Florida Senate - 2017                CS for CS for CS for SB 118
       
       
        
       By the Committees on Appropriations; Criminal Justice; and
       Judiciary; and Senator Steube
       
       
       
       
       576-02498-17                                           2017118c3
    1                        A bill to be entitled                      
    2         An act relating to criminal history records;
    3         prohibiting a person or entity engaged in publishing
    4         or disseminating arrest booking photographs from
    5         soliciting or accepting a fee or other payment to
    6         remove a photograph; authorizing a person whose arrest
    7         booking photograph is published to request in writing
    8         that it be removed; requiring that the written request
    9         be sent by registered mail and include specified
   10         information; requiring a person or entity to remove an
   11         arrest booking photograph within a specified timeframe
   12         after receipt of a written request; authorizing a
   13         person to bring a civil action to enjoin such
   14         publishing of a photograph; authorizing a court to
   15         impose a civil penalty and award attorney fees and
   16         court costs; providing that refusal to remove an
   17         arrest booking photograph after written request
   18         constitutes an unfair or deceptive practice; providing
   19         applicability; amending s. 943.0585, F.S.; revising
   20         the elements that must be attested to by a petitioner
   21         in a statement submitted in support of the expunction
   22         of criminal history records; revising the
   23         circumstances under which the Department of Law
   24         Enforcement must issue a certificate of eligibility
   25         for expunction of a criminal history record; providing
   26         an effective date.
   27          
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. (1)Any person or entity engaged in the business
   31  of publishing through a publicly accessible print or electronic
   32  medium or otherwise disseminating arrest booking photographs of
   33  persons who have previously been arrested may not solicit or
   34  accept a fee or other form of payment to remove the photographs.
   35         (2) A person whose arrest booking photograph is published
   36  or otherwise disseminated, or his or her legal representative,
   37  may make a request, in writing, for the removal of an arrest
   38  booking photograph to the registered agent of the person or
   39  entity who published or otherwise disseminated the photograph.
   40  The written request for removal of the arrest booking photograph
   41  must be sent by registered mail and include sufficient proof of
   42  identification of the person whose arrest booking photograph was
   43  published or otherwise disseminated and specific information
   44  identifying the arrest booking photograph that the written
   45  request is seeking to remove. Within 10 days of receipt of the
   46  written request for removal of the arrest booking photograph,
   47  the person or entity who published or otherwise disseminated the
   48  photograph shall remove the arrest booking photograph without
   49  charge.
   50         (3)The person whose arrest booking photograph was
   51  published or otherwise disseminated in the publication or
   52  electronic medium may bring a civil action to enjoin the
   53  continued publication or dissemination of the photograph if the
   54  photograph is not removed within 10 calendar days after receipt
   55  of the written request for removal. The court may impose a civil
   56  penalty of $1,000 per day for noncompliance with an injunction
   57  and shall award reasonable attorney fees and court costs related
   58  to the issuance and enforcement of the injunction. Moneys
   59  recovered for civil penalties under this section shall be
   60  deposited into the General Revenue Fund.
   61         (4)Refusal to remove an arrest booking photograph after
   62  written request has been made constitutes an unfair or deceptive
   63  trade practice in accordance with part II of chapter 501,
   64  Florida Statutes.
   65         (5)This section does not apply to any person or entity
   66  that publishes or disseminates information relating to arrest
   67  booking photographs unless the person or entity solicits or
   68  accepts payment to remove the photographs.
   69         Section 2. Paragraph (b) of subsection (1) and paragraphs
   70  (a) and (d) of subsection (2) of section 943.0585, Florida
   71  Statutes, are amended to read:
   72         943.0585 Court-ordered expunction of criminal history
   73  records.—The courts of this state have jurisdiction over their
   74  own procedures, including the maintenance, expunction, and
   75  correction of judicial records containing criminal history
   76  information to the extent such procedures are not inconsistent
   77  with the conditions, responsibilities, and duties established by
   78  this section. Any court of competent jurisdiction may order a
   79  criminal justice agency to expunge the criminal history record
   80  of a minor or an adult who complies with the requirements of
   81  this section. The court shall not order a criminal justice
   82  agency to expunge a criminal history record until the person
   83  seeking to expunge a criminal history record has applied for and
   84  received a certificate of eligibility for expunction pursuant to
   85  subsection (2) or subsection (5). A criminal history record that
   86  relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
   87  chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034,
   88  s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
   89  s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in
   90  s. 907.041, or any violation specified as a predicate offense
   91  for registration as a sexual predator pursuant to s. 775.21,
   92  without regard to whether that offense alone is sufficient to
   93  require such registration, or for registration as a sexual
   94  offender pursuant to s. 943.0435, may not be expunged, without
   95  regard to whether adjudication was withheld, if the defendant
   96  was found guilty of or pled guilty or nolo contendere to the
   97  offense, or if the defendant, as a minor, was found to have
   98  committed, or pled guilty or nolo contendere to committing, the
   99  offense as a delinquent act. The court may only order expunction
  100  of a criminal history record pertaining to one arrest or one
  101  incident of alleged criminal activity, except as provided in
  102  this section. The court may, at its sole discretion, order the
  103  expunction of a criminal history record pertaining to more than
  104  one arrest if the additional arrests directly relate to the
  105  original arrest. If the court intends to order the expunction of
  106  records pertaining to such additional arrests, such intent must
  107  be specified in the order. A criminal justice agency may not
  108  expunge any record pertaining to such additional arrests if the
  109  order to expunge does not articulate the intention of the court
  110  to expunge a record pertaining to more than one arrest. This
  111  section does not prevent the court from ordering the expunction
  112  of only a portion of a criminal history record pertaining to one
  113  arrest or one incident of alleged criminal activity.
  114  Notwithstanding any law to the contrary, a criminal justice
  115  agency may comply with laws, court orders, and official requests
  116  of other jurisdictions relating to expunction, correction, or
  117  confidential handling of criminal history records or information
  118  derived therefrom. This section does not confer any right to the
  119  expunction of any criminal history record, and any request for
  120  expunction of a criminal history record may be denied at the
  121  sole discretion of the court.
  122         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
  123  petition to a court to expunge a criminal history record is
  124  complete only when accompanied by:
  125         (b) The petitioner’s sworn statement attesting that the
  126  petitioner:
  127         1. Has never, before prior to the date on which the
  128  petition is filed, been adjudicated guilty of a felony criminal
  129  offense or comparable ordinance violation, or been adjudicated
  130  delinquent for committing any felony or a misdemeanor specified
  131  in s. 943.051(3)(b).
  132         2. Has not been adjudicated guilty of a misdemeanor offense
  133  or been adjudicated delinquent for committing a misdemeanor
  134  offense specified in s. 943.051(3)(b) in the previous 10 years.
  135         3.2. Has not been adjudicated guilty of, or adjudicated
  136  delinquent for committing, any of the acts stemming from the
  137  arrest or alleged criminal activity to which the petition
  138  pertains.
  139         4.3. Has never secured a prior sealing or expunction of a
  140  criminal history record under this section, s. 943.059, former
  141  s. 893.14, former s. 901.33, or former s. 943.058, unless
  142  expunction is sought of a criminal history record previously
  143  sealed for 10 years pursuant to paragraph (2)(h) and the record
  144  is otherwise eligible for expunction.
  145         5.4. Is eligible for such an expunction to the best of his
  146  or her knowledge or belief and does not have any other petition
  147  to expunge or any petition to seal pending before any court.
  148  
  149  Any person who knowingly provides false information on such
  150  sworn statement to the court commits a felony of the third
  151  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  152  775.084.
  153         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  154  petitioning the court to expunge a criminal history record, a
  155  person seeking to expunge a criminal history record shall apply
  156  to the department for a certificate of eligibility for
  157  expunction. The department shall, by rule adopted pursuant to
  158  chapter 120, establish procedures pertaining to the application
  159  for and issuance of certificates of eligibility for expunction.
  160  A certificate of eligibility for expunction is valid for 12
  161  months after the date stamped on the certificate when issued by
  162  the department. After that time, the petitioner must reapply to
  163  the department for a new certificate of eligibility. Eligibility
  164  for a renewed certification of eligibility must be based on the
  165  status of the applicant and the law in effect at the time of the
  166  renewal application. The department shall issue a certificate of
  167  eligibility for expunction to a person who is the subject of a
  168  criminal history record if that person:
  169         (a) Has obtained, and submitted to the department, a
  170  written, certified statement from the appropriate state attorney
  171  or statewide prosecutor which indicates:
  172         1. That an indictment, information, or other charging
  173  document was not filed or issued in the case.
  174         2. That an indictment, information, or other charging
  175  document, if filed or issued in the case, was dismissed or nolle
  176  prosequi by the state attorney or statewide prosecutor, or was
  177  dismissed by a court of competent jurisdiction, that a judgment
  178  of acquittal was rendered by a judge, or that a verdict of not
  179  guilty was rendered by a judge or jury and that none of the
  180  charges related to the arrest or alleged criminal activity to
  181  which the petition to expunge pertains resulted in a trial,
  182  without regard to whether the outcome of the trial was other
  183  than an adjudication of guilt.
  184         3. That the criminal history record does not relate to a
  185  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  186  former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025,
  187  s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145,
  188  s. 893.135, s. 916.1075, a violation enumerated in s. 907.041,
  189  or any violation specified as a predicate offense for
  190  registration as a sexual predator pursuant to s. 775.21, without
  191  regard to whether that offense alone is sufficient to require
  192  such registration, or for registration as a sexual offender
  193  pursuant to s. 943.0435, where the defendant was found guilty
  194  of, or pled guilty or nolo contendere to any such offense, or
  195  that the defendant, as a minor, was found to have committed, or
  196  pled guilty or nolo contendere to committing, such an offense as
  197  a delinquent act, without regard to whether adjudication was
  198  withheld.
  199         (d)1. Has never, before prior to the date on which the
  200  application for a certificate of eligibility is filed, been
  201  adjudicated guilty of a felony criminal offense or comparable
  202  ordinance violation, or been adjudicated delinquent for
  203  committing any felony or a misdemeanor specified in s.
  204  943.051(3)(b).
  205         2. Has not been adjudicated guilty of a misdemeanor offense
  206  or been adjudicated delinquent for committing a misdemeanor
  207  offense specified in s. 943.051(3)(b) in the previous 10 years.
  208         Section 3. This act shall take effect July 1, 2017.