Retail Display of Pornography to a MinorUnder Fla. Stat. 847.0125, it is unlawful for store owners in the state to allow certain items to be displayed if the products contain material that is harmful to minors. Violations of this law are considered first degree misdemeanors, which are punishable by up to one year in prison and a $1,000 fine.
OffensesIn Florida, retail store owners are prohibited from displaying certain items for sale if their establishment is open to the general public. These items include books, magazines, and printed materials, if the cover depicts content that is considered harmful to minors. In these cases, it is unlawful to knowingly exhibit the product in such a way that is is on display to, or within reach of, minors who may frequent this type of location. However, these items can be displayed, both individually and collectively, if an opaque covering is used to conceal the magazine, book, or other printed material in question.
This law also applies to books, magazines, and printed works in general, if the content is primarily made up of descriptions or depictions of material that is considered harmful to minors. However, before a person can be convicted of either offense, prosecutors must be able to provide proof that the defendant displayed the materials knowingly, which is defined as having a reason to believe that the materials were harmful to minors, such that further inspection of not only the content of the material, but also the age of the minor was warranted.
Unlike other obscenity-related laws that concern minors, this statute does allow defendants to argue that they made an honest mistake as to the minor’s age. This is only applicable, however, if the defendant can prove that he or she made a reasonable and legitimate attempt to ascertain the minor’s true age.
Harmful to MinorsAlthough what is considered harmful to minors depends on the specific circumstances of each case, courts generally apply the following standard when attempting to determine whether material satisfies this definition:
- Whether the reproduction, description, presentation, or exhibition depicts nudity, sexual excitement, or sexual conduct
- Predominantly appeals to an erotic or morbid interestIs patently offensive according to prevailing standards in the community with respect to what is considered appropriate material for minors
- Is without serious artistic, literary, political, or scientific value
Florida law defines nudity as the revealing of the genitals, pubic area, buttocks, or female breast, if they are not covered by a fully opaque material. Even if the genitals are covered, the image could still qualify as containing nudity if they are in a noticeably aroused state. Sexual conduct, on the other hand, involves materials that show actual or simulated sexual intercourse, masturbation, abuse, lewd exhibition of the genitals, actual contact with a person’s private parts, whether or not they are clothed or unclothed if the contact is intended to arouse sexual desire, and actual or simulated sexual battery. Breastfeeding is never considered nudity or sexual conduct. Finally, sexual excitement is defined as the condition of the genitals when they are in a state of sexual stimulation.
Material that falls under these categories may be harmful to minors if it also satisfies the aforementioned test. In these cases, retail owners and employees are required to ensure that the items are kept out of reach of minors and are covered by an opaque covering. However, if the cover does not depict obscene material, then the owner is only required to take steps to remove it from the reach of minors if the magazine, book, or other printed material exploits, is devoted to, or is primarily made up of harmful materials. Further, this law only applies to establishments that are open to the public. An adult bookstore, where only adults are permitted to enter, would not fall under this category, as it would be unlikely that minors would frequent the location.