The proposed rule promulgation will clarify definitions and consolidate the relocation forms into the rule.

 

DEPARTMENT OF LEGAL AFFAIRS

Division of Victim Services and Criminal Justice Programs

RULE NO.:RULE TITLE:

2A-2.2001Definitions

PURPOSE AND EFFECT: The proposed rule promulgation will clarify definitions and consolidate the relocation forms into the rule.

SUMMARY: Definitions will be clarified and the relocation forms will be consolidated into the rule.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: During discussion of the economic impact of this rule, the Department, based upon the expertise and experience of its members, determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule amendment will not require ratification by the Legislature. The proposed rulemaking will not have an adverse impact or effect regulatory costs in excess of $1 million within five years as established in Sections 120.541(2)(a)1., 2., and 3., F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 960.045(1) FS.

LAW IMPLEMENTED: 960.03, 960.05, 960.065, 960.07, 960.12, 960.13, 960.15, 960.16, 960.17, 960.18, 960.195, 960.196, 960.198, 960.199 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Rick Nuss, Chief Bureau of Criminal Justice Programs, Department of Legal Affairs, PL-01, The Capitol, Tallahassee, FL 32399-1050.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

2A-2.2001. Definitions.

(1) “Actual loss” means the amount of treatment expenses for medical, dental, mental health and grief counseling services; economic losses limited to lost wages, disability and catastrophic disability, or loss of support; crime scene cleanup costs; and funeral/burial expenses which are compensable by the Crimes Compensation Trust Fund.

(2) “Application” refers to a signed and dated form BVC100 Bureau of Victim Compensation Claim Form (revised 10/20) adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-        , which must be submitted by mail to the Office of the Attorney General, Bureau of Victim Compensation, PL-01, The Capitol, Tallahassee, FL 32399-1050 or faxed to [phone] or [phone], emailed to [e-mail], or submitted via the web-portal at https://VANext.MyFloridaLegal.com,https://vanext.myfloridalegal.com/ in order to apply for any benefits. For a faxed application to be timely submitted, the transmittal cover page must bear a faxed date stamp that is within the statutory filing time.  An application must be fully completed and received by the bureau in order to be considered for compensation.

(3) “Division” means the Division of Victim Services and Criminal Justice Programs within the Department of Legal Affairs, Office of the Attorney General.

(4) “Bureau” means the Bureau of Victim Compensation (BVC) within the Division of Victim Services and Criminal Justice Programs within the Department of Legal Affairs, Office of the Attorney General.

(5) “Victim/applicant” is either a person who meets the definition of victim pursuant to Section 960.03(14), Florida Statutes, or a person who submits an application on behalf of a minor, deceased, or incompetent person who meets the definition of victim pursuant to Section 960.03(14), Florida Statutes.  The following persons are eligible to file a claim:

(a) Victim or intervenor;

(b) Surviving spouse, parent, stepparent, adult child or sibling of a deceased victim;

(c) Guardian applying on behalf of a minor victim, incompetent person, surviving minor child of a deceased victim, or surviving minor sibling of a deceased victim;

(d) Relative applying on behalf of a deceased victim when there is no other source for payment of funeral expenses;

(e) Non-relative applying for funeral benefits on behalf of a deceased victim when no family member is available to pay for funeral expenses; or,

(f) Other person applying for loss of support benefits who was dependent on the deceased victim or intervenor’s  income for principal support.

(6) Mitigating or special circumstances, pursuant to Section 960.065(3), Florida Statutes, only exist when an eligible minor victim, who cannot otherwise apply, has no qualified applicant available to apply on the minor victim’s behalf. In such cases, payments will only be made to treatment providers and no funds shall be paid directly or indirectly to the applicant.

(7) “Guardian” means:

(a) A parent or stepparent of a minor child;

(b) A person who has been appointed by the court to act on behalf of a ward’s person or property, or both;

(c) A court-appointed guardian of funds for a minor;

(d) A relative who has temporary legal custody of a minor for treatment expenses; or

(e) A personal representative on behalf of a mentally incompetent person with a durable power of attorney that preceded the incompetence.

(8) “Resident” means one who maintains his or her primary dwelling in Florida. Residency is governed by a person’s intent, as evidenced by all surrounding facts and circumstances. Military personnel stationed in Florida and students shall be deemed residents for purposes of this program.

(9) “Proper authorities” means state and federal law enforcement officials and prosecuting attorneys.

(10) “Proof of crime” refers to the following documentation from a proper authority:

(a) A law enforcement report that affirms a crime occurred, regardless of whether an offender can be identified;

(b) An affidavit charging an individual with a crime filed by law enforcement;

(c) An information charging an individual with a crime filed by a state attorney;

(d) An indictment by a grand jury;

(e) A written communication from any federal law enforcement agency;

(f) A cybercrime investigator may certify a crime for purposes of Section 960.197, F.S.; or

(g) A completed form BVC430 Law Enforcement Information Reporting Form (revised 10/20) adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-     .  The form BVC430 Law Enforcement Reporting Form is available only from the bureau. When acceptable proof identifying a compensable crime occurred, the claim should be determined eligible, without regard to the offense to which the offender eventually pled or was convicted of, provided the remaining eligibility criteria are met.

(11) “Compensable crime” is an offense as defined in Section 960.03(3), F.S.

(12) “Occurrence” means the date the crime incident actually happened.

(13) “Unjust enrichment” means the offender will benefit directly or indirectly from victim compensation assistance paid to the victim/applicant, or the victim’s total payments from victim compensation and collateral sources will exceed the victim/applicant’s compensable monetary losses due to the crime upon which the application is based.

(14) “Forcible felony” is defined in Section 776.08, F.S.

(15) “Cooperation” is established in Sections 960.13(1)(b)(2), 960.196(2)(c), 960.198(2)(d), and 960.199(2)(d), F.S., which refers to the requirement that the victim cooperate with the proper authorities in investigating and/or prosecuting known offenders.

(a) An establishment of non-cooperation must be obtained in writing from a proper authority based on information that indicates that the victim:

1. Failed, after proper notice, to appear when requested by law enforcement, the state attorney, or an assistant state attorney;

2. Failed to testify or assist in the investigation and prosecution;

3. Gave false or misleading information regarding the crime without recanting; or

4. Aided the offender in his or her defense. 

(b) If an arrest has been made and the criminal case is at the prosecution stage, the assessment of non-cooperation must be based on information obtained from the state attorney.  If the case is open at the local law enforcement agency, the assessment of non-cooperation must be based on information obtained from  law enforcement. 

(c)Upon learning that the victim has not cooperated, the bureau shall deny, reduce, or withdraw any award for compensation, unless the victim/applicant provides an explanation for not cooperating which demonstrates good cause. 

1. Good cause for non-cooperation is demonstrated when the record shows the victim/applicant already moved outside the geographical vicinity where he or she resided and has no means of providing sworn testimony by phone or in person; the victim/applicant is planning to leave the vicinity and cannot be available to assist proper authorities; the victim is in fear of the abuser; a language or cultural barrier precludes effective communication with proper authorities; the victim was a minor at the time of crime.

2. Explanations provided to the proper authorities documented on the proof of crime may be used to render a determination of good cause.

3. In lieu of submitting a written explanation, any person applying for benefits who has been determined to be non-cooperative, may submit form BVC104 Non-Cooperation Explanation Form (revised 10/20), adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-            .

(16) “Filing Time” is established in Sections 960.07(2), (3), (4), and 960.196(2), F.S.  For crimes occurring before October 1, 2019, applications must be received within one year after the crime; the crime related death of the victim or intervenor; the date the death of the victim or intervenor is determined to be the result of a crime; or, within two years with good cause shown. For crimes occurring on or after October 1, 2019, applications must be received within three years after the crime; the crime related death of the victim or intervenor; the date the death of the victim or intervenor is determined to be the result of a crime; or, within five years with good cause shown. When a claim is received later than the one or three year filing time required, the victim/applicant must provide an explanation for the late filing which demonstrates good cause for the delay. Alternatively, form BVC102 Filing Time Explanation Form (revised 10/20), adopted and incorporated herein by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-     , may be used by the victim/applicant in lieu of submitting other written explanation. 

(a) Good cause for filing a late application is demonstrated when the record shows:

1. The victim/applicant was pursuing other means of recourse;

2. The victim/applicant was not emotionally, mentally, or physically able to file the claim;

3. The victim/applicant was unaware that a compensation program exists; or

4. A language or cultural barrier hinders the access needed to timely file the claim.

(b) No explanation for good cause is acceptable for claims filed outside the statutorily established filing deadlines.

(17) “Reporting time” is established in Sections 960.13(1)(b), 960.195(1)(b), and 960.196(2)(b), F.S., which refers to the time requirement during which the crime must be reported to a proper authority after the crime is known to have occurred. For crimes occurring before October 1, 2019, the crime must be reported to the proper authority within 72 hours after the crime is known to have occurred. For crimes occurring on or after October 1, 2019, the crime must be reported to the proper authority within 120 hours after the crime is known to have occurred. When the crime was reported to the proper authorities beyond the reporting requirement, the victim/applicant must provide an explanation for the late reporting which demonstrates good cause for the delay. Alternatively, form BVC103 Reporting Time Explanation Form (revised 10/20), adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-     , may be used by the victim/applicant in lieu of submitting other written explanation. 

(a) Good cause for late reporting is demonstrated when the record shows:

1. The victim/applicant was unaware that a crime had occurred;

2. The victim believed that the proper authorities had already been notified;

3. The victim was not in the vicinity to report the incident to the proper authorities in the manner in which the proper authorities directed;

4. There was no knowledge that a crime was committed prior to reporting the incident to the proper authorities;

5. The victim/applicant was not emotionally, mentally, or physically able to report the incident;

6. The victim/applicant believed that the proper authorities had been contacted and a report was filed;

7.The victim is/was a minor at the time of the incident;

8. The victim/applicant expressed feelings of shame, remorse, or embarrassment which prevented them from contacting the proper authorities; fear of retaliation or retribution by the offender, the offender’s family, or the offender’s acquaintances which was communicated to the proper authorities; or

9.  A language or cultural barrier precludes effective communication with the proper authorities.

(18) “Economic loss” means wage loss, loss of support, and disability including catastrophic disability.

(19) “Provider” means the entity that provides goods, services, or treatment to or on behalf of the victim.

(20) “Treatment” includes services rendered in accordance with a religious method of healing, e.g., religious practitioner and cultural healing practices that use herbal remedies.

(21) “Medical/Dental Equipment” means prescriptions, eyeglasses, contact lenses, dentures or any other prosthetic device which needs to be purchased or replaced as a result of the crime.

(22) “Physical injury” means bodily harm or hurt, excluding mental distress, fright, or emotional disturbance.

(23) “Psychiatric injury” and “psychological injury” mean emotional injury. These terms are used interchangeably and satisfy the requirement for physical injury pursuant to Section 960.03, F.S., if inflicted as the result of a forcible felony.

(24) “Mental Injury” means an injury to the intellectual or psychological capacity of a child abuse victim as evidenced by a discernible and substantial impairment in the ability of the child to function within the normal range and behavior as verified by a psychologist licensed under Chapter 490, F.S., a physician who is licensed under Chapter 458 or 459, F.S., and has completed an accredited residency in psychiatry, or a physician who has obtained expert witness certification pursuant to Section 458.3175, F.S.

(25) “Crime scene cleanup” means the removal and disposal of biohazardous and/or biochemical substances following a violent crime that occurs in the private residence or conveyance of the victim and must be performed by a government-authorized provider.

(26) “Abandoned property” means property that the owner voluntarily surrenders, relinquishes, or disclaims.

(27) “Activities of daily living” for purposes of Section 960.195, F.S., means the basic tasks of everyday life.

(28) “Damage” means loss or injury to person or property.

(29) “Intangible property” means property that lacks a physical existence. Examples include bank accounts, airtime, business goodwill, fees (impound, pawn shop, towing), options, stocks, points, or membership incentives.

(30) “Loss” means the failure to keep possession of something.

(31) “Property loss” means the loss of tangible personal property directly caused by a criminal or delinquent act. For purposes of Section 960.195, F.S., the following are specifically excluded: abandoned property, cash or other negotiable instruments, contraband, or other illicit items.

(32) “Replacement cost” means the cost of acquiring an asset that is as equally useful or productive as an asset previously held.

(33) “Tangible personal property” means property that can be seen, weighed, measured, felt, or touched or is in any way perceptible to the senses.

(34) “Substantial diminution” means the loss of the property directly impacts the victim’s activities of daily living.

(35) “Domestic violence” is defined in Section 741.28(2), F.S.

(36) “Immediate need” is defined as 30 days directly following the occurrence of the domestic violence offense.

(37) “Family or household member” is defined in Section 741.28(3), F.S.

(38) “Sexual battery” is defined in Section 794.011, F.S.

(39) “Human trafficking” is defined in Section 787.06(3)(b), (d), (f), or (g), F.S.

(40) “Urgent assistance” is defined as 45 days directly following the human trafficking offense, a subsequent event directly related to the crime, or an identifiable threat by a human trafficking offender.

(41) “Certification” is established in Sections 960.196(2)(c), 960.198(2)(d), and 960.199(2)(d); F.S., which refers to a signed and dated form BVC106 Relocation Certification Worksheet (revised 10/20), adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-             .

(42) “Certified domestic violence center representative” and “certified rape crisis center representative” means a person who has been designated by the Office of the Attorney General to assist in the certification process for domestic violence, sexual battery, or human trafficing relocation benefits. Certified representatives are qualfied to certify applications up to 2 years after completion of specialized training.  Training certification is withdrawn when the certified representative resigns or is terminated from their existing position.

(43) “Relocation assistance” compensation is defined as compensable housing expenses limited to short-term interim shelter, rental agreements, or long-term leases, and may include security deposits, application fees, and/or the first month’s contractual payment.

Rulemaking Authority 960.045(1) FS. Law Implemented 960.03, 960.05, 960.065, 960.07, 960.09 960.12, 960.13, 960.15, 960.16, 960.17, 960.18, 960.194,  960.195, 960.197, 960.198, 960.199 FS. History‒New                                   .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Rick Nuss, Chief, Bureau of Criminal Justice Programs

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Attorney General Ashley Moody

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 04, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 8, 2020