Bill Text: HB 0713

HB 0713

2004

A bill to be entitled

An act relating to employment screening; creating s.

435.015, F.S.; providing for incorporation by reference;

providing that the purpose of the chapter is to provide

uniform criteria for employment screening; providing that

a reference to the chapter, or any section or subdivision,

constitutes a general reference; creating s. 435.025,

F.S.; authorizing consideration of arrest records in

determining whether certain persons satisfy the

requirement of good moral character; amending s. 435.04,

F.S.; prohibiting the Department of Juvenile Justice from

removing a disqualification from employment or granting an

exemption from disqualification in certain circumstances;

amending ss. 984.01 and 985.01, F.S.; providing that

certain persons who fail to satisfy the requirement of

good moral character may be disqualified from employment

or denied an exemption from disqualification; amending s.

985.407, F.S.; providing that certain persons who fail to

satisfy the requirement of good moral character may be

disqualified from employment or denied an exemption from

disqualification; requiring the Department of Juvenile

Justice to require employment screening of certain

personnel pursuant to level 2, rather than level 1,

screening standards of ch. 435, F.S.; reenacting ss.

400.953(3), 943.0585(4)(a), 943.059(4)(a), and

985.05(4)(e), F.S., relating to background screening of

home medical equipment provider personnel, court-ordered

expunction of criminal history records, court-ordered

sealing of criminal history records, and use of juvenile

court records as proof of certain disqualification,

respectively, for the purpose of incorporating the

amendment to s. 985.407, F.S., in references thereto;

providing an effective date.

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

Section 1. Section 435.015, Florida Statutes, is created

to read:

435.015 Incorporation by reference.--The purpose of this

chapter is to provide uniform criteria for employment screening

and, to this end, a reference to this chapter, or to any section

or subdivision within this chapter, constitutes a general

reference under the doctrine of incorporation by reference.

Section 2. Section 435.025, Florida Statutes, is created

to read:

435.025 Evidence of good moral character.--Any record

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

moral character as a condition of initial or continued

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

agency or political subdivision thereof, may be considered in

determining whether such person satisfies the requirement,

notwithstanding the disposition of the arrest.

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

Statutes, is amended to read:

435.04 Level 2 screening standards.--

(3) The security background investigations conducted under

this section for employees of the Department of Juvenile Justice

must ensure that no persons subject to the provisions of this

section have been found guilty of, regardless of adjudication,

or entered a plea of nolo contendere or guilty to, any offense

prohibited under any of the following provisions of the Florida

Statutes or under any similar statute of another jurisdiction:

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

enforcement officers, firefighters, emergency medical care

providers, public transit employees or agents, or other

specified officers.

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

is a felony.

The Department of Juvenile Justice may not remove a

disqualification from employment or grant an exemption to any

person who is disqualified under this section for any offense

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

of Juvenile Justice may not remove a disqualification from

employment or grant an exemption to any person who has been

found guilty of, regardless of adjudication, or entered a plea

of nolo contendere or guilty to, three or more offenses

specified in this subsection or subsection (2), irrespective of

the time at which such offenses were disposed.

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

Statutes, is amended to read:

984.01 Purposes and intent; personnel standards and

screening.--

(2) The Department of Juvenile Justice or the Department

of Children and Family Services, as appropriate, may contract

with the Federal Government, other state departments and

agencies, county and municipal governments and agencies, public

and private agencies, and private individuals and corporations

in carrying out the purposes of, and the responsibilities

established in, this chapter.

(a) When the Department of Juvenile Justice or the

Department of Children and Family Services contracts with a

provider for any program for children, all personnel, including

owners, operators, employees, and volunteers, in the facility

must be of good moral character. Each contract entered into by

either department for services delivered on an appointment or

intermittent basis by a provider that does not have regular

custodial responsibility for children and each contract with a

100

school for before or aftercare services must ensure that the

101

owners, operators, and all personnel who have direct contact

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with children are of good moral character. A volunteer who

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assists on an intermittent basis for less than 40 hours per

104

month need not be screened if the volunteer is under direct and

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constant supervision by persons who meet the screening

106

requirements.

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(b) The Department of Juvenile Justice and the Department

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of Children and Family Services shall require employment

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screening pursuant to chapter 435, using the level 2 standards

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set forth in that chapter for personnel in programs for children

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or youths.

112

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of Children and Family Services may grant exemptions from

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disqualification from working with children as provided in s.

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435.07.

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

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be disqualified from employment or denied an exemption from

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disqualification if such person fails to satisfy the requirement

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of good moral character as evidenced by criminal history

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information documenting multiple arrests or convictions.

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

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Statutes, is amended to read:

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985.01 Purposes and intent; personnel standards and

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screening.--

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(2) The Department of Juvenile Justice or the Department

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of Children and Family Services, as appropriate, may contract

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with the Federal Government, other state departments and

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agencies, county and municipal governments and agencies, public

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and private agencies, and private individuals and corporations

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in carrying out the purposes of, and the responsibilities

131

established in, this chapter.

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(a) When the Department of Juvenile Justice or the

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Department of Children and Family Services contracts with a

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provider for any program for children, all personnel, including

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owners, operators, employees, and volunteers, in the facility

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must be of good moral character. Each contract entered into by

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either department for services delivered on an appointment or

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intermittent basis by a provider that does not have regular

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custodial responsibility for children and each contract with a

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school for before or aftercare services must ensure that the

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owners, operators, and all personnel who have direct contact

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with children are of good moral character. A volunteer who

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assists on an intermittent basis for less than 40 hours per

144

month need not be screened if the volunteer is under direct and

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constant supervision by persons who meet the screening

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requirements.

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(b) The Department of Juvenile Justice and the Department

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of Children and Family Services shall require employment

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screening pursuant to chapter 435, using the level 2 standards

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set forth in that chapter for personnel in programs for children

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or youths.

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of Children and Family Services may grant exemptions from

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disqualification from working with children as provided in s.

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435.07.

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

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be disqualified from employment or denied an exemption from

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disqualification if such person fails to satisfy the requirement

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of good moral character as evidenced by criminal history

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information documenting multiple arrests or convictions.

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

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Statutes, is amended, and subsection (6) is added to said

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section, to read:

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985.407 Departmental contracting powers; personnel

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standards and screening.--

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(4) The department shall require employment screening

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

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screening set forth in that chapter, for personnel in

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delinquency facilities, services, and programs.

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

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be disqualified from employment or denied an exemption from

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disqualification if such person fails to satisfy the requirement

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of good moral character as evidenced by criminal history

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information documenting multiple arrests or convictions.

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Section 7. For the purpose of incorporating the amendment

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to section 985.407, Florida Statutes, in a reference thereto,

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subsection (3) of section 400.953, Florida Statutes, is

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reenacted to read:

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400.953 Background screening of home medical equipment

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provider personnel.--The agency shall require employment

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screening as provided in chapter 435, using the level 1

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standards for screening set forth in that chapter, for home

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medical equipment provider personnel.

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(3) Proof of compliance with the screening requirements of

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s. 110.1127, s. 393.0655, s. 394.4572, s. 397.451, s. 402.305,

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s. 402.313, s. 409.175, s. 464.008, or s. 985.407 or this part

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must be accepted in lieu of the requirements of this section if

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the person has been continuously employed in the same type of

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occupation for which he or she is seeking employment without a

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breach in service that exceeds 180 days, the proof of compliance

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is not more than 2 years old, and the person has been screened

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by the Department of Law Enforcement. An employer or contractor

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shall directly provide proof of compliance to another employer

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or contractor, and a potential employer or contractor may not

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accept any proof of compliance directly from the person

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requiring screening. Proof of compliance with the screening

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

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the person screened by the home medical equipment provider.

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Section 8. For the purpose of incorporating the amendment

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to section 985.407, Florida Statutes, in a reference thereto,

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paragraph (a) of subsection (4) of section 943.0585, Florida

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Statutes, is reenacted to read:

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943.0585 Court-ordered expunction of criminal history

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

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own procedures, including the maintenance, expunction, and

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correction of judicial records containing criminal history

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information to the extent such procedures are not inconsistent

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with the conditions, responsibilities, and duties established by

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this section. Any court of competent jurisdiction may order a

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criminal justice agency to expunge the criminal history record

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of a minor or an adult who complies with the requirements of

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this section. The court shall not order a criminal justice

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agency to expunge a criminal history record until the person

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seeking to expunge a criminal history record has applied for and

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received a certificate of eligibility for expunction pursuant to

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subsection (2). A criminal history record that relates to a

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violation of s. 787.025, chapter 794, s. 796.03, s. 800.04, s.

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817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s.

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847.0135, s. 847.0145, s. 893.135, or a violation enumerated in

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s. 907.041 may not be expunged, without regard to whether

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adjudication was withheld, if the defendant was found guilty of

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

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

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guilty or nolo contendere to committing, the offense as a

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delinquent act. The court may only order expunction of a

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criminal history record pertaining to one arrest or one incident

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of alleged criminal activity, except as provided in this

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section. The court may, at its sole discretion, order the

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expunction of a criminal history record pertaining to more than

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one arrest if the additional arrests directly relate to the

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original arrest. If the court intends to order the expunction of

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records pertaining to such additional arrests, such intent must

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be specified in the order. A criminal justice agency may not

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expunge any record pertaining to such additional arrests if the

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order to expunge does not articulate the intention of the court

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to expunge a record pertaining to more than one arrest. This

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section does not prevent the court from ordering the expunction

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of only a portion of a criminal history record pertaining to one

239

arrest or one incident of alleged criminal activity.

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Notwithstanding any law to the contrary, a criminal justice

241

agency may comply with laws, court orders, and official requests

242

of other jurisdictions relating to expunction, correction, or

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confidential handling of criminal history records or information

244

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

245

expunction of any criminal history record, and any request for

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expunction of a criminal history record may be denied at the

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sole discretion of the court.

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

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

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expunged by a court of competent jurisdiction pursuant to this

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section must be physically destroyed or obliterated by any

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criminal justice agency having custody of such record; except

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that any criminal history record in the custody of the

254

department must be retained in all cases. A criminal history

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record ordered expunged that is retained by the department is

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

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

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any person or entity except upon order of a court of competent

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jurisdiction. A criminal justice agency may retain a notation

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indicating compliance with an order to expunge.

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

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record that is expunged under this section or under other

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provisions of law, including former s. 893.14, former s. 901.33,

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

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the arrests covered by the expunged record, except when the

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subject of the record:

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1. Is a candidate for employment with a criminal justice

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agency;

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2. Is a defendant in a criminal prosecution;

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3. Concurrently or subsequently petitions for relief under

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this section or s. 943.059;

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

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

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with the Department of Children and Family Services or the

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Department of Juvenile Justice or to be employed or used by such

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contractor or licensee in a sensitive position having direct

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contact with children, the developmentally disabled, the aged,

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or the elderly as provided in s. 110.1127(3), s. 393.063(15), s.

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394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.

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409.175(2)(i), s. 415.102(4), s. 985.407, or chapter 400; or

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

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Teacher Education, Certification, Staff Development, and

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Professional Practices of the Department of Education, any

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district school board, or any local governmental entity that

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licenses child care facilities.

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Section 9. For the purpose of incorporating the amendment

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to section 985.407, Florida Statutes, in a reference thereto,

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paragraph (a) of subsection (4) of section 943.059, Florida

289

Statutes, is reenacted to read:

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943.059 Court-ordered sealing of criminal history

291

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

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jurisdiction over their own procedures, including the

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maintenance, sealing, and correction of judicial records

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containing criminal history information to the extent such

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procedures are not inconsistent with the conditions,

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responsibilities, and duties established by this section. Any

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court of competent jurisdiction may order a criminal justice

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

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adult who complies with the requirements of this section. The

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court shall not order a criminal justice agency to seal a

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criminal history record until the person seeking to seal a

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criminal history record has applied for and received a

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certificate of eligibility for sealing pursuant to subsection

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

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

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

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847.0145, s. 893.135, or a violation enumerated in s. 907.041

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may not be sealed, without regard to whether adjudication was

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withheld, if the defendant was found guilty of or pled guilty or

310

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

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

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committing the offense as a delinquent act. The court may only

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order sealing of a criminal history record pertaining to one

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arrest or one incident of alleged criminal activity, except as

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

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order the sealing of a criminal history record pertaining to

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more than one arrest if the additional arrests directly relate

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to the original arrest. If the court intends to order the

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sealing of records pertaining to such additional arrests, such

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intent must be specified in the order. A criminal justice agency

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may not seal any record pertaining to such additional arrests if

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

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to seal records pertaining to more than one arrest. This section

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

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portion of a criminal history record pertaining to one arrest or

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one incident of alleged criminal activity. Notwithstanding any

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

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laws, court orders, and official requests of other jurisdictions

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relating to sealing, correction, or confidential handling of

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criminal history records or information derived therefrom. This

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section does not confer any right to the sealing of any criminal

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history record, and any request for sealing a criminal history

333

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

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

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history record of a minor or an adult which is ordered sealed by

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a court of competent jurisdiction pursuant to this section is

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

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s. 24(a), Art. I of the State Constitution and is available only

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to the person who is the subject of the record, to the subject's

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attorney, to criminal justice agencies for their respective

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criminal justice purposes, or to those entities set forth in

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

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licensing and employment purposes.

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

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this section or under other provisions of law, including former

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

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deny or fail to acknowledge the arrests covered by the sealed

348

record, except when the subject of the record:

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1. Is a candidate for employment with a criminal justice

350

agency;

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2. Is a defendant in a criminal prosecution;

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3. Concurrently or subsequently petitions for relief under

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this section or s. 943.0585;

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

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

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with the Department of Children and Family Services or the

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Department of Juvenile Justice or to be employed or used by such

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contractor or licensee in a sensitive position having direct

359

contact with children, the developmentally disabled, the aged,

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or the elderly as provided in s. 110.1127(3), s. 393.063(15), s.

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394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.

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409.175(2)(i), s. 415.102(4), s. 415.103, s. 985.407, or chapter

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400; or

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

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Teacher Education, Certification, Staff Development, and

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Professional Practices of the Department of Education, any

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district school board, or any local governmental entity which

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licenses child care facilities.

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Section 10. For the purpose of incorporating the amendment

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to section 985.407, Florida Statutes, in a reference thereto,

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paragraph (e) of subsection (4) of section 985.05, Florida

372

Statutes, is reenacted to read:

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985.05 Court records.--

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(4) A court record of proceedings under this part is not

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admissible in evidence in any other civil or criminal

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proceeding, except that:

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

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prove disqualification pursuant to ss. 110.1127, 393.0655,

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

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985.407.

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Section 11. This act shall take effect upon becoming a

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law.