

chances for success of a proposed or existing fran­chise or distributorship;

2. Intentionally to misrepresent, by failure to dis­close or otherwise, the known required total invest­ment for such franchise or distributorship; or

3. Intentionally to misrepresent or fail to disclose efforts to sell or establish more franchises or distribu­torships than is reasonable to expect the market or market area for the particular franchise or distribu­torship to sustain.

(b) The execution or carrying out of a scheme, plan, or corporate organization which violates an" of the provisions of this section, if knowledge or intent be proved, shall be a misdemeanor of the second de­gree, punishable as provided in ss. 775.082 and 775.083.

(3) CIVIL PROVISIONS.-Any person, who shows in a civil court of law a violation of this section may receive a judgment for all moneys invested in such franchise or distributorship. Upon such a show­ing, the court may award any person bringing said ac­tion reasonable attorney's fees and shall award such person reasonable costs incurred in bringing the ac­tion, and execution shall thereupon issue.

(4) INJUNCTIONS.-The Department of Legal Affairs, or the Department of Legal Affairs and the Department of Agriculture and Consumer Services jointly, may sue in behalf of the people of this state for injunctive relief against franchise or distributor­ship plans or activities in violation of paragraph (2)(a).

History.-ss. 1, 2, 2A, 3, 4, ch. 71-61.

817.43 Exemption.-The provisions ofs. 817.40 or s. 817.41 shall not apply to any publisher of a newspaper, magazine or other publication, or the owner or operator of a radio or television station, or any other owner or operator of a media primarily de­voted to advertising, who publishes, broadcasts, or otherwise disseminates an advertisement in good faith without knowledge of its false, deceptive or mis­leading character.

History.-s. 4, ch. 59-301; s. 178, ch. 79-164.

817.44 Intentional false advertising prohib­ited.-

(1) WHAT CONSTITUTES INTENTIONAL FALSE ADVERTISING.-It is unlawful to offer for sale or to issue invitations for offers for the sale of any property, real or personal, tangible or intangible, or any services, professional or otherwise, by placing or causing to be placed before the general public, by any means whatever, an advertisement describing such property or services as part of a plan or scheme with the intent not to sell such property or services so advertised, or with the intent not to sell such proper­ty or services at the price at which it was represented in the advertisement to be available for purchase by any member of the general public.

(2) PRESUMPTION OF VIOLATION.-The failure to sell any article or a class of articles adver­tised, or the refusal to sell at the price at which it was advertised to be available for purchase, shall create a rebuttable presumption of an intent to violate this section.

(3) EXEMPTION.-This section shall not apply to any publisher of a newspaper, magazine or other publication, or the owner or operator of a radio sta­tion, television station or other advertising media, who places before the public an advertisement in good faith without knowledge that the person so en­gaging or hiring such owner, operator, or publisher has the intent not to sell the property or services so advertised or with the intent not to sell such property or services at the price at which it was represented in

1316

F.S. 1981 FRAUDULENT PRACTICES Ch.817

the advertisement to be available for purchase by any member of the general public.

History.-s. 5, ch. 59-301.

817.45 Penalty.-Any person convicted of vio­lating any of the provisions of s. 817.41 , s. 817.411, or s. 817.44 shall be guilty of a misdemeanor of the sec­ond degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 6, ch. 59-30 1; s. 872, ch. 71- 136; s. 179, ch. 79- 164.

817.47 Insurance advertising exempt. - Nothing in ss. 817.40, 817.41, 817.42-817.45, 817.47 shall be deemed to apply to advertising in connection with sales of insurance which are regulated under the insurance laws of this state.

History.-s. 9, ch. 59-301.

817.481 Credit cards; obtaining goods by use of false, expired, etc.; penalty.-

(!) It shall be unlawful for any person knowingly to obtain or attempt to obtain credit, or to purchase or attempt to purchase any goods, property or ser­vice, by the use of any false, fictitious, counterfeit, or expired credit card, telephone number, credit num­ber, or other credit device, or by the use of any credit card, telephone number, credit number, or other credit device of another without the authority of the person to whom such card, number or device was is­sued, or by the use of any credit card, telephone number, credit number, or other credit device in any case where such card, number or device has been re­voked and notice of revocation has been given to the person to whom issued.

(2) It shall be unlawful for any person to avoid or attempt to avoid or to cause another to avoid pay­ment of the lawful charges, in whole or in part, for any telephone or telegraph service or for the trans­mission of a message, signal or other communication by telephone or telegraph or over telephone or tele­graph facilities by the use of any fraudulent scheme, means or method, or any mechanical, electric, or elec­tronic device.

(3)(a) If the value of the property, goods, or ser­vices obtained or which are sought to be obtained in violation of this section is $100 or more, the offender shall be guilty of grand larceny.

(b) If the value of the property, goods, or services obtained or which are sought to be obtained in viola­tion of this section is less than $100 the offender shall be guilty of petit larceny.

History.-ss. 1, 2, 3, ch. 61-83; s. 1, ch. 65-245; s. 1, ch. 65- 128; s. 873, ch. 71-136. cf.- ch. 817, part II State Cred it Card Crime Act.

817.482 Possessing or transferring device for theft of telecommunications service; con­cealment of destination of telecommunications service.-

( I) It shall be unlawful for any person knowingly to:

(a) Make or possess any instrument, apparatus, equipment or device designed or adapted for use for the purpose of avoiding or attempting to avoid pay­ment of telecommunications service in violation of s. 817.481 ; or

(b) Sell, give, transport, or otherwise transfer to another or offer or advertise to sell, give, or other­wise tra~sfer, any instrument, apparatus, equipment, or device described in paragraph (a) , or plans or in­structions for making or assembling the same; under circumstances evincing an intent to use or employ such instrument, apparatus, equipment, or device, or to allow the same to be used or employed, for a pur­pose described in paragraph (a), or knowing or hav­ing reason to believe that the same is intended to be so used, or that the aforesaid plans or instructions are intended to be used for making or assembling such instrument, apparatus, equipment, or device.

Any person violating the provisions of paragraphs (a) and (b) is guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083.

(2) Any person who shall make or possess, for purposes of avoiding or attempting to avoid payment for long distance telecommunication services, any electronic device capable of duplicating tones or sounds utilized in long distance telecommunications shall be guilty of a felony of the third degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Any such instrument, apparatus, equipment, or device, or plans or instructions therefor, referred to in subsections (1) and (2) , may be seized by court order or under a search warrant of a judge or magis­trate or incident to a lawful arrest; and upon the con­viction of any person for a violation of any provision of this act, or s. 817.481, such instrument, apparatus, equipment device, plans, or instructions either shall be destro~ed as contraband by the sheriff of the county in which such person was convicted or turned over to the telephone company in whose territory such instrument, apparatus, equipment, device, plans, or instructions were seized.

History.-s. 2, ch. 65-245; s. 874, ch. 71-136; s. 1, ch. 74-137.

817.483 Transmission or publication of in­formation regarding schemes, devices, means, or methods for theft of communication services. - Any person who transmits or publishes the num~er or code of an existing, canceled, revoked, or nonexis­tent telephone number or credit number or other credit device, or method of numbering or coding which is employed in the issuance of telephone num­bers or credit numbers or other credit devices, with the intent to avoid or to cause another to avoid lawful charges is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 1, ch. 74-138.

817.49 False reports of commission of crimes; penalty.-Whoever willfully imparts, con­veys or causes to be imparted or conveyed to any law enforcement officer false information or reports con­cerning the alleged commission of any crime under the laws of this state, knowing such information or report to be false, in that no such crime had actually been committed, shall upon conviction thereof be guilty of a misdemeanor of the first degree, punish­able as provided ins. 775.082 or s. 775.083.

His tory.-s. 1, ch. 59-294; s. 875, ch. 71-136.

1317

Ch.817 FRAUDULENT PRACTICES F.S. 1981

817.50 Fraudulently obtaining goods, ser­vices, etc., from hospital.-

(1) Whoever shall, willfully and with intent to de­fraud, obtain or attempt to obtain goods, products, merchandise or services from any hospital in this state shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) If any person shall give to any hospital in this state a false or fictitious name, a false or fictitious ad­dress, any other false or fictitious information re­quired to be obtained by such hospital in compliance with ss. 382.31 et seq., or shall assign to any hospital the proceeds of any insurance contract, then knowing that such contract is no longer in force or is invalid or is void for any reason, any such action shall be prima facie evidence of the intent of such person to defraud such hospital.

History.-ss. I , 2, ch. 61-154; s. 876, ch. 71-136.

817.51 Obtaining groceries, retail poultry, dairy, bakery, and other retail products; intent to defraud.-Any person who shall obtain any items from retail grocery establishments, or retail poultry, dairy, bakery or any other retail dealers with intent to defraud the owner or keeper thereof shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083; provided that the provisions of this section shall not apply where there has been an agreement in writing for delay in pay­ments.

History.-s. I, ch. 61-206; s. I , ch. 67-513; s. 877, ch. 71 -136.

817.52 Obtaining vehicles with intent to de­fraud, failing to return hired vehicle, or tamper­ing with mileage device of hired vehicle.-

(1) OBTAINING BY TRICK, FALSE REPRE­SENTATION, ETC.-Whoever, with intent to de­fraud the owner or any person lawfully possessing any motor vehicle, obtains the custody of such motor vehicle by trick, deceit, or fraudulent or willful false representation 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) HIRING WITH INTENT TO DE­FRAUD.-Whoever, with intent to defraud the own­er or any person lawfully possessing any motor vehi­cle of the rental thereof, hires a vehicle from such owner or such owner's agents or any person in lawful possession thereof shall, upon conviction, be deemed guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The absconding without paying or offering to pay such hire shall be prima facie evidence of such fraudulent intent.

(3) FAILURE TO REDELIVER HIRED VEHI­CLE.-Whoever, after hiring a motor vehicle under an agreement to redeliver the same to the person let­ting such motor vehicle or his agent, at the termina­tion of the period for which it was let, shall, without the consent of such person or persons and with intent to defraud, abandon or willfully refuse to redeliver such vehicle as agreed shall, upon conviction, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) TAMPERING WITH MILEAGE DE­VICE.-Whoever, after hiring a motor vehicle from any person or persons under an agreement to pay for the use of such motor vehicle a sum of money deter­minable either in whole or in part upon the distance such motor vehicle travels during the period for which hired, removes, attempts to remove, tampers with, or attempts to tamper with or otherwise inter­fere with any odometer or other mechanical device attached to said hired motor vehicle for the purpose of registering the distance such vehicle travels, with the intent to deceive the person or persons letting such vehicle or their lawful agent as to the actual dis­tance traveled thereby, shall upon conviction be deemed guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.082 or s. 775.083. Any person who shall knowingly aid, abet or assist another in violating the provisions of this sub­section shall, as a prinCipal in the first degree, be guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.082 or s. 775.083. Any person violating this section may be informed against or indicted in the county where such odometer or such other mechanical device is removed, or attempt­ed to be removed, or tampered with, or attempted to be tampered with, or otherwise interfered with, or in the county where such persons knowingly aid, abet, or assist another in violating the provisions of this section, or in the county where any part of such mo­tor vehicle upon which is attached such odometer, or such other mechanical device, is removed or attempt­ed to be removed.

History.- s. I , ch. 63- 177; s. 878, ch. 71-136; s. I, ch. 74-373; s. 8, ch. 78-412; s. 180, ch. 79-164.

817.53 False charges for radio and televi­sion repairs and parts; penalty.-

( I) It is unlawful for a person to knowingly charge for any services which are not actually per­formed in repairing a radio or television set, or to knowingly charge for any parts which are not actually furnished, or to knowingly misinform a customer concerning what is wrong with his radio or television set, or to knowingly and fraudulently substitute parts when such substitution has no relation to the repair­ing or servicing of the radio or television set.

(2) Any person violating 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.-s. I , ch. 63-383; s. 879, ch. 71 -136.

817.54 Obtaining of mortgage, mortgage note, promissory note, etc., by false representa­tion.-Any person who, with intent to defraud, ob­tains any mortgage, mortgage note, promissory note or other instrument evidencing a debt from any per­son or obtains the signature of any person to any mortgage, mortgage note, promissory note or other instrument evidencing a debt by color or aid of fraud­ulent or false representation or pretenses, or obtains the signature of any person to a mortgage, mortgage note, promissory note, or other instrument evidenc­ing a debt, the false making whereof would be pun­ishable as forgery, shall be guilty of a felony of the

1318

F.S. 1981 FRAUDULENT PRACTICES Ch. 817

third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. I, ch. 63-142; s. 880, ch. 71 - 1~6.

817.55 Tourist attraction advertisement; misleading use of the word "free."-

(1) It shall be unlawful for any person or persons, including corporations, operating a tourist attraction, event, show, or similar places of business for profit catering to the public to use or advertise in connec­tion therewith the words "free" or "free admission" or any similar words or words of similar or like import and meaning, in a false, misleading, deceptive, or fraudulent manner, calculated to cause or actually causing any member of the public to be misled, de­ceived or defrauded to his detriment.

(2) The state attorney for any county in which any violation of this act occurs or the Division of Eco­nomic Development of the Department of Commerce may enjoin the use of such word or words by tempo­rary and permanent injunction by application to any court of competent jurisdiction.

(3) Violations of this act whether or not enjoined as provided herein, shall be punishable as a misde­meanor of the second degree, as provided in s. 775.082 or s. 775.083.

History.-s. I, ch. 63-506; ss. 17. 35, ch. 69-106; s. 881, ch. 71-136; s. I , ch. 73-283; s. 32, ch. 73-334.

817.559 Television picture tube labels; defi­nitions.-

(1) As used in this section: (a) "Picture tube" means a cathode ray tube,

commonly known as a television picture tube, de­signed primarily for use in a home-type television re­ceiver alone or in combination with any electronic de­vice or appliance.

(b) "Used picture tube" means a picture tube which has been sold to and used by a consumer.

(c) "Used component or material" means any part or material salvaged from a used or secondhand pic­ture tube.

(2) No manufacturer, processor, or distributor of television picture tubes shall sell, offer for sale, or ex­pose for sale any such tube unless the television pic­ture tube and its container, if any, are correctly la­beled to indicate the new and used components and materials of such tube according to the schedule and manner hereinafter provided.

(3) Description of the picture tube by new and used components and materials shall be indicated by setting forth on the label the particular grade and verbatim description as selected from the following which applies to such tube:

(a) Black and white picture tube.-1. Grade AA.-Description: All new components

and materials, including new glass envelope. 2. Grade A.-Description: Used glass envelope;

all other components and materials are new. 3. Grade B.-Description: Used glass envelope,

used phosphorescent viewing screen, used aluminiza­tion, and used internal conductive coating; all other components and materials are new.

4. Grade C.-Description: Used picture tube for

resale; all significant components and materials are used.

(b) Color picture tube.-1. Grade AA.-Description: All new components

and materials, including new glass envelope. 2. Grade A.-Description: Used glass envelope

and new or used shadow mask; all other components and materials are new.

3. Grade B.-Description: New electron gun; all other components and materials are used.

4. Grade C.-Description: Used picture tube for resale; all significant components and materials are used.

(c) Used picture tube.- The fact that a used pic­ture tube has been rejuvenated, has a new or used brightener attached to it, or has fresh paint or coat­ing on the outside, or any combination of the above, shall not change its status or description as a grade C picture tube, and the terms "rebuilt" or "recondi­tioned" or words of like import shall not be used to describe such tube.

(d) Picture tube-seconds.-When a picture tube is a "second," such tube shall be designated by label as a "second" to the exclusion of any other grade des­ignation or component description, and the following additional notation shall appear verbatim on the label: "This picture tube is a manufacturer's reject or second line quality tube, but it is capable of giving satisfactory performance."

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

History.-ss. I, 2, ch. 73-239.

817.56 Misrepresentations of television pic­ture tubes prohibited, penalty; definitions.-

(!) As used in this section: (a) "Tube" is an electron receiving tube or cath­

ode ray tube (commonly known as a picture tube) de­signed primarily for use in a home-type television or radio receiver, phonograph, tape recorder, or any combination thereof, or other home type electronic device or appliance.

(b) "Used tube" or "secondhand tube" is a tube which has been sold to and used by a consumer.

(c) A "used component" is any part or material salvaged from a used or secondhand tube.

(d) A "tube utilizing used components" is a tube which has not been used as an entity but which in the manufacture thereof has utilized one or more used components. Such a tube shall not be deemed to be a used or secondhand tube within the meaning of that definition.

(e) A "reactivated tube" is a weak, wornout, or de­fective tube which has been temporarily recharged by the administration of a charge of high voltage electric current to the elements thereof.

(f) A "reduction" is the sale of a tube at a price that is less than the manufacturer's list price for that tube.

(g) A "savings" is the sale of a tube at a price that is less than the list price for a tube by the same or an­other manufacturer when the tubes are identical.

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Ch.817 FRAUDULENT PRACTICES F.S.1981

(2) No person shall knowingly: (a) Distribute or sell, offer to distribute or sell,

expose for distribution or sale, possess with intent to distribute or sell, or otherwise dispose of for a consid­eration any reactivated tube, secondhand tube, or used tube, or tube utilizing used components without clearly disclosing the true or actual quality or condi­tion of such tube by means of a stamp, mark, tag, no­tice, or label attached to such tube and to any carton or container thereof in such manner that it cannot readily be removed or of such a nature as to remain affixed until removed by a purchaser at retail;

(b) Remove, deface, cover, obliterate, mutilate, alter, or cause to be removed, defaced, covered, oblit­erated, mutilated, or altered any notice, tag, or label from any tube, carton, or container required under paragraph (a) of this subsection;

(c) Install any reactivated tube, secondhand tube, or used tube, or tube utilizing used components, without disclosing the true or actual quality or condi­tion of such tube on a written invoice furnished to the customer when installed by a person performing such services or repairs for any consideration. Such disclosure in the invoice is required irrespective of the fact that such tube, or carton, or container there­for contains a notice, tag, or label disclosing such quality or condition;

(d) Reactivate or cause to be reactivated any tube for the purpose of deceiving another;

(e) Represent a used tube, secondhand tube, or reactivated tube, or tube utilizing used components, directly or indirectly, to be a new tube or a first qual­ity tube;

(f) Make representations, directly or indirectly, concerning a tube by reference to a patent license pursuant to which such tube was manufactured which could mislead another into the belief that such tube is manufactured or sponsored by said patent li­censor, when such is not the fact;

(g) Represent to a retail buyer that a tube is guaranteed by the use of such word or words of simi­lar import unless a writing disclosing the nature, ex­tent, and duration of the guarantee, the identity of the guarantor, and the manner in which the guaran­tor will perform thereunder, is furnished to such pur­chaser at the time of purchase. No tube shall be rep­resented as fully guaranteed or unconditionally guar­anteed by the use of such word or words of similar import unless the written guarantee furnished to the purchaser is free from any conditions or limitations;

(h) Represent that a tube is being sold at a reduc­tion or savings when the alleged reduction or savings is from a fictitious price. Without limiting the gener­ality of the foregoing, an alleged reduction or savings is from a fictitious price;

1. When the alleged reduction or savings of a re­activated tube, secondhand tube, or used tube is from the manufacturer's established list price for his first quality or new tubes;

2. When the alleged reduction of a tube utilizing used components is from the manufacturer's estab­lished list price for tubes utilizing only new compo­nents in the manufacture thereof;

3. When the alleged reduction is, in fact, a sav-

ings in that it is from the list price of a manufacturer other than the owner of the brand name appearing on the tube being sold.

(3) Nothing in this section applies to any televi­sion or sound radio broadcasting station or any pub­lisher or printer of a newspaper, magazine, or other form of printed advertising who broadcasts, publish­es, or prints such advertising.

( 4) Whoever violates any provision of this section shall be guilty of a misdemeanor of the second de­gree, punishable as provided in s. 775.082 or s. 775.083.

His tory.-ss. 1-4, ch. 65-464; s. 882, ch. 71-136.

817.561 Violations may be enjoined.-In ad­dition to the punishments provided herein, the state attorneys of the various judicial circuits throughout the state are vested with authority and power to in­voke the jurisdiction of courts of equity within their respective judicial circuits to enjoin or obtain other equitable relief against persons violating the provi­sions of ss. 817.06, 817.061, 817.38-817.44, and 817.55. The prevailing party shall receive court costs and reasonable attorneys' fees, to be deposited in or paid from the general fund.

Hiotory.-s. I, ch. 71-233; s. 32, ch. 73-334.

817.562 Fraud involving a security interest.

(1) As used in this section, the terms "proceeds," "security agreement," "security interest," and "se­cured party" shall be given the meanings prescribed for them in chapter 679.

(2) A person is guilty of fraud involving a security interest when, having executed a security agreement creating a security interest in personal property, in­cluding accounts receivable, which security interest secures a monetary obligation owed to a secured par­ty, and:

(a) Having under the security agreement both the right of sale or other disposition of the property and the duty to account to the secured party for the pro­ceeds of disposition, he sells or otherwise disposes of the property and wrongfully and willfully fails to ac­count to the secured party for the proceeds of dispo­sition; or

(b) Having under the security agreement no right of sale or other disposition of the property, he know­ingly secretes, withholds, or disposes of such property in violation of the security agreement.

(3) Any person who knowingly violates this sec­tion shall be punished as follows:

(a) If the value of the property sold, secreted, withheld, or disposed of or the proceeds from the sale or disposition of the property is $100 or more, 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.

(b) If the value of the property sold, secreted, withheld, or disposed of or the proceeds obtained from the sale or disposition of the property is less than $100, such person 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. I, ch. 79-113.

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F.S. 1981 FRAUDULENT PRACTICES Ch.817

817.563 Controlled substance named or de­scribed in s. 893.03; sale of substance in lieu thereof.-It is unlawful for any person to agree, con­sent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other sub­stance in lieu of such controlled substance. Any per­son who violates this section with respect to:

(1) 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 provided in s. 775.082, s. 775.083, or s. 775.084.

(2) A controlled substance named or described in s. 893.03(5) 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. I, ch. 81-53.

817.57 817.58 817.59

817.60

817.61 817.62

817.63

817.64

817.645 817.65 817.66 817.67 817.68

PART II

CREDIT CARD CRIMES

Short title. Definitions. False statement as to financial condition or

identity. Theft; obtaining credit card through fraud­

ulent means. Fraudulent use of credit cards. Fraud by person authorized to provide

goods or services. Possession of machinery, plates or other

contrivance or incomplete credit cards. Receipt of money, etc., obtained by fraudu-

lent use of credit cards. Alteration of credit card invoice; penalties. Defenses not available. Presumptions. Penalties. Part II not exclusive.

817.57 Short title.-Part II of this chapter shall be known and may be cited as the 1967 "State Credit Card Crime Act."

History.-s. 13, ch. 67-340.

817.58 Definitions.-As used m ss. 817.57-817.68:

(1) "Cardholder" means the person or organiza­tion named on the face of a credit card to whom or for whose benefit the credit card is issued by an issu­er.

(2) "Credit card" means any instrument or device, whether known as a credit card, credit plate or by any other name, issued with or without fee by an is­suer for the use of the cardholder in obtaining money, goods, services, or anything else of value on credit.

(3) "Expired credit card" means a credit card which is no longer valid because the term shown on it has elapsed.

(4) "Issuer" means the business organization or fi­nancial institution, or its duly authorized agent, which issues a credit card.

(5) "Receives" or "receiving" means acquiring pos-

session or control or accepting as security for a loan a credit card.

(6) "Revoked credit card" means a credit card which is no longer valid because permission to use it has been suspended or terminated by the issuer.

History.-s. I, ch. 67-340.

817.59 False statement as to financial condi­tion or identity.-A person who makes or causes to be made, either directly or indirectly, any false state­ment as to a material fact in writing, knowing it to be false and with intent that it be relied on respecting his identity or that of any other person, firm, or cor­poration or his financial condition or that of any oth­er person, firm, or corporation, for the purpose of procuring the issuance of a credit card, violates this section and is subject to the penalties set forth in s. 817.67(1).

History.-s. 2, ch. 67-340.

817.60 Theft; obtaining credit card through fraudulent means.-

(1) THEFT BY TAKING OR RETAINING POSSESSION OF CARD TAKEN.-A person who takes a credit card from the person, possession, cus­tody, or control of another without the cardholder's consent or who, with knowledge that it has been so taken, receives the credit card with intent to use it, to sell it or to transfer it to a person other than the issu­er or the cardholder is guilty of credit card theft and is subject to the penalties set forth in s. 817.67(1). Taking a credit card without consent includes obtain­ing it by conduct defined or known as statutory larce­ny, common law larceny by trespassory taking, com­mon law larceny by trick or embezzlement or obtain­ing property by false pretense, false promise or extor­tion.

(2) THEFT OF CREDIT CARD LOST, MIS­LAID OR DELIVERED BY MISTAKE.-A person who receives a credit card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder and who retains possession with intent to use it, to sell it or to trans­fer it to a person other than the issuer or the card­holder is guilty of credit card theft and is subject to the penalties set forth in s. 817.67(1).

(3) PURCHASE OR SALE OF CREDIT CARD OF ANOTHER-A person other than the issuer who sells a credit card or a person who buys a credit card from a person other than the issuer violates this sub­section and is subject to the penalties set forth in s. 817.67(1) .

(4) OBTAINING CONTROL OF CREDIT CARD AS SECURITY FOR DEBT.-A person who, with intent to defraud the issuer, a person or organi­zation providing money, goods, services, or anything else of value or any other person, obtains control over a credit card as security for debt violates this subsec­tion and is subject to the penalties set forth in s. 817.67(1).

(5) DEALING IN CREDIT CARDS OF AN­OTHER-A person other than the issuer who, dur­ing any 12-month period receives two or more credit cards issued in the name or names of different card­holders, which he has reason to know were taken or

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Ch. 817 FRAUDULENT PRACTICES F.S. 1981

retained under circumstances which constitute credit card theft or a violation of this part violates this sub­section and is subject to the penalties set forth in s. 817.67(2).

(6) FORGERY OF CREDIT CARD.-(a) A person who, with intent to defraud a pur­

ported issuer or a person or organization providing money, goods, services, or anything else of value or any other person, falsely makes or falsely embosses a purported credit card or utters such a credit card is guilty of credit card forgery and is subject to the pen­alties set forth ins. 817.67(2).

(b) A person other than the purported issuer who possesses two or more credit cards which are falsely made or falsely embossed is presumed to have violat­ed this subsection.

(c) A person falsely makes a credit card when he makes or draws in whole or in part a device or instru­ment which purports to be the credit card of a named issuer but which is not such a credit card because the issuer did not authorize the making or drawing, or al­ters a credit card which was validly issued.

(d) A person falsely embosses a credit card when, without the authorization of the named issuer, he completes a credit card by adding any of the matter, other than the signature of the cardholder, which an issuer requires to appear on the credit card before it can be used by a cardholder.

(7) SIGNING CREDIT CARD OF ANOTH­ER-A person other than the cardholder or a person authorized by him who, with intent to defraud the is­suer or a person or organization providing money, goods, services, or anything else of value or any other person, signs a credit card violates this subsection and is subject to the penalties set forth in s. 817.67(1).

History.-s. 3, ch. 67-340.

817.61 Fraudulent use of credit cards.-A person who, with intent to defraud the issuer or a person or organization providing money, goods, ser­vices or anything else of value or any other person, uses, for the purpose of obtaining money, goods, ser­vices, or anything else of value, a credit card obtained or retained in violation of this part or a credit card which he knows is forged, expired or revoked or who obtains money, goods, services or anything else of value by representing, without the consent of the card­holder, that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued, violates this subsec­tion and is subject to the penalties set forth in s. 817.67(1), if the value of all money, goods, services, and other things of value obtained in violation of this subsection does not exceed $100 in any 6-month peri­od. The violator is subject to the penalties set forth in s. 817.67(2), if such value does exceed $100 in any 6-month period. Knowledge of revocation shall be presumed to have been received by a cardholder 4 days after it has been mailed to him at the address set forth on the credit card or at his last known ad­dress by registered or certified mail, return receipt requested, and, if the address is more than 500 miles from the place of mailing, by air mail. If the address is located outside the United States, Puerto Rico, the Virgin Islands, the Canal Zone or Canada, notice

shall be presumed to have been received 10 days after mailing by registered or certified mail.

History .-s. 4, ch. 67-340.

817.62 Fraud by person authorized to pro­vide goods or services.-

(1) ILLEGALLY OBTAINED OR ILLEGALLY POSSESSED CREDIT CARD; FORGED, RE­VOKED, OR EXPIRED CREDIT CARD.-A person who is authorized by an issuer to furnish money, goods, services, or anything else of value upon pre­sentation of a credit card by the cardholder or any agent or employees of such person who, with intent to defraud the issuer or the cardholder, furnishes mon­ey, goods, services, or anything else of value upon presentation of a credit card obtained or retained in violation of this part or a credit card which he knows is forged, expired or revoked violates this subsection and is subject to the penalties set forth in s. 817.67(1), if the value of all money, goods, services, and other things of value furnished in violation of this subsection does not exceed $100 in any 6-month period. The violator is subject to the penalties set forth ins. 817.67(2), if such value does exceed $100 in any 6-month period.

(2) MISREPRESENTATION TO ISSUER-A person who is authorized by an issuer to furnish mon­ey, goods, services, or anything else of value upon presentation of a credit card by the cardholder or any agent or employee of such person who, with intent to defraud the issuer or the cardholder, fails to furnish money, goods, services, or anything else of value which he represents in writing to the issuer that he has furnished, violates this subsection and is subject to the penalties set forth in s. 817 .67(1), if the differ­ence between the value of all money, goods, services, and anything else of value actually furnished and the value represented to the issuer to have been fur­nished does not exceed $500 in any 6-month period. The violator is subject to the penalties set forth in s. 817.67(2), if such difference does exceed $500 in any 6-month period.

History.-s. 5, ch. 67-340.

817.63 Possession of machinery, plates or other contrivance or incomplete credit cards. -A person other than the cardholder possessing two or more incomplete credit cards with intent to com­plete them without the consent of the issuer or a per­son possessing with knowledge of its character any machinery, plates or any other contrivance designed to reproduce instruments purporting to be the credit cards of an issuer who has not consented to the prep­aration of such credit cards, violates this subsection and is subject to the penalties set forth in s. 817.67(2). A credit card is incomplete if part of the matter other than the signature of the cardholder, which an issuer requires to appear on the credit card before it can be used by a cardholder, has not yet been stamped, embossed, imprinted, or written on it.

History.-s. 6, ch. 67-340.

817.64 Receipt of money, etc., obtained by fraudulent use of credit cards.-A person who re­ceives money, goods, services, or anything else of val-

1322

F.S. 1981 FRAUDULENT PRACTICES Ch. 817

ue obtained in violation of s. 817.61, knowing or be­lieving that it was so obtained, violates this section and is subject to the penalties set forth in s. 817.67(1). A person who obtains at a discount price a ticket issued by an airline, railroad, steamship, or other transportation company which was acquired in violation of s. 817.61 without reasonable inquiry to ascertain that the person from whom it was obtained had a legal right to possess it shall be presumed to know that such ticket was acquired under circum­stances constituting a violation of s. 817.61.

History.-s. 7, ch. 67-340.

817.645 Alteration of credit card invoice; penalties.-Whoever, with intent to defraud any person, falsely alters any invoice for money, goods, services, or anything else of value obtained by use of a credit card after it has been signed by the card­holder or a person authorized by him violates this section and is subject to the penalties set forth in s. 817.67(1).

History.-s. I, ch. 72-127.

817.65 Defenses not available.-In any prose­cution for violation of this part, the state is not re­quired to establish and it is no defense that a person, other than the defendant, who violated this part has not been convicted, apprehended or identified.

History.-s. 8, ch. 67-340.

817.66 Presumptions.-When this part estab­lishes a presumption with respect to any fact which is an element of a crime, it has the following conse­quences:

(1) When there is sufficient evidence of the facts which give rise to the presumption to go to the jury, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly negatives the presumed fact; and

(2) When the issue of the existence of the pre­sumed fact is submitted to the jury, the court shall charge that while the presumed fact must, on all the evidence, be proved beyond a reasonable doubt, the law declares that the jury may regard the facts giving rise to the presumption as sufficient evidence of the presumed fact.

History.-s. 9, ch. 67-340.

817.67 Penalties.-(!) A person who is subject to the penalties of

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

(2) A person who is subject to the penalties of this subsection 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. 10, ch. 67-340; s. 883, ch. 71-136.

817.68 Part II not exclusive.-This part II shall not be construed to preclude the applicability of any other provision of the criminal law of this state which presently applies or may in the future apply to any transaction which violates this part, unless such provision is inconsistent with the terms of this part.

History.-s. 11 , ch. 67-340.

1323

Ch.818 SALE OF MORTGAGED PERSONAL PROPERTY; SIMILAR OFFENSES F.S. 1981

CHAPTER 818

SALE OF MORTGAGED PERSONAL PROPERTY; SIMILAR OFFENSES

818.01

818.02

818.03

818.04 818.05

Disposing of personal property under lien, etc.

Executing mortgage on personalty without notifying mortgagee of prior mortgages.

Removing such property beyond the limits of county.

Selling collateral security before debt due. Sale, etc. , of property held under contract or

conditional sale; penalty.

818.01 Disposing of personal property under lien, etc.-

(1) Whoever shall pledge, mortgage, sell, or oth­erwise dispose of any personal property to him be­longing, or which shall be in his possession, and which shall be subject to any written lien, or which shall be subject to any statutory lien, whether written or not, or which shall be the subject of any written conditional sale contract under which the title is re­tained by the vendor, without the written consent of the person holding such lien, or retaining such title; and whoever shall remove or cause to be removed be­yond the limits of the county where such lien was cre­ated or such conditional sale contract was entered into, any such property, without the consent afore­said, or shall hide, conceal or transfer, such property with intent to defeat, hinder or delay the enforce­ment of such lien, or the recovery of such property by the vendor, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) It shall be prima facie evidence of concealing, selling, or disposing of such personal property when­ever the person owning the property at the time the lien was created, or who bought the same under such retained title contract, fails or refuses to produce such property for inspection within the county where the lien was created, or the property delivered, upon demand of the person having such lien, or retaining such title, after the debt secured by such lien has be­come enforceable, or the vendee has substantially de­faulted in the performance of such retained title con­tract .

History.-s. I , ch. 4142, 1893; GS 3356; RGS 5202; s. I , ch. 9288, 1923; CGL 73 16; s. 887, ch. 71-136. cf.-s. 713.69 Removing property subject to lien of hotel, etc.

818.02 Executing mortgage on personalty without notifying mortgagee of prior mort­gages.-Whoever executes a second or subsequent mortgage of personal property and receives money or thing of value therein without first notifying the sec-

ond or subsequent mortgagee of the existence of the prior mortgage or mortgages, whether the same be re­corded or not, and of the amount of such prior in­debtedness, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

His tory.-s. 1, ch. 5708, 1907; RGS 5203; CG L 7317; s. 888, ch. 71-136.

818.03 Removing such property beyond the limits of county.-Whoever shall knowingly and without the written consent of the person having such a lien thereon, as mentioned in s. 818.01, buy, take, receive or remove or cause to be removed be­yond the limits of the county, any personal property subject to such lien from the owner or any person in possession thereof, and whoever shall willfully con­ceal such property or obstruct, delay or hinder such lienholder in prosecuting his rights against any of such property, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 56, ch. 1637, 1888; RS 2477; s. 2, ch. 4142, 189:1; GS 3357, RGS 5204; CG L 73 18; s. 889, ch. 71-1 36.

818.04 Selling collateral security before debt due.-Whoever holding any collateral security deposited with him for the payment of a debt which may be due him sells, pledges, loans or in any way disposes of the same, as his own, before such debt be­comes due and payable, and without the authority of the person depositing the same, shall be guilty of a misdemeanor of the first degree, punishable as pro­vided ins. 775.082 or s. 775.083.

History.-s. 59, ch. 1637, 1868; RS 2478; GS 3358; RGS 5205; CG L 7:l l9; s. 890, ch. 71 -1 36.

818.05 Sale, etc., of property held under con­tract or conditional sale; penalty.-

(1) No person who is in possession of any person­al property under and by virtue of any contract or conditional sale or otherwise where the title to said personal property does not vest in the possessor, shall sell, conceal or dispose of such personal property without first having the written consent of the person then having or retaining the bona fide title to such personal property so to sell, dispose of, or conceal the same.

(2) Any person who shall violate 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.

His tory.-ss. 1, 2, ch. 7860, 1919; CGL 7230, 7321; s. 891 , ch. 71-136.

1324

F.S. 1981 PUBLIC NUISANCES Ch. 823

CHAPTER 823

PUBLIC NUISANCES

823.01

823.02 823.04 823.041

823.05

823.06 823.07

823.08

823.09 823.10

823.11

823.12 823.13

823.14

823.15

Indictment for nuisance; removal by coun-ty court judge.

Building bonfires. Diseased animals. Disposal of bodies of dead animals; penal­

ty. Places declared a nuisance; may be abated

and enjoined. Doors of public buildings to open outward. Iceboxes, refrigerators, deep-freeze lockers,

clothes washers, clothes dryers, or air­tight units; abandonment, discard.

Iceboxes, refrigerators, deep-freeze lockers, clothes washers, clothes dryers, or simi­lar airtight units abandoned or discard­ed; attractive nuisance.

Violation of s. 823.07; penalty. Places where controlled substances are ille­

gally kept, sold, or used, declared a pub­lic nuisance.

Abandoned and derelict vessels; removal; penalty.

Smoking in elevators unlawful. 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.

Commercial agricultural or farming opera­tions.

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

823.01 Indictment for nuisance; removal by county court judge.-

(1) All nuisances which tend to annoy the com­munity or injure the health of the citizens in general, or to corrupt the public morals, shall be misdemea­nors of the second degree, punishable as provided in s. 775.083.

(2) Any nuisance which tends to the immediate annoyance of the citizens in general, or is manifestly injurious to the public health and safety, or tends greatly to corrupt the manners and morals of the peo­ple, may be removed and suppressed by the order of the county court judge of the county, founded upon the verdict of 12 householders of the same, who shall be summoned, sworn, and impaneled for that pur­pose, which order shall be directed to and executed by any sheriff of the county; and an indictment or in­formation shall lie for the same.

History.-s. 47, Feb. 10, 1832; RS 2704; GS 3680; RGS 5624; CG L 7817; s. 9;12, ch. 71 -136; s. 32, ch. 73-334; s. 66, ch. 74-38:1; s. I, ch. 75-24; s. 41, ch. 75-298. cf. - s. 60.05 Abatement of nuisances.

Ch. 386 Nuisances injurious to hea lth. s. 533.06 Permitting escape of mine waste or debris.

823.02 Building bonfires.-Whoever is con­cerned in causing or making a bonfire within 10 rods of any house or building shall be guilty of a misde­meanor of the second degree, punishable as provided ins. 775.082 or s. 775.083.

History.-s. 12, ch. 1637, 1868; RS 2705; GS 3681; RGS 5625; CGL 7818; s. 933, ch. 71-136; s. 66, ch. 74-383; s. I, ch. 75-24 ; s. 41, ch. 75-298.

823.04 Diseased animals.-It is unlawful for any person to bring into this state or to offer for sale therein any horses, mules, cattle, hogs, or other do­mestic animals, knowing at the time of such intro­duction or offering for sale of any such animals that they are suffering from disease known as glanders, farcy, cholera, Texas fever, or other virulent, conta­gious, or infectious diseases; and any person convict­ed of such offense shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

His tory.-s. I, ch. 4351, 1895; GS 3692; RGS 5637; CGL 7830; s. 935, ch. 71-136; s. 66, ch. 74-383; s. I , ch. 75-24; s. 41 , ch. 75-298.

823.041 Disposal of bodies of dead animals; penalty.-

(1) Any owner, custodian, or person in charge of domestic animals, upon the death of such animals due to disease, shall dispose of the carcasses of such animals by burning or burying at least 2 feet below the surface of the ground; provided, however, nothing in this section shall prohibit the disposal of such ani­mal carcasses to rendering companies licensed to do business in this state.

(2) It is unlawful to dispose· of the carcass of any domestic animal by dumping such carcass on any public road or right-of-way, or in any place where such carcass can be devoured by beast or bird.

(3) Any person violating any of 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.

(4) For the purposes of this act, the words "domestic animal" shall include any equine or bovine animal, goat, sheep, swine, dog, cat, poultry, or other domesticated beast or bird.

History.-ss. 1-4, ch. 61-359; s. 936, ch. 71-136; s. 66, ch. 74-383; s. 1, ch. 75-24; s. 41 , ch. 75-298.

823.05 Places declared a nuisance; may be abated and enjoined.-Whoever shall erect, estab­lish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the com­munity or injure the health of the community, or be­come manifestly injurious to the morals or manners of the people as described in s. 823.01, or shall be fre­quented by the class of persons mentioned in s. 856.02, or any house or place of prostitution, assigna­tion, lewdness or place or building where games of chance are engaged in violation of law or any place where any law of the state is violated, shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furni­ture, fixtures and contents are declared a nuisance. All such places or persons shall be abated or enjoined as provided in ss. 60.05 and 60.06.

History.-s. 1, ch. 7367, 1917; RGS 5639; CGL 7832; s. 24, ch. 57 -1; s. 66, ch. 74-383; s. 1, ch. 75-24; s. 41 , ch. 75-298. cf.-s. 60.05 Abatement of nuisances.

Ch. 386 Nuisances injurious to health. Ch. 796 P rostitution.

1325

Ch.823 PUBLIC NUISANCES F.S. 1981

823.06 Doors of public buildings to open out­ward.-All buildings erected in this state for theatri­cal, operatic, or other public entertainments of what­soever kind shall be so constructed that the shutters to all entrances to said building shall open outwardly and be so arranged as to readily allow any person in­side said building to escape therefrom in case of fire or other accident. Any owner, manager, lessee, or oth·

. er person having charge of any public building for the use expressed herein who 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. I , 3, ch. 4053, 1891; GS 3694; RGS 5640; CGL 7834; s. 937, ch.

71-136; s. 66, ch. 74-383; s. I , ch. 75-24; s. 41, ch. 75-298.

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

(!) The purpose of ss. 823.07-823.09 is to prevent deaths due to suffocation of children locked in aban­doned or discarded iceboxes , refrigerator s , deep-freeze 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 1 '12 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 ! 1/2 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. I , ch. 67- 135; s. I , ch. 71-116; s. 66, ch.

74 -383; s. I , 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, deep-freeze 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 trespassers. History.~s . 3, ch. 29707, 1955; s. I , ch. 67- 135; s. 2, ch. 71-11 6; s. 66, ch.

74-383; s. I , 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 in s. 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. I, ch. 67-135; s. 938, ch. 71-1:!6; s. 66, ch.

74-383; s. I , ch. 75-24; s. 41, ch. 75-298.

823.10 Places where controlled substances are illegally kept, sold, or used, declared a pub­lic nuisance.-Any store, shop, warehouse, dwelling house, building, vehicle, ship, boat, vessel, 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 500, 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. I , ch. 69-364; s. 29, ch. 73-33 1; s. 66, ch. 74-:l8:l; s. I, ch. 75-24;

s. 41 , ch. 75-298.

823.11 Abandoned and derelict vessels; re­moval; penalty.-

(!) 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. History.~ss. 1-3, ch. 73-207.

823.12 Smoking in elevators unlawfuL-It is unlawful for any person to ignite any flame or to smoke any type of tobacco product or other sub­stance while entering or occupying an elevator. Viola­tion of the provisions of this section is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. History.~s. I, ch. 74- 115.

cf.-s. 399.07 Certificates in elevators informing public that smoking in eleva· tors is unlawful.

823.13 Places where obscene materials are

1326

F.S. 1981 PUBLIC NUISANCES Ch.823

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, 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.

(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 in s. 847.013, 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. I, ch. 78-172.

823.14 Commercial agricultural or farming operations.-No commercial agricultural or farming operation, place, establishment, or facility, or any of its appurtenances, or the operation thereof, shall be or shall become a nuisance as a result of changed con­ditions in or around the locality of such agricultural or farming operation, place, establishment, or facility if such agricultural or farming operation, place, es­tablishment, or facility has been in operation for 1 year or more and if it was not a nuisance at the time it began operation. This section, however, shall not apply whenever a nuisance injurious to health, as de­fined in chapter 386, results from the operation of any such agricultural or farming operation, place, es­tablishment, or facility or any of its appurtenances.

History.-s. I, ch. 79-61.

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

(!) 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 nuisance 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 adoptor 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 adoptor 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 Florida 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 adop­tor. 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 adoptor 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. 1-3, ch. 80-87.

1327

Ch.826 BIGAMY· INCEST F.S. 1981

CHAPTER 826

BIGAMY; INCEST

826.01 826.02 826.03

826.04

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

other. 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 ins. 775.082, s. 775.083, or s. 775.084.

His tory.-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 purporting 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.

History.-s. 5, sub-ch. 8, ch. 1637, 1868; RS 2604; s. I, ch. 496:l, 1901; GS 3527; RGS 5417; CGL 7560; s. I , ch. 73-300; s. 45, ch. 74-:lB:l.

N ote.-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 provid-ed in s. 775.082, s. 775.083, or s. 775.084. ·

History.-s. 39, Feb. 10, 1832; RS 2605; GS 3528; RGS 541 8; CGL 7561; s. 776, ch. 71-136; s. 46, ch. 74-383; s. 30, ch. 75-298.

N ote.- Former s. 799.03.

826.04 Incest.-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.

History.-s. 47, ch. 74-383; s. 30, ch. 75-298.

1328

F.S. 1981 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS Ch. 827

CHAPTER 827

ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS

827.01 827.03 827.04 827.05 827.06 827.07 827.08 827.09

Definitions. Aggravated child abuse. Child abuse. Negligent treatment of children. Persistent nonsupport. Abuse or neglect of children. Misuse of child support money. Abuse of disabled persons or persons suffer­

ing from the infirmities of aging; reports; penalties.

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. I , ch. 77- 174.

827.03 Aggravated child abuse.-Whoever: (1) Commits aggravated battery on a child; (2) Willfully tortures a child; (3) Maliciously punishes a child; or (4) Willfully and unlawfully cages a child

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. I , ch. 4721, 1899; s. I, ch. 4971, 1901 ; GS 3236, 3238; RGS 5069, 507 1; s. I , ch. 933 1, 1923; CG L 7171, 7173; s. I, ch. 65- 113; s. J, ch. 70-8; s. 940, ch. 71-136; s. 49, ch. 74-383; s. 30, ch. 75-298.

Note.-Former s. 828.04. cf.- s. 450.1 51 Hiring and employing children.

827.04 Child abuse.-(1) 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, 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. I, ch. 77-7:1; s. I , ch. 77-429.

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. 65-113; s. 942, ch. 71 -136; s. 51, ch. 74-383; s. ao, ch. 75-298; s. 2, ch. 77-429.

N ote.-Former s. 828.042.

827.06 Persistent nonsupport.-(!) 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.

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

827.07 Abuse or neglect of children.-. (1) LEGISLATIVE INTENT.- The intent of

this section is to provide for comprehensive protec­tive services for abused or neglected children found in the state by requiring that reports of each abused or neglected child be made to the Department of Health and Rehabilitative Services in an effort to prevent further harm to the child or any other chil­dren living in the home and to preserve the family

1329

Ch.827 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS F.S. 1981

life of the parents and children, to the maximum ex­tent possible, by enhancing the parental capacity for adequate child care.

(2) DEFINITIONS.-As used in this section: (a) "Child" means any person under the age of 18

years. (b) "Child abuse or neglect" means harm or

threatened harm to a child's physical or mental health or welfare by the acts or omissions of the par­ent or other person responsible for the child's wel­fare.

(c) "Abused or neglected child" means a child whose physical or mental health or welfare is harmed, or threatened with harm, by the acts or omissions of the parent or other person responsible for the child's welfare.

(d) "Harm" to a child's health or welfare can oc­cur when the parent or other person responsible for the child's welfare:

1. Inflicts, or allows to be inflicted, upon the child physical or mental injury, including injury sustained as a result of excessive corporal punishment;

2. Commits, or allows to be committed, sexual battery, as defined in chapter 794, against the child;

3. Exploits a child, or allows a child to be exploit­ed, for pornographic purposes as provided in ss. 847.014 and 450.151, or for prostitution;

4. Abandons the child; 5. Fails to provide the child with supervision or

guardianship by specific acts or omissions of a serious nature requiring the intervention of the department or the court; or

6. Fails to supply the child with adequate food, clothing, shelter, or health care, although financially able to do so or although offered financial or other means to do so; however, a parent or other person re­sponsible for the child's welfare legitimately practic­ing his religious beliefs, who by reason thereof does not provide specified medical treatment for a child, shall not be considered abusive or neglectful for that reason alone, but such an exception shall not:

a. Eliminate the requirement that such a case be reported to the department;

b. Prevent the department from investigating such a case; or

c. Preclude a court from ordering, when the health of the child requires it, the provision of medi­cal services by a physician, as defined herein, or treatment by a duly accredited practitioner who re­lies solely on spiritual means for healing in accord­ance with the tenets and practices of a well-recognized church or religious organization.

(e) "Other person responsible for a child's wel­fare" includes the child's legal guardian, legal custo­dian, or foster parent; an employee of a public or pri­vate child day care center, residential home, institu­tion, or agency; or any other person legally responsi­ble for the child's welfare in a residential setting.

(f) "Physical injury" means death, permanent or temporary disfigurement, or impairment of any bodi­ly part.

(g) "Mental injury" means an injury to the intel­lectual or psychological capacity of a child as evi­denced by a discernible and substantial impairment in his ability to function within his normal range of

performance and behavior, with due regard to his culture.

(h) "Physician" means any licensed physician, dentist, podiatrist, or optometrist and includes any intern or resident.

(i) "Department" means the Department of Health and Rehabilitative Services.

(j) "Unfounded report" means a report made pur­suant to this section when an investigation deter­mines that no indication of abuse or neglect exists.

(k) "Indicated report" means a report made pur­suant to this section when a child protective investi­gation determines that some indication of abuse or neglect exists.

(l) "Institutional child abuse or neglect" means situations of known or suspected child abuse or ne­glect in which the person allegedly perpetrating the child abuse or neglect is an employee of a public or private day care center, residential home, institution, or agency responsible for the child's care.

(3) REPORTS OF CHILD ABUSE OR NE­GLECT REQUIRED.-Any person, including, but not limited to, any:

(a) Physician, osteopath, medical examiner, chi­ropractor, nurse, or hospital personnel engaged in the admission, examination, care, or treatment of per­sons;

(b) Health or mental health professional other than one listed in paragraph (a);

(c) Practitioner who relies solely on spiritual means for healing;

(d) School teacher or other school official or per­sonnel;

(e) Social worker, day care center worker, or oth­er professional child care, foster care, residential, or institutional worker; or

(f) Law enforcement officer,

who knows, or has reasonable cause to suspect, that a child is an abused or neglected child shall report such knowledge or suspicion to the department in the manner prescribed in subsection (9).

(4) MANDATORY REPORTING OF DEATH AND POSTMORTEM INVESTIGATION BY MEDICAL EXAMINER-Any person required to report or investigate cases of suspected child abuse or neglect who has reasonable cause to suspect that a child died as a result of child abuse or neglect shall report his suspicion to the appropriate medical exam­iner. The medical examiner shall accept the report for investigation pursuant to s. 406.11 and shall re­port his findings, in writing, to the local law enforce­ment agency, the appropriate state attorney, and the department. Autopsy reports maintained by the medical examiner shall not be subject to the confi­dentiality requirements provided for in this section.

(5) PHOTOGRAPHS, MEDICAL EXAMINA­TIONS, AND X RA YS.-Any person required to in­vestigate cases of suspected child abuse or neglect may take or cause to be taken photographs of the ar­eas of trauma visible on a child who is the subject of a report and, if the areas of trauma visible on a child indicate a need for a medical examination, may cause the child to be referred for diagnosis to a licensed physician or an emergency department in a hospital

1330

F.S. 1981 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS Ch. 827

without the consent of the child's parents, legal guardian, or legal custodian. Any licensed physician who has reasonable cause to suspect that an injury was the result of child abuse may authorize a radio­logical examination to be performed on the child without the consent of the child's parent, legal guard­ian, or legal custodian. The county in which the child is a resident shall bear the initial costs of the exami­nation of the allegedly abused child; however, the parents, legal guardian, or legal custodian ofthe child shall be required to reimburse the county for the costs of such examination and to reimburse the De­partment of Health and Rehabilitative Services for the cost of the photographs taken pursuant to this subsection. Any photograph or report on examina­tions made or X rays taken pursuant to this subsec­tion, or copies thereof, shall be sent to the depart­ment as soon as possible.

(6) PROTECTIVE CUSTODY.-A law enforce­ment officer or authorized agent of the department may take a child into custody as provided in chapter 39. Any person in charge of a hospital or similar insti­tution or any physician treating a child may keep that child in his custody without the consent of the parents, legal guardian, or legal custodian, whether or not additional medical treatment is required, if the circumstances are such, or if the condition of the child is such, that continuing the child in the child's place of residence or in the care or custody of the par­ents, legal guardian, or legal custodian presents an imminent danger to the child's life or physical or mental health. Any person taking a child into protec­tive custody shall immediately notify the depart­ment, whereupon the department shall immediately begin a child protective investigation in accordance with the provisions of subsection (10) and shall make every reasonable effort to immediately notify the parents, legal guardian, or legal custodian that such child has been taken into protective custody. If the department determines, according to the criteria set forth in s. 39.402, that the child should remain in pro­tective custody longer than 24 hours, it shall petition the court for an order authorizing such custody in the same manner as if the child were placed in a shelter. The department shall attempt to avoid the place­ment of a child in an institution whenever possible.

(7) IMMUNITY FROM LIABILITY.-Any per­son, official, or institution participating in good faith in any act authorized or required by this section shall be immune from any civil or criminal liability which might otherwise result by reason of such action.

(8) ABROGATION OF PRIVILEGED COM­MUNICATIONS.-The privileged quality of com­munication between husband and wife and between any professional person and his patient or Client, and any other privileged communication except that be­tween attorney and client, as such communication re­lates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any situation involving known or sus­pected child abuse or neglect and shall not constitute grounds for failure to report as required by this sec­tion, failure to cooperate with the department in its activities pursuant to this section, or failure to give

evidence in any judicial proceeding relating to child abuse or neglect.

(9) INITIAL REPORTING PROCEDURE.­(a) Each report of known or suspected child

abuse or neglect pursuant to this section shall be made immediately to the department's abuse registry on the single statewide tollfree telephone number or directly to the local office of the department respon­sible for investigation of reports made pursuant to this section.

(b) Each report made by a person in an occupa­tion designated in subsection (3) shall be confirmed in writing to the local office of the department within 48 hours of the initial report.

(c) Reports involving known or suspected institu­tional child abuse or neglect shall be made and re­ceived in the same manner as all other reports made pursuant to this section.

(10) CHILD PROTECTIVE INVESTIGA­TIONS.-

(a) The department shall be capable of receiving and investigating reports of known or suspected child abuse or neglect 24 hours a day, 7 days a week. If it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child will be unavailable for purposes of conducting a child protective investigation, or that the facts other­wise so warrant, the department shall commence an investigation immediately, regardless of the time of day or night. In all other child abuse or neglect cases, a child protective investigation shall be commenced within 24 hours of receipt of the report.

(b) For each report it receives, the department shall perform an onsite child protective investigation to:

1. Determine the composition of the family or household, including the name, address, age, sex, and race of each child named in the report; any siblings or other children in the same household or in the care of the same adults; the parents or other persons respon­sible for the child's welfare; and any other adults in the same household.

2. Determine whether there is indication that any child in the family or household is abused or neglect­ed, including a determination of harm or threatened harm to each child; the nature and extent of present or prior injuries, abuse, or neglect, and any evidence thereof; and a determination as to the person or per­sons apparently responsible for the abuse or neglect.

3. Determine the immediate and long-term risk to each child if the child remains in the existing home environment.

4. Determine the protective, treatment, and ame­liorative services necessary to safeguard and ensure the child's well-being and development and, if possi­ble, to preserve and stabilize family life.

(c) The department may develop and coordinate one or more multidisciplinary child protection teams in each of the department's service districts. The de­partment may convene such teams when necessary to assist in its diagnostic, assessment, service, and coor­dination responsibilities. Members of the team may include representatives of appropriate health, mental health, social service, legal service, and law enforce­ment agencies.

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Ch.827 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS F.S. 1981

(d) If the department is denied reasonable access to a child by the parents or other persons responsible for the child's welfare and the department deems that the best interests of the child so require, it shall seek an appropriate court order or other legal author­ity to examine and interview the child.

(e) If the department determines that a child re­quires immediate or long-term protection through:

1. Medical or other health care; 2. Homemaker care, day care, protective supervi­

sion, or other services to stabilize the home environ­ment; or

3. Foster care, shelter care, or other substitute care to remove the child from his parents' custody,

such services shall first be offered for the voluntary acceptance of the parents or other person responsible for the child's welfare, who shall be informed of the right to refuse services as well as the department's re­sponsibility to protect the child regardless of the ac­ceptance or refusal of services. If the services are re­fused or the department deems that the child's need for protection so requires, the department shall take the child into protective custody or petition the court as provided in chapter 39.

(f) No later than 30 days after receiving the ini­tial report, the local office of the department shall complete its investigation, determine whether the re­ported abuse was indicated or unfounded, and report its findings to the department's abuse registry.

(g) Immediately upon receipt of a report alleging, or immediately upon learning during the course of an investigation, that:

1. A child died as a result of abuse or neglect; 2. A child is a victim of aggravated child abuse as

defined ins. 827.03; 3. A child received an observable injury as a re­

sult of child abuse or neglect; or 4. A child is a victim of sexual battery,

services, and law enforcement agencies, and courts, organizations, or programs providing or concerned with human services related to the prevention, iden­tification, or treatment of child abuse or neglect.

4. Provide ongoing protective; treatment, and ameliorative services to, and on behalf of, children in need of protection to safeguard and ensure their well-being and, whenever possible, to preserve and stabilize family life.

(b) All state, county, and local agencies have a duty to give such cooperation, assistance, and infor­mation to the department as will enable it to fulfill its responsibilities under this section.

(12) EDUCATION AND TRAINING.~The de­partment shall, within available appropriations, con­duct a continuing publicity and education program for district staff and officials required to report and any other appropriate persons to encourage the ful­lest degree of reporting of suspected child abuse or neglect. The program shall include, but not be limit­ed to, information concerning the responsibilities, ob­ligations, and powers provided under this chapter; the methods for diagnosis of child abuse or neglect; and the procedures of the child protective service program, the circuit court, and other duly authorized agencies. In developing training programs for district staff, the department shall place emphasis on preser­vice and inservice training for single intake, protec­tive services, and foster care staff which would in­clude skills in diagnosis and treatment of child abuse and neglect and procedures of the child protective system and judicial process.

(13) . ABUSE REGISTRY.-(a) The department shall establish and maintain

a central abuse registry which shall receive reports made pursuant to this section in writing or through a single statewide tollfree telephone number which any person may use to report known or suspected child abuse or neglect at any hour of the day or night, any day of the week. The abuse registry shall be operated

the department shall orally notify the appropriate in such a manner as to enable the department to: state attorney and may notify the appropriate law 1. Immediately identify and locate prior reports enforcement agency in order that they may begin a or cases of child abuse or neglect. criminal investigation concurrent with the agency's 2. Regularly evaluate the effectiveness of the de­child protective investigation. The department shall partment's program for abused and neglected chil­make a full written report to the state attorney with- dren through the development and analysis of statis­in 3 days of the oral report. The department may no- tical and other information. tify the state attorney or law enforcement agency of (b) Upon receiving an oral or written report of any other child abuse or neglect case in which a crim- known or suspected child abuse or neglect, the abuse ina! investigation is deemed appropriate by the de- registry shall immediately notify the local office of partment. the department with respect to the report, any previ-

(11) RESPONSIBILITIES OF PUBLIC AGEN- ous report concerning a subject of the present report, CIES.- or any other pertinent information relative thereto.

(a) The department shall: (c) Upon completion of its investigation, the local 1. Have prime responsibility for strengthening office of the department shall classify reports as indi­

and improving child abuse and neglect prevention cated or unfounded. All identifying information in and treatment efforts. the abuse registry maintained in unfounded reports

2. Seek and encourage the development of im- shall be expunged immediately. All identifying infor­proved or additional programs and activities, the as- mation in the abuse registry maintained in indicated sumption of prevention and treatment responsibili- reports shall be expunged from the registry 7 years ties by additional agencies and organizations, and the from the date of the last indicated report concerning coordination of existing programs and activities. the same child, siblings, or the same perpetrator. All

3. To the fullest extent possible, cooperate with information, other than identifying information, and seek cooperation of all appropriate public and maintained in indicated or unfounded reports at the private agencies, including health, education, social time ·of expunction shall be disposed of in a manner

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F.S. 1981 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS Ch. 827

deemed appropriate by the department and pursuant to ss. 119.041 and s. 267.051(6) . Nothing in this sec­tion is intended to require the expunction or destruc­tion of case records or information required by the Federal Government to be retained for future audit.

(14) REPORTS OF INSTITUTIONAL CHILD ABUSE OR NEGLECT.-The department shall conduct a child protective investigation of each re­port of institutional child abuse or neglect. Upon re­ceipt of a report which alleges that an employee or agent of the department acting in an official capacity, including, but not limited to, a foster parent, has committed an act of child abuse or neglect, the de­partment shall immediately initiate a child protec­tive investigation and notify the state attorney in whose circuit the alleged child abuse or neglect oc­curred. The state attorney shall immediately investi­gate the report and, no later than 15 days after com­pleting the investigation, shall report his findings to the department.

(15) CONFIDENTIALITY OF REPORTS AND RECORDS.-

( a) In order to protect the rights of the child and his parents or other persons responsible for the child's welfare, all records concerning reports of child abuse or neglect, including reports made to the abuse registry and to local offices of the department and all records generated as a result of such reports, shall be confidential and exempt from the provisions of s. 119.07(1), and shall not be disclosed except as specifi­cally authorized by this section.

(b) Access to such records, excluding the name of the reporter which shall be released only as provided in paragraph (e), shall be granted only to the follow­ing persons, officials, and agencies for the following purposes:

1. Employees or agents of the department re­sponsible for carrying out child protective investiga­tions, ongoing child protective services, or licensure or approval of adoptive homes, foster homes, or other homes used for the care of children.

2. A law enforcement agency investigating a re­port of known or suspected child abuse or neglect.

3. The state attorney of the judicial circuit in which the child resides or in which the alleged abuse or neglect occurred.

4. Any child, parent, or perpetrator who is the subject of a report or the subject's guardian, custodi­an, guardian ad litem, or counsel.

5. A court, by subpoena, upon its finding that ac­cess to such records may be necessary for the deter­mination of an issue before the court; however, such access shall be limited to in camera inspection, unless the court determines that public disclosure of the in­formation contained therein is necessary for the reso­lution of an issue then pending before it.

6. A grand jury, by subpoena, upon its determina­tion that access to such records is necessary in the conduct of its official business.

7. Any appropriate official of the department re­sponsible for:

a. Administration or supervision of the depart­ment's program for the prevention, investigation, or treatment of child abuse or neglect when carrying out his official function; or

b. Taking appropriate administrative action con­cerning an employee of the department alleged to have perpetrated institutional child abuse or neglect.

8. Any person engaged in bona fide research or audit purposes. However, no information identifying the subjects of the report shall be made available to the researcher unless such information is absolutely essential to the research purpose, suitable provision is made to maintain the confidentiality of the data, and the department has given written approval.

(c) The department may release to professional persons such information as is necessary for the diag­nosis and treatment of the child or the person perpe­trating the abuse.

(d) The department shall, with the written con­sent of a person applying to a licensed child-placing agency for the adoption of a child or for licensure as a foster home, search its abuse registry for the exis­tence of an indicated report and advise the licensed child-placing agency of any such report found and the results of the investigation conducted pursuant thereto.

(e) The name of any person reporting child abuse or neglect shall in no case be released to any person other than employees of the department responsible for child protective services, the abuse registry, or the appropriate state attorney without the written con­sent of the person reporting. This shall not prohibit the subpoenaing of a person reporting child abuse or neglect when deemed necessary by the state attorney or the department to protect a child who is the sub­ject of a report, provided that the fact that such per­son made the report is not disclosed.

(16) GUARDIAN AD LITEM.-A guardian ad litem shall be appointed by the court to represent the child in any child abuse or neglect judicial proceed­ing. Any person participating in a judicial proceeding resulting from such appointment shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed. In those cases in which the parents are financially able, the parent or parents of the child shall reimburse the court, in part or in whole, for the cost of provision of guardian ad litem services. Reimbursement to the in­dividual providing guardian ad litem services shall not be contingent upon successful collection by the court from the parent or parents.

(17) RULES.-The department shall promulgate rules in furtherance of the purpose of this section and may amend such rules as may be necessary.

(18) PENAL TIES.-(a) Any person required by this section to report

known or suspected child abuse or neglect who know­ingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, is guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Any person who knowingly and willfully makes public or discloses any confidential informa­tion contained in the abuse registry or in the records of any child abuse or neglect case, except as provided in this section, is guilty of a misdemeanor of the sec-

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Ch.827 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS F.S. 1981

ond degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

His tory .-ss. I , 2, 3, 4, 5, 6, ch. 63-24; s. 94 1, ch. 71-136; ss. I, l A, ch. 71-97; s. 32, ch. 73-334; s. 65, ch. 74-383; s. I , ch. 75-101; s. I. ch. 75-1 85; s. 4, ch. 76-237; s. I, ch. 77-77; s. 3, ch. 77-429; ss. I, 2, ch. 78-322; s. 3, ch. 78-326; s. 22, ch. 78-361; s. I, ch. 78-379; s. 18 1, ch. 79- 164; s. I, ch. 79-203; s. 488, ch. 81-259.

Note.- Former s. 828.041.

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 ins. 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 o( 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.

His tory.-s. I, ch. 61-216; s. 956, ch. 71-1 36; s. 65, ch. 74-383. Note.- Former s. 828.201.

827.09 Abuse of disabled persons or persons suffering from the infirmities of aging; reports; penalties.-

(1) DEFINITIONS.-As used in this section: (a) "Disabled person" means any person who suf­

fers from a condition of mental retardation, epilepsy, cerebral palsy, mental illness, or other disability which causes the person to be substantially unable to protect himself from the abusive conduct of others.

(b) "Abuse" and "maltreatment" mean neglect, malnutrition, physical or psychological injury inflict­ed other than by accidental means, and failure to provide necessary treatment, habilitation, care, sus­tenance, clothing, shelter, supervision, or medical services.

(c) "Abused person" means any disabled person or individual suffering from the infirmities of aging who has been subjected to abuse or whose condition suggests that he has been abused.

(d) "Facility" means any public or private hospi­tal, training center, clinic, school, or other program or service for disabled persons or individuals suffering from the infirmities of aging.

(e) "Department" means the Department of Health and Rehabilitative Services.

(f) "Infirmities of aging" has the meaning as­cribed to that term in s. 410.102(1).

(2) PURPOSE.-The purpose of this section is to provide for the detection and correction of the abuse or maltreatment of disabled persons or individuals suffering from the infirmities of aging whose health and welfare are adversely affected or further threat­ened by the abusive conduct of others. It is intended that the mandatory reporting of such cases will cause the protective services of the state to be brought to bear in an effort to prevent further abuse and to pro-

teet and enhance the welfare of disabled persons or individuals suffering from the infirmities of aging.

(3) REPORTS OF ABUSE.-(a) Any person, including, but not limited to, a

physician, psychologist, nurse, teacher, social worker, employee of a public or private facility serving dis­abled or aged persons, or parent of a disabled person or an individual suffering from the infirmities of aging, who has reason to believe that a disabled per­son or an individual suffering from the infirmities of aging has been subjected to abuse shall report, or cause reports to be made, to the department. When the attendance of any person with respect to a dis­abled person or an individual suffering from the in­firmities of aging is pursuant to the performance of services as a member of a staff of a hospital, training center, clinic, school, or similar facility, he shall also notify the person in charge of the facility or his desig­nated delegate, who shall also report or cause reports to be made in accordance with the provisions of this section.

(b) Every facility serving disabled persons or in­dividuals suffering from the infirmities of aging shall inform residents of their right to report abusive prac­tices and shall establish appropriate policies and pro­cedures to facilitate such reporting.

(4) CONDITIONS PRELIMINARY TO SUB­MISSION OF THE REPORT.-

(a) In consideration of physical injury, the follow­ing items shall be considered evidence of maltreat­ment before the report is required:

1. Characteristic distribution of fractures. 2. Disproportionate amount of soft tissue injury. 3. Evidence that injuries occurred at different

times or are in different stages of resolution. 4. Cause of recent trauma in question. 5. Family or facility history. 6. History of previous episodes. 7. No new lesions occurring during the abused

person's hospitalization or removal from custody of parent, custodian, or facility.

(b) In consideration of abusive conduct in facili­ties for the disabled or aged, in addition to those items enumerated in paragraph (a), the following items shall be considered evidence of maltreatment before the report is required:

1. Cruel and unusual disciplinary practices and procedures, including, but not limited to, corporal punishment, seclusion or excessive "time out" proce­dures, unnecessary or excessive medication, and un­necessary or excessive use of physical restraints.

2. Evidence of inappropriate or harmful program, habilitation, or treatment.

3. Cause of the recent abusive conduct in ques­tion.

4. Individual or facility history. 5. Evidence of degrading and dehumanizing prac­

tices and procedures. (5) NATURE AND CONTENT OF RE­

PORT.-An oral report shall be made immediately by telephone or otherwise to the department, fol­lowed as soon thereafter as possible by a report in writing. Such reports shall contain, if known, the names and addresses of the disabled person or indi­vidual suffering from the infirmities of aging and his

1334

F.S. 1981 ABUSE OF CHILDREN OR DISABLED OR AGED PERSONS Ch.827

parents or other persons responsible for his care oth­er disabled persons or individuals suffering fro~ the infirmities of aging who are threatened by abusive conduct, the abused person's age, the nature and ex­tent of his disability, the nature and extent of the in­juries, and any other information that the reporter believes might be helpful in establishing the cause of the injuries, abuse, or maltreatment and the identity of the perpetrator.

(6) RESPONSIBILITIES OF PUBLIC AGEN­CIES.-Upon receipt of a report of abuse of a dis­abled person or of an individual suffering from the infirmities of aging, the department shall cause an immediate investigation to be made and shall in turn upon determining probable cause, notify the state at~ torney. The department shall, within 24 hours of re­c~ipt of the report, notify the appropriate human nghts advocacy committee, as established pursuant to s. 20.19(7), that an alleged abuse has occurred. Such notice may be accomplished verbally or in writ­ing and shall include the name of the person alleged to have been abused and the nature of the report. All state, county, and local agencies have a duty to coop­erate fully with the department, transmit reports of abuse to the department, and protect and enhance the welfare of abused persons and disabled persons or individuals suffering from the infirmities of aging who are potentially subject to abuse detected by a re­port made pursuant to this section.

(7) CENTRAL REGISTRY.-Reports of abuse shall be recorded in the central registry established and maintained by the department as required by s. 827.07, dealing with abuse of children. The registry shall contain information as to the name of the abused person and the members of the family or oth­er persons responsible for his care, the facts of the in­vestigation, and the result of the investigation. The information contained in the registry shall not be open ~o inspection by the public. However, appropri­ate disclosure may be made for use in connection with the treatment of the abused person or the per­son perpetrating the abuse and to counsel represent­ing either person in any criminal or civil proceeding. Appropriate disclosure may also be made for use in connection with the hiring or employment of persons to serve disabled persons or individuals suffering from the infirmities of aging. In addition, informa­tion contained in the registry may be available for

purposes of research relating to the abuse of disabled persons or individuals suffering from the infirmities of aging. The department shall make such informa­tion available upon application by a researcher or re­search agency of professional repute, provided the need for the records has been demonstrated to the satisfaction of the department. Records shall not be opened under this provision unless adequate assur­ances are given that names and other information identifying disabled persons or individuals suffering from the infirmities of aging will not be disclosed by the applicant.

(8) TRANSMITTAL OF RECORDS.-With re­spect to any case of reported abuse of a disabled per­son or an individual suffering from the infirmities of aging, the department, when appropriate, shall trans­mit all reports received by it, which shall contain the results of the investigation, to the state attorney of the county where the incident occurred.

(9) IMMUNITY.-Anyone participating in the making of a report pursuant to this section or partici­pating in a judicial proceeding resulting therefrom shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any liabil­ity, civil or criminal, that otherwise might be in­curred or imposed. Also, no resident or employee of a facility serving disabled or aged persons shall be sub­jected to reprisal or discharge because of his actions in reporting abuse pursuant to the requirements of this section.

(10) PRIVILEGES.-The physician-patient privilege, husband-wife privilege, or any privilege, ex­cept the attorney-client privilege, provided for or covered by law, both as it relates to the competency of a witness and to the exclusion of confidential com­munications, shall not pertain in any civil or criminal litigation in which the abuse or maltreatment of a disabled person or of a person suffering from the in­firmities of aging is an issue or in any judicial pro­ceedings resulting from a report submitted pursuant to this section.

(11) PENAL TIES.-Anyone knowingly and will­fully violating the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-ss. I, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 , ch. ?:l-176; s. I, ch. 77-174: ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293.

Note.- Formers. 828.043.

1335

Ch.828 CRUELTY TO ANIMALS F.S. 1981

CHAPTER 828

CRUELTY TO ANIMALS

828.02 828.03

828.05 828.073

828.08 828.12 828.121

828.122 828.13

828.14

828.15

828.16 828.161

828.17 828.22 828.23 828.24 828.25

828.26

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

prosecute violators. Killing an injured domestic animal. Animals found in distress; when agent may

take charge; hearing; disposition; sale. Penalty for exposing poison. Cruelty to animals. Conduct of simulated bullfighting exhibi­

tions. Fighting or baiting animals; penalties. Confinement of animals without sufficient

food, water or exercise; abandonment of animals.

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

Sections 828.12, 828.13, 828.14 not to apply to poultry shipped.

Contagious diseases. Prohibiting artificial coloring and sale of

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

spection; fees. Penalty.

828.02 Definition of "animal."-In 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; GS 3156; RGS 4982; CGL 7071.

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

(!) 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 ap-

proved 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.

His tory.- s. 12, ch. 4971, 1901; GS 3158; RGS 4984; CGL 707:1; s. :12, ch. 73-334; s. I , ch. 75-223; s. I , ch. 76-102; s. I , ch. 77-174. cf.-s. 901.15 When arrest without warrant is lawful.

828.05 Killing an injured 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 may be destroyed without unconscionable de­lay.

(2) As used in this section, "officer" means and includes any law enforcement officer and 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.

(3) Whenever any domestic animal is so injured on a public right-of-way as to appear useless and is in a suffering condition, and it shall reasonably appear to an officer that such animal is imminently near death and cannot be cured or rendered fit for service and the officer shall have made a reasonable and con­certed 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.

(4) No officer acting pursuant to subsection (3) shall be liable either criminally or civilly for such act, nor shall any civil or criminal liability attach to the employer of the officer.

His tory.-s. 2, ch. 4151, 1893; GS 3159; RGS 4985; CGL 7074; s. I, ch. 80- 188.

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

( I) 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 from 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. 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

1336

F.S. 1981 CRUELTY TO ANIMALS Ch. 828

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 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.

(b) 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 remanded 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.

(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.

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

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

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

(e) Any other evidence the court considers to be material or relevant.

(6) 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.

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

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

828.121 Conduct of simulated bullfighting exhibitions.-It 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; penal­ties.-

(1) This act shall be known and may be cited as "The Animal Fighting Act of 1976."

(2) As used in this section: (a) "Animal" means any bull, bear, or dog. (b) "Baiting" means to attack with violence, to

provoke, 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.

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

(3) Any person who commits any of the following acts shall be guilty of a misdemeanor of the first de­gree, punishable as provided in s. 775.082, or by a fine not less than $1,000 and not more than $5,000, or both:

(a) Baiting, or usin6 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; or

1337

Ch.828 CRUELTY TO ANIMALS F.S. 1981

(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 shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, or by a fine not less than $500 and not more than $1,000, or both:

(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 in­

formation 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 humanely survive 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 as 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 using animals to train greyhounds for legalized racing, if not otherwise prohibited by law.

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

to retrieve domestic hogs. History.-ss. l, 2, ch. 76-59; s. I, ch. 81-224. 1Note.- Section 1, ch. 81-224, amended s. 828.122, effective July 1, 1984, to

read: 828.122 Fighting or baiting animals; penalties.-( I) This act shall be known and may be cited as "The Animal Fighting Act

of 1976." (2) As used in this section: (a) "Animal" means any bull, bear, or dog. (b) .. Baiting"' means to attack with violence, to provoke, or to harass an ani­

mal 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 raci~g greyh<_>UJ?dS.

(c) "Person" means every natural person, firm, copartnership, assoc1ataon, or corporation.

(3) Any person who commits any of the following acts is guilty of a misde· meanor of the first degree, punishable as provided in s. 775.082 or by a fine of not less than $1,000 and not more than $5,000, or both:

(a) Baiting, or using any animal for the purpose of fightiilg 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 second degree, punishable as provided in s. 775.082 or by a

fine of not less than $500 and not more than $1,000, or both: (a) Betting or wagering any money or other valuable consideration on the

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

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 en­

tirely 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,

(c) Feeds cows on food that produces impure or unwholesome milk, or

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

is guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.082, s. 775.083, or 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 second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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

'Note.-The words "'an animal" were inserted by the editors.

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 sec-

1338

F.S. 1981 CRUELTY TO ANIMALS Ch. 828

tion 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. cf.-s. 352.34 Care of livestock in transit.

s. 352.35 Violations of regulations as to transporting livestock.

828.15 Sections 828.12, 828.13, 828.14 not to apply to poultry shipped.-Nothing in ss. 828.12, 828.13, and 828.14 shall be constru,ed to apply to poultry shipped on steamboats or other craft.

History.-s. 4, ch. 392 1, 1889; RS 2512; GS 3398; RGS 5247; CGL 7366.

828.16 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. I, 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 violat-

ing any of the provisions of ss. 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. I, ch. 28060, 1953; s. 32, ch. 73-334. cf.-s. 901.15 When arrest without warrant is lawful.

828.22 Humane slaughter requirement.-(!) 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. I, 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) "Slaughterer" 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 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.

1339

Ch.828 CRUELTY TO ANIMALS F.S. 1981

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

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

828.24 Prohibited acts; exemption.-(!) 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. I , 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. I, eli. 61-254; ss. 14, 35, ch. 69-106.

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

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

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F.S. 1981 FORGERY AND COUNTERFEITING Ch. 831

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

counterfeiting. Forging or counterfeiting private labels. Penalty for changing or forging certain in­

struments of writing. Vending goods with counterfeit labels. Fictitious signature of officer of corpora-

tion. 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

instrument. 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 possession, with intent to utter.

Having less than 10 counterfeit coins, etc.; second conviction.

Making instruments for forging bills, etc. Making or having instruments for counter­

feiting coin. Counterfeit bills and counterfeiters' tools

to be seized. Forging or counterfeiting doctor's certifi-

cate 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 cur­

rency. Issuing notes. Making or having instruments and materi­

al for counterfeiting operators' or chauf­feurs' licenses.

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

manufacture, 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.

History.-s. I, ch. 1637, 1868; RS 2479; s. 6, ch. 4702, 1899; GS 3359; RGS 5206; CGL 7324; s. I, ch. 59-31; s. I , 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 ins. 775.082, s. 775.083, or s. 775.084.

History.-s. 2, ch. 1637, 1868; RS 2480; GS 3380; 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.

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

Note.-Formers. 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.

History.-s. I , ch. 3621, 1885; RS 2481; GS 3361; RGS 5209; CGL 7327; s. 961, ch. 71-136. cf.-Ch. 506 Stamped or marked boxes or bottles.

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

( I) Any person making any erasure, alteration, interlineation or interpolation in any writing or in­strument mentioned in s. 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 for-

1341

Ch.831 FORGERY AND COUNTERFEITING F.S. 1981

gery, 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.

(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).

His tory.-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 stamp, 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 521 1; CG L 7329; s. 963, ch. 71-136.

831.06 Fictitious signature of officer of cor­poration.-If 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.

His to ry.-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.

His tory.-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.

His tory.-s. 5, ch. 1637, 1868; RS 2486; GS 3367; RGS 5215; CG L 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 2488; GS 3369; RGS 5217; CGL 7335; s. 967, ch. 71 -1 36.

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 52 18; CGL 73:16; 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 ins. 775.082, s. 775.083, or s. 775.084.

History.-s. 22, ch. 1637, 1868; RS 2491; GS 3372; RGS 5220; CGL 7338; s. 969, ch. 71-136.

831.14 Uttering uncurrent bills.-Whoever

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F.S. 1981 FORGERY AND COUNTERFEITING Ch.831

utters, or passes or tenders in payment as true, any such worthless 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. 775.083, or s. 775.084.

His tory.-s. 23, ch. 1637, 1868; RS 2492; GS 3373; RGS 5221; CG L 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.

His tory.-s. 14, ch. 1637, 1868; RS 2493; GS 3374; RGS 5222; CGL 7340; s. 97 1, ch. 71-136.

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.

His tory.-s. 15, ch. 1637, 1868; RS 2494; GS 3375; RGS 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; RS 2495; GS 3376; RGS 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; RS 2496; GS 3377; RGS 5225; CGL 734:!.

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; RS 2497; GS 3378; RGS 5226; CGL n 44.

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; RS 2498; GS 3379; RGS 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. I, ch. 4525, ! 897; GS 3380; RGS 5228; CGL n46.

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 oth-

1343

Ch.831 FORGERY AND COUNTERFEITING F.S. 1981

er circumstances tending to prove that the note or bill was damaged by him.

History.-s. 20, ch. 1637, 1868; RS 2725; GS 37 17; RGS 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 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 37 19; 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. 3140, 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 ins. 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 license; 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. I , ch. 65-278; s. I, 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 ins. 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. I, ch. 71-331; s. I, ch. 72-234; s. 30, ch, 73-331.

831.31 Counterfeit controlled substance;

1344

F.S. 1981 FORGERY AND COUNTERFEITING Ch.831

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 provided 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

degree , 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.

History.-s. 2. ch. 81·53.

1345

Ch.832 ISSUING WORTHLESS CHECKS-AND DRAFTS F.S. 1981

CHAPTER 832

ISSUING WORTHLESS CHECKS AND DRAFTS

832.04

832.041 832.05

832.06

832.07

Stopping payment; purchase of farm or grove products.

Stopping payment with intent to defraud. Knowingly making, issuing, etc., worthless

checks, drafts; obtaining property in re­turn for worthless checks, etc.; penalty; duty of drawee; evidence.

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

Prima facie evidence of intent; identity.

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

(!) 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 be valued at the amount of such check, draft or written order or at a greater or lesser value, and 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 ins. 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 be $50 or more; and if the value of the products or product se­cured for or on account of such check, draft or writ­ten order be less than $50, 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.

History.-ss. I, 2, 4, ch. 26884, 1951; s. 979, ch. 71-136.

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 be valued at the amount of such check, draft or written order or at a greater or lesser value, and 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 ins. 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 be $50 or more; and if the value of the goods or ser­vices secured for or on account of such check, draft or written order be less than $50, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 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.

History.-ss. I, 2, ch. 65-413; s. 980, ch. 71·136.

832.05 Knowingly making, issuing, etc., worthless checks, drafts; obtaining property in return for worthless checks, etc.; penalty; duty of drawee; evidence.-

(!) PURPOSE.-The purpose of this section is to remedy the evil of giving checks, drafts, bills of ex­change and other orders on a bank without first pro­viding funds in or credit with the depository 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 and other orders on banks, bad banking, check kiting and a mischief to trade and commerce.

(2) WORTHLESS CHECKS; PENALTY.-(a) It shall be 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 for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing or delivering such check or draft 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; provided, that this section shall not apply to any check where the payee or holder knows or has been expressly notified prior to the drawing or uttering of

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F.S. 1981 ISSUING WORTHLESS CHECKS AND DRAFTS Ch.832

same or has reason to believe that the drawer did not have on deposit or to his credit with the drawee suffi­cient funds to insure payment as aforesaid, nor shall this section apply to any postdated check.

(b) Violation of the provisions of this subsection shall constitute a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083, un­less the check, draft or other written order drawn, made, uttered, issued or delivered be in the amount of $50, or its equivalent, or more and the payee or a subsequent holder thereof receives something of val­ue therefor. In that event the violation shall consti­tute a felony of the third degree, punishable as pro­vided ins. 775.082, s. 775.083, or s. 775.084.

(3) CASHING OR DEPOSITING ITEM; PEN­ALTY.-

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

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

(4) OBTAINING PROPERTY IN RETURN FOR WORTHLESS CHECKS, ETC.; PENALTY.-

(a) It shall be 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 said 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, provided however that no crime may be charged in respect to the giving of any such check or draft or other written order where the payee knows or 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 insure payment thereof. ·

(b) Violation of the provisions of this subsection shall, if the check, draft or other written order be for an amount less than $50 or its equivalent, constitute a misdemeanor of the first degree, punishable as pro­vided ins. 775.082 or s. 775.083. Violation of the pro­visions of this subsection shall, if the check, draft or other written order be in the amount of $50, or its equivalent, or more, constitute 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 or­ders shall not constitute a defense or ground for dis­missal of charges brought under this section.

(6) CREDIT DEFINED.-The word "credit" as used herein shall be construed to mean an arrange­ment or understanding with the drawee for the pay­ment of such check, draft, or other written order.

(7) REASON FOR DISHONOR, DUTY OF DRAWEE.-It shall be 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 drawee's dishonor or refusal to pay same. In all prosecutions 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, shall be prima facie evidence of the making or uttering of said check, draft, or other written order, and 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 checks, draft, or other written orders; and, as against the maker or drawer thereof, the withdrawing from deposit with the drawee named in the check, draft or other written order, the funds on deposit with such drawee neces­sary to insure payment of said 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, shall be prima facie evidence of knowledge of insufficient funds in or credit with such drawee; provided, 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.-Where prosecutions are 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. cf.-Ch. 812 Theft , robbery, and related crimes.

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

1347

Ch.832 ISSUING WORTHLESS CHECKS AND DRAFTS F.S. 1981

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 Dep_artment 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 fish-

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

832.07 Prima facie evidence of intent; identi­ty.-

(1) INTENT.-(a) In any prosecution or action under this chap­

ter, 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 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. 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 ~ l!.!!nkl._, 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 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."

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 giv-

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F.S. 1981 ISSUING WORTHLESS CHECKS AND DRAFTS Ch.832

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

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

sions of this chapter, a check, draft, or order for which the information required in paragraph (b), 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) In addition to the information required in paragraph (b), the party accepting a check shall wit­ness the signature or endorsement of the party pre­senting such check, and, as evidence of such, the ac­cepting party shall initial the check.

(e) 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.

(f) 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.

His tory.-s. I, ch. 75-189; s. I , ch. 77-174; s. I , ch. 79-:l45; s. I, ch. 80-301. cf.- ss. 125.0105, 166.251 Service fee for dishonored check.

1349

Ch.836 DEFAMATION; LIBEL; THREATENING LETTERS, ETC. F.S. 1981

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 state­

ments 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 libeL-Any person convicted of the publication of a libel shall be guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083.

History.-s. 15, sub-ch. 7, ch. 1637, 1868; RS 2418; GS 3256; RGS 5087; CGL 7189; s. 987, ch. 71-1 36. 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 written 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.

History.-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 provided ins. 775.082 or s. 775.083.

History.-s. 4, ch. 4733, 1899; GS 3258; RGS 5089; CGL 7191; s. 989, ch. 71-136.

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.

History.-s. 1, ch. 3460, 1883; RS 2419; GS 3260; RGS 5091 ; CGL 7193; 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 chasti­ty 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.

History.-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. 839.11 Extortion 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.

History.-s. 1, ch. 6819, 1915; RGS 5093; s. 1, ch. 11866, 1927; CGL 7195, 7315; s. 992, ch. 71-1 36. cf.- s. 817.16 False reports by officers of banks, etc., with intent to defraud.

836.07 Notice condition precedent to prose­cution for libeL-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.

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

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