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A bill to be entitled

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An act relating to criminal justice; providing legislative

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intent; requiring state agencies and regulatory boards to

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submit to the Governor and legislative officers a report

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that states current restrictions on employment of ex-

6

offenders and possible alternatives that are compatible

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with public safety; requiring that such report be

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submitted in 2011 and then every 8 years thereafter;

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amending s. 112.011, F.S.; providing that a person may not

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be disqualified from receiving a license, permit, or

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certificate or from obtaining public employment on the

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grounds that the person's civil rights have not been

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restored; providing that a person is not required to

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secure the restoration of his or her civil rights or prove

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that his or her civil rights have been restored in order

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to receive a license, permit, or certificate or to obtain

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public employment; amending s. 943.0581, F.S.; authorizing

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the arresting agency or the agency where the warrant was

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issued to request an administrative expunction; amending

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s. 943.0585, F.S.; requiring the clerk of the court to

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place information about the availability of criminal

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history sealing and expunction on the court's Internet

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website and provide a link to the Department of Law

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Enforcement's website related to such information;

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clarifying under what circumstances a person may legally

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deny an expunged criminal history record; authorizing

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disclosure of the contents of an expunged record upon

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receipt of a written, notarized request from the record

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subject; amending s. 943.059, F.S.; clarifying under what

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circumstances a person may legally deny a sealed criminal

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history record; authorizing a person to petition the court

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to seek a second criminal history record sealing under

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certain circumstances; requiring the Office of Program

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Policy Analysis and Government Accountability to conduct a

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study; specifying the research questions for the study;

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requiring a report to be submitted to the Legislature;

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providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1. Restrictions on the employment of ex-offenders;

42

legislative intent; state agency reporting requirements.--

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     (1) The Legislature declares that it is the goal of this

44

state to provide to prospective employees a clear statement of

45

which crimes would disqualify ex-offenders from which

46

occupations. It is the intent of the Legislature to make

47

opportunities for employment available to ex-offenders so that

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they will be less likely to revert to criminal behavior, insofar

49

as the employment of such persons does not detract from the

50

safety of the public. The Legislature further declares that state

51

agencies should state all restrictions imposed by the agencies or

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by boards that regulate professions and occupations on employment

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and should make an effort to establish that each such restriction

54

is as defined as possible while continuing to maintain public

55

safety.

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     (2) Each state agency, including, but not limited to,

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professional and occupational regulatory boards, shall, by

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December 31, 2008, submit to the Governor, the President of the

59

Senate, and the Speaker of the House of Representatives an

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initial report that includes:

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     (a) A review of policies followed by the agency or imposed

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by the board which disqualify from employment or licensure

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persons who have been convicted of a crime and have completed any

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incarceration and restitution to which they have been sentenced

65

for such a crime.

66

     (b) The conclusions resulting from the review of these

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policies and a determination of whether the disqualifications are

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readily available to prospective employees and prospective

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licensees.

70

     (c) If the restriction is based on a standard of good moral

71

character or crimes or acts of moral turpitude, a determination

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of the merits of alternative policies and particular

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disqualifying offenses that may more precisely describe the basis

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for denial of employment or licensure.

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     (3) Beginning in 2011, each state agency shall submit a

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brief report in accordance with subsection (2) every 8 years by

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December of that year.

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     Section 2.  Section 112.011, Florida Statutes, is amended to

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read:

80

     112.011 Disqualification for licensing and public

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employment based on criminal conviction Felons; removal of

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disqualifications for employment, exceptions.--

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     (1)(a) Except as provided in s. 775.16, a person may shall

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not be disqualified from employment by the state, any of its

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agencies or political subdivisions, or any municipality solely

86

because of a prior conviction for a crime. However, a person may

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be denied employment by the state, any of its agencies or

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political subdivisions, or any municipality by reason of the

89

prior conviction for a crime if the crime was a felony or first

90

degree misdemeanor and directly related to the position of

91

employment sought.

92

     (b) Except as provided in s. 775.16, a person whose civil

93

rights have been restored shall not be disqualified to practice,

94

pursue, or engage in any occupation, trade, vocation, profession,

95

or business for which a license, permit, or certificate is

96

required to be issued by the state, any of its agencies or

97

political subdivisions, or any municipality solely because of a

98

prior conviction for a crime. However, a person whose civil

99

rights have been restored may be denied a license, permit, or

100

certification to pursue, practice, or engage in an occupation,

101

trade, vocation, profession, or business by reason of the prior

102

conviction for a crime if the crime was a felony or first degree

103

misdemeanor and directly related to or relevant to the standards

104

normally associated with, or determined by the regulatory

105

authority to be necessary for the protection of the public or

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other parties with, the specific occupation, trade, vocation,

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profession, or business for which the license, permit, or

108

certificate is sought.

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     (c) Notwithstanding any law to the contrary, the status of

110

a person's civil rights may not be considered a disqualification

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or grounds for denial of a license, permit, or certificate, or

112

public employment. A person is not required to secure the

113

restoration of his or her civil rights or prove that his or her

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civil rights have been restored in order to be considered for a

115

license, permit, or certificate, or to be considered for public

116

employment.

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     (2)(a) This section does shall not apply be applicable to

118

any law enforcement or correctional agency.

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     (b) This section does shall not apply be applicable to the

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employment practices of any fire department relating to the

121

hiring of firefighters. An applicant for employment with any fire

122

department who has with a prior felony conviction shall be

123

excluded from employment for a period of 4 years after expiration

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of sentence or final release by the Parole Commission unless the

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applicant, prior to the expiration of the 4-year period, has

126

received a full pardon or has had his or her civil rights

127

restored.

128

     (c) This section does shall not apply be applicable to the

129

employment practices of any county or municipality relating to

130

the hiring of personnel for positions deemed to be critical to

131

security or public safety pursuant to ss. 125.5801 and 166.0442.

132

     (3)  Any complaint concerning the violation of this section

133

shall be adjudicated in accordance with the procedures set forth

134

in chapter 120 for administrative and judicial review.

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     Section 3.  Section 943.0581, Florida Statutes, is amended

136

to read:

137

     943.0581  Administrative expunction.--

138

     (1)  Notwithstanding any law dealing generally with the

139

preservation and destruction of public records, the department

140

may provide, by rule adopted pursuant to chapter 120, for the

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administrative expunction of any nonjudicial record of an arrest

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of a minor or an adult made contrary to law or by mistake.

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     (2)  A law enforcement agency shall apply to the department

144

in the manner prescribed by rule for the administrative

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expunction of any nonjudicial record of any arrest of a minor or

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an adult who is subsequently determined by the agency, at its

147

discretion, or by the final order of a court of competent

148

jurisdiction, to have been arrested contrary to law or by

149

mistake.

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     (3)  An adult or, in the case of a minor child, the parent

151

or legal guardian of the minor child, may apply to the department

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in the manner prescribed by rule for the administrative

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expunction of any nonjudicial record of an arrest alleged to have

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been made contrary to law or by mistake, provided that the

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application is supported by the endorsement of the head of the

156

arresting agency or his or her designee or the state attorney or

157

his or her designee of the judicial circuit in which the arrest

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occurred.

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     (4)  An application for administrative expunction shall

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include an affidavit executed by the chief of the law enforcement

161

agency, sheriff, or department head of the state law enforcement

162

agency in which the affiant verifies that he or she has reviewed

163

the record of the arrest and that the arrest was contrary to law

164

or was a mistake. The affidavit shall include the date and time

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of the arrest, the name of the arresting officer, the name of the

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person arrested, and the crime or crimes charged, and the

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offender based tracking system number. The application shall be

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on the submitting agency's letterhead and signed by the head of

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the submitting agency or his or her designee.

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     (5) In the case of a person arrested on a warrant, capias,

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or pick-up order, the request for an administrative expunction

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may be made by the sheriff or his or her designee of the county

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where the warrant, capias, or pick-up order was issued or by the

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state attorney or his or her designee of the judicial circuit

175

where the warrant, capias, or pick-up order was issued.

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     (6)(5) No application or, endorsement, or affidavit made

177

under this section shall be admissible as evidence in any

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judicial or administrative proceeding or otherwise be construed

179

in any way as an admission of liability in connection with an

180

arrest.

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     Section 4.  Section 943.0585, Florida Statutes, is amended

182

to read:

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     943.0585  Court-ordered expunction of criminal history

184

records.--The courts of this state have jurisdiction over their

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own procedures, including the maintenance, expunction, and

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correction of judicial records containing criminal history

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information to the extent such procedures are not inconsistent

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with the conditions, responsibilities, and duties established by

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this section. Any court of competent jurisdiction may order a

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criminal justice agency to expunge the criminal history record of

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a minor or an adult who complies with the requirements of this

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section. The court shall not order a criminal justice agency to

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expunge a criminal history record until the person seeking to

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expunge a criminal history record has applied for and received a

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certificate of eligibility for expunction pursuant to subsection

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(2). A criminal history record that relates to a violation of s.

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393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.

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800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter

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839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.

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916.1075, a violation enumerated in s. 907.041, or any violation

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specified as a predicate offense for registration as a sexual

202

predator pursuant to s. 775.21, without regard to whether that

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offense alone is sufficient to require such registration, or for

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registration as a sexual offender pursuant to s. 943.0435, may

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not be expunged, without regard to whether adjudication was

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withheld, if the defendant was found guilty of or pled guilty or

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nolo contendere to the offense, or if the defendant, as a minor,

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was found to have committed, or pled guilty or nolo contendere to

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committing, the offense as a delinquent act. The court may only

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order expunction of a criminal history record pertaining to one

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arrest or one incident of alleged criminal activity, except as

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provided in this section. The court may, at its sole discretion,

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order the expunction of a criminal history record pertaining to

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more than one arrest if the additional arrests directly relate to

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the original arrest. If the court intends to order the expunction

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of records pertaining to such additional arrests, such intent

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must be specified in the order. A criminal justice agency may not

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expunge any record pertaining to such additional arrests if the

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order to expunge does not articulate the intention of the court

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to expunge a record pertaining to more than one arrest. This

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section does not prevent the court from ordering the expunction

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of only a portion of a criminal history record pertaining to one

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arrest or one incident of alleged criminal activity.

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Notwithstanding any law to the contrary, a criminal justice

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agency may comply with laws, court orders, and official requests

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of other jurisdictions relating to expunction, correction, or

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confidential handling of criminal history records or information

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derived therefrom. This section does not confer any right to the

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expunction of any criminal history record, and any request for

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expunction of a criminal history record may be denied at the sole

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discretion of the court.

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     (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.--Each

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petition to a court to expunge a criminal history record is

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complete only when accompanied by:

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     (a)  A valid certificate of eligibility for expunction

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issued by the department pursuant to subsection (2).

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     (b)  The petitioner's sworn statement attesting that the

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petitioner:

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     1.  Has never, prior to the date on which the petition is

240

filed, been adjudicated guilty of a criminal offense or

241

comparable ordinance violation, or been adjudicated delinquent

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for committing any felony or a misdemeanor specified in s.

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943.051(3)(b).

244

     2.  Has not been adjudicated guilty of, or adjudicated

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delinquent for committing, any of the acts stemming from the

246

arrest or alleged criminal activity to which the petition

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pertains.

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     3.  Has never secured a prior sealing or expunction of a

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criminal history record under this section, former s. 893.14,

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former s. 901.33, or former s. 943.058, or from any jurisdiction

251

outside the state, unless expunction is sought of a criminal

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history record previously sealed for 10 years pursuant to

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paragraph (2)(h) and the record is otherwise eligible for

254

expunction.

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     4.  Is eligible for such an expunction to the best of his or

256

her knowledge or belief and does not have any other petition to

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expunge or any petition to seal pending before any court.

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Any person who knowingly provides false information on such sworn

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statement to the court commits a felony of the third degree,

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punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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     (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior to

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petitioning the court to expunge a criminal history record, a

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person seeking to expunge a criminal history record shall apply

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to the department for a certificate of eligibility for

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expunction. The department shall, by rule adopted pursuant to

267

chapter 120, establish procedures pertaining to the application

268

for and issuance of certificates of eligibility for expunction. A

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certificate of eligibility for expunction is valid for 12 months

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after the date stamped on the certificate when issued by the

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department. After that time, the petitioner must reapply to the

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department for a new certificate of eligibility. Eligibility for

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a renewed certification of eligibility must be based on the

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status of the applicant and the law in effect at the time of the

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renewal application. The department shall issue a certificate of

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eligibility for expunction to a person who is the subject of a

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criminal history record if that person:

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     (a)  Has obtained, and submitted to the department, a

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written, certified statement from the appropriate state attorney

280

or statewide prosecutor which indicates:

281

     1.  That an indictment, information, or other charging

282

document was not filed or issued in the case.

283

     2.  That an indictment, information, or other charging

284

document, if filed or issued in the case, was dismissed or nolle

285

prosequi by the state attorney or statewide prosecutor, or was

286

dismissed by a court of competent jurisdiction, and that none of

287

the charges related to the arrest or alleged criminal activity to

288

which the petition to expunge pertains resulted in a trial,

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without regard to whether the outcome of the trial was other than

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an adjudication of guilt.

291

     3.  That the criminal history record does not relate to a

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violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, s.

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796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.

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827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.

295

893.135, s. 916.1075, a violation enumerated in s. 907.041, or

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any violation specified as a predicate offense for registration

297

as a sexual predator pursuant to s. 775.21, without regard to

298

whether that offense alone is sufficient to require such

299

registration, or for registration as a sexual offender pursuant

300

to s. 943.0435, where the defendant was found guilty of, or pled

301

guilty or nolo contendere to any such offense, or that the

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defendant, as a minor, was found to have committed, or pled

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guilty or nolo contendere to committing, such an offense as a

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delinquent act, without regard to whether adjudication was

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withheld.

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     (b)  Remits a $75 processing fee to the department for

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placement in the Department of Law Enforcement Operating Trust

308

Fund, unless such fee is waived by the executive director.

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     (c)  Has submitted to the department a certified copy of the

310

disposition of the charge to which the petition to expunge

311

pertains.

312

     (d)  Has never, prior to the date on which the application

313

for a certificate of eligibility is filed, been adjudicated

314

guilty of a criminal offense or comparable ordinance violation,

315

or been adjudicated delinquent for committing any felony or a

316

misdemeanor specified in s. 943.051(3)(b).

317

     (e)  Has not been adjudicated guilty of, or adjudicated

318

delinquent for committing, any of the acts stemming from the

319

arrest or alleged criminal activity to which the petition to

320

expunge pertains.

321

     (f)  Has never secured a prior sealing or expunction of a

322

criminal history record under this section, former s. 893.14,

323

former s. 901.33, or former s. 943.058, unless expunction is

324

sought of a criminal history record previously sealed for 10

325

years pursuant to paragraph (h) and the record is otherwise

326

eligible for expunction.

327

     (g)  Is no longer under court supervision applicable to the

328

disposition of the arrest or alleged criminal activity to which

329

the petition to expunge pertains.

330

     (h)  Has previously obtained a court order sealing the

331

record under this section, former s. 893.14, former s. 901.33, or

332

former s. 943.058 for a minimum of 10 years because adjudication

333

was withheld or because all charges related to the arrest or

334

alleged criminal activity to which the petition to expunge

335

pertains were not dismissed prior to trial, without regard to

336

whether the outcome of the trial was other than an adjudication

337

of guilt. The requirement for the record to have previously been

338

sealed for a minimum of 10 years does not apply when a plea was

339

not entered or all charges related to the arrest or alleged

340

criminal activity to which the petition to expunge pertains were

341

dismissed prior to trial.

342

343

Each clerk of court shall place information on his or her

344

Internet website about the availability of criminal history

345

sealing and expunction. This information shall include a link to

346

the department's website for information and applications for

347

sealing and expunging a criminal history record.

348

     (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

349

     (a)  In judicial proceedings under this section, a copy of

350

the completed petition to expunge shall be served upon the

351

appropriate state attorney or the statewide prosecutor and upon

352

the arresting agency; however, it is not necessary to make any

353

agency other than the state a party. The appropriate state

354

attorney or the statewide prosecutor and the arresting agency may

355

respond to the court regarding the completed petition to expunge.

356

     (b)  If relief is granted by the court, the clerk of the

357

court shall certify copies of the order to the appropriate state

358

attorney or the statewide prosecutor and the arresting agency.

359

The arresting agency is responsible for forwarding the order to

360

any other agency to which the arresting agency disseminated the

361

criminal history record information to which the order pertains.

362

The department shall forward the order to expunge to the Federal

363

Bureau of Investigation. The clerk of the court shall certify a

364

copy of the order to any other agency which the records of the

365

court reflect has received the criminal history record from the

366

court.

367

     (c)  For an order to expunge entered by a court prior to

368

July 1, 1992, the department shall notify the appropriate state

369

attorney or statewide prosecutor of an order to expunge which is

370

contrary to law because the person who is the subject of the

371

record has previously been convicted of a crime or comparable

372

ordinance violation or has had a prior criminal history record

373

sealed or expunged. Upon receipt of such notice, the appropriate

374

state attorney or statewide prosecutor shall take action, within

375

60 days, to correct the record and petition the court to void the

376

order to expunge. The department shall seal the record until such

377

time as the order is voided by the court.

378

     (d)  On or after July 1, 1992, the department or any other

379

criminal justice agency is not required to act on an order to

380

expunge entered by a court when such order does not comply with

381

the requirements of this section. Upon receipt of such an order,

382

the department must notify the issuing court, the appropriate

383

state attorney or statewide prosecutor, the petitioner or the

384

petitioner's attorney, and the arresting agency of the reason for

385

noncompliance. The appropriate state attorney or statewide

386

prosecutor shall take action within 60 days to correct the record

387

and petition the court to void the order. No cause of action,

388

including contempt of court, shall arise against any criminal

389

justice agency for failure to comply with an order to expunge

390

when the petitioner for such order failed to obtain the

391

certificate of eligibility as required by this section or such

392

order does not otherwise comply with the requirements of this

393

section.

394

     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

395

criminal history record of a minor or an adult which is ordered

396

expunged by a court of competent jurisdiction pursuant to this

397

section must be physically destroyed or obliterated by any

398

criminal justice agency having custody of such record; except

399

that any criminal history record in the custody of the department

400

must be retained in all cases. A criminal history record ordered

401

expunged that is retained by the department is confidential and

402

exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I

403

of the State Constitution and not available to any person or

404

entity except upon order of a court of competent jurisdiction. A

405

criminal justice agency may retain a notation indicating

406

compliance with an order to expunge.

407

     (a)  The person who is the subject of a criminal history

408

record that is expunged under this section or under other

409

provisions of law, including former s. 893.14, former s. 901.33,

410

and former s. 943.058, may lawfully deny or fail to acknowledge

411

the arrests and subsequent dispositions covered by the expunged

412

record, except when the subject of the record:

413

     1.  Is a candidate for employment with a criminal justice

414

agency;

415

     2.  Is a defendant in a criminal prosecution;

416

     3.  Concurrently or subsequently petitions for relief under

417

this section or s. 943.059;

418

     4.  Is a candidate for admission to The Florida Bar;

419

     5.  Is seeking to be employed or licensed by or to contract

420

with the Department of Children and Family Services or the

421

Department of Juvenile Justice or to be employed or used by such

422

contractor or licensee in a sensitive position having direct

423

contact with children, the developmentally disabled, the aged, or

424

the elderly as provided in s. 110.1127(3), s. 393.063, s.

425

394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.

426

409.175(2)(i), s. 415.102(4), chapter 916, s. 985.644, chapter

427

400, or chapter 429;

428

     6.  Is seeking to be employed or licensed by the Department

429

of Education, any district school board, any university

430

laboratory school, any charter school, any private or parochial

431

school, or any local governmental entity that licenses child care

432

facilities; or

433

     7.  Is seeking authorization from a Florida seaport

434

identified in s. 311.09 for employment within or access to one or

435

more of such seaports pursuant to s. 311.12 or s. 311.125.

436

     (b)  Subject to the exceptions in paragraph (a), a person

437

who has been granted an expunction under this section, former s.

438

893.14, former s. 901.33, or former s. 943.058 may not be held

439

under any provision of law of this state to commit perjury or to

440

be otherwise liable for giving a false statement by reason of

441

such person's failure to recite or acknowledge an expunged

442

criminal history record, including when asked on an employment

443

application.

444

     (c)  Information relating to the existence of an expunged

445

criminal history record which is provided in accordance with

446

paragraph (a) is confidential and exempt from the provisions of

447

s. 119.07(1) and s. 24(a), Art. I of the State Constitution,

448

except that the department shall disclose the existence of a

449

criminal history record ordered expunged to the entities set

450

forth in subparagraphs (a)1., 4., 5., 6., and 7. for their

451

respective licensing, access authorization, and employment

452

purposes, and to criminal justice agencies for their respective

453

criminal justice purposes. It is unlawful for any employee of an

454

entity set forth in subparagraph (a)1., subparagraph (a)4.,

455

subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to

456

disclose information relating to the existence of an expunged

457

criminal history record of a person seeking employment, access

458

authorization, or licensure with such entity or contractor,

459

except to the person to whom the criminal history record relates

460

or to persons having direct responsibility for employment, access

461

authorization, or licensure decisions. Any person who violates

462

this paragraph commits a misdemeanor of the first degree,

463

punishable as provided in s. 775.082 or s. 775.083.

464

     (d) The contents of an expunged record may be disclosed to

465

the subject of the record by the department upon the receipt of

466

the written, notarized request from the subject of the record.

467

     (5)  STATUTORY REFERENCES.--Any reference to any other

468

chapter, section, or subdivision of the Florida Statutes in this

469

section constitutes a general reference under the doctrine of

470

incorporation by reference.

471

     Section 5.  Section 943.059, Florida Statutes, is amended to

472

read:

473

     943.059  Court-ordered sealing of criminal history

474

records.--The courts of this state shall continue to have

475

jurisdiction over their own procedures, including the

476

maintenance, sealing, and correction of judicial records

477

containing criminal history information to the extent such

478

procedures are not inconsistent with the conditions,

479

responsibilities, and duties established by this section. Any

480

court of competent jurisdiction may order a criminal justice

481

agency to seal the criminal history record of a minor or an adult

482

who complies with the requirements of this section. The court

483

shall not order a criminal justice agency to seal a criminal

484

history record until the person seeking to seal a criminal

485

history record has applied for and received a certificate of

486

eligibility for sealing pursuant to subsection (2). A criminal

487

history record that relates to a violation of s. 393.135, s.

488

394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s.

489

810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s.

490

847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a

491

violation enumerated in s. 907.041, or any violation specified as

492

a predicate offense for registration as a sexual predator

493

pursuant to s. 775.21, without regard to whether that offense

494

alone is sufficient to require such registration, or for

495

registration as a sexual offender pursuant to s. 943.0435, may

496

not be sealed, without regard to whether adjudication was

497

withheld, if the defendant was found guilty of or pled guilty or

498

nolo contendere to the offense, or if the defendant, as a minor,

499

was found to have committed or pled guilty or nolo contendere to

500

committing the offense as a delinquent act. The court may only

501

order sealing of a criminal history record pertaining to one

502

arrest or one incident of alleged criminal activity, except as

503

provided in this section. The court may, at its sole discretion,

504

order the sealing of a criminal history record pertaining to more

505

than one arrest if the additional arrests directly relate to the

506

original arrest. If the court intends to order the sealing of

507

records pertaining to such additional arrests, such intent must

508

be specified in the order. A criminal justice agency may not seal

509

any record pertaining to such additional arrests if the order to

510

seal does not articulate the intention of the court to seal

511

records pertaining to more than one arrest. This section does not

512

prevent the court from ordering the sealing of only a portion of

513

a criminal history record pertaining to one arrest or one

514

incident of alleged criminal activity. Notwithstanding any law to

515

the contrary, a criminal justice agency may comply with laws,

516

court orders, and official requests of other jurisdictions

517

relating to sealing, correction, or confidential handling of

518

criminal history records or information derived therefrom. This

519

section does not confer any right to the sealing of any criminal

520

history record, and any request for sealing a criminal history

521

record may be denied at the sole discretion of the court.

522

     (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

523

petition to a court to seal a criminal history record is complete

524

only when accompanied by:

525

     (a)  A valid certificate of eligibility for sealing issued

526

by the department pursuant to subsection (2).

527

     (b)  The petitioner's sworn statement attesting that the

528

petitioner:

529

     1.  Has never, prior to the date on which the petition is

530

filed, been adjudicated guilty of a criminal offense or

531

comparable ordinance violation, or been adjudicated delinquent

532

for committing any felony or a misdemeanor specified in s.

533

943.051(3)(b).

534

     2.  Has not been adjudicated guilty of or adjudicated

535

delinquent for committing any of the acts stemming from the

536

arrest or alleged criminal activity to which the petition to seal

537

pertains.

538

     3. Has never secured a prior sealing, except as provided in

539

subsection (6), or expunction of a criminal history record under

540

this section, former s. 893.14, former s. 901.33, former s.

541

943.058, or from any jurisdiction outside the state.

542

     4.  Is eligible for such a sealing to the best of his or her

543

knowledge or belief and does not have any other petition to seal

544

or any petition to expunge pending before any court.

545

546

Any person who knowingly provides false information on such sworn

547

statement to the court commits a felony of the third degree,

548

punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

549

     (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

550

petitioning the court to seal a criminal history record, a person

551

seeking to seal a criminal history record shall apply to the

552

department for a certificate of eligibility for sealing. The

553

department shall, by rule adopted pursuant to chapter 120,

554

establish procedures pertaining to the application for and

555

issuance of certificates of eligibility for sealing. A

556

certificate of eligibility for sealing is valid for 12 months

557

after the date stamped on the certificate when issued by the

558

department. After that time, the petitioner must reapply to the

559

department for a new certificate of eligibility. Eligibility for

560

a renewed certification of eligibility must be based on the

561

status of the applicant and the law in effect at the time of the

562

renewal application. The department shall issue a certificate of

563

eligibility for sealing to a person who is the subject of a

564

criminal history record provided that such person:

565

     (a)  Has submitted to the department a certified copy of the

566

disposition of the charge to which the petition to seal pertains.

567

     (b)  Remits a $75 processing fee to the department for

568

placement in the Department of Law Enforcement Operating Trust

569

Fund, unless such fee is waived by the executive director.

570

     (c)  Has never, prior to the date on which the application

571

for a certificate of eligibility is filed, been adjudicated

572

guilty of a criminal offense or comparable ordinance violation,

573

or been adjudicated delinquent for committing any felony or a

574

misdemeanor specified in s. 943.051(3)(b).

575

     (d)  Has not been adjudicated guilty of or adjudicated

576

delinquent for committing any of the acts stemming from the

577

arrest or alleged criminal activity to which the petition to seal

578

pertains.

579

     (e) Has never secured a prior sealing, except as provided

580

in subsection (6), or expunction of a criminal history record

581

under this section, former s. 893.14, former s. 901.33, or former

582

s. 943.058.

583

     (f)  Is no longer under court supervision applicable to the

584

disposition of the arrest or alleged criminal activity to which

585

the petition to seal pertains.

586

     (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

587

     (a)  In judicial proceedings under this section, a copy of

588

the completed petition to seal shall be served upon the

589

appropriate state attorney or the statewide prosecutor and upon

590

the arresting agency; however, it is not necessary to make any

591

agency other than the state a party. The appropriate state

592

attorney or the statewide prosecutor and the arresting agency may

593

respond to the court regarding the completed petition to seal.

594

     (b)  If relief is granted by the court, the clerk of the

595

court shall certify copies of the order to the appropriate state

596

attorney or the statewide prosecutor and to the arresting agency.

597

The arresting agency is responsible for forwarding the order to

598

any other agency to which the arresting agency disseminated the

599

criminal history record information to which the order pertains.

600

The department shall forward the order to seal to the Federal

601

Bureau of Investigation. The clerk of the court shall certify a

602

copy of the order to any other agency which the records of the

603

court reflect has received the criminal history record from the

604

court.

605

     (c)  For an order to seal entered by a court prior to July

606

1, 1992, the department shall notify the appropriate state

607

attorney or statewide prosecutor of any order to seal which is

608

contrary to law because the person who is the subject of the

609

record has previously been convicted of a crime or comparable

610

ordinance violation or has had a prior criminal history record

611

sealed, except as provided in subsection (6), or expunged. Upon

612

receipt of such notice, the appropriate state attorney or

613

statewide prosecutor shall take action, within 60 days, to

614

correct the record and petition the court to void the order to

615

seal. The department shall seal the record until such time as the

616

order is voided by the court.

617

     (d)  On or after July 1, 1992, the department or any other

618

criminal justice agency is not required to act on an order to

619

seal entered by a court when such order does not comply with the

620

requirements of this section. Upon receipt of such an order, the

621

department must notify the issuing court, the appropriate state

622

attorney or statewide prosecutor, the petitioner or the

623

petitioner's attorney, and the arresting agency of the reason for

624

noncompliance. The appropriate state attorney or statewide

625

prosecutor shall take action within 60 days to correct the record

626

and petition the court to void the order. No cause of action,

627

including contempt of court, shall arise against any criminal

628

justice agency for failure to comply with an order to seal when

629

the petitioner for such order failed to obtain the certificate of

630

eligibility as required by this section or when such order does

631

not comply with the requirements of this section.

632

     (e)  An order sealing a criminal history record pursuant to

633

this section does not require that such record be surrendered to

634

the court, and such record shall continue to be maintained by the

635

department and other criminal justice agencies.

636

     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal

637

history record of a minor or an adult which is ordered sealed by

638

a court of competent jurisdiction pursuant to this section is

639

confidential and exempt from the provisions of s. 119.07(1) and

640

s. 24(a), Art. I of the State Constitution and is available only

641

to the person who is the subject of the record, to the subject's

642

attorney, to criminal justice agencies for their respective

643

criminal justice purposes, which include conducting a criminal

644

history background check for approval of firearms purchases or

645

transfers as authorized by state or federal law, or to those

646

entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for

647

their respective licensing, access authorization, and employment

648

purposes.

649

     (a)  The subject of a criminal history record sealed under

650

this section or under other provisions of law, including former

651

s. 893.14, former s. 901.33, and former s. 943.058, may lawfully

652

deny or fail to acknowledge the arrests and subsequent

653

dispositions covered by the sealed record, except when the

654

subject of the record:

655

     1.  Is a candidate for employment with a criminal justice

656

agency;

657

     2.  Is a defendant in a criminal prosecution;

658

     3.  Concurrently or subsequently petitions for relief under

659

this section or s. 943.0585;

660

     4.  Is a candidate for admission to The Florida Bar;

661

     5.  Is seeking to be employed or licensed by or to contract

662

with the Department of Children and Family Services or the

663

Department of Juvenile Justice or to be employed or used by such

664

contractor or licensee in a sensitive position having direct

665

contact with children, the developmentally disabled, the aged, or

666

the elderly as provided in s. 110.1127(3), s. 393.063, s.

667

394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.

668

409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s.

669

985.644, chapter 400, or chapter 429;

670

     6.  Is seeking to be employed or licensed by the Department

671

of Education, any district school board, any university

672

laboratory school, any charter school, any private or parochial

673

school, or any local governmental entity that licenses child care

674

facilities;

675

     7.  Is attempting to purchase a firearm from a licensed

676

importer, licensed manufacturer, or licensed dealer and is

677

subject to a criminal history background check under state or

678

federal law; or

679

     8.  Is seeking authorization from a Florida seaport

680

identified in s. 311.09 for employment within or access to one or

681

more of such seaports pursuant to s. 311.12 or s. 311.125.

682

     (b)  Subject to the exceptions in paragraph (a), a person

683

who has been granted a sealing under this section, former s.

684

893.14, former s. 901.33, or former s. 943.058 may not be held

685

under any provision of law of this state to commit perjury or to

686

be otherwise liable for giving a false statement by reason of

687

such person's failure to recite or acknowledge a sealed criminal

688

history record, including when asked on an employment

689

application.

690

     (c)  Information relating to the existence of a sealed

691

criminal record provided in accordance with the provisions of

692

paragraph (a) is confidential and exempt from the provisions of

693

s. 119.07(1) and s. 24(a), Art. I of the State Constitution,

694

except that the department shall disclose the sealed criminal

695

history record to the entities set forth in subparagraphs (a)1.,

696

4., 5., 6., and 8. for their respective licensing, access

697

authorization, and employment purposes. It is unlawful for any

698

employee of an entity set forth in subparagraph (a)1.,

699

subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or

700

subparagraph (a)8. to disclose information relating to the

701

existence of a sealed criminal history record of a person seeking

702

employment, access authorization, or licensure with such entity

703

or contractor, except to the person to whom the criminal history

704

record relates or to persons having direct responsibility for

705

employment, access authorization, or licensure decisions. Any

706

person who violates the provisions of this paragraph commits a

707

misdemeanor of the first degree, punishable as provided in s.

708

775.082 or s. 775.083.

709

     (5)  STATUTORY REFERENCES.--Any reference to any other

710

chapter, section, or subdivision of the Florida Statutes in this

711

section constitutes a general reference under the doctrine of

712

incorporation by reference.

713

     (6) SECOND SEALING OF CRIMINAL HISTORY RECORD.--A person

714

may petition the court to seek a second sealing of his or her

715

criminal history record after having secured one previous

716

expunction or sealing under the following circumstances only.

717

Before petitioning the court for such relief, the person must

718

apply to the department to obtain a certificate of eligibility

719

for the second sealing of his or her criminal history record. The

720

department shall issue the certificate only if the person has not

721

been arrested during the 5-year period following the date of the

722

court order for the initial expunction or sealing of his or her

723

criminal history record. All other provisions and requirements of

724

this section apply when a person seeks a second sealing of his

725

criminal history record.

726

     Section 6. The Office of Program Policy Analysis and

727

Government Accountability, in cooperation with the Department of

728

Law Enforcement, shall:

729

(1) Assess current safeguards for the accuracy of the

730

criminal history data contained in the Department of Law

731

Enforcement's Computerized Criminal History (CCH) database.

732

     (2) Assess the current process available to potential

733

private employers or licensing entities in determining whether an

734

applicant has a criminal history.

735

     (3) Assess whether an adequate process exists to allow the

736

potential private employer or licensing entity to determine

737

whether an applicant's response to an "arrest, conviction, or

738

adjudication withheld" criminal history question on an

739

application is truthful and complete.

740

     (4) Assess the feasibility of establishing appropriate

741

privacy safeguards to protect job or license applicants, such as

742

providing informed consent and the opportunity to review a

743

criminal history record before a job or licensing application is

744

made, before the criminal history record is provided to the

745

potential employer or licensing entity, and before adverse action

746

is taken by the potential employer or licensing entity.

747

     (5) Identify actions that could be taken to improve both

748

the completeness of the criminal history record and the consumer

749

readability of the criminal history record.

750

751

The Office of Program Policy Analysis and Government

752

Accountability shall report its findings to the President of the

753

Senate and the Speaker of the House of Representatives by

754

February 1, 2009.

755

     Section 7.  This act shall take effect July 1, 2008.