Editor's Note: Florida Domestic Violence cases are frequently accompanied
by Restraining Orders. This is where Florida law can become
ridiculous: A person gets kicked out of their house without any evidence
other than someone's naked assertions, and we now have a new section for
'dating violence.' This is one of the most abused areas of the law
because the law forces judges to rubber stamp these petitions. The
person filing one of these petitions almost always claims they can't
afford a filing fee, so the legal system is clogged with frivolous
petitions, orders and hearings.
784.046 Action by victim of repeat violence, sexual violence, or
dating violence for protective injunction; powers and duties of court
and clerk of court; filing and form of petition; notice and hearing;
temporary injunction; issuance; statewide verification system;
enforcement.--
(1) As used in this section, the term:
(a) "Violence" means any assault, aggravated assault, battery,
aggravated battery, sexual assault, sexual battery, stalking, aggravated
stalking, kidnapping, or false imprisonment, or any criminal offense
resulting in physical injury or death, by a person against any other
person.
(b) "Repeat violence" means two incidents of violence or stalking
committed by the respondent, one of which must have been within 6 months
of the filing of the petition, which are directed against the petitioner
or the petitioner's immediate family member.
(c) "Sexual violence" means any one incident of:
1. Sexual battery, as defined in chapter 794;
2. A lewd or lascivious act, as defined in chapter 800, committed upon
or in the presence of a person younger than 16 years of age;
3. Luring or enticing a child, as described in chapter 787;
4. Sexual performance by a child, as described in chapter 827; or
5. Any other forcible felony wherein a sexual act is committed or
attempted,
regardless of whether criminal charges based on the incident were filed,
reduced, or dismissed by the state attorney.
(d) "Dating violence" means violence between individuals who have or
have had a continuing and significant relationship of a romantic or
intimate nature. The existence of such a relationship shall be
determined based on the consideration of the following factors:
1. A dating relationship must have existed within the past 6 months;
2. The nature of the relationship must have been characterized by the
expectation of affection or sexual involvement between the parties; and
3. The frequency and type of interaction between the persons involved in
the relationship must have included that the persons have been involved
over time and on a continuous basis during the course of the
relationship.
The term does not include violence in a casual acquaintanceship or
violence between individuals who only have engaged in ordinary
fraternization in a business or social context.
(2) There is created a cause of action for an injunction for protection
in cases of repeat violence, there is created a separate cause of action
for an injunction for protection in cases of dating violence, and there
is created a separate cause of action for an injunction for protection
in cases of sexual violence.
(a) Any person who is the victim of repeat violence or the parent or
legal guardian of any minor child who is living at home and who seeks an
injunction for protection against repeat violence on behalf of the minor
child has standing in the circuit court to file a sworn petition for an
injunction for protection against repeat violence.
(b) Any person who is the victim of dating violence and has reasonable
cause to believe he or she is in imminent danger of becoming the victim
of another act of dating violence, or any person who has reasonable
cause to believe he or she is in imminent danger of becoming the victim
of an act of dating violence, or the parent or legal guardian of any
minor child who is living at home and who seeks an injunction for
protection against dating violence on behalf of that minor child, has
standing in the circuit court to file a sworn petition for an injunction
for protection against dating violence.
(c) A person who is the victim of sexual violence or the parent or legal
guardian of a minor child who is living at home who is the victim of
sexual violence has standing in the circuit court to file a sworn
petition for an injunction for protection against sexual violence on his
or her own behalf or on behalf of the minor child if:
1. The person has reported the sexual violence to a law enforcement
agency and is cooperating in any criminal proceeding against the
respondent, regardless of whether criminal charges based on the sexual
violence have been filed, reduced, or dismissed by the state attorney;
or
2. The respondent who committed the sexual violence against the victim
or minor child was sentenced to a term of imprisonment in state prison
for the sexual violence and the respondent's term of imprisonment has
expired or is due to expire within 90 days following the date the
petition is filed.
(d) A cause of action for an injunction may be sought whether or not any
other petition, complaint, or cause of action is currently available or
pending between the parties.
(e) A cause of action for an injunction does not require that the
petitioner be represented by an attorney.
(3)(a) The clerk of the court shall provide a copy of this section,
simplified forms, and clerical assistance for the preparation and filing
of such a petition by any person who is not represented by counsel.
(b) Notwithstanding any other law, the clerk of the court may not assess
a fee for filing a petition for protection against repeat violence,
sexual violence, or dating violence. However, subject to legislative
appropriation, the clerk of the court may, each quarter, submit to the
Office of the State Courts Administrator a certified request for
reimbursement for petitions for protection issued by the court under
this section at the rate of $40 per petition. The request for
reimbursement shall be submitted in the form and manner prescribed by
the Office of the State Courts Administrator. From this reimbursement,
the clerk shall pay the law enforcement agency serving the injunction
the fee requested by the law enforcement agency; however, this fee may
not exceed $20.
(c) No bond shall be required by the court for the entry of an
injunction.
(d) The clerk of the court shall provide the petitioner with a certified
copy of any injunction for protection against repeat violence, sexual
violence, or dating violence entered by the court.
(4)(a) The sworn petition shall allege the incidents of repeat violence,
sexual violence, or dating violence and shall include the specific facts
and circumstances that form the basis upon which relief is sought. With
respect to a minor child who is living at home, the parent or legal
guardian seeking the protective injunction on behalf of the minor child
must:
1. Have been an eyewitness to, or have direct physical evidence or
affidavits from eyewitnesses of, the specific facts and circumstances
that form the basis upon which relief is sought, if the party against
whom the protective injunction is sought is also a parent, stepparent,
or legal guardian of the minor child; or
2. Have reasonable cause to believe that the minor child is a victim of
repeat sexual or dating violence to form the basis upon which relief is
sought, if the party against whom the protective injunction is sought is
a person other than a parent, stepparent, or legal guardian of the minor
child.
(b) The sworn petition must be in substantially the following form:
PETITION FOR INJUNCTION FOR PROTECTION
AGAINST REPEAT VIOLENCE, SEXUAL
VIOLENCE, OR DATING VIOLENCE
Before me, the undersigned authority, personally appeared Petitioner
(Name) , who has been sworn and says that the following statements are
true:
1. Petitioner resides at (address) (A petitioner for an injunction for
protection against sexual violence may furnish an address to the court
in a separate confidential filing if, for safety reasons, the petitioner
requires the location of his or her current residence to be confidential
pursuant to 1s. 119.07(6)(s), Florida Statutes.)
2. Respondent resides at (address)
3.a. Petitioner has suffered repeat violence as demonstrated by the fact
that the respondent has:
(enumerate incidents of violence)
________________________________________
________________________________________
________________________________________
b. Petitioner has suffered sexual violence as demonstrated by the fact
that the respondent has: (enumerate incident of violence and include
incident report number from law enforcement agency or attach notice of
inmate release.)
________________________________________
________________________________________
________________________________________
c. Petitioner is a victim of dating violence and has reasonable cause to
believe that he or she is in imminent danger of becoming the victim of
another act of dating violence or has reasonable cause to believe that
he or she is in imminent danger of becoming a victim of dating violence,
as demonstrated by the fact that the respondent has: (list the specific
incident or incidents of violence and describe the length of time of the
relationship, whether it has been in existence during the last 6 months,
the nature of the relationship of a romantic or intimate nature, the
frequency and type of interaction, and any other facts that characterize
the relationship.)
________________________________________
________________________________________
________________________________________
4. Petitioner genuinely fears repeat violence by the respondent.
5. Petitioner seeks: an immediate injunction against the respondent,
enjoining him or her from committing any further acts of violence; an
injunction enjoining the respondent from committing any further acts of
violence; and an injunction providing any terms the court deems
necessary for the protection of the petitioner and the petitioner's
immediate family, including any injunctions or directives to law
enforcement agencies.
(5) Upon the filing of the petition, the court shall set a hearing to be
held at the earliest possible time. The respondent shall be personally
served with a copy of the petition, notice of hearing, and temporary
injunction, if any, prior to the hearing.
(6)(a) When it appears to the court that an immediate and present danger
of violence exists, the court may grant a temporary injunction which may
be granted in an ex parte hearing, pending a full hearing, and may grant
such relief as the court deems proper, including an injunction enjoining
the respondent from committing any acts of violence.
(b) In a hearing ex parte for the purpose of obtaining such temporary
injunction, no evidence other than the verified pleading or affidavit
shall be used as evidence, unless the respondent appears at the hearing
or has received reasonable notice of the hearing.
(c) Any such ex parte temporary injunction shall be effective for a
fixed period not to exceed 15 days. However, an ex parte temporary
injunction granted under subparagraph (2)(c)2. is effective for 15 days
following the date the respondent is released from incarceration. A full
hearing, as provided by this section, shall be set for a date no later
than the date when the temporary injunction ceases to be effective. The
court may grant a continuance of the ex parte injunction and the full
hearing before or during a hearing, for good cause shown by any party.
(7) Upon notice and hearing, the court may grant such relief as the
court deems proper, including an injunction:
(a) Enjoining the respondent from committing any acts of violence.
(b) Ordering such other relief as the court deems necessary for the
protection of the petitioner, including injunctions or directives to law
enforcement agencies, as provided in this section.
(c) The terms of the injunction shall remain in full force and effect
until modified or dissolved. Either party may move at any time to modify
or dissolve the injunction. Such relief may be granted in addition to
other civil or criminal remedies.
(d) A temporary or final judgment on injunction for protection against
repeat violence, sexual violence, or dating violence entered pursuant to
this section shall, on its face, indicate that:
1. The injunction is valid and enforceable in all counties of the State
of Florida.
2. Law enforcement officers may use their arrest powers pursuant to s.
901.15(6) to enforce the terms of the injunction.
3. The court had jurisdiction over the parties and matter under the laws
of Florida and that reasonable notice and opportunity to be heard was
given to the person against whom the order is sought sufficient to
protect that person's right to due process.
4. The date that the respondent was served with the temporary or final
order, if obtainable.
(8)(a)1. The clerk of the court shall furnish a copy of the petition,
notice of hearing, and temporary injunction, if any, to the sheriff or a
law enforcement agency of the county where the respondent resides or can
be found, who shall serve it upon the respondent as soon thereafter as
possible on any day of the week and at any time of the day or night. The
clerk of the court shall be responsible for furnishing to the sheriff
such information on the respondent's physical description and location
as is required by the department to comply with the verification
procedures set forth in this section. Notwithstanding any other
provision of law to the contrary, the chief judge of each circuit, in
consultation with the appropriate sheriff, may authorize a law
enforcement agency within the chief judge's jurisdiction to effect this
type of service and to receive a portion of the service fee. No person
shall be authorized or permitted to serve or execute an injunction
issued under this section unless the person is a law enforcement officer
as defined in chapter 943.
2. When an injunction is issued, if the petitioner requests the
assistance of a law enforcement agency, the court may order that an
officer from the appropriate law enforcement agency accompany the
petitioner and assist in the execution or service of the injunction. A
law enforcement officer shall accept a copy of an injunction for
protection against repeat violence, sexual violence, or dating violence,
certified by the clerk of the court, from the petitioner and immediately
serve it upon a respondent who has been located but not yet served.
(b) There shall be created a Domestic, Dating, Sexual, and Repeat
Violence Injunction Statewide Verification System within the Department
of Law Enforcement. The department shall establish, implement, and
maintain a statewide communication system capable of electronically
transmitting information to and between criminal justice agencies
relating to domestic violence injunctions, dating violence injunctions,
sexual violence injunctions, and repeat violence injunctions issued by
the courts throughout the state. Such information must include, but is
not limited to, information as to the existence and status of any
injunction for verification purposes.
(c)1. Within 24 hours after the court issues an injunction for
protection against repeat violence, sexual violence, or dating violence
or changes or vacates an injunction for protection against repeat
violence, sexual violence, or dating violence, the clerk of the court
must forward a copy of the injunction to the sheriff with jurisdiction
over the residence of the petitioner.
2. Within 24 hours after service of process of an injunction for
protection against repeat violence, sexual violence, or dating violence
upon a respondent, the law enforcement officer must forward the written
proof of service of process to the sheriff with jurisdiction over the
residence of the petitioner.
3. Within 24 hours after the sheriff receives a certified copy of the
injunction for protection against repeat violence, sexual violence, or
dating violence, the sheriff must make information relating to the
injunction available to other law enforcement agencies by electronically
transmitting such information to the department.
4. Within 24 hours after the sheriff or other law enforcement officer
has made service upon the respondent and the sheriff has been so
notified, the sheriff must make information relating to the service
available to other law enforcement agencies by electronically
transmitting such information to the department.
5. Within 24 hours after an injunction for protection against repeat
violence, sexual violence, or dating violence is lifted, terminated, or
otherwise rendered no longer effective by ruling of the court, the clerk
of the court must notify the sheriff or local law enforcement agency
receiving original notification of the injunction as provided in
subparagraph 2. That agency shall, within 24 hours after receiving such
notification from the clerk of the court, notify the department of such
action of the court.
(9)(a) The court shall enforce, through a civil or criminal contempt
proceeding, a violation of an injunction for protection. The court may
enforce the respondent's compliance with the injunction by imposing a
monetary assessment. The clerk of the court shall collect and receive
such assessments. On a monthly basis, the clerk shall transfer the
moneys collected pursuant to this paragraph to the State Treasury for
deposit in the Crimes Compensation Trust Fund established in s. 960.21.
(b) If the respondent is arrested by a law enforcement officer under s.
901.15(6) for committing an act of repeat violence, sexual violence, or
dating violence in violation of an injunction for protection, the
respondent shall be held in custody until brought before the court as
expeditiously as possible for the purpose of enforcing the injunction
and for admittance to bail in accordance with chapter 903 and the
applicable rules of criminal procedure, pending a hearing.
(10) The petitioner or the respondent may move the court to modify or
dissolve an injunction at any time.
(11) A law enforcement officer acting in good faith under this section
and the officer's employing agency shall be immune from all liability,
civil or criminal, that might otherwise be incurred or imposed by reason
of the officer's or agency's actions in carrying out the provisions of
this section.
This section of Florida law is provided for informational purposes
only. This section does not include case law construction and is not
intended to constitute legal interpretation nor advice.
