Senate Bill sb2006c1
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By the Committee on Education; and Senator Clary
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1 A bill to be entitled
2 An act relating to educator certification and
3 discipline; amending s. 1012.56, F.S.;
4 prescribing an affidavit for educator
5 certification eligibility requirements;
6 creating s. 1012.561, F.S.; requiring each
7 certified educator and applicant for
8 certification as an educator to notify the
9 Bureau of Educator Certification in writing of
10 his or her current mailing address; providing a
11 penalty for noncompliance; authorizing service
12 by regular mail for certain purposes; amending
13 s. 1012.79, F.S.; amending the number of
14 members required for certain panels of the
15 Education Practices Commission; amending s.
16 1012.795, F.S., relating to the Education
17 Practices Commission's authority to discipline;
18 revising grounds for discipline; providing
19 penalties; amending s. 1012.796, F.S.;
20 requiring certain agencies to provide
21 unredacted documents to the Department of
22 Education for purposes of investigating and
23 prosecuting certified educators and applicants
24 for certification; providing minimum standards
25 that a probationer must meet; revising
26 penalties that the Education Practices
27 Commission may impose; revising criteria for
28 the use of an order to show cause; amending s.
29 1012.798, F.S.; revising provisions relating to
30 the recovery network program for educators;
31 amending s. 943.0585, F.S.; allowing certain
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1 employers of educators to have access to
2 expunged records; amending s. 943.059, F.S.;
3 allowing certain employers of educators to have
4 access to sealed records; providing an
5 effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Paragraph (b) of subsection (2) of section
10 1012.56, Florida Statutes, is amended to read:
11 1012.56 Educator certification requirements.--
12 (2) ELIGIBILITY CRITERIA.--To be eligible to seek
13 certification pursuant to this chapter, a person must:
14 (b) File an affidavit a written statement, under oath,
15 that the applicant subscribes to and will uphold the
16 principles incorporated in the Constitution of the United
17 States and the Constitution of the State of Florida and that
18 the information provided in the application is true, accurate,
19 and complete. The affidavit shall be in substantially the
20 following form:.
21
22 Under penalty of perjury, I, ...(name of
23 applicant)..., do hereby certify that I
24 subscribe to and will uphold the principles
25 incorporated in the Constitution of the United
26 States and the Constitution of the State of
27 Florida and that all information provided in
28 this application is true, accurate, and
29 complete.
30
31 Signature or electronic authentication
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1
2 The affidavit shall include substantially the following
3 warning:
4
5 WARNING: GIVING FALSE INFORMATION IN ORDER TO
6 OBTAIN OR RENEW A FLORIDA EDUCATOR'S
7 CERTIFICATE IS A CRIMINAL OFFENSE UNDER FLORIDA
8 LAW. ANYONE GIVING FALSE INFORMATION ON THIS
9 AFFIDAVIT IS SUBJECT TO CRIMINAL PROSECUTION,
10 AS WELL AS DISCIPLINARY ACTION BY THE EDUCATION
11 PRACTICES COMMISSION.
12 Section 2. Section 1012.561, Florida Statutes, is
13 created to read:
14 1012.561 Address of record.--
15 (1) Each certified educator or applicant for
16 certification as an educator is solely responsible for
17 notifying the Bureau of Educator Certification in writing of
18 his or her current mailing address and for notifying the
19 bureau of a change of address. A certified educator or
20 applicant for certification who is employed by a district
21 school board must notify his or her employing school district
22 of a change of address within 10 days after the change has
23 occurred. The employing district school board must notify the
24 bureau of the change of address, in the manner prescribed by
25 the Department of Education, within 20 days after the school
26 board receives notification from the certified educator or
27 applicant for certification. A certified educator or applicant
28 for certification who is not employed by a district school
29 board must personally notify the bureau in writing of a change
30 of address within 30 days after the change has occurred. The
31 bureau shall allow electronic notification; however, the
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1 certified educator or applicant for certification is
2 responsible for ensuring that the bureau has received the
3 electronic notification. Failure to notify the bureau of a
4 change of address constitutes a violation of this section, and
5 the certified educator or applicant for certification may be
6 disciplined by the Education Practices Commission as provided
7 in s. 1012.795 for such a failure.
8 (2) Notwithstanding any other provision of law to the
9 contrary, effective January 1, 2004, service by regular mail
10 to a certified educator's or applicant's last known address of
11 record with the bureau constitutes adequate and sufficient
12 notice to the certified educator or applicant of any official
13 communication to the educator or applicant by the Department
14 of Education, the Education Practices Commission, or the
15 Recovery Network for Educators.
16 Section 3. Paragraph (a) of subsection (8) of section
17 1012.79, Florida Statutes, is amended to read:
18 1012.79 Education Practices Commission;
19 organization.--
20 (8)(a) The commission shall, from time to time,
21 designate members of the commission to serve on panels for the
22 purpose of reviewing and issuing final orders upon cases
23 presented to the commission. A case concerning a complaint
24 against a teacher shall be reviewed and a final order thereon
25 shall be entered by a panel composed of five seven commission
26 members, three four of whom shall be teachers. A case
27 concerning a complaint against an administrator shall be
28 reviewed and a final order thereon shall be entered by a panel
29 composed of five seven commission members, three four of whom
30 shall be administrators.
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1 Section 4. Section 1012.795, Florida Statutes, is
2 amended to read:
3 1012.795 Education Practices Commission; authority to
4 discipline.--
5 (1) The Education Practices Commission may suspend the
6 educator certificate of any person as defined in s. 1012.01(2)
7 or (3) for a period of time not to exceed 5 3 years, thereby
8 denying that person the privilege right to teach or otherwise
9 be employed in a public school in any capacity that requires
10 direct contact with students for that period of time, after
11 which the holder may return to teaching as provided in
12 subsection (4); may revoke the educator certificate of any
13 person, thereby denying that person the privilege right to
14 teach or otherwise be employed in a public school in any
15 capacity that requires direct contact with students for a
16 period of time not to exceed 10 years, with reinstatement
17 subject to the provisions of subsection (4); may revoke
18 permanently the educator certificate of any person, thereby
19 denying that person the privilege to teach or otherwise be
20 employed in a public school in any capacity that requires
21 direct contact with students; may suspend the educator
22 certificate, upon order of the court, of any person found to
23 have a delinquent child support obligation; or may impose any
24 other penalty provided by law, if provided it can be shown
25 that the person:
26 (a) Obtained or attempted to obtain an the educator
27 certificate by fraudulent means.
28 (b) Has proved to be incompetent to teach or to
29 perform duties as an employee of the public school system or
30 to teach in or to operate a private school.
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1 (c) Has been guilty of gross immorality or an act
2 involving moral turpitude.
3 (d) Has had an educator certificate sanctioned by
4 revoked in another state.
5 (e) Has been convicted of a crime in any jurisdiction
6 misdemeanor, felony, or any other criminal charge, other than
7 a minor traffic violation. As used in this paragraph, the term
8 "conviction" means a finding of guilt, a plea of guilty, a
9 plea of nolo contendere, or entering a pretrial intervention
10 program, whether or not there is a formal adjudication of
11 guilt.
12 (f) Upon investigation, has been found guilty of
13 personal conduct which seriously reduces that person's
14 effectiveness as an employee of the district school board.
15 (g) Has breached a contract, as provided in s.
16 1012.33(2).
17 (h) Has been the subject of a court order directing
18 the Education Practices Commission to suspend the certificate
19 as a result of a delinquent child support obligation.
20 (i) Has violated the Principles of Professional
21 Conduct for the Education Profession prescribed by State Board
22 of Education rules.
23 (j) Has otherwise violated the provisions of law, the
24 penalty for which is the revocation of the educator
25 certificate.
26 (k) Has violated any order of the Education Practices
27 Commission.
28 (l) Has failed to maintain a current address with the
29 Bureau of Educator Certification as required under s.
30 1012.561.
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1 (m) Has been the subject of a court order or plea
2 agreement in any jurisdiction which requires the
3 certificateholder to surrender or otherwise relinquish his or
4 her educator's certificate. Any surrender or relinquishment
5 constitutes a permanent revocation of the certificate. A
6 person may not surrender or otherwise relinquish his or her
7 certificate prior to a finding of probable cause by the
8 commissioner as provided in s. 1012.796.
9 (2) A finding of guilt, a The plea of guilty, or a
10 plea of nolo contendere to any crime in any jurisdiction other
11 than a minor traffic violation, whether or not there is a
12 formal adjudication of guilt; entering a pretrial intervention
13 program concerning any crime in any jurisdiction; in any
14 court, the decision of guilty by any court, the forfeiture by
15 the teaching certificateholder of a bond in any court of law;,
16 or the written acknowledgment, duly witnessed, of offenses
17 listed in subsection (1) to the district school superintendent
18 or a duly appointed representative or to the district school
19 board constitutes shall be prima facie proof of grounds for
20 revocation of the certificate as listed in subsection (1) in
21 the absence of proof by the certificateholder that the plea of
22 guilty, forfeiture of bond, or admission of guilt was caused
23 by threats, coercion, or fraudulent means.
24 (3) The revocation by the Education Practices
25 Commission of an educator certificate of any person
26 automatically revokes any and all Florida educator
27 certificates held by that person.
28 (4)(a) An educator certificate which has been
29 suspended under this section is automatically reinstated at
30 the end of the suspension period, provided the certificate did
31 not expire during the period of suspension. If the
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1 certificate expired during the period of suspension, the
2 holder of the former certificate may secure a new certificate
3 by making application therefor and by meeting the
4 certification requirements of the state board current at the
5 time of the application for the new certificate. An educator
6 certificate suspended pursuant to a court order for a
7 delinquent child support obligation may only be reinstated
8 upon notice from the court that the party has complied with
9 the terms of the court order.
10 (b) A person whose educator certificate has been
11 revoked under this section may apply for a new certificate at
12 the expiration of that period of ineligibility fixed by the
13 Education Practices Commission by making application therefor
14 and by meeting the certification requirements of the state
15 board current at the time of the application for the new
16 certificate.
17 (5) Each district school superintendent and the
18 governing authority of each university lab school,
19 state-supported school, or private school shall report to the
20 department the name of any person certified pursuant to this
21 chapter or employed and qualified pursuant to s. 1012.39:
22 (a) Who has been convicted of a crime in any
23 jurisdiction, other than a minor traffic violation. As used in
24 this paragraph, the term "conviction" means a finding of
25 guilt, a plea of guilty, a plea of nolo contendere, or
26 entering a pretrial intervention program, whether or not there
27 is a formal adjudication of guilt, or who has pled nolo
28 contendere to, a misdemeanor, felony, or any other criminal
29 charge, other than a minor traffic infraction;
30
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1 (b) Who that official has reason to believe has
2 committed or is found to have committed any act which would be
3 a ground for revocation or suspension under subsection (1); or
4 (c) Who has been dismissed or severed from employment
5 because of conduct involving any immoral, unnatural, or
6 lascivious act.
7 (6)(a) When an individual violates any provision of
8 the provisions of a settlement agreement enforced by a final
9 order of the Education Practices Commission, the Department of
10 Education may request that an order to show cause may be
11 issued by the clerk of the commission issue an order to show
12 cause. The order shall require the individual to appear before
13 the commission to show cause why further penalties should not
14 be levied against the individual's certificate pursuant to the
15 authority provided to the Education Practices Commission in
16 subsection (1). The Education Practices Commission may fashion
17 further penalties under the authority of subsection (1) as it
18 deems deemed appropriate upon considering when the show cause
19 order is responded to by the individual.
20 (b) The Education Practices Commission shall issue a
21 final order revoking an individual's Florida educator's
22 certificate for a minimum of 1 year if the individual has been
23 the subject of sanctions by the Education Practices Commission
24 on two previous occasions. under the following circumstances:
25 1. If the individual:
26 a. Has been found to have violated the provisions of
27 this section, such that the Education Practices Commission has
28 the authority to discipline the individual's Florida
29 educator's certificate on two separate occasions;
30
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1 b. Has twice entered into a settlement agreement
2 enforced by a final order of the Education Practices
3 Commission; or
4 c. Has been found to have violated the provisions of
5 this section, such that the Education Practices Commission has
6 the authority to discipline the individual's Florida
7 educator's certificate on one occasion and entered into a
8 settlement agreement enforced by a final order of the
9 Education Practices Commission on one occasion; and
10 2. A third finding of probable cause and a finding
11 that the allegations are proven or admitted to is subsequently
12 found by the Commissioner of Education.
13
14 If, in the third instance, the individual enters into a
15 settlement agreement with the Department of Education, that
16 agreement shall also include a penalty revoking that
17 individual's Florida educator's certificate for a minimum of 1
18 year.
19 Section 5. Paragraph (d) is added to subsection (1) of
20 section 1012.796, Florida Statutes, and subsections (6), (7),
21 and (8) of that section are amended, to read:
22 1012.796 Complaints against teachers and
23 administrators; procedure; penalties.--
24 (1)
25 (d) Notwithstanding any other provision of law to the
26 contrary, all law enforcement agencies, state attorneys,
27 social service agencies, and district school boards, and the
28 Division of Administrative Hearings, shall fully cooperate
29 with, and upon request shall provide unredacted documents to,
30 the Department of Education to further investigations and
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1 prosecutions conducted as authorized by this section. Any such
2 document may not be redisclosed except as authorized by law.
3 (6) Upon the finding of probable cause, the
4 commissioner shall file a formal complaint and prosecute the
5 complaint pursuant to the provisions of chapter 120, except as
6 provided in s. 1012.561. An administrative law judge shall be
7 assigned by the Division of Administrative Hearings of the
8 Department of Management Services to hear the complaint if
9 there are disputed issues of material fact. The administrative
10 law judge shall make recommendations in accordance with the
11 provisions of subsection (7) to the appropriate Education
12 Practices Commission panel which shall conduct a formal review
13 of such recommendations and other pertinent information and
14 issue a final order. The commission shall consult with its
15 legal counsel prior to issuance of a final order.
16 (7) A panel of the commission shall enter a final
17 order either dismissing the complaint or imposing one or more
18 of the following penalties:
19 (a) Denial of an application for a teaching
20 certificate or for an administrative or supervisory
21 endorsement on a teaching certificate. The denial may provide
22 that the applicant may not reapply for certification, and that
23 the department may refuse to consider that applicant's
24 application, for a specified period of time or permanently.
25 (b) Revocation or suspension of a certificate.
26 (c) Imposition of an administrative fine not to exceed
27 $2,000 for each count or separate offense.
28 (d) Placement of the teacher, administrator, or
29 supervisor on probation for a period of time and subject to
30 such conditions as the commission may specify, including
31 requiring the certified teacher, administrator, or supervisor
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1 to complete additional appropriate college courses or work
2 with another certified educator, with the administrative costs
3 of monitoring the probation assessed to the educator placed on
4 probation. At a minimum, an educator who is on probation
5 shall:
6 1. Immediately notify the Bureau of Educator Standards
7 upon his or her employment or termination of employment in the
8 state in any public or private position that requires a
9 Florida educator's certificate.
10 2. Have his or her immediate supervisor submit annual
11 performance reports to the Bureau of Educator Standards.
12 3. Pay to the commission within the first 6 months of
13 each probation year the administrative costs of monitoring
14 probation which have been assessed to him or her.
15 4. Not violate any law and shall fully comply with all
16 district school board policies, school rules, and State Board
17 of Education rules.
18 5. Satisfactorily perform his or her assigned duties
19 in a competent, professional manner.
20 6. Bear all costs of complying with the terms of a
21 final order entered by the commission.
22 (e) Restriction of the authorized scope of practice of
23 the teacher, administrator, or supervisor.
24 (f) Reprimand of the teacher, administrator, or
25 supervisor in writing, with a copy to be placed in the
26 certification file of such person.
27 (g) Imposition of an administrative sanction, upon a
28 person whose teaching certificate has expired, for an act or
29 acts committed while that person possessed a teaching
30 certificate or an expired certificate subject to late renewal,
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1 which sanction bars that person from applying for a new
2 certificate for a period of 10 years or less, or permanently.
3 (h) Refer the teacher, administrator, or supervisor to
4 the recovery network program provided in s. 1012.798 under
5 such terms and conditions as the commission specifies.
6 (8) Violations of the provisions of a final order
7 probation shall result in an order to show cause issued by the
8 clerk of the Education Practices Commission when requested by
9 the Department of Education. Upon failure of the educator
10 probationer, at the time and place stated in the order, to
11 show cause satisfactorily to the Education Practices
12 Commission why a penalty for violating the provisions of a
13 final order probation should not be imposed, the Education
14 Practices Commission shall impose whatever penalty is
15 appropriate as established in s. 1012.795(6). Any probation
16 period will be tolled when an order to show cause has been
17 issued until the issue is resolved by the Education Practices
18 Commission.
19 Section 6. Subsections (1), (3), and (10) and
20 paragraph (c) of subsection (6) of section 1012.798, Florida
21 Statutes, are amended to read:
22 1012.798 Recovery network program for educators.--
23 (1) RECOVERY NETWORK ESTABLISHED.--There is created
24 within the Department of Education, a recovery network program
25 to assist educators who are impaired as a result of alcohol
26 abuse, drug abuse, or a mental condition in obtaining
27 treatment to permit their continued contribution to the
28 education profession. Any person who has applied for or holds
29 certification issued by the department pursuant to s. 1012.56
30 is eligible for the program assistance. The individual may
31 enter the program voluntarily or may be directed to
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1 participate through a deferred prosecution agreement with the
2 Commissioner of Education or a final order of the Education
3 Practices Commission pursuant to s. 1012.796.
4 (3) PURPOSE.--The recovery network program shall
5 assist educators in obtaining treatment and services from
6 approved treatment providers, but each impaired educator must
7 pay for his or her treatment under terms and conditions agreed
8 upon by the impaired educator and the treatment provider. A
9 person who is admitted to the recovery network program must
10 contract with the treatment provider and the program. The
11 treatment contract must prescribe the type of treatment and
12 the responsibilities of the impaired educator and of the
13 provider and must provide that the impaired educator's
14 progress will be monitored by the recovery network program.
15 (6) PARTICIPATION.--The recovery network program shall
16 operate independently of employee assistance programs operated
17 by local school districts, and the powers and duties of school
18 districts to make employment decisions, including disciplinary
19 decisions, is not affected except as provided in this section:
20 (c) A person who has not previously been under
21 investigation by the department may be enrolled in a treatment
22 program by the recovery network program after an investigation
23 pursuant to s. 1012.796 has commenced, if the person:
24 1. Acknowledges his or her impairment.
25 2. Agrees to evaluation, as approved by the recovery
26 network.
27 3. Agrees to enroll in an appropriate treatment
28 program approved by the recovery network.
29 4. Executes releases for all medical and treatment
30 records regarding his or her impairment and participation in a
31 treatment program to the recovery network, pursuant to 42
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1 U.S.C. s. 290dd-3 and the federal regulations adopted
2 thereunder.
3 5. Enters into a deferred prosecution agreement with
4 the commissioner, which provides that no prosecution shall be
5 instituted concerning the matters enumerated in the agreement
6 if the person is properly enrolled in the treatment program
7 and successfully completes the program as certified by the
8 recovery network. The commissioner is under no obligation to
9 enter into a deferred prosecution agreement with the educator
10 but may do so if he or she determines that it is in the best
11 interest of the educational program of the state and the
12 educator:.
13 a.6. Has not previously entered a substance abuse
14 program.
15 b.7. Is not being investigated for any action
16 involving commission of a felony or violent act against
17 another person.
18 c.8. Has not had multiple arrests for minor drug use,
19 possession, or abuse of alcohol.
20 (10) DECLARATION OF INELIGIBILITY.--
21 (a) A person may be declared ineligible for further
22 assistance from the recovery network program if he or she does
23 not progress satisfactorily in a treatment program or leaves a
24 prescribed program or course of treatment without the approval
25 of the treatment provider.
26 (b) The determination of ineligibility must be made by
27 the commissioner in cases referred to him or her by the
28 program administrator or his or her designee after review of
29 the circumstances of the case. Before referring a case to the
30 commissioner, the administrator must discuss the circumstances
31 with the treatment provider. The commissioner may direct the
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1 Office of Professional Practices Services to investigate the
2 case and provide a report.
3 (c) If a treatment through contract with the program
4 is a condition of a deferred prosecution agreement, and the
5 program administrator commissioner determines that the person
6 is ineligible for further assistance, the commissioner may
7 agree to modify the terms and conditions of the deferred
8 prosecution agreement or may issue an administrative
9 complaint, pursuant to s. 1012.796, alleging the charges
10 regarding which prosecution was deferred. The person may
11 dispute the determination as an affirmative defense to the
12 administrative complaint by including with his or her request
13 for hearing on the administrative complaint a written
14 statement setting forth the facts and circumstances that show
15 that the determination of ineligibility was erroneous. If
16 administrative proceedings regarding the administrative
17 complaint, pursuant to ss. 120.569 and 120.57, result in a
18 finding that the determination of ineligibility was erroneous,
19 the person is eligible to participate in the program. If the
20 determination of ineligibility was the only reason for setting
21 aside the deferred prosecution agreement and issuing the
22 administrative complaint and the administrative proceedings
23 result in a finding that the determination was erroneous, the
24 complaint shall be dismissed and the deferred prosecution
25 agreement reinstated without prejudice to the commissioner's
26 right to reissue the administrative complaint for other
27 breaches of the agreement.
28 (d) If a treatment through contract with the program
29 is a condition of a final order of the Education Practices
30 Commission, the program administrator's commissioner's
31 determination of ineligibility constitutes a finding of
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1 probable cause that the person failed to comply with the final
2 order. Pursuant to ss. 1012.795 and 1012.796, upon the request
3 of the Department of Education, the clerk of the Education
4 Practices Commission shall issue to the educator an order to
5 show cause, or the commissioner may shall issue an
6 administrative complaint, and the case shall proceed under ss.
7 1012.795 and 1012.796, in the same manner as in cases based on
8 a failure to comply with an order of the Education Practices
9 Commission.
10 (e) If the person voluntarily entered into a treatment
11 contract with the program, the program administrator
12 commissioner shall issue a written notice stating the reasons
13 for the determination of ineligibility. Within 20 days after
14 the date of such notice, the person may contest the
15 determination of ineligibility pursuant to ss. 120.569 and
16 120.57.
17 Section 7. Subsection (4) of section 943.0585, Florida
18 Statutes, is amended to read:
19 943.0585 Court-ordered expunction of criminal history
20 records.--The courts of this state have jurisdiction over
21 their own procedures, including the maintenance, expunction,
22 and correction of judicial records containing criminal history
23 information to the extent such procedures are not inconsistent
24 with the conditions, responsibilities, and duties established
25 by this section. Any court of competent jurisdiction may order
26 a criminal justice agency to expunge the criminal history
27 record of a minor or an adult who complies with the
28 requirements of this section. The court shall not order a
29 criminal justice agency to expunge a criminal history record
30 until the person seeking to expunge a criminal history record
31 has applied for and received a certificate of eligibility for
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1 expunction pursuant to subsection (2). A criminal history
2 record that relates to a violation of s. 787.025, chapter 794,
3 s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071,
4 chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
5 893.135, or a violation enumerated in s. 907.041 may not be
6 expunged, without regard to whether adjudication was withheld,
7 if the defendant was found guilty of or pled guilty or nolo
8 contendere to the offense, or if the defendant, as a minor,
9 was found to have committed, or pled guilty or nolo contendere
10 to committing, the offense as a delinquent act. The court may
11 only order expunction of a criminal history record pertaining
12 to one arrest or one incident of alleged criminal activity,
13 except as provided in this section. The court may, at its sole
14 discretion, order the expunction of a criminal history record
15 pertaining to more than one arrest if the additional arrests
16 directly relate to the original arrest. If the court intends
17 to order the expunction of records pertaining to such
18 additional arrests, such intent must be specified in the
19 order. A criminal justice agency may not expunge any record
20 pertaining to such additional arrests if the order to expunge
21 does not articulate the intention of the court to expunge a
22 record pertaining to more than one arrest. This section does
23 not prevent the court from ordering the expunction of only a
24 portion of a criminal history record pertaining to one arrest
25 or one incident of alleged criminal activity. Notwithstanding
26 any law to the contrary, a criminal justice agency may comply
27 with laws, court orders, and official requests of other
28 jurisdictions relating to expunction, correction, or
29 confidential handling of criminal history records or
30 information derived therefrom. This section does not confer
31 any right to the expunction of any criminal history record,
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1 and any request for expunction of a criminal history record
2 may be denied at the sole discretion of the court.
3 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
4 criminal history record of a minor or an adult which is
5 ordered expunged by a court of competent jurisdiction pursuant
6 to this section must be physically destroyed or obliterated by
7 any criminal justice agency having custody of such record;
8 except that any criminal history record in the custody of the
9 department must be retained in all cases. A criminal history
10 record ordered expunged that is retained by the department is
11 confidential and exempt from the provisions of s. 119.07(1)
12 and s. 24(a), Art. I of the State Constitution and not
13 available to any person or entity except upon order of a court
14 of competent jurisdiction. A criminal justice agency may
15 retain a notation indicating compliance with an order to
16 expunge.
17 (a) The person who is the subject of a criminal
18 history record that is expunged under this section or under
19 other provisions of law, including former s. 893.14, former s.
20 901.33, and former s. 943.058, may lawfully deny or fail to
21 acknowledge the arrests covered by the expunged record, except
22 when the subject of the record:
23 1. Is a candidate for employment with a criminal
24 justice agency;
25 2. Is a defendant in a criminal prosecution;
26 3. Concurrently or subsequently petitions for relief
27 under this section or s. 943.059;
28 4. Is a candidate for admission to The Florida Bar;
29 5. Is seeking to be employed or licensed by or to
30 contract with the Department of Children and Family Services
31 or the Department of Juvenile Justice or to be employed or
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1 used by such contractor or licensee in a sensitive position
2 having direct contact with children, the developmentally
3 disabled, the aged, or the elderly as provided in s.
4 110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.
5 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
6 985.407, or chapter 400; or
7 6. Is seeking to be employed or licensed by the Office
8 of Teacher Education, Certification, Staff Development, and
9 Professional Practices of the Department of Education, any
10 district school board, any university laboratory school, any
11 charter school, any private or parochial school, or any local
12 governmental entity that licenses child care facilities.
13 (b) Subject to the exceptions in paragraph (a), a
14 person who has been granted an expunction under this section,
15 former s. 893.14, former s. 901.33, or former s. 943.058 may
16 not be held under any provision of law of this state to commit
17 perjury or to be otherwise liable for giving a false statement
18 by reason of such person's failure to recite or acknowledge an
19 expunged criminal history record.
20 (c) Information relating to the existence of an
21 expunged criminal history record which is provided in
22 accordance with paragraph (a) is confidential and exempt from
23 the provisions of s. 119.07(1) and s. 24(a), Art. I of the
24 State Constitution, except that the department shall disclose
25 the existence of a criminal history record ordered expunged to
26 the entities set forth in subparagraphs (a)1., 4., 5., and 6.
27 for their respective licensing and employment purposes, and to
28 criminal justice agencies for their respective criminal
29 justice purposes. It is unlawful for any employee of an entity
30 set forth in subparagraph (a)1., subparagraph (a)4.,
31 subparagraph (a)5., or subparagraph (a)6. to disclose
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1 information relating to the existence of an expunged criminal
2 history record of a person seeking employment or licensure
3 with such entity or contractor, except to the person to whom
4 the criminal history record relates or to persons having
5 direct responsibility for employment or licensure decisions.
6 Any person who violates this paragraph commits a misdemeanor
7 of the first degree, punishable as provided in s. 775.082 or
8 s. 775.083.
9 Section 8. Subsection (4) of section 943.059, Florida
10 Statutes, is amended to read:
11 943.059 Court-ordered sealing of criminal history
12 records.--The courts of this state shall continue to have
13 jurisdiction over their own procedures, including the
14 maintenance, sealing, and correction of judicial records
15 containing criminal history information to the extent such
16 procedures are not inconsistent with the conditions,
17 responsibilities, and duties established by this section. Any
18 court of competent jurisdiction may order a criminal justice
19 agency to seal the criminal history record of a minor or an
20 adult who complies with the requirements of this section. The
21 court shall not order a criminal justice agency to seal a
22 criminal history record until the person seeking to seal a
23 criminal history record has applied for and received a
24 certificate of eligibility for sealing pursuant to subsection
25 (2). A criminal history record that relates to a violation of
26 s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.
27 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
28 s. 847.0145, s. 893.135, or a violation enumerated in s.
29 907.041 may not be sealed, without regard to whether
30 adjudication was withheld, if the defendant was found guilty
31 of or pled guilty or nolo contendere to the offense, or if the
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1 defendant, as a minor, was found to have committed or pled
2 guilty or nolo contendere to committing the offense as a
3 delinquent act. The court may only order sealing of a criminal
4 history record pertaining to one arrest or one incident of
5 alleged criminal activity, except as provided in this section.
6 The court may, at its sole discretion, order the sealing of a
7 criminal history record pertaining to more than one arrest if
8 the additional arrests directly relate to the original arrest.
9 If the court intends to order the sealing of records
10 pertaining to such additional arrests, such intent must be
11 specified in the order. A criminal justice agency may not seal
12 any record pertaining to such additional arrests if the order
13 to seal does not articulate the intention of the court to seal
14 records pertaining to more than one arrest. This section does
15 not prevent the court from ordering the sealing of only a
16 portion of a criminal history record pertaining to one arrest
17 or one incident of alleged criminal activity. Notwithstanding
18 any law to the contrary, a criminal justice agency may comply
19 with laws, court orders, and official requests of other
20 jurisdictions relating to sealing, correction, or confidential
21 handling of criminal history records or information derived
22 therefrom. This section does not confer any right to the
23 sealing of any criminal history record, and any request for
24 sealing a criminal history record may be denied at the sole
25 discretion of the court.
26 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
27 criminal history record of a minor or an adult which is
28 ordered sealed by a court of competent jurisdiction pursuant
29 to this section is confidential and exempt from the provisions
30 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
31 and is available only to the person who is the subject of the
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1 record, to the subject's attorney, to criminal justice
2 agencies for their respective criminal justice purposes, or to
3 those entities set forth in subparagraphs (a)1., 4., 5., and
4 6. for their respective licensing and employment purposes.
5 (a) The subject of a criminal history record sealed
6 under this section or under other provisions of law, including
7 former s. 893.14, former s. 901.33, and former s. 943.058, may
8 lawfully deny or fail to acknowledge the arrests covered by
9 the sealed record, except when the subject of the record:
10 1. Is a candidate for employment with a criminal
11 justice agency;
12 2. Is a defendant in a criminal prosecution;
13 3. Concurrently or subsequently petitions for relief
14 under this section or s. 943.0585;
15 4. Is a candidate for admission to The Florida Bar;
16 5. Is seeking to be employed or licensed by or to
17 contract with the Department of Children and Family Services
18 or the Department of Juvenile Justice or to be employed or
19 used by such contractor or licensee in a sensitive position
20 having direct contact with children, the developmentally
21 disabled, the aged, or the elderly as provided in s.
22 110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.
23 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
24 415.103, s. 985.407, or chapter 400; or
25 6. Is seeking to be employed or licensed by the Office
26 of Teacher Education, Certification, Staff Development, and
27 Professional Practices of the Department of Education, any
28 district school board, any university laboratory school, any
29 charter school, any private or parochial school, or any local
30 governmental entity that which licenses child care facilities.
31
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1 (b) Subject to the exceptions in paragraph (a), a
2 person who has been granted a sealing under this section,
3 former s. 893.14, former s. 901.33, or former s. 943.058 may
4 not be held under any provision of law of this state to commit
5 perjury or to be otherwise liable for giving a false statement
6 by reason of such person's failure to recite or acknowledge a
7 sealed criminal history record.
8 (c) Information relating to the existence of a sealed
9 criminal record provided in accordance with the provisions of
10 paragraph (a) is confidential and exempt from the provisions
11 of s. 119.07(1) and s. 24(a), Art. I of the State
12 Constitution, except that the department shall disclose the
13 sealed criminal history record to the entities set forth in
14 subparagraphs (a)1., 4., 5., and 6. for their respective
15 licensing and employment purposes. It is unlawful for any
16 employee of an entity set forth in subparagraph (a)1.,
17 subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.
18 to disclose information relating to the existence of a sealed
19 criminal history record of a person seeking employment or
20 licensure with such entity or contractor, except to the person
21 to whom the criminal history record relates or to persons
22 having direct responsibility for employment or licensure
23 decisions. Any person who violates the provisions of this
24 paragraph commits a misdemeanor of the first degree,
25 punishable as provided in s. 775.082 or s. 775.083.
26 Section 9. This act shall take effect upon becoming a
27 law.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 2006
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