October 27, 2020
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       Florida Senate - 2010                                     SB 862
       
       
       
       By Senator Bullard
       
       
       
       
       39-00838A-10                                           2010862__
    1                        A bill to be entitled                      
    2         An act relating to funeral and burial arrangements;
    3         amending s. 382.011, F.S.; authorizing a medical
    4         examiner to record the identity of certain persons who
    5         may have unlawfully participated in the death of a
    6         decedent; providing immunity for such findings;
    7         directing a medical examiner to provide to the funeral
    8         director findings of the identity of certain persons
    9         who may have unlawfully participated in a decedent’s
   10         death; requiring a medical examiner to report the
   11         arrest of certain individuals to the funeral director;
   12         amending s. 406.135, F.S.; narrowing a public-records
   13         exemption to authorize the parent or adult child of a
   14         decedent to obtain autopsy records; prohibiting
   15         disclosure of autopsy records; providing penalties;
   16         amending s. 497.005, F.S.; redefining the term
   17         “legally authorized person” for purposes of the
   18         Florida Funeral, Cemetery, and Consumer Services Act;
   19         amending s. 732.804, F.S.; prohibiting a person who
   20         may have unlawfully participated in the death of a
   21         decedent, or who has been arrested for unlawfully
   22         participating in the death of a decedent, from making
   23         decisions relating to the decedent’s body and funeral
   24         and burial arrangements; providing an effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Section 382.011, Florida Statutes, is amended to
   29  read:
   30         382.011 Medical examiner determination of cause of death.—
   31         (1) In the case of any death or fetal death due to causes
   32  or conditions listed in s. 406.11, or where the death occurred
   33  more than 30 days after the decedent was last treated by a
   34  physician unless the death was medically expected as certified
   35  by an attending physician, or where there is reason to believe
   36  that the death may have been due to unlawful act or neglect, the
   37  funeral director or other person to whose attention the death
   38  may come shall refer the case to the medical examiner of the
   39  district in which the death occurred for investigation and
   40  determination of the cause of death.
   41         (2) The medical examiner shall complete and sign the
   42  medical certification of cause of death of the death or fetal
   43  death certificate within 72 hours after notification, whether or
   44  not final determination of the cause of death has been
   45  established, unless an extension has been granted as provided
   46  under s. 382.008. Any amendment fees prescribed in s. 382.0255
   47  shall be waived when a later determination of cause of death is
   48  made.
   49         (3)A medical examiner, in consultation with a law
   50  enforcement agency, may make a finding that a spouse, child,
   51  parent, sibling, grandchild, grandparent, or person in the next
   52  degree of kinship to the decedent may have unlawfully
   53  participated in the decedent’s death. If such a finding is made,
   54  the medical examiner shall provide it to the funeral director
   55  who first assumed custody of the decedent’s body. Afterwards the
   56  finding must accompany the burial-in-transit permit. A medical
   57  examiner or law enforcement agency is not liable for findings
   58  made in good faith pursuant to this subsection.
   59         (4)A medical examiner must report to the funeral director
   60  who first assumed custody of a decedent’s body, the arrest of a
   61  spouse, child, parent, sibling, grandchild, grandparent, or
   62  person in the next degree of kinship to the decedent for
   63  unlawfully participating in the decedent’s death. A report of an
   64  arrest shall accompany the burial-in-transit permit. A medical
   65  examiner does not have a duty to report an arrest that occurs
   66  after the decedent’s body has been released.
   67         (5)(3) The funeral director shall retain the responsibility
   68  for preparation of the death or fetal death certificate,
   69  obtaining the necessary signatures, filing with the local
   70  registrar in a timely manner, and disposing of the remains when
   71  the remains are released by the medical examiner.
   72         Section 2. Section 406.135, Florida Statutes, is amended to
   73  read:
   74         406.135 Autopsies; confidentiality of photographs and video
   75  and audio recordings; exemption.—
   76         (1) For the purpose of this section, the term “medical
   77  examiner” means any district medical examiner, associate medical
   78  examiner, or substitute medical examiner acting pursuant to this
   79  chapter, as well as any employee, deputy, or agent of a medical
   80  examiner or any other person who may obtain possession of a
   81  photograph or audio or video recording of an autopsy in the
   82  course of assisting a medical examiner in the performance of his
   83  or her official duties.
   84         (2) A photograph or video or audio recording of an autopsy
   85  held by a medical examiner is confidential and exempt from s.
   86  119.07(1) and s. 24(a), Art. I of the State Constitution, except
   87  that a surviving spouse, parent, or adult child of the decedent
   88  may view and copy a photograph or video recording or listen to
   89  or copy an audio recording of the deceased spouse’s autopsy of
   90  the decedent. If there is no surviving spouse, then the
   91  surviving parents shall have access to such records. If there is
   92  no surviving spouse or parent, then an adult child shall have
   93  access to such records.
   94         (3)(a) A The deceased’s surviving relative, with whom
   95  authority rests to obtain such records, may designate in writing
   96  an agent to obtain such records.
   97         (b) A local governmental entity, or a state or federal
   98  agency, in furtherance of its official duties, pursuant to a
   99  written request, may view or copy a photograph or video
  100  recording or may listen to or copy an audio recording of an
  101  autopsy, and unless otherwise required in the performance of
  102  their duties, the identity of the deceased shall remain
  103  confidential and exempt.
  104         (c) The custodian of the record, or his or her designee,
  105  may not permit any other person, except an agent designated in
  106  writing by a the deceased’s surviving relative with whom
  107  authority rests to obtain such records, to view or copy such
  108  photograph or video recording or listen to or copy an audio
  109  recording without a court order.
  110         (4)(a) The court, upon a showing of good cause, may issue
  111  an order authorizing any person to view or copy a photograph or
  112  video recording of an autopsy or to listen to or copy an audio
  113  recording of an autopsy and may prescribe any restrictions or
  114  stipulations that the court deems appropriate.
  115         (b) In determining good cause, the court shall consider
  116  whether such disclosure is necessary for the public evaluation
  117  of governmental performance; the seriousness of the intrusion
  118  into the family’s right to privacy and whether such disclosure
  119  is the least intrusive means available; and the availability of
  120  similar information in other public records, regardless of form.
  121         (c) In all cases, the viewing, copying, listening to, or
  122  other handling of a photograph or video or audio recording of an
  123  autopsy must be under the direct supervision of the custodian of
  124  the record or his or her designee.
  125         (5) A surviving spouse, parent, and adult child of a
  126  decedent shall be given reasonable notice of a petition filed
  127  with the court to view or copy a photograph or video recording
  128  of an autopsy or a petition to listen to or copy an audio
  129  recording, a copy of such petition, and reasonable notice of the
  130  opportunity to be present and heard at any hearing on the
  131  matter. If there is no surviving spouse, then such notice must
  132  be given to the parents of the deceased, and if the deceased has
  133  no living parent, then to the adult children of the deceased.
  134         (6)A relative authorized to receive a copy of an autopsy
  135  report under this section may not disclose the contents of the
  136  report.
  137         (7)(6)(a) Any custodian of a photograph or video or audio
  138  recording of an autopsy who willfully and knowingly violates
  139  this section commits a felony of the third degree, punishable as
  140  provided in s. 775.082, s. 775.083, or s. 775.084.
  141         (b) Any person who willfully and knowingly violates a court
  142  order issued pursuant to this section commits a felony of the
  143  third degree, punishable as provided in s. 775.082, s. 775.083,
  144  or s. 775.084.
  145         (8)(7) A criminal or administrative proceeding is exempt
  146  from this section, but unless otherwise exempted, is subject to
  147  all other provisions of chapter 119, provided however that this
  148  section does not prohibit a court in a criminal or
  149  administrative proceeding upon good cause shown from restricting
  150  or otherwise controlling the disclosure of an autopsy, crime
  151  scene, or similar photograph or video or audio recordings in the
  152  manner prescribed herein.
  153         (9)(8) This exemption shall be given retroactive
  154  application.
  155         Section 3. Subsection (37) of section 497.005, Florida
  156  Statutes, is amended to read:
  157         497.005 Definitions.—As used in this chapter:
  158         (37) “Legally authorized person” means, in the priority
  159  listed, the decedent, when written inter vivos authorizations
  160  and directions are provided by the decedent. The term may
  161  include the following relatives in the priority listed who have
  162  not been disqualified under s. 732.804:; the surviving spouse,
  163  unless the spouse has been arrested for committing against the
  164  deceased an act of domestic violence as defined in s. 741.28
  165  that resulted in or contributed to the death of the deceased; a
  166  son or daughter who is 18 years of age or older; a parent; a
  167  brother or sister who is 18 years of age or older; a grandchild
  168  who is 18 years of age or older; a grandparent; or any person in
  169  the next degree of kinship. In addition, the term may include,
  170  if no family member exists or is available, the guardian of the
  171  dead person at the time of death; the personal representative of
  172  the deceased; the attorney in fact of the dead person at the
  173  time of death; the health surrogate of the dead person at the
  174  time of death; a public health officer; the medical examiner,
  175  county commission, or administrator acting under part II of
  176  chapter 406 or other public administrator; a representative of a
  177  nursing home or other health care institution in charge of final
  178  disposition; or a friend or other person not listed in this
  179  subsection who is willing to assume the responsibility as the
  180  legally authorized person. Where there is a person in any
  181  priority class listed in this subsection, the funeral
  182  establishment shall rely upon the authorization of any one
  183  legally authorized person of that class if that person
  184  represents that she or he is not aware of any objection to the
  185  cremation of the deceased’s human remains by others in the same
  186  class of the person making the representation or of any person
  187  in a higher priority class.
  188         Section 4. Section 732.804, Florida Statutes, is amended to
  189  read:
  190         732.804 Provisions relating to disposition of the body.—
  191         (1) Before issuance of letters, any person may carry out
  192  written instructions of the decedent relating to the decedent’s
  193  body and funeral and burial arrangements. The fact that
  194  cremation occurred pursuant to a written direction signed by the
  195  decedent that the body be cremated is a complete defense to a
  196  cause of action against any person acting or relying on that
  197  direction.
  198         (2)A person may not make decisions relating to a
  199  decedent’s body and funeral and burial arrangements if:
  200         (a)A medical examiner, in consultation with a law
  201  enforcement agency pursuant to s. 382.011, has found that the
  202  person may have unlawfully participated in the decedent’s death;
  203  or
  204         (b)The person has been arrested for unlawfully
  205  participating in the decedent’s death.
  206         Section 5. This act shall take effect July 1, 2010.

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