Senate Bill sb2086

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    Florida Senate - 2004                                  SB 2086

    By Senator Villalobos





    38-1480-04                                          See HB 713

  1                      A bill to be entitled

  2         An act relating to employment screening;

  3         creating s. 435.015, F.S.; providing for

  4         incorporation by reference; providing that the

  5         purpose of the chapter is to provide uniform

  6         criteria for employment screening; providing

  7         that a reference to the chapter, or any section

  8         or subdivision, constitutes a general

  9         reference; creating s. 435.025, F.S.;

10         authorizing consideration of arrest records in

11         determining whether certain persons satisfy the

12         requirement of good moral character; amending

13         s. 435.04, F.S.; prohibiting the Department of

14         Juvenile Justice from removing a

15         disqualification from employment or granting an

16         exemption from disqualification in certain

17         circumstances; amending ss. 984.01 and 985.01,

18         F.S.; providing that certain persons who fail

19         to satisfy the requirement of good moral

20         character may be disqualified from employment

21         or denied an exemption from disqualification;

22         amending s. 985.407, F.S.; providing that

23         certain persons who fail to satisfy the

24         requirement of good moral character may be

25         disqualified from employment or denied an

26         exemption from disqualification; requiring the

27         Department of Juvenile Justice to require

28         employment screening of certain personnel

29         pursuant to level 2, rather than level 1,

30         screening standards of ch. 435, F.S.;

31         reenacting ss. 400.953(3), 943.0585(4)(a),

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1         943.059(4)(a), and 985.05(4)(e), F.S., relating

 2         to background screening of home medical

 3         equipment provider personnel, court-ordered

 4         expunction of criminal history records,

 5         court-ordered sealing of criminal history

 6         records, and use of juvenile court records as

 7         proof of certain disqualification,

 8         respectively, for the purpose of incorporating

 9         the amendment to s. 985.407, F.S., in

10         references thereto; providing an effective

11         date.

12  

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

14  

15         Section 1.  Section 435.015, Florida Statutes, is

16  created to read:

17         435.015  Incorporation by reference.--The purpose of

18  this chapter is to provide uniform criteria for employment

19  screening and, to this end, a reference to this chapter, or to

20  any section or subdivision within this chapter, constitutes a

21  general reference under the doctrine of incorporation by

22  reference.

23         Section 2.  Section 435.025, Florida Statutes, is

24  created to read:

25         435.025  Evidence of good moral character.--Any record

26  concerning the arrest of a person who is required to be of

27  good moral character as a condition of initial or continued

28  employment, licensure, or other business with the state, or

29  any agency or political subdivision thereof, may be considered

30  in determining whether such person satisfies the requirement,

31  notwithstanding the disposition of the arrest.

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1         Section 3.  Subsection (3) of section 435.04, Florida

 2  Statutes, is amended to read:

 3         435.04  Level 2 screening standards.--

 4         (3)  The security background investigations conducted

 5  under this section for employees of the Department of Juvenile

 6  Justice must ensure that no persons subject to the provisions

 7  of this section have been found guilty of, regardless of

 8  adjudication, or entered a plea of nolo contendere or guilty

 9  to, any offense prohibited under any of the following

10  provisions of the Florida Statutes or under any similar

11  statute of another jurisdiction:

12         (a)  Section 784.07, relating to assault or battery of

13  law enforcement officers, firefighters, emergency medical care

14  providers, public transit employees or agents, or other

15  specified officers.

16         (b)  Section 810.02, relating to burglary, if the

17  offense is a felony.

18         (c)  Section 944.40, relating to escape.

19  

20  The Department of Juvenile Justice may not remove a

21  disqualification from employment or grant an exemption to any

22  person who is disqualified under this section for any offense

23  disposed of during the most recent 7-year period. The

24  Department of Juvenile Justice may not remove a

25  disqualification from employment or grant an exemption to any

26  person who has been found guilty of, regardless of

27  adjudication, or entered a plea of nolo contendere or guilty

28  to, three or more offenses specified in this subsection or

29  subsection (2), irrespective of the time at which such

30  offenses were disposed.

31  

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1         Section 4.  Subsection (2) of section 984.01, Florida

 2  Statutes, is amended to read:

 3         984.01  Purposes and intent; personnel standards and

 4  screening.--

 5         (2)  The Department of Juvenile Justice or the

 6  Department of Children and Family Services, as appropriate,

 7  may contract with the Federal Government, other state

 8  departments and agencies, county and municipal governments and

 9  agencies, public and private agencies, and private individuals

10  and corporations in carrying out the purposes of, and the

11  responsibilities established in, this chapter.

12         (a)  When the Department of Juvenile Justice or the

13  Department of Children and Family Services contracts with a

14  provider for any program for children, all personnel,

15  including owners, operators, employees, and volunteers, in the

16  facility must be of good moral character. Each contract

17  entered into by either department for services delivered on an

18  appointment or intermittent basis by a provider that does not

19  have regular custodial responsibility for children and each

20  contract with a school for before or aftercare services must

21  ensure that the owners, operators, and all personnel who have

22  direct contact with children are of good moral character. A

23  volunteer who assists on an intermittent basis for less than

24  40 hours per month need not be screened if the volunteer is

25  under direct and constant supervision by persons who meet the

26  screening requirements.

27         (b)  The Department of Juvenile Justice and the

28  Department of Children and Family Services shall require

29  employment screening pursuant to chapter 435, using the level

30  2 standards set forth in that chapter for personnel in

31  programs for children or youths.

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1         (c)  The Department of Juvenile Justice or the

 2  Department of Children and Family Services may grant

 3  exemptions from disqualification from working with children as

 4  provided in s. 435.07.

 5         (d)  Notwithstanding s. 435.04 or s. 435.07, a person

 6  may be disqualified from employment or denied an exemption

 7  from disqualification if such person fails to satisfy the

 8  requirement of good moral character as evidenced by criminal

 9  history information documenting multiple arrests or

10  convictions.

11         Section 5.  Subsection (2) of section 985.01, Florida

12  Statutes, is amended to read:

13         985.01  Purposes and intent; personnel standards and

14  screening.--

15         (2)  The Department of Juvenile Justice or the

16  Department of Children and Family Services, as appropriate,

17  may contract with the Federal Government, other state

18  departments and agencies, county and municipal governments and

19  agencies, public and private agencies, and private individuals

20  and corporations in carrying out the purposes of, and the

21  responsibilities established in, this chapter.

22         (a)  When the Department of Juvenile Justice or the

23  Department of Children and Family Services contracts with a

24  provider for any program for children, all personnel,

25  including owners, operators, employees, and volunteers, in the

26  facility must be of good moral character. Each contract

27  entered into by either department for services delivered on an

28  appointment or intermittent basis by a provider that does not

29  have regular custodial responsibility for children and each

30  contract with a school for before or aftercare services must

31  ensure that the owners, operators, and all personnel who have

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1  direct contact with children are of good moral character. A

 2  volunteer who assists on an intermittent basis for less than

 3  40 hours per month need not be screened if the volunteer is

 4  under direct and constant supervision by persons who meet the

 5  screening requirements.

 6         (b)  The Department of Juvenile Justice and the

 7  Department of Children and Family Services shall require

 8  employment screening pursuant to chapter 435, using the level

 9  2 standards set forth in that chapter for personnel in

10  programs for children or youths.

11         (c)  The Department of Juvenile Justice or the

12  Department of Children and Family Services may grant

13  exemptions from disqualification from working with children as

14  provided in s. 435.07.

15         (d)  Notwithstanding s. 435.04 or s. 435.07, a person

16  may be disqualified from employment or denied an exemption

17  from disqualification if such person fails to satisfy the

18  requirement of good moral character as evidenced by criminal

19  history information documenting multiple arrests or

20  convictions.

21         Section 6.  Subsection (4) of section 985.407, Florida

22  Statutes, is amended, and subsection (6) is added to that

23  section, to read:

24         985.407  Departmental contracting powers; personnel

25  standards and screening.--

26         (4)  The department shall require employment screening

27  pursuant to chapter 435, using the level 2 1 standards for

28  screening set forth in that chapter, for personnel in

29  delinquency facilities, services, and programs.

30         (6)  Notwithstanding s. 435.04 or s. 435.07, a person

31  may be disqualified from employment or denied an exemption

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1  from disqualification if such person fails to satisfy the

 2  requirement of good moral character as evidenced by criminal

 3  history information documenting multiple arrests or

 4  convictions.

 5         Section 7.  For the purpose of incorporating the

 6  amendment to section 985.407, Florida Statutes, in a reference

 7  thereto, subsection (3) of section 400.953, Florida Statutes,

 8  is reenacted to read:

 9         400.953  Background screening of home medical equipment

10  provider personnel.--The agency shall require employment

11  screening as provided in chapter 435, using the level 1

12  standards for screening set forth in that chapter, for home

13  medical equipment provider personnel.

14         (3)  Proof of compliance with the screening

15  requirements of s. 110.1127, s. 393.0655, s. 394.4572, s.

16  397.451, s. 402.305, s. 402.313, s. 409.175, s. 464.008, or s.

17  985.407 or this part must be accepted in lieu of the

18  requirements of this section if the person has been

19  continuously employed in the same type of occupation for which

20  he or she is seeking employment without a breach in service

21  that exceeds 180 days, the proof of compliance is not more

22  than 2 years old, and the person has been screened by the

23  Department of Law Enforcement. An employer or contractor shall

24  directly provide proof of compliance to another employer or

25  contractor, and a potential employer or contractor may not

26  accept any proof of compliance directly from the person

27  requiring screening. Proof of compliance with the screening

28  requirements of this section shall be provided, upon request,

29  to the person screened by the home medical equipment provider.

30         Section 8.  For the purpose of incorporating the

31  amendment to section 985.407, Florida Statutes, in a reference

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1  thereto, paragraph (a) of subsection (4) of section 943.0585,

 2  Florida Statutes, is reenacted to read:

 3         943.0585  Court-ordered expunction of criminal history

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

 5  their own procedures, including the maintenance, expunction,

 6  and correction of judicial records containing criminal history

 7  information to the extent such procedures are not inconsistent

 8  with the conditions, responsibilities, and duties established

 9  by this section. Any court of competent jurisdiction may order

10  a criminal justice agency to expunge the criminal history

11  record of a minor or an adult who complies with the

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

13  criminal justice agency to expunge a criminal history record

14  until the person seeking to expunge a criminal history record

15  has applied for and received a certificate of eligibility for

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

17  record that relates to a violation of s. 787.025, chapter 794,

18  s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071,

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

20  893.135, or a violation enumerated in s. 907.041 may not be

21  expunged, without regard to whether adjudication was withheld,

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

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

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

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

26  only order expunction of a criminal history record pertaining

27  to one arrest or one incident of alleged criminal activity,

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

29  discretion, order the expunction of a criminal history record

30  pertaining to more than one arrest if the additional arrests

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

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1  to order the expunction of records pertaining to such

 2  additional arrests, such intent must be specified in the

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

 4  pertaining to such additional arrests if the order to expunge

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

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

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

 8  portion of a criminal history record pertaining to one arrest

 9  or one incident of alleged criminal activity. Notwithstanding

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

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

12  jurisdictions relating to expunction, correction, or

13  confidential handling of criminal history records or

14  information derived therefrom. This section does not confer

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

16  and any request for expunction of a criminal history record

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

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

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

20  ordered expunged by a court of competent jurisdiction pursuant

21  to this section must be physically destroyed or obliterated by

22  any criminal justice agency having custody of such record;

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

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

25  record ordered expunged that is retained by the department is

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

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

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

29  of competent jurisdiction. A criminal justice agency may

30  retain a notation indicating compliance with an order to

31  expunge.

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




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

 2  history record that is expunged under this section or under

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

 4  901.33, and former s. 943.058, may lawfully deny or fail to

 5  acknowledge the arrests covered by the expunged record, except

 6  when the subject of the record:

 7         1.  Is a candidate for employment with a criminal

 8  justice agency;

 9         2.  Is a defendant in a criminal prosecution;

10         3.  Concurrently or subsequently petitions for relief

11  under this section or s. 943.059;

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

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

14  contract with the Department of Children and Family Services

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

16  used by such contractor or licensee in a sensitive position

17  having direct contact with children, the developmentally

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

19  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

20  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

21  985.407, or chapter 400; or

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

23  of Teacher Education, Certification, Staff Development, and

24  Professional Practices of the Department of Education, any

25  district school board, or any local governmental entity that

26  licenses child care facilities.

27         Section 9.  For the purpose of incorporating the

28  amendment to section 985.407, Florida Statutes, in a reference

29  thereto, paragraph (a) of subsection (4) of section 943.059,

30  Florida Statutes, is reenacted to read:

31  

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1         943.059  Court-ordered sealing of criminal history

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

 3  jurisdiction over their own procedures, including the

 4  maintenance, sealing, and correction of judicial records

 5  containing criminal history information to the extent such

 6  procedures are not inconsistent with the conditions,

 7  responsibilities, and duties established by this section. Any

 8  court of competent jurisdiction may order a criminal justice

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

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

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

12  criminal history record until the person seeking to seal a

13  criminal history record has applied for and received a

14  certificate of eligibility for sealing pursuant to subsection

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

16  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

17  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

18  s. 847.0145, s. 893.135, or a violation enumerated in s.

19  907.041 may not be sealed, without regard to whether

20  adjudication was withheld, if the defendant was found guilty

21  of or pled guilty or nolo contendere to the offense, or if the

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

23  guilty or nolo contendere to committing the offense as a

24  delinquent act. The court may only order sealing of a criminal

25  history record pertaining to one arrest or one incident of

26  alleged criminal activity, except as provided in this section.

27  The court may, at its sole discretion, order the sealing of a

28  criminal history record pertaining to more than one arrest if

29  the additional arrests directly relate to the original arrest.

30  If the court intends to order the sealing of records

31  pertaining to such additional arrests, such intent must be

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




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

 2  any record pertaining to such additional arrests if the order

 3  to seal does not articulate the intention of the court to seal

 4  records pertaining to more than one arrest. This section does

 5  not prevent the court from ordering the sealing of only a

 6  portion of a criminal history record pertaining to one arrest

 7  or one incident of alleged criminal activity. Notwithstanding

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

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

10  jurisdictions relating to sealing, correction, or confidential

11  handling of criminal history records or information derived

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

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

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

15  discretion of the court.

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

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

18  ordered sealed by a court of competent jurisdiction pursuant

19  to this section is confidential and exempt from the provisions

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

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

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

23  agencies for their respective criminal justice purposes, or to

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

25  6. for their respective licensing and employment purposes.

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

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

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

29  lawfully deny or fail to acknowledge the arrests covered by

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

31  

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1         1.  Is a candidate for employment with a criminal

 2  justice agency;

 3         2.  Is a defendant in a criminal prosecution;

 4         3.  Concurrently or subsequently petitions for relief

 5  under this section or s. 943.0585;

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

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

 8  contract with the Department of Children and Family Services

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

10  used by such contractor or licensee in a sensitive position

11  having direct contact with children, the developmentally

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

13  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

14  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

15  415.103, s. 985.407, or chapter 400; or

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

17  of Teacher Education, Certification, Staff Development, and

18  Professional Practices of the Department of Education, any

19  district school board, or any local governmental entity which

20  licenses child care facilities.

21         Section 10.  For the purpose of incorporating the

22  amendment to section 985.407, Florida Statutes, in a reference

23  thereto, paragraph (e) of subsection (4) of section 985.05,

24  Florida Statutes, is reenacted to read:

25         985.05  Court records.--

26         (4)  A court record of proceedings under this part is

27  not admissible in evidence in any other civil or criminal

28  proceeding, except that:

29         (e)  Records of proceedings under this part may be used

30  to prove disqualification pursuant to ss. 110.1127, 393.0655,

31  

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    Florida Senate - 2004                                  SB 2086
    38-1480-04                                          See HB 713




 1  394.457, 397.451, 402.305, 402.313, 409.175, 409.176, and

 2  985.407.

 3         Section 11.  This act shall take effect upon becoming a

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