Senate Bill 1936

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    Florida Senate - 1999                                  SB 1936

    By Senator Brown-Waite





    10-1053-99

  1                      A bill to be entitled

  2         An act relating to the Department of Law

  3         Enforcement; creating s. 943.0543, F.S.;

  4         requiring that the department provide qualified

  5         entities that provide care, treatment, or other

  6         services for children, the elderly, or

  7         individuals with disabilities access to

  8         criminal history information; requiring

  9         compliance with certain federal laws; providing

10         for fees; providing for the disclosure of

11         criminal history records that are not exempt

12         from disclosure under the public records law;

13         requiring the department to establish a

14         database of entities qualified to obtain

15         criminal history information; providing certain

16         exemptions from liability; creating s.

17         943.0543, F.S.; ratifying the National Crime

18         Prevention and Privacy Compact; requiring that

19         the executive director of the department

20         administer the compact; creating s. 943.0544,

21         F.S.; authorizing the department to develop and

22         operate the Criminal Justice Network; providing

23         for the department to regulate access to the

24         network; authorizing the department to accept

25         services in lieu of fees or other charges;

26         authorizing the department to enter into

27         agreements with private entities for the

28         purpose of managing and disseminating criminal

29         justice information; providing rulemaking

30         authority; amending ss. 943.0585, 943.059,

31         F.S., relating to the court-ordered expunction

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  1         and sealing of criminal history records;

  2         providing that references to s. 907.041, F.S.,

  3         are general references under the doctrine of

  4         incorporation by reference; clarifying certain

  5         requirements for a petition to expunge or seal

  6         a criminal history record; repealing s.

  7         943.051(5), F.S., relating to the department's

  8         authority to contract with other agencies and

  9         private entities for the management and

10         dissemination of criminal justice information;

11         authorizing additional positions within the

12         department; providing an effective date.

13

14         WHEREAS, the United States Congress, in passing the

15  National Child Protection Act of 1993, as amended, has

16  established a national policy to promote a broader exchange of

17  criminal history information for purposes of assisting

18  entities in screening volunteers and employees who provide

19  care, treatment, education, supervision, or recreation for

20  children, the elderly, or individuals with disabilities, and

21         WHEREAS, through the National Child Protection Act,

22  Congress has defined a process by which the state may have

23  access to national criminal history information for stated

24  purposes, and

25         WHEREAS, the Legislature finds that the safety of our

26  children, the elderly, and the disabled is a priority and this

27  act is intended to conform with the processes and requirements

28  established by Congress as a requisite for allowing national

29  criminal history information to be provided to qualified

30  entities, and

31

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  1         WHEREAS, the Legislature intends to provide, consistent

  2  with federal law, a mechanism whereby employees or volunteers

  3  who work with qualified entities may be screened using state

  4  and national criminal history information, NOW, THEREFORE,

  5

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

  7

  8         Section 1.  Section 943.0542, Florida Statutes, is

  9  created to read:

10         943.0542  Access to criminal history information

11  provided by the department to qualified entities.--

12         (1)  As used in this section, the term:

13         (a)  "Care" means the provision of care, treatment,

14  education, training, instruction, supervision, or recreation

15  to children, the elderly, or individuals with disabilities.

16         (b)  "Qualified entity" means a business or

17  organization, whether public, private, operated for profit,

18  operated not for profit, or voluntary, which provides care or

19  care-placement services, including a business or organization

20  that licenses or certifies others to provide care or

21  care-placement services.

22         (2)(a)  A qualified entity must register with the

23  department before submitting a request for screening under

24  this section. Each such request must be voluntary and conform

25  to the requirements established in the National Child

26  Protection Act of 1993, as amended. As a part of the

27  registration, the qualified entity must agree to comply with

28  state and federal law and must so indicate by signing an

29  agreement approved by the department. The department may

30  periodically audit qualified entities to ensure compliance

31  with federal law and this section.

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  1         (b)  A qualified entity shall submit to the department

  2  a request for screening an employee or volunteer who has or

  3  will have responsibility for the safety and well-being of

  4  children, the elderly, or individuals with disabilities on a

  5  completed fingerprint card, with a signed waiver allowing the

  6  release of state and national criminal history record

  7  information to any qualified entity.

  8         (c)  Each such request must be accompanied by a fee,

  9  which shall approximate the actual cost of producing the

10  record information, as provided in s. 943.053, plus the amount

11  required by the Federal Bureau of Investigation for the

12  national criminal history check in compliance with the

13  National Child Protection Act of 1993, as amended.

14         (d)  Any employee or volunteer who is subject to a

15  request for screening must indicate to the qualified entity

16  submitting the request the name and address of each qualified

17  entity that has submitted a previous request for screening

18  regarding that employee or volunteer. The qualified entity

19  submitting the current request must include this information

20  in the request forwarded to the department.

21         (3)  The department shall provide directly to the

22  qualified entity the state criminal history records that are

23  not exempt from disclosure under chapter 119 or otherwise

24  confidential under law. A person who is the subject of a state

25  criminal history record may challenge the record only as

26  provided in s. 943.056.

27         (4)  The national criminal history data is available to

28  qualified entities to use only for the purpose of screening

29  employees and volunteers who work with children, the elderly,

30  or disabled individuals. The department shall provide this

31  national criminal history record information directly to the

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  1  qualified entity as authorized by the written waiver required

  2  for submission of a request to the department.

  3         (5)  The determination whether the criminal history

  4  record shows that the employee or volunteer has been convicted

  5  of or is under pending indictment for any crime that bears

  6  upon the fitness of the employee or volunteer to have

  7  responsibility for the safety and well-being of children, the

  8  elderly, or disabled persons shall solely be made by the

  9  qualified entity. This section does not require the department

10  to make such a determination on behalf of any qualified

11  entity.

12         (6)  The qualified entity must notify the person of his

13  or her right to obtain a copy of any background screening

14  report, including the criminal history records, if any,

15  contained in the report, and of the person's right to

16  challenge the accuracy and completeness of any information

17  contained in any such report and to obtain a determination as

18  to the validity of such challenge before a final determination

19  regarding the person is made by the qualified entity reviewing

20  the criminal history information. A qualified entity that is

21  required by law to apply screening criteria, notwithstanding

22  any right to contest or request an exemption from

23  disqualification, shall apply such screening criteria to the

24  state and national criminal history record information

25  received from the department.

26         (7)  The department may establish a database of

27  registered qualified entities and make this data available

28  free of charge to all registered qualified entities. The

29  database must include, at a minimum, the name, address, and

30  phone number of each qualified entity.

31

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  1         (8)  A qualified entity is not liable for damages

  2  solely for failing to obtain the information authorized under

  3  this section with respect to an employee or volunteer. The

  4  state, any political subdivision of the state, or any agency,

  5  officer, or employee of the state or a political subdivision

  6  is not liable for damages for providing the information

  7  requested under this section.

  8         Section 2.  Section 943.0543, Florida Statutes, is

  9  created to read:

10         943.0543  National Crime Prevention and Privacy

11  Compact; ratification and implementation.--

12         (1)  In order to facilitate the authorized interstate

13  exchange of criminal history information for noncriminal

14  justice purposes, including, but not limited to, background

15  checks for the licensing and screening of employees and

16  volunteers under the National Child Protection Act of 1993, as

17  amended, and to implement the National Crime Prevention and

18  Privacy Compact, 42 U.S.C. s. 14616, the Legislature approves

19  and ratifies the compact. The executive director of the

20  Department of Law Enforcement shall execute the compact on

21  behalf of the state.

22         (2)  The department is the repository of criminal

23  history records for purposes of the compact and shall do all

24  things necessary or incidental to carrying out the compact.

25         (3)  The executive director of the department, or the

26  director's designee, is the state's compact officer and shall

27  administer the compact within the state. The department may

28  adopt rules and establish procedures for the cooperative

29  exchange of criminal history records between the state and

30  Federal Government for use in noncriminal justice cases.

31

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  1         (4)  The state's ratification of the compact remains in

  2  effect until legislation is enacted which specifically

  3  renounces the compact.

  4         (5)  This compact and this section do not affect or

  5  abridge the obligations and responsibilities of the department

  6  under other provisions of this chapter, including s. 943.053,

  7  and does not alter or amend the manner, direct or otherwise,

  8  in which the public is afforded access to criminal history

  9  records under state law.

10         Section 3.  Section 943.0544, Florida Statutes, is

11  created to read:

12         943.0544  Criminal justice information network and

13  information management.--

14         (1)  The department may develop, implement, maintain,

15  and manage innovative, progressive, and effective methods of

16  serving the information-management needs of criminal justice

17  agencies, and may take necessary steps to promote the

18  efficient and cost-effective use of such information.

19         (2)  The department may develop, implement, maintain,

20  manage, and operate the Criminal Justice Network, which shall

21  be an intraagency information and data-sharing network for use

22  by the state's criminal justice agencies. The department, in

23  consultation with the Criminal and Juvenile Justice

24  Information Systems Council, shall determine and regulate

25  access to the Criminal Justice Network by the state's criminal

26  justice agencies.

27         (3)  In addition, the department may authorize entities

28  that offer or provide a product, program, or service

29  determined by the department to be of substantial value to the

30  criminal justice information needs of the state's criminal

31  justice agencies a special limited presence on the network

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  1  under terms, conditions, and limitations established by the

  2  department after consultation with the Criminal and Juvenile

  3  Justice Information Systems Council.

  4         (4)  In carrying out its duties under this section, the

  5  department may enter into contracts; conduct pilot studies and

  6  projects; assess and collect fees, commissions, royalties, or

  7  other charges from entities approved for special presence on

  8  the Criminal Justice Network in consideration for such

  9  presence. The department may enter into agreements by which

10  products, programs, or services of value to the department or

11  the information needs of criminal justice agencies are

12  provided in lieu of all or a part of a fee, commission,

13  royalty, or charge that might otherwise be assessed by the

14  department upon an entity granted special limited presence as

15  provided in this subsection.

16         (5)  The department may enter into an agreement with

17  any entity to facilitate the department's responsibilities for

18  receiving, maintaining, managing, processing, allowing access

19  to, and disseminating criminal justice information,

20  intelligence, data, or criminal history records and

21  information, or to otherwise accomplish the duties and

22  responsibilities related to information and records as defined

23  in this chapter. The department may enter into agreements by

24  which products, programs, or services of value to the

25  department or the information needs of criminal justice

26  agencies are provided in lieu of all or part of a fee,

27  commission, royalty, or charge that might be otherwise

28  assessed by the department upon an entity entering into an

29  agreement with the department. Any entity under contract with

30  the department to perform all or part of the department's

31  information functions or duties shall, as specified in the

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  1  contract, be performing such functions or duties as a criminal

  2  justice agency for purposes of handling, collecting, managing,

  3  or disseminating criminal justice information, intelligence,

  4  data, histories, and other records. Disclosure of such

  5  information to an entity under such a contract does not waive

  6  any confidentiality or exemption from disclosure under s.

  7  119.07 or any other applicable law.

  8         (6)  The department may adopt rules to administer this

  9  section. Except as otherwise specified in this section, this

10  section does not alter or limit the powers and duties of the

11  department established under this chapter.

12         Section 4.  Section 943.0585, Florida Statutes, 1998

13  Supplement, is amended to read:

14         943.0585  Court-ordered expunction of criminal history

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

16  their own procedures, including the maintenance, expunction,

17  and correction of judicial records containing criminal history

18  information to the extent such procedures are not inconsistent

19  with the conditions, responsibilities, and duties established

20  by this section.  Any court of competent jurisdiction may

21  order a criminal justice agency to expunge the criminal

22  history record of a minor or an adult who complies with the

23  requirements of this section.  The court shall not order a

24  criminal justice agency to expunge a criminal history record

25  until the person seeking to expunge a criminal history record

26  has applied for and received a certificate of eligibility for

27  expunction pursuant to subsection (2).  A criminal history

28  record that relates to a violation of chapter 794, s. 800.04,

29  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a

30  violation enumerated in s. 907.041 may not be expunged,

31  without regard to whether adjudication was withheld, if the

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  1  defendant was found guilty of or pled guilty or nolo

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

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

  4  to committing, the offense as a delinquent act. For the

  5  purpose of clarifying to the court the offenses that are

  6  included within the references to s. 907.041 contained in this

  7  section, s. 907.041 constitutes a general reference under the

  8  doctrine of incorporation by reference. The court may only

  9  order expunction of a criminal history record pertaining to

10  one arrest or one incident of alleged criminal activity,

11  except as provided in this section. The court may, at its sole

12  discretion, order the expunction of a criminal history record

13  pertaining to more than one arrest if the additional arrests

14  directly relate to the original arrest. If the court intends

15  to order the expunction of records pertaining to such

16  additional arrests, such intent must be specified in the

17  order. A criminal justice agency may not expunge any record

18  pertaining to such additional arrests if the order to expunge

19  does not articulate the intention of the court to expunge a

20  record pertaining to more than one arrest. This section does

21  not prevent the court from ordering the expunction of only a

22  portion of a criminal history record pertaining to one arrest

23  or one incident of alleged criminal activity.  Notwithstanding

24  any law to the contrary, a criminal justice agency may comply

25  with laws, court orders, and official requests of other

26  jurisdictions relating to expunction, correction, or

27  confidential handling of criminal history records or

28  information derived therefrom.  This section does not confer

29  any right to the expunction of any criminal history record,

30  and any request for expunction of a criminal history record

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

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  1         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

  2  RECORD.--Each petition to a court to expunge a criminal

  3  history record is complete only when accompanied by:

  4         (a)  A certificate of eligibility for expunction issued

  5  by the department pursuant to subsection (2).

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

  7  the petitioner:

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

  9  is filed, previously been adjudicated guilty of a criminal

10  offense or comparable ordinance violation or adjudicated

11  delinquent for committing a felony or a misdemeanor specified

12  in s. 943.051(3)(b).

13         2.  Has not been adjudicated guilty of, or adjudicated

14  delinquent for committing, any of the acts stemming from the

15  arrest or alleged criminal activity to which the petition

16  pertains.

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

18  a criminal history record under this section, former s.

19  893.14, former s. 901.33, or former s. 943.058, or from any

20  jurisdiction outside the state.

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

22  his or her knowledge or belief and does not have any other

23  petition to expunge or any petition to seal pending before any

24  court.

25

26  Any person who knowingly provides false information on such

27  sworn statement to the court commits a felony of the third

28  degree, punishable as provided in s. 775.082, s. 775.083, or

29  s. 775.084.

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

31  to petitioning the court to expunge a criminal history record,

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  1  a person seeking to expunge a criminal history record shall

  2  apply to the department for a certificate of eligibility for

  3  expunction. The department shall, by rule adopted pursuant to

  4  chapter 120, establish procedures pertaining to the

  5  application for and issuance of certificates of eligibility

  6  for expunction. The department shall issue a certificate of

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

  8  criminal history record if that person:

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

10  written, certified statement from the appropriate state

11  attorney or statewide prosecutor which indicates:

12         1.  That an indictment, information, or other charging

13  document was not filed or issued in the case.

14         2.  That an indictment, information, or other charging

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

16  nolle prosequi by the state attorney or statewide prosecutor,

17  or was dismissed by a court of competent jurisdiction.

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

19  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,

20  chapter 839, s. 893.135, or a violation enumerated in s.

21  907.041, where the defendant was found guilty of, or pled

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

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

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

25  delinquent act, without regard to whether adjudication was

26  withheld.

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

28  placement in the Department of Law Enforcement Operating Trust

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

30

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

  2  of the disposition of the charge to which the petition to

  3  expunge pertains.

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

  5  application for a certificate of eligibility is filed,

  6  previously been adjudicated guilty of a criminal offense or

  7  comparable ordinance violation or adjudicated delinquent for

  8  committing a felony or a misdemeanor specified in s.

  9  943.051(3)(b).

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

11  delinquent for committing, any of the acts stemming from the

12  arrest or alleged criminal activity to which the petition to

13  expunge pertains.

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

15  a criminal history record under this section, former s.

16  893.14, former s. 901.33, or former s. 943.058.

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

18  the disposition of the arrest or alleged criminal activity to

19  which the petition to expunge pertains.

20         (h)  Is not required to wait a minimum of 10 years

21  prior to being eligible for an expunction of such records

22  because all charges related to the arrest or criminal activity

23  to which the petition to expunge pertains were dismissed prior

24  to trial, adjudication, or the withholding of adjudication.

25  Otherwise, such criminal history record must be sealed under

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

27  943.058 for at least 10 years before such record is eligible

28  for expunction.

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

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

31  of the completed petition to expunge shall be served upon the

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  1  appropriate state attorney or the statewide prosecutor and

  2  upon the arresting agency; however, it is not necessary to

  3  make any agency other than the state a party. The appropriate

  4  state attorney or the statewide prosecutor and the arresting

  5  agency may respond to the court regarding the completed

  6  petition to expunge.

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

  8  the court shall certify copies of the order to the appropriate

  9  state attorney or the statewide prosecutor and the arresting

10  agency. The arresting agency is responsible for forwarding the

11  order to any other agency to which the arresting agency

12  disseminated the criminal history record information to which

13  the order pertains. The department shall forward the order to

14  expunge to the Federal Bureau of Investigation. The clerk of

15  the court shall certify a copy of the order to any other

16  agency which the records of the court reflect has received the

17  criminal history record from the court.

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

19  to July 1, 1992, the department shall notify the appropriate

20  state attorney or statewide prosecutor of an order to expunge

21  which is contrary to law because the person who is the subject

22  of the record has previously been convicted of a crime or

23  comparable ordinance violation or has had a prior criminal

24  history record sealed or expunged. Upon receipt of such

25  notice, the appropriate state attorney or statewide prosecutor

26  shall take action, within 60 days, to correct the record and

27  petition the court to void the order to expunge. The

28  department shall seal the record until such time as the order

29  is voided by the court.

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

31  other criminal justice agency is not required to act on an

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  1  order to expunge entered by a court when such order does not

  2  comply with the requirements of this section. Upon receipt of

  3  such an order, the department must notify the issuing court,

  4  the appropriate state attorney or statewide prosecutor, the

  5  petitioner or the petitioner's attorney, and the arresting

  6  agency of the reason for noncompliance. The appropriate state

  7  attorney or statewide prosecutor shall take action within 60

  8  days to correct the record and petition the court to void the

  9  order.  No cause of action, including contempt of court, shall

10  arise against any criminal justice agency for failure to

11  comply with an order to expunge when the petitioner for such

12  order failed to obtain the certificate of eligibility as

13  required by this section or such order does not otherwise

14  comply with the requirements of this section.

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

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

17  ordered expunged by a court of competent jurisdiction pursuant

18  to this section must be physically destroyed or obliterated by

19  any criminal justice agency having custody of such record;

20  except that any criminal history record in the custody of the

21  department must be retained in all cases. A criminal history

22  record ordered expunged that is retained by the department is

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

24  and s. 24(a), Art. I of the State Constitution and not

25  available to any person or entity except upon order of a court

26  of competent jurisdiction. A criminal justice agency may

27  retain a notation indicating compliance with an order to

28  expunge.

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

30  history record that is expunged under this section or under

31  other provisions of law, including former s. 893.14, former s.

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  1  901.33, and former s. 943.058, may lawfully deny or fail to

  2  acknowledge the arrests covered by the expunged record, except

  3  when the subject of the record:

  4         1.  Is a candidate for employment with a criminal

  5  justice agency;

  6         2.  Is a defendant in a criminal prosecution;

  7         3.  Concurrently or subsequently petitions for relief

  8  under this section or s. 943.059;

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

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

11  contract with the Department of Children and Family Services

12  or the Department of Juvenile Justice or to be employed or

13  used by such contractor or licensee in a sensitive position

14  having direct contact with children, the developmentally

15  disabled, the aged, or the elderly as provided in s.

16  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

17  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

18  415.1075(4), s. 985.407, or chapter 400; or

19         6.  Is seeking to be employed or licensed by the Office

20  of Teacher Education, Certification, Staff Development, and

21  Professional Practices of the Department of Education, any

22  district school board, or any local governmental entity that

23  licenses child care facilities.

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

25  person who has been granted an expunction under this section,

26  former s. 893.14, former s. 901.33, or former s. 943.058 may

27  not be held under any provision of law of this state to commit

28  perjury or to be otherwise liable for giving a false statement

29  by reason of such person's failure to recite or acknowledge an

30  expunged criminal history record.

31

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  1         (c)  Information relating to the existence of an

  2  expunged criminal history record which is provided in

  3  accordance with paragraph (a) is confidential and exempt from

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

  5  State Constitution, except that the department shall disclose

  6  the existence of a criminal history record ordered expunged to

  7  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

  8  for their respective licensing and employment purposes, and to

  9  criminal justice agencies for their respective criminal

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

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

12  subparagraph (a)5., or subparagraph (a)6. to disclose

13  information relating to the existence of an expunged criminal

14  history record of a person seeking employment or licensure

15  with such entity or contractor, except to the person to whom

16  the criminal history record relates or to persons having

17  direct responsibility for employment or licensure decisions.

18  Any person who violates this paragraph commits a misdemeanor

19  of the first degree, punishable as provided in s. 775.082 or

20  s. 775.083.

21         Section 5.  Section 943.059, Florida Statutes, 1998

22  Supplement, is amended to read:

23         943.059  Court-ordered sealing of criminal history

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

25  jurisdiction over their own procedures, including the

26  maintenance, sealing, and correction of judicial records

27  containing criminal history information to the extent such

28  procedures are not inconsistent with the conditions,

29  responsibilities, and duties established by this section.  Any

30  court of competent jurisdiction may order a criminal justice

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

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  1  adult who complies with the requirements of this section.  The

  2  court shall not order a criminal justice agency to seal a

  3  criminal history record until the person seeking to seal a

  4  criminal history record has applied for and received a

  5  certificate of eligibility for sealing pursuant to subsection

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

  7  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,

  8  s. 893.135, or a violation enumerated in s. 907.041 may not be

  9  sealed, without regard to whether adjudication was withheld,

10  if the defendant was found guilty of or pled guilty or nolo

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

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

13  to committing the offense as a delinquent act. For the purpose

14  of clarifying to the court the offenses that are included

15  within the references to s. 907.041 contained in this section,

16  s. 907.041 constitutes a general reference under the doctrine

17  of incorporation by reference. The court may only order

18  sealing of a criminal history record pertaining to one arrest

19  or one incident of alleged criminal activity, except as

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

21  discretion, order the sealing of a criminal history record

22  pertaining to more than one arrest if the additional arrests

23  directly relate to the original arrest.  If the court intends

24  to order the sealing of records pertaining to such additional

25  arrests, such intent must be specified in the order.  A

26  criminal justice agency may not seal any record pertaining to

27  such additional arrests if the order to seal does not

28  articulate the intention of the court to seal records

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

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

31  of a criminal history record pertaining to one arrest or one

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  1  incident of alleged criminal activity. Notwithstanding any law

  2  to the contrary, a criminal justice agency may comply with

  3  laws, court orders, and official requests of other

  4  jurisdictions relating to sealing, correction, or confidential

  5  handling of criminal history records or information derived

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

  7  sealing of any criminal history record, and any request for

  8  sealing a criminal history record may be denied at the sole

  9  discretion of the court.

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

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

12  complete only when accompanied by:

13         (a)  A certificate of eligibility for sealing issued by

14  the department pursuant to subsection (2).

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

16  the petitioner:

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

18  is filed, previously been adjudicated guilty of a criminal

19  offense or comparable ordinance violation or adjudicated

20  delinquent for committing a felony or a misdemeanor specified

21  in s. 943.051(3)(b).

22         2.  Has not been adjudicated guilty of or adjudicated

23  delinquent for committing any of the acts stemming from the

24  arrest or alleged criminal activity to which the petition to

25  seal pertains.

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

27  a criminal history record under this section, former s.

28  893.14, former s. 901.33, former s. 943.058, or from any

29  jurisdiction outside the state.

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

31  or her knowledge or belief and does not have any other

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  1  petition to seal or any petition to expunge pending before any

  2  court.

  3

  4  Any person who knowingly provides false information on such

  5  sworn statement to the court commits a felony of the third

  6  degree, punishable as provided in s. 775.082, s. 775.083, or

  7  s. 775.084.

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

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

10  person seeking to seal a criminal history record shall apply

11  to the department for a certificate of eligibility for

12  sealing.  The department shall, by rule adopted pursuant to

13  chapter 120, establish procedures pertaining to the

14  application for and issuance of certificates of eligibility

15  for sealing.  The department shall issue a certificate of

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

17  criminal history record provided that such person:

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

19  of the disposition of the charge to which the petition to seal

20  pertains.

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

22  placement in the Department of Law Enforcement Operating Trust

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

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

25  application for a certificate of eligibility is filed,

26  previously been adjudicated guilty of a criminal offense or

27  comparable ordinance violation or adjudicated delinquent for

28  committing a felony or a misdemeanor specified in s.

29  943.051(3)(b).

30         (d)  Has not been adjudicated guilty of or adjudicated

31  delinquent for committing any of the acts stemming from the

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  1  arrest or alleged criminal activity to which the petition to

  2  seal pertains.

  3         (e)  Has never secured a prior sealing or expunction of

  4  a criminal history record under this section, former s.

  5  893.14, former s. 901.33, or former s. 943.058.

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

  7  the disposition of the arrest or alleged criminal activity to

  8  which the petition to seal pertains.

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

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

11  of the completed petition to seal shall be served upon the

12  appropriate state attorney or the statewide prosecutor and

13  upon the arresting agency; however, it is not necessary to

14  make any agency other than the state a party.  The appropriate

15  state attorney or the statewide prosecutor and the arresting

16  agency may respond to the court regarding the completed

17  petition to seal.

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

19  the court shall certify copies of the order to the appropriate

20  state attorney or the statewide prosecutor and to the

21  arresting agency. The arresting agency is responsible for

22  forwarding the order to any other agency to which the

23  arresting agency disseminated the criminal history record

24  information to which the order pertains. The department shall

25  forward the order to seal to the Federal Bureau of

26  Investigation. The clerk of the court shall certify a copy of

27  the order to any other agency which the records of the court

28  reflect has received the criminal history record from the

29  court.

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

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

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  1  state attorney or statewide prosecutor of any order to seal

  2  which is contrary to law because the person who is the subject

  3  of the record has previously been convicted of a crime or

  4  comparable ordinance violation or has had a prior criminal

  5  history record sealed or expunged.  Upon receipt of such

  6  notice, the appropriate state attorney or statewide prosecutor

  7  shall take action, within 60 days, to correct the record and

  8  petition the court to void the order to seal.  The department

  9  shall seal the record until such time as the order is voided

10  by the court.

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

12  other criminal justice agency is not required to act on an

13  order to seal entered by a court when such order does not

14  comply with the requirements of this section.  Upon receipt of

15  such an order, the department must notify the issuing court,

16  the appropriate state attorney or statewide prosecutor, the

17  petitioner or the petitioner's attorney, and the arresting

18  agency of the reason for noncompliance. The appropriate state

19  attorney or statewide prosecutor shall take action within 60

20  days to correct the record and petition the court to void the

21  order.  No cause of action, including contempt of court, shall

22  arise against any criminal justice agency for failure to

23  comply with an order to seal when the petitioner for such

24  order failed to obtain the certificate of eligibility as

25  required by this section or when such order does not comply

26  with the requirements of this section.

27         (e)  An order sealing a criminal history record

28  pursuant to this section does not require that such record be

29  surrendered to the court, and such record shall continue to be

30  maintained by the department and other criminal justice

31  agencies.

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

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

  3  ordered sealed by a court of competent jurisdiction pursuant

  4  to this section is confidential and exempt from the provisions

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

  6  and is available only to the person who is the subject of the

  7  record, to the subject's attorney, to criminal justice

  8  agencies for their respective criminal justice purposes, or to

  9  those entities set forth in subparagraphs (a)1., 4., 5., and

10  6. for their respective licensing and employment purposes.

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

12  under this section or under other provisions of law, including

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

14  lawfully deny or fail to acknowledge the arrests covered by

15  the sealed record, except when the subject of the record:

16         1.  Is a candidate for employment with a criminal

17  justice agency;

18         2.  Is a defendant in a criminal prosecution;

19         3.  Concurrently or subsequently petitions for relief

20  under this section or s. 943.0585;

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

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

23  contract with the Department of Children and Family Services

24  or the Department of Juvenile Justice or to be employed or

25  used by such contractor or licensee in a sensitive position

26  having direct contact with children, the developmentally

27  disabled, the aged, or the elderly as provided in s.

28  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

29  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

30  415.103, s. 985.407, or chapter 400; or

31

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  1         6.  Is seeking to be employed or licensed by the Office

  2  of Teacher Education, Certification, Staff Development, and

  3  Professional Practices of the Department of Education, any

  4  district school board, or any local governmental entity which

  5  licenses child care facilities.

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

  7  person who has been granted a sealing under this section,

  8  former s. 893.14, former s. 901.33, or former s. 943.058 may

  9  not be held under any provision of law of this state to commit

10  perjury or to be otherwise liable for giving a false statement

11  by reason of such person's failure to recite or acknowledge a

12  sealed criminal history record.

13         (c)  Information relating to the existence of a sealed

14  criminal record provided in accordance with the provisions of

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

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

17  Constitution, except that the department shall disclose the

18  sealed criminal history record to the entities set forth in

19  subparagraphs (a)1., 4., 5., and 6. for their respective

20  licensing and employment purposes. It is unlawful for any

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

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

23  to disclose information relating to the existence of a sealed

24  criminal history record of a person seeking employment or

25  licensure with such entity or contractor, except to the person

26  to whom the criminal history record relates or to persons

27  having direct responsibility for employment or licensure

28  decisions.  Any person who violates the provisions of this

29  paragraph commits a misdemeanor of the first degree,

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

31

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  1         Section 6.  Subsection (5) of section 943.051, Florida

  2  Statutes, as amended by section 6 of chapter 98-94, Laws of

  3  Florida, is repealed.

  4         Section 7.  Fourteen additional positions are

  5  authorized for the Department of Law Enforcement to carry out

  6  the requirements of this act. In order to meet the added

  7  demand for the release of criminal history information created

  8  by this act, the department may establish other additional

  9  positions at the rate of one position for every 5,000 requests

10  received by the department.

11         Section 8.  This act shall take effect July 1, 1999.

12

13            *****************************************

14                          SENATE SUMMARY

15    Requires that the Department of Law Enforcement allow
      entities that provide care, treatment, or other services
16    for children, the elderly, or individuals with
      disabilities access to criminal history information.
17    Ratifies the National Crime Prevention and Privacy
      Compact. Requires the executive director of the
18    department to administer the compact. Authorizing the
      department to develop and operate the Criminal Justice
19    Network. Authorizes the department to enter into
      agreements with private entities for the purpose of
20    managing and disseminating criminal justice information.
      (See bill for details.)
21

22

23

24

25

26

27

28

29

30

31

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