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The Florida Statutes

The 2017 Florida Statutes

Title XLVI
CRIMES
Chapter 847
OBSCENITY
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F.S. 847.012
847.012 Harmful materials; sale or distribution to minors or using minors in production prohibited; penalty.
(1) As used in this section, “knowingly” means having the general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:
(a) The character and content of any material described in this section which is reasonably susceptible of examination by the defendant; and
(b) The age of the minor.
(2) A person’s ignorance of a minor’s age, a minor’s misrepresentation of his or her age, a bona fide belief of a minor’s age, or a minor’s consent may not be raised as a defense in a prosecution for a violation of this section.
(3) A person may not knowingly sell, rent, or loan for monetary consideration to a minor:
(a) Any picture, photograph, drawing, sculpture, motion picture film, videocassette, or similar visual representation or image of a person or portion of the human body which depicts nudity or sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse and which is harmful to minors; or
(b) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording that contains any matter defined in s. 847.001, explicit and detailed verbal descriptions or narrative accounts of sexual excitement, or sexual conduct and that is harmful to minors.
(4) A person may not knowingly use a minor in the production of any material described in subsection (3), regardless of whether the material is intended for distribution to minors or is actually distributed to minors.
(5) An adult may not knowingly distribute to a minor on school property, or post on school property, any material described in subsection (3). As used in this subsection, the term “school property” means the grounds or facility of any kindergarten, elementary school, middle school, junior high school, or secondary school, whether public or nonpublic. This subsection does not apply to the distribution or posting of school-approved instructional materials that by design serve as a major tool for assisting in the instruction of a subject or course by school officers, instructional personnel, administrative personnel, school volunteers, educational support employees, or managers as those terms are defined in s. 1012.01.
(6) Any person violating any provision of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(7) Every act, thing, or transaction forbidden by this section constitutes a separate offense and is punishable as such.
(8)(a) The circuit court has jurisdiction to enjoin a violation of this section upon complaint filed by the state attorney in the name of the state upon the relation of such state attorney.
(b) After the filing of such a complaint, the judge to whom it is presented may grant an order restraining the person complained of until final hearing or further order of the court. Whenever the relator state attorney requests a judge of such court to set a hearing upon an application for a restraining order, the judge shall set the hearing for a time within 3 days after the making of the request. The order may not be made unless the judge is satisfied that sufficient notice of the application therefor has been given to the party restrained of the time when and place where the application for the restraining order is to be made.
(c) The person sought to be enjoined is entitled to a trial of the issues within 1 day after joinder of issue, and a decision shall be rendered by the court within 2 days after the conclusion of the trial.
(d) If a final decree of injunction is entered, it must contain a provision directing the defendant having the possession, custody, or control of the materials, matters, articles, or things affected by the injunction to surrender the same to the sheriff and requiring the sheriff to seize and destroy the same. The sheriff shall file a certificate of her or his compliance.
(e) In any action brought as provided in this section, a bond or undertaking may not be required of the state or the state attorney before the issuance of a restraining order provided for by paragraph (b), and the state or the state attorney may not be held liable for costs or for damages sustained by reason of the restraining order in any case where a final decree is rendered in favor of the person sought to be enjoined.
(f) Every person who has possession, custody, or control of, or otherwise deals with, any of the materials, matters, articles, or things described in this section, after the service upon her or him of a summons and complaint in an action for injunction brought under this section, is chargeable with knowledge of the contents and character thereof.
(9) The several sheriffs and state attorneys shall vigorously enforce this section within their respective jurisdictions.
(10) This section does not apply to the exhibition of motion pictures, shows, presentations, or other representations regulated under s. 847.013.
History.ss. 1, 2, 3, 4, 5, 6, 7, ch. 67-153; ss. 1, 2, ch. 69-41; s. 1054, ch. 71-136; s. 171, ch. 71-355; s. 34, ch. 73-334; s. 1, ch. 83-77; s. 2, ch. 86-38; s. 3, ch. 86-238; s. 5, ch. 88-283; s. 1349, ch. 97-102; s. 3, ch. 2008-120; s. 1, ch. 2013-75.
Note.Section 7, ch. 2008-120, provides that “[t]he amendments to ss. 847.012, 847.011, 847.013, and 847.0133, Florida Statutes, by this act do not apply to providers of communications services as defined in s. 202.11, Florida Statutes, or to providers of information services, including, but not limited to, Internet access service providers and hosting service providers, when they only provide the transmission, storage, or caching of electronic communications or messages of others or provide other related communications or information services used by others in violation of such amended provisions. This exemption shall not apply to providers of communications services as defined in s. 202.11, Florida Statutes, or providers of information services that knowingly for commercial advantage or private financial gain facilitate the specific violation of such amended provisions by others.”