Today’s hidden camera technology is pretty good. You can easily and cheaply purchase a devise that looks like a potted plant or even a picture to hang on the wall that has a hidden audio and video surveillance system in it.
When such a device is hidden in an assisted living facility or nursing home resident’s room by a family member, it is often called a “granny cam” or “nanny cam”. These devises have been used by family members across the country to capture footage of their loved ones being abused and or neglected. The granny cam footage has been used in many states to criminally prosecute abusive staff members. The footage has also been used throughout the county to hold negligent nursing homes and their staff members accountable in civil court for money damages. Without the video footage created by suspicious family members, the abusers would never have been caught. But is using a hidden camera legal in Florida?
You may be tempted to install a hidden camera or a video surveillance system in your loved one’s assisted living facility or nursing home room in Florida. Before you do, there are several things you should know. First and foremost, Florida has no specific law that allows family members to install a hidden granny cam. As a result, some Florida Nursing Home abuse and neglect lawyers advise their clients that it is illegal in Florida. However, this nursing home abuse and neglect attorney disagrees.
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There are some nuances in the law that I believe make it legal to capture silent video footage in an ALF or nursing home resident’s room at least at the time of this writing. To understand the law, you have to recognize there is a difference between capturing and recording someone’s voice and capturing and recording their video image. Section 934.03(1)(a), Florida Statutes provides:
Interception and disclosure of wire, oral, or electronic communications prohibited
(1) Except as otherwise specifically provided in this chapter,
any person who:
(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral or electronic communication;
* * *
shall be punished as provided in subsection (4) [imposing criminal liability].
Florida courts have interpreted this provision to mean that it is illegal to record someone’s voice without their permission. This means it is definitely a crime to do so. So definitely never record someone’s voice in Florida without their permission. If you do, you could go to jail.
Where most lawyers go wrong is in their mistaken belief that because it is illegal to record someone’s voice they assume it is also illegal to capture their video image. This is simply not true. In fact, as of the time of this writing, there is at least one Florida Appellate court that has held that in Florida it is not illegal to use a hidden camera to intercept and capture silent video without permission.
In Minotty v. Baudo, 42 So.3d 824 (Fla. 4th DCA 2010) Dr. Minotty placed hidden video cameras in his offices. The cameras recorded video images of other doctors in their offices both alone and with their patients. But the Audio was turned off. So the conversations were never recorded. When the other doctors found out, they sued Dr. Minotty. The court concluded the statute that makes it illegal to record someone’s voice does not make it illegal to record their video image. In coming to this conclusion, the court looked to the federal court’s interpretation of a similar federal statute. Since the federal courts have concluded there is no prohibition on secretly recording someone’s video image, there was no reason for the Florida courts to do so. As a result, the court dismissed the doctors claims that the silent video recordings violated the wiretapping statute.
In doing so, the court pointed to the extensive use of video surveillance today to support its conclusion. As the court noted, video cameras capture activity in public streets, in our stores and banks, and even as nanny-cams in our nursing homes. To hold that silent video camera surveillance would violate the law would create a substantial impediment to this useful technology in fighting crime. The specific reference to nanny cams in nursing homes seems to make it legal to silent video tape a loved one’s nursing home room. This means is should also be legal to use a silent granny cam in an ALF. Of course, the law is subject to change at any time. However, at least as of this writing it appears that in Florida it is legal to use a hidden camera or granny cam without the sound.
Just because something is not illegal, doesn’t mean you won’t get in trouble for doing it. This definitely holds true for granny cams. The concern is not whether doing so is a crime. It clearly is not when the sound is turned off. The issue is whether doing so invades the privacy of employees and other residents. There is no clear answer to this question.
Generally private employees are not protected from surveillance in the common areas of the nursing home. But Florida courts have not yet addressed whether an employee has a right to privacy in a nursing home residents’ room.
The Minotty case discussed above does not really give us much guidance on this issue. In the Minotty case, the court noted that the jury found Dr. Minotty guilty of invading the other doctor’s privacy and awarded money damages to them. Because Dr. Minotty did not challenge this portion of the juries ruling, we do not know how the court would have ruled on this issue. There is a real possibility that a Florida court might allow an employee or roommate in an ALF or nursing home to bring an invasion of privacy lawsuit for money damages against a family that recorded their image without consent.
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Personally, however, I believe a lawsuit by an ALF or nursing home employee would probably not be very successful because the residents’ room is the employees place of work and courts have already concluded employees have very little privacy rights at work. Furthermore, I do not believe a court would have much sympathy for an employee that was allegedly abusing an ALF or nursing home resident. But I cannot guarantee a court will agree with me.
The bigger issue involves the potential right to privacy of your loved one’s roommate and their family members.
They do not work for the facility and certainly have at least some right to privacy. The Florida courts could agree to allow them to bring an invasion of privacy lawsuit. There is no way to tell if a jury would award much money but there is a simple way to eliminate this possibility. Simply get the written consent of the roommate and their family.
It’s a crime to record a person’s voice in Florida without their permission. But it is not a crime to video tape them without their permission. So, if you decide to put a hidden camera or granny cam in your loved one’s ALF or nursing home room, make sure you turn off the sound. And remember, just because its not a crime does not mean there are no potential downsides. Facility employees could try to bring an invasion of privacy lawsuit against you. But that would not be my biggest concern because its their place of work and employees generally have very little privacy rights at work. My bigger concern would be the fact that roommates and their family members will have much more privacy rights. If you do decide to install a hidden camera, to protect yourself, make sure you get their written permission from roommates and their family and try to position the camera so it does not record them.
Given the current state of the law, I cannot advise you to take the risks associated with putting up a granny cam.
But what I can say is if it were my loved one and I suspected they were being abused, I would definitely take the risk