CS for SB 910                                    First Engrossed
       
       
       
       
       
       
       
       
       2009910e1
       
    1                        A bill to be entitled                      
    2         An act relating to criminal justice; providing a short
    3         title; providing legislative intent; requiring state
    4         agencies and regulatory boards to prepare reports that
    5         identify and evaluate restrictions on licensing and
    6         employment; amending s. 112.011, F.S.; prohibiting
    7         state agencies from denying an application for a
    8         license, permit, certificate, or employment based on a
    9         person’s lack of civil rights; providing an exception;
   10         amending s. 768.096, F.S.; requiring an employer to
   11         review the results of a criminal background
   12         investigation; requiring an employer not to place an
   13         employee who has a criminal record in a position where
   14         conduct similar to the employee’s past criminal
   15         conduct would be facilitated; requiring an employer to
   16         determine that the criminal background investigation
   17         does not demonstrate that the employee is unsuitable
   18         for the particular work to be performed or the context
   19         of the employment in general; amending s. 943.0585,
   20         F.S.; clarifying under what circumstances a person may
   21         legally deny the existence of an expunged criminal
   22         history record; authorizing the disclosure of the
   23         contents of an expunged record upon receipt of a
   24         written, notarized request from the record subject;
   25         requiring clerks of the court to post information
   26         relating to procedures to seal or expunge criminal
   27         history records on the clerk’s website; amending s.
   28         943.059, F.S.; clarifying under what circumstances a
   29         person may legally deny the existence of a sealed
   30         criminal history record; authorizing a court to seal a
   31         criminal history record of a person who had a prior
   32         criminal history record sealed or expunged; providing
   33         an effective date.
   34  
   35  Be It Enacted by the Legislature of the State of Florida:
   36  
   37         Section 1. This act may be cited as the “Keep Florida
   38  Working Act.”
   39         Section 2. Restrictions on the employment of ex-offenders;
   40  legislative intent; state agency reporting requirements.
   41         (1)The Legislature declares that it is the goal of this
   42  state to provide to prospective employees a clear statement of
   43  which crimes would disqualify ex-offenders from which
   44  occupations. It is the intent of the Legislature to make
   45  opportunities for employment available to ex-offenders so that
   46  they will be less likely to revert to criminal behavior, insofar
   47  as the employment of such persons does not detract from the
   48  safety of the public. The Legislature further declares that
   49  state agencies should identify all restrictions imposed by the
   50  agencies or by boards that regulate professions and occupations
   51  on employment and should make an effort to define each
   52  restriction as narrowly as possible while continuing to maintain
   53  public safety.
   54         (2)Each state agency, including, but not limited to,
   55  professional and occupational regulatory boards, shall, by
   56  December 31, 2010, and every 8 years thereafter, submit to the
   57  Governor, the President of the Senate, and the Speaker of the
   58  House of Representatives a report that includes:
   59         (a)A list of all agency or board policies that disqualify
   60  from employment or licensure persons who have been convicted of
   61  a crime and have completed any incarceration and restitution to
   62  which they have been sentenced for such a crime.
   63         (b)A determination of whether the disqualifying policies
   64  are readily available to prospective employers and licensees.
   65         (c)The identification and evaluation of alternatives to
   66  the disqualifying policies to promote the employment of ex
   67  offenders and protect the public.
   68         (d)An evaluation of whether the disqualifying polices are
   69  too broad and whether crimes or acts of moral turpitude that
   70  disqualify a person from licensure should be more specifically
   71  or narrowly identified.
   72         Section 3. Section 112.011, Florida Statutes, is amended to
   73  read:
   74         112.011 Disqualification from licensing and public
   75  employment based on criminal conviction Felons; removal of
   76  disqualifications for employment, exceptions.—
   77         (1)(a) Except as provided in s. 775.16, a person may shall
   78  not be disqualified from employment by the state, any of its
   79  agencies or political subdivisions, or any municipality solely
   80  because of a prior conviction for a crime. However, a person may
   81  be denied employment by the state, any of its agencies or
   82  political subdivisions, or any municipality by reason of the
   83  prior conviction for a crime if the crime was a felony or first
   84  degree misdemeanor and directly related to the position of
   85  employment sought.
   86         (b) Except as provided in s. 775.16, a person whose civil
   87  rights have been restored shall not be disqualified to practice,
   88  pursue, or engage in any occupation, trade, vocation,
   89  profession, or business for which a license, permit, or
   90  certificate is required to be issued by the state, any of its
   91  agencies or political subdivisions, or any municipality solely
   92  because of a prior conviction for a crime. However, a person
   93  whose civil rights have been restored may be denied a license,
   94  permit, or certification to pursue, practice, or engage in an
   95  occupation, trade, vocation, profession, or business by reason
   96  of the prior conviction for a crime if the crime was a felony or
   97  first degree misdemeanor relevant to the standards normally
   98  associated with, or determined by the regulatory authority to be
   99  necessary for the protection of the public or other parties for
  100  and directly related to the specific occupation, trade,
  101  vocation, profession, or business for which the license, permit,
  102  or certificate is sought.
  103         (c)Notwithstanding any law to the contrary, a state agency
  104  may not deny an application for a license, permit, certificate,
  105  or employment based on the applicant’s lack of civil rights.
  106  However, this paragraph does not apply to applications for a
  107  license to carry a concealed weapon or firearm under chapter
  108  790.
  109         (2)(a) This section does shall not apply be applicable to
  110  any law enforcement or correctional agency.
  111         (b) This section shall not be applicable to the employment
  112  practices of any fire department relating to the hiring of
  113  firefighters. An applicant for employment with any fire
  114  department who has with a prior felony conviction shall be
  115  excluded from employment for a period of 4 years after
  116  expiration of sentence or final release by the Parole Commission
  117  unless the applicant, prior to the expiration of the 4-year
  118  period, has received a full pardon or has had his or her civil
  119  rights restored.
  120         (c) This section does shall not apply be applicable to the
  121  employment practices of any county or municipality relating to
  122  the hiring of personnel for positions deemed to be critical to
  123  security or public safety pursuant to ss. 125.5801 and 166.0442.
  124         (3) Any complaint concerning the violation of this section
  125  shall be adjudicated in accordance with the procedures set forth
  126  in chapter 120 for administrative and judicial review.
  127         Section 4. Section 768.096, Florida Statutes, is amended to
  128  read:
  129         768.096 Employer presumption against negligent hiring.—
  130         (1) In a civil action for the death of, or injury or damage
  131  to, a third person caused by the intentional tort of an
  132  employee, such employee’s employer is presumed not to have been
  133  negligent in hiring such employee if, before hiring the
  134  employee, the employer conducted a background investigation of
  135  the prospective employee and the investigation did not reveal
  136  any information that reasonably demonstrated the unsuitability
  137  of the prospective employee for the particular work to be
  138  performed or for the context of the employment in general. A
  139  background investigation under this section must include:
  140         (a) Obtaining a criminal background investigation on the
  141  prospective employee under subsection (2);
  142         (b) Making a reasonable effort to contact references and
  143  former employers of the prospective employee concerning the
  144  suitability of the prospective employee for employment;
  145         (c) Requiring the prospective employee to complete a job
  146  application form that includes questions concerning whether he
  147  or she has ever been convicted of a crime, including details
  148  concerning the type of crime, the date of conviction and the
  149  penalty imposed, and whether the prospective employee has ever
  150  been a defendant in a civil action for intentional tort,
  151  including the nature of the intentional tort and the disposition
  152  of the action;
  153         (d) Obtaining, with written authorization from the
  154  prospective employee, a check of the driver’s license record of
  155  the prospective employee if such a check is relevant to the work
  156  the employee will be performing and if the record can reasonably
  157  be obtained; and or
  158         (e) Interviewing the prospective employee.
  159         (2) To satisfy the criminal-background-investigation
  160  requirement of this section, an employer must request and obtain
  161  from the Department of Law Enforcement a check of the
  162  information as reported and reflected in the Florida Crime
  163  Information Center system as of the date of the request. The
  164  employer must review and consider the results of the criminal
  165  background investigation and, if the prospective employee has
  166  engaged in past criminal conduct, ensure that the employee will
  167  not be assigned to particular work that would place the employee
  168  in a position where conduct that is similar to the employee’s
  169  past criminal conduct is facilitated and determine that,
  170  notwithstanding the past criminal conduct of the employee, any
  171  information revealed by the investigation did not otherwise
  172  demonstrate the unsuitability of the employee for the particular
  173  work to be performed or context of the employment in general.
  174         (3) The election by an employer not to conduct the
  175  investigation specified in subsection (1) does not raise any
  176  presumption that the employer failed to use reasonable care in
  177  hiring an employee.
  178         Section 5. Section 943.0585, Florida Statutes, is amended
  179  to read:
  180         943.0585 Court-ordered expunction of criminal history
  181  records.—The courts of this state have jurisdiction over their
  182  own procedures, including the maintenance, expunction, and
  183  correction of judicial records containing criminal history
  184  information to the extent such procedures are not inconsistent
  185  with the conditions, responsibilities, and duties established by
  186  this section. Any court of competent jurisdiction may order a
  187  criminal justice agency to expunge the criminal history record
  188  of a minor or an adult who complies with the requirements of
  189  this section. The court shall not order a criminal justice
  190  agency to expunge a criminal history record until the person
  191  seeking to expunge a criminal history record has applied for and
  192  received a certificate of eligibility for expunction pursuant to
  193  subsection (2). A criminal history record that relates to a
  194  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  195  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  196  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  197  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  198  any violation specified as a predicate offense for registration
  199  as a sexual predator pursuant to s. 775.21, without regard to
  200  whether that offense alone is sufficient to require such
  201  registration, or for registration as a sexual offender pursuant
  202  to s. 943.0435, may not be expunged, without regard to whether
  203  adjudication was withheld, if the defendant was found guilty of
  204  or pled guilty or nolo contendere to the offense, or if the
  205  defendant, as a minor, was found to have committed, or pled
  206  guilty or nolo contendere to committing, the offense as a
  207  delinquent act. The court may only order expunction of a
  208  criminal history record pertaining to one arrest or one incident
  209  of alleged criminal activity, except as provided in this
  210  section. The court may, at its sole discretion, order the
  211  expunction of a criminal history record pertaining to more than
  212  one arrest if the additional arrests directly relate to the
  213  original arrest. If the court intends to order the expunction of
  214  records pertaining to such additional arrests, such intent must
  215  be specified in the order. A criminal justice agency may not
  216  expunge any record pertaining to such additional arrests if the
  217  order to expunge does not articulate the intention of the court
  218  to expunge a record pertaining to more than one arrest. This
  219  section does not prevent the court from ordering the expunction
  220  of only a portion of a criminal history record pertaining to one
  221  arrest or one incident of alleged criminal activity.
  222  Notwithstanding any law to the contrary, a criminal justice
  223  agency may comply with laws, court orders, and official requests
  224  of other jurisdictions relating to expunction, correction, or
  225  confidential handling of criminal history records or information
  226  derived therefrom. This section does not confer any right to the
  227  expunction of any criminal history record, and any request for
  228  expunction of a criminal history record may be denied at the
  229  sole discretion of the court.
  230         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
  231  petition to a court to expunge a criminal history record is
  232  complete only when accompanied by:
  233         (a) A valid certificate of eligibility for expunction
  234  issued by the department pursuant to subsection (2).
  235         (b) The petitioner’s sworn statement attesting that the
  236  petitioner:
  237         1. Has never, prior to the date on which the petition is
  238  filed, been adjudicated guilty of a criminal offense or
  239  comparable ordinance violation, or been adjudicated delinquent
  240  for committing any felony or a misdemeanor specified in s.
  241  943.051(3)(b).
  242         2. Has not been adjudicated guilty of, or adjudicated
  243  delinquent for committing, any of the acts stemming from the
  244  arrest or alleged criminal activity to which the petition
  245  pertains.
  246         3. Has never secured a prior sealing or expunction of a
  247  criminal history record under this section, former s. 893.14,
  248  former s. 901.33, or former s. 943.058, or from any jurisdiction
  249  outside the state, unless expunction is sought of a criminal
  250  history record previously sealed for 10 years pursuant to
  251  paragraph (2)(h) and the record is otherwise eligible for
  252  expunction.
  253         4. Is eligible for such an expunction to the best of his or
  254  her knowledge or belief and does not have any other petition to
  255  expunge or any petition to seal pending before any court.
  256  
  257  Any person who knowingly provides false information on such
  258  sworn statement to the court commits a felony of the third
  259  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  260  775.084.
  261         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  262  petitioning the court to expunge a criminal history record, a
  263  person seeking to expunge a criminal history record shall apply
  264  to the department for a certificate of eligibility for
  265  expunction. The department shall, by rule adopted pursuant to
  266  chapter 120, establish procedures pertaining to the application
  267  for and issuance of certificates of eligibility for expunction.
  268  A certificate of eligibility for expunction is valid for 12
  269  months after the date stamped on the certificate when issued by
  270  the department. After that time, the petitioner must reapply to
  271  the department for a new certificate of eligibility. Eligibility
  272  for a renewed certification of eligibility must be based on the
  273  status of the applicant and the law in effect at the time of the
  274  renewal application. The department shall issue a certificate of
  275  eligibility for expunction to a person who is the subject of a
  276  criminal history record if that person:
  277         (a) Has obtained, and submitted to the department, a
  278  written, certified statement from the appropriate state attorney
  279  or statewide prosecutor which indicates:
  280         1. That an indictment, information, or other charging
  281  document was not filed or issued in the case.
  282         2. That an indictment, information, or other charging
  283  document, if filed or issued in the case, was dismissed or nolle
  284  prosequi by the state attorney or statewide prosecutor, or was
  285  dismissed by a court of competent jurisdiction, and that none of
  286  the charges related to the arrest or alleged criminal activity
  287  to which the petition to expunge pertains resulted in a trial,
  288  without regard to whether the outcome of the trial was other
  289  than an adjudication of guilt.
  290         3. That the criminal history record does not relate to a
  291  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  292  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  293  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  294  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  295  any violation specified as a predicate offense for registration
  296  as a sexual predator pursuant to s. 775.21, without regard to
  297  whether that offense alone is sufficient to require such
  298  registration, or for registration as a sexual offender pursuant
  299  to s. 943.0435, where the defendant was found guilty of, or pled
  300  guilty or nolo contendere to any such offense, or that the
  301  defendant, as a minor, was found to have committed, or pled
  302  guilty or nolo contendere to committing, such an offense as a
  303  delinquent act, without regard to whether adjudication was
  304  withheld.
  305         (b) Remits a $75 processing fee to the department for
  306  placement in the Department of Law Enforcement Operating Trust
  307  Fund, unless such fee is waived by the executive director.
  308         (c) Has submitted to the department a certified copy of the
  309  disposition of the charge to which the petition to expunge
  310  pertains.
  311         (d) Has never, prior to the date on which the application
  312  for a certificate of eligibility is filed, been adjudicated
  313  guilty of a criminal offense or comparable ordinance violation,
  314  or been adjudicated delinquent for committing any felony or a
  315  misdemeanor specified in s. 943.051(3)(b).
  316         (e) Has not been adjudicated guilty of, or adjudicated
  317  delinquent for committing, any of the acts stemming from the
  318  arrest or alleged criminal activity to which the petition to
  319  expunge pertains.
  320         (f) Has never secured a prior sealing or expunction of a
  321  criminal history record under this section, former s. 893.14,
  322  former s. 901.33, or former s. 943.058, unless expunction is
  323  sought of a criminal history record previously sealed for 10
  324  years pursuant to paragraph (h) and the record is otherwise
  325  eligible for expunction.
  326         (g) Is no longer under court supervision applicable to the
  327  disposition of the arrest or alleged criminal activity to which
  328  the petition to expunge pertains.
  329         (h) Has previously obtained a court order sealing the
  330  record under this section, former s. 893.14, former s. 901.33,
  331  or former s. 943.058 for a minimum of 10 years because
  332  adjudication was withheld or because all charges related to the
  333  arrest or alleged criminal activity to which the petition to
  334  expunge pertains were not dismissed prior to trial, without
  335  regard to whether the outcome of the trial was other than an
  336  adjudication of guilt. The requirement for the record to have
  337  previously been sealed for a minimum of 10 years does not apply
  338  when a plea was not entered or all charges related to the arrest
  339  or alleged criminal activity to which the petition to expunge
  340  pertains were dismissed prior to trial.
  341         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
  342         (a) In judicial proceedings under this section, a copy of
  343  the completed petition to expunge shall be served upon the
  344  appropriate state attorney or the statewide prosecutor and upon
  345  the arresting agency; however, it is not necessary to make any
  346  agency other than the state a party. The appropriate state
  347  attorney or the statewide prosecutor and the arresting agency
  348  may respond to the court regarding the completed petition to
  349  expunge.
  350         (b) If relief is granted by the court, the clerk of the
  351  court shall certify copies of the order to the appropriate state
  352  attorney or the statewide prosecutor and the arresting agency.
  353  The arresting agency is responsible for forwarding the order to
  354  any other agency to which the arresting agency disseminated the
  355  criminal history record information to which the order pertains.
  356  The department shall forward the order to expunge to the Federal
  357  Bureau of Investigation. The clerk of the court shall certify a
  358  copy of the order to any other agency which the records of the
  359  court reflect has received the criminal history record from the
  360  court.
  361         (c) For an order to expunge entered by a court prior to
  362  July 1, 1992, the department shall notify the appropriate state
  363  attorney or statewide prosecutor of an order to expunge which is
  364  contrary to law because the person who is the subject of the
  365  record has previously been convicted of a crime or comparable
  366  ordinance violation or has had a prior criminal history record
  367  sealed or expunged. Upon receipt of such notice, the appropriate
  368  state attorney or statewide prosecutor shall take action, within
  369  60 days, to correct the record and petition the court to void
  370  the order to expunge. The department shall seal the record until
  371  such time as the order is voided by the court.
  372         (d) On or after July 1, 1992, the department or any other
  373  criminal justice agency is not required to act on an order to
  374  expunge entered by a court when such order does not comply with
  375  the requirements of this section. Upon receipt of such an order,
  376  the department must notify the issuing court, the appropriate
  377  state attorney or statewide prosecutor, the petitioner or the
  378  petitioner’s attorney, and the arresting agency of the reason
  379  for noncompliance. The appropriate state attorney or statewide
  380  prosecutor shall take action within 60 days to correct the
  381  record and petition the court to void the order. No cause of
  382  action, including contempt of court, shall arise against any
  383  criminal justice agency for failure to comply with an order to
  384  expunge when the petitioner for such order failed to obtain the
  385  certificate of eligibility as required by this section or such
  386  order does not otherwise comply with the requirements of this
  387  section.
  388         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  389  criminal history record of a minor or an adult which is ordered
  390  expunged by a court of competent jurisdiction pursuant to this
  391  section must be physically destroyed or obliterated by any
  392  criminal justice agency having custody of such record; except
  393  that any criminal history record in the custody of the
  394  department must be retained in all cases. A criminal history
  395  record ordered expunged that is retained by the department is
  396  confidential and exempt from the provisions of s. 119.07(1) and
  397  s. 24(a), Art. I of the State Constitution and not available to
  398  any person or entity except upon order of a court of competent
  399  jurisdiction. A criminal justice agency may retain a notation
  400  indicating compliance with an order to expunge.
  401         (a) The person who is the subject of a criminal history
  402  record that is expunged under this section or under other
  403  provisions of law, including former s. 893.14, former s. 901.33,
  404  and former s. 943.058, may lawfully deny or fail to acknowledge
  405  the arrests and subsequent dispositions covered by the expunged
  406  record, except when the subject of the record:
  407         1. Is a candidate for employment with a criminal justice
  408  agency;
  409         2. Is a defendant in a criminal prosecution;
  410         3. Concurrently or subsequently petitions for relief under
  411  this section or s. 943.059;
  412         4. Is a candidate for admission to The Florida Bar;
  413         5. Is seeking to be employed or licensed by or to contract
  414  with the Department of Children and Family Services, the Agency
  415  for Health Care Administration, the Agency for Persons with
  416  Disabilities, or the Department of Juvenile Justice or to be
  417  employed or used by such contractor or licensee in a sensitive
  418  position having direct contact with children, the
  419  developmentally disabled, the aged, or the elderly as provided
  420  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  421  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
  422  chapter 916, s. 985.644, chapter 400, or chapter 429;
  423         6. Is seeking to be employed or licensed by the Department
  424  of Education, any district school board, any university
  425  laboratory school, any charter school, any private or parochial
  426  school, or any local governmental entity that licenses child
  427  care facilities; or
  428         7. Is seeking authorization from a Florida seaport
  429  identified in s. 311.09 for employment within or access to one
  430  or more of such seaports pursuant to s. 311.12 or s. 311.125.
  431         (b) Subject to the exceptions in paragraph (a), a person
  432  who has been granted an expunction under this section, former s.
  433  893.14, former s. 901.33, or former s. 943.058 may not be held
  434  under any provision of law of this state to commit perjury or to
  435  be otherwise liable for giving a false statement by reason of
  436  such person’s failure to recite or acknowledge an expunged
  437  criminal history record, including a failure to recite or
  438  acknowledge on an employment application.
  439         (c) Information relating to the existence of an expunged
  440  criminal history record which is provided in accordance with
  441  paragraph (a) is confidential and exempt from the provisions of
  442  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  443  except that the department shall disclose the existence of a
  444  criminal history record ordered expunged to the entities set
  445  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  446  respective licensing, access authorization, and employment
  447  purposes, and to criminal justice agencies for their respective
  448  criminal justice purposes. It is unlawful for any employee of an
  449  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  450  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  451  disclose information relating to the existence of an expunged
  452  criminal history record of a person seeking employment, access
  453  authorization, or licensure with such entity or contractor,
  454  except to the person to whom the criminal history record relates
  455  or to persons having direct responsibility for employment,
  456  access authorization, or licensure decisions. Any person who
  457  violates this paragraph commits a misdemeanor of the first
  458  degree, punishable as provided in s. 775.082 or s. 775.083.
  459         (d)The department may disclose the contents of an expunged
  460  record to the subject of the record upon the receipt of a
  461  written, notarized request from the subject of the record.
  462         (5)INFORMATION.—Each website for the office of a clerk of
  463  court must include information relating to procedures to seal or
  464  expunge criminal history records. This information must include
  465  the link to related information on the website of the
  466  department.
  467         (6)(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 6. Section 943.059, Florida Statutes, is amended to
  472  read:
  473         943.059 Court-ordered sealing of criminal history records.
  474  The courts of this state shall continue to have jurisdiction
  475  over their own procedures, including the maintenance, sealing,
  476  and correction of judicial records containing criminal history
  477  information to the extent such procedures are not inconsistent
  478  with the conditions, responsibilities, and duties established by
  479  this section. Any court of competent jurisdiction may order a
  480  criminal justice agency to seal the criminal history record of a
  481  minor or an adult who complies with the requirements of this
  482  section. The court shall not order a criminal justice agency to
  483  seal a criminal history record until the person seeking to seal
  484  a criminal history record has applied for and received a
  485  certificate of eligibility for sealing pursuant to subsection
  486  (2). A criminal history record that relates to a violation of s.
  487  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  488  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  489  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  490  916.1075, a violation enumerated in s. 907.041, or any violation
  491  specified as a predicate offense for registration as a sexual
  492  predator pursuant to s. 775.21, without regard to whether that
  493  offense alone is sufficient to require such registration, or for
  494  registration as a sexual offender pursuant to s. 943.0435, may
  495  not be sealed, without regard to whether adjudication was
  496  withheld, if the defendant was found guilty of or pled guilty or
  497  nolo contendere to the offense, or if the defendant, as a minor,
  498  was found to have committed or pled guilty or nolo contendere to
  499  committing the offense as a delinquent act. The court may only
  500  order sealing of a criminal history record pertaining to one
  501  arrest or one incident of alleged criminal activity, except as
  502  provided in this section. The court may, at its sole discretion,
  503  order the sealing of a criminal history record pertaining to
  504  more than one arrest if the additional arrests directly relate
  505  to the original arrest. If the court intends to order the
  506  sealing of records pertaining to such additional arrests, such
  507  intent must be specified in the order. A criminal justice agency
  508  may not seal any record pertaining to such additional arrests if
  509  the order to seal does not articulate the intention of the court
  510  to seal records pertaining to more than one arrest. This section
  511  does not prevent the court from ordering the sealing of only a
  512  portion of a criminal history record pertaining to one arrest or
  513  one incident of alleged criminal activity. Notwithstanding any
  514  law to the contrary, a criminal justice agency may comply with
  515  laws, court orders, and official requests of other jurisdictions
  516  relating to sealing, correction, or confidential handling of
  517  criminal history records or information derived therefrom. This
  518  section does not confer any right to the sealing of any criminal
  519  history record, and any request for sealing a criminal history
  520  record may be denied at the sole discretion of the court.
  521         (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
  522  petition to a court to seal a criminal history record is
  523  complete only when accompanied by:
  524         (a) A valid certificate of eligibility for sealing issued
  525  by the department pursuant to subsection (2).
  526         (b) The petitioner’s sworn statement attesting that the
  527  petitioner:
  528         1. Has never, prior to the date on which the petition is
  529  filed, been adjudicated guilty of a criminal offense or
  530  comparable ordinance violation, or been adjudicated delinquent
  531  for committing any felony or a misdemeanor specified in s.
  532  943.051(3)(b).
  533         2. Has not been adjudicated guilty of or adjudicated
  534  delinquent for committing any of the acts stemming from the
  535  arrest or alleged criminal activity to which the petition to
  536  seal pertains.
  537         3. Has never secured a prior sealing, except as provided in
  538  subsection (6), or expunction of a criminal history record under
  539  this section, former s. 893.14, former s. 901.33, former s.
  540  943.058, or from any jurisdiction outside the state.
  541         4. Is eligible for such a sealing to the best of his or her
  542  knowledge or belief and does not have any other petition to seal
  543  or any petition to expunge pending before any court.
  544  
  545  Any person who knowingly provides false information on such
  546  sworn statement to the court commits a felony of the third
  547  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  548  775.084.
  549         (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
  550  petitioning the court to seal a criminal history record, a
  551  person seeking to seal a criminal history record shall apply to
  552  the 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
  567  pertains.
  568         (b) Remits a $75 processing fee to the department for
  569  placement in the Department of Law Enforcement Operating Trust
  570  Fund, unless such fee is waived by the executive director.
  571         (c) Has never, prior to the date on which the application
  572  for a certificate of eligibility is filed, been adjudicated
  573  guilty of a criminal offense or comparable ordinance violation,
  574  or been adjudicated delinquent for committing any felony or a
  575  misdemeanor specified in s. 943.051(3)(b).
  576         (d) Has not been adjudicated guilty of or adjudicated
  577  delinquent for committing any of the acts stemming from the
  578  arrest or alleged criminal activity to which the petition to
  579  seal pertains.
  580         (e) Has never secured a prior sealing, except as provided
  581  in subsection (6), or expunction of a criminal history record
  582  under this section, former s. 893.14, former s. 901.33, or
  583  former s. 943.058.
  584         (f) Is no longer under court supervision applicable to the
  585  disposition of the arrest or alleged criminal activity to which
  586  the petition to seal pertains.
  587         (3) PROCESSING OF A PETITION OR ORDER TO SEAL.—
  588         (a) In judicial proceedings under this section, a copy of
  589  the completed petition to seal shall be served upon the
  590  appropriate state attorney or the statewide prosecutor and upon
  591  the arresting agency; however, it is not necessary to make any
  592  agency other than the state a party. The appropriate state
  593  attorney or the statewide prosecutor and the arresting agency
  594  may respond to the court regarding the completed petition to
  595  seal.
  596         (b) If relief is granted by the court, the clerk of the
  597  court shall certify copies of the order to the appropriate state
  598  attorney or the statewide prosecutor and to the arresting
  599  agency. The arresting agency is responsible for forwarding the
  600  order to any other agency to which the arresting agency
  601  disseminated the criminal history record information to which
  602  the order pertains. The department shall forward the order to
  603  seal to the Federal Bureau of Investigation. The clerk of the
  604  court shall certify a copy of the order to any other agency
  605  which the records of the court reflect has received the criminal
  606  history record from the court.
  607         (c) For an order to seal entered by a court prior to July
  608  1, 1992, the department shall notify the appropriate state
  609  attorney or statewide prosecutor of any order to seal which is
  610  contrary to law because the person who is the subject of the
  611  record has previously been convicted of a crime or comparable
  612  ordinance violation or has had a prior criminal history record
  613  sealed, except as provided in subsection (6), or expunged. Upon
  614  receipt of such notice, the appropriate state attorney or
  615  statewide prosecutor shall take action, within 60 days, to
  616  correct the record and petition the court to void the order to
  617  seal. The department shall seal the record until such time as
  618  the order is voided by the court.
  619         (d) On or after July 1, 1992, the department or any other
  620  criminal justice agency is not required to act on an order to
  621  seal entered by a court when such order does not comply with the
  622  requirements of this section. Upon receipt of such an order, the
  623  department must notify the issuing court, the appropriate state
  624  attorney or statewide prosecutor, the petitioner or the
  625  petitioner’s attorney, and the arresting agency of the reason
  626  for noncompliance. The appropriate state attorney or statewide
  627  prosecutor shall take action within 60 days to correct the
  628  record and petition the court to void the order. No cause of
  629  action, including contempt of court, shall arise against any
  630  criminal justice agency for failure to comply with an order to
  631  seal when the petitioner for such order failed to obtain the
  632  certificate of eligibility as required by this section or when
  633  such order does not comply with the requirements of this
  634  section.
  635         (e) An order sealing a criminal history record pursuant to
  636  this section does not require that such record be surrendered to
  637  the court, and such record shall continue to be maintained by
  638  the department and other criminal justice agencies.
  639         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  640  history record of a minor or an adult which is ordered sealed by
  641  a court of competent jurisdiction pursuant to this section is
  642  confidential and exempt from the provisions of s. 119.07(1) and
  643  s. 24(a), Art. I of the State Constitution and is available only
  644  to the person who is the subject of the record, to the subject’s
  645  attorney, to criminal justice agencies for their respective
  646  criminal justice purposes, which include conducting a criminal
  647  history background check for approval of firearms purchases or
  648  transfers as authorized by state or federal law, to judges in
  649  the state courts system for the purpose of assisting them in
  650  their case-related decisionmaking responsibilities, as set forth
  651  in s. 943.053(5), or to those entities set forth in
  652  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  653  licensing, access authorization, and employment purposes.
  654         (a) The subject of a criminal history record sealed under
  655  this section or under other provisions of law, including former
  656  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  657  deny or fail to acknowledge the arrests and subsequent
  658  dispositions covered by the sealed record, except when the
  659  subject of the record:
  660         1. Is a candidate for employment with a criminal justice
  661  agency;
  662         2. Is a defendant in a criminal prosecution;
  663         3. Concurrently or subsequently petitions for relief under
  664  this section or s. 943.0585;
  665         4. Is a candidate for admission to The Florida Bar;
  666         5. Is seeking to be employed or licensed by or to contract
  667  with the Department of Children and Family Services, the Agency
  668  for Health Care Administration, the Agency for Persons with
  669  Disabilities, or the Department of Juvenile Justice or to be
  670  employed or used by such contractor or licensee in a sensitive
  671  position having direct contact with children, the
  672  developmentally disabled, the aged, or the elderly as provided
  673  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  674  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
  675  415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
  676         6. Is seeking to be employed or licensed by the Department
  677  of Education, any district school board, any university
  678  laboratory school, any charter school, any private or parochial
  679  school, or any local governmental entity that licenses child
  680  care facilities;
  681         7. Is attempting to purchase a firearm from a licensed
  682  importer, licensed manufacturer, or licensed dealer and is
  683  subject to a criminal history background check under state or
  684  federal law; or
  685         8. Is seeking authorization from a Florida seaport
  686  identified in s. 311.09 for employment within or access to one
  687  or more of such seaports pursuant to s. 311.12 or s. 311.125.
  688         (b) Subject to the exceptions in paragraph (a), a person
  689  who has been granted a sealing under this section, former s.
  690  893.14, former s. 901.33, or former s. 943.058 may not be held
  691  under any provision of law of this state to commit perjury or to
  692  be otherwise liable for giving a false statement by reason of
  693  such person’s failure to recite or acknowledge a sealed criminal
  694  history record, including failure to recite or acknowledge on an
  695  employment application.
  696         (c) Information relating to the existence of a sealed
  697  criminal record provided in accordance with the provisions of
  698  paragraph (a) is confidential and exempt from the provisions of
  699  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  700  except that the department shall disclose the sealed criminal
  701  history record to the entities set forth in subparagraphs (a)1.,
  702  4., 5., 6., and 8. for their respective licensing, access
  703  authorization, and employment purposes. It is unlawful for any
  704  employee of an entity set forth in subparagraph (a)1.,
  705  subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
  706  subparagraph (a)8. to disclose information relating to the
  707  existence of a sealed criminal history record of a person
  708  seeking employment, access authorization, or licensure with such
  709  entity or contractor, except to the person to whom the criminal
  710  history record relates or to persons having direct
  711  responsibility for employment, access authorization, or
  712  licensure decisions. Any person who violates the provisions of
  713  this paragraph commits a misdemeanor of the first degree,
  714  punishable as provided in s. 775.082 or s. 775.083.
  715         (5) STATUTORY REFERENCES.—Any reference to any other
  716  chapter, section, or subdivision of the Florida Statutes in this
  717  section constitutes a general reference under the doctrine of
  718  incorporation by reference.
  719         (6)SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
  720  OR EXPUNCTION.A court may seal a person’s criminal history
  721  record after a prior criminal history record has been sealed or
  722  expunged only if the person obtains a certificate from the
  723  department to seal the criminal history record. The department
  724  shall issue the certificate only if the person has not been
  725  arrested during the 5-year period following the date of the
  726  court order for the initial expunction or sealing of his or her
  727  criminal history record. All other provisions and requirements
  728  of this section apply to an application to seal a criminal
  729  history record after a prior criminal history record has been
  730  sealed or expunged.
  731         Section 7. This act shall take effect July 1, 2009.