| 1 | A bill to be entitled |
| 2 | An act relating to adult protective services; amending s. |
| 3 | 415.101, F.S.; providing for protective services to apply |
| 4 | to vulnerable adults; amending s. 415.102, F.S.; defining |
| 5 | the term "activities of daily living"; revising the |
| 6 | definition of the term "vulnerable adult"; conforming a |
| 7 | cross-reference; amending s. 415.103, F.S.; providing for |
| 8 | certain suspected abuse cases to be transferred to the |
| 9 | local county sheriff's office; amending s. 415.1051, F.S.; |
| 10 | providing for the Department of Children and Family |
| 11 | Services to file a petition to determine incapacity and |
| 12 | guardianship under certain circumstances; amending s. |
| 13 | 322.142, F.S.; authorizing the department to be provided |
| 14 | copies of drivers' license files maintained by the |
| 15 | Department of Highway Safety and Motor Vehicles for the |
| 16 | purpose of conducting protective investigations; amending |
| 17 | ss. 943.0585 and 943.059, F.S.; conforming cross- |
| 18 | references; providing an effective date. |
| 19 |
|
| 20 | Be It Enacted by the Legislature of the State of Florida: |
| 21 |
|
| 22 | Section 1. Subsection (2) of section 415.101, Florida |
| 23 | Statutes, is amended to read: |
| 24 | 415.101 Adult Protective Services Act; legislative |
| 25 | intent.-- |
| 26 | (2) The Legislature recognizes that there are many persons |
| 27 | in this state who, because of age or disability, are in need of |
| 28 | protective services. Such services should allow such an |
| 29 | individual the same rights as other citizens and, at the same |
| 30 | time, protect the individual from abuse, neglect, and |
| 31 | exploitation. It is the intent of the Legislature to provide for |
| 32 | the detection and correction of abuse, neglect, and exploitation |
| 33 | through social services and criminal investigations and to |
| 34 | establish a program of protective services for all vulnerable |
| 35 | disabled adults or elderly persons in need of them. It is |
| 36 | intended that the mandatory reporting of such cases will cause |
| 37 | the protective services of the state to be brought to bear in an |
| 38 | effort to prevent further abuse, neglect, and exploitation of |
| 39 | vulnerable disabled adults or elderly persons. In taking this |
| 40 | action, the Legislature intends to place the fewest possible |
| 41 | restrictions on personal liberty and the exercise of |
| 42 | constitutional rights, consistent with due process and |
| 43 | protection from abuse, neglect, and exploitation. Further, the |
| 44 | Legislature intends to encourage the constructive involvement of |
| 45 | families in the care and protection of vulnerable disabled |
| 46 | adults or elderly persons. |
| 47 | Section 2. Subsections (2) through (27) of section |
| 48 | 415.102, Florida Statutes, are renumbered as subsections (3) |
| 49 | through (28), respectively, current subsections (4) and (26) are |
| 50 | amended, and a new subsection (2) is added to that section, to |
| 51 | read: |
| 52 | 415.102 Definitions of terms used in ss. 415.101- |
| 53 | 415.113.--As used in ss. 415.101-415.113, the term: |
| 54 | (2) "Activities of daily living" means functions and tasks |
| 55 | for self-care, including eating, bathing, grooming, dressing, |
| 56 | ambulating, and other similar tasks. |
| 57 | (5)(4) "Caregiver" means a person who has been entrusted |
| 58 | with or has assumed the responsibility for frequent and regular |
| 59 | care of or services to a vulnerable adult on a temporary or |
| 60 | permanent basis and who has a commitment, agreement, or |
| 61 | understanding with that person or that person's guardian that a |
| 62 | caregiver role exists. "Caregiver" includes, but is not limited |
| 63 | to, relatives, household members, guardians, neighbors, and |
| 64 | employees and volunteers of facilities as defined in subsection |
| 65 | (9) (8). For the purpose of departmental investigative |
| 66 | jurisdiction, the term "caregiver" does not include law |
| 67 | enforcement officers or employees of municipal or county |
| 68 | detention facilities or the Department of Corrections while |
| 69 | acting in an official capacity. |
| 70 | (27)(26) "Vulnerable adult" means a person 18 years of age |
| 71 | or older whose ability to perform the normal activities of daily |
| 72 | living or to provide for his or her own care or protection is |
| 73 | impaired due to a mental, emotional, sensory long-term physical, |
| 74 | or developmental disability or dysfunction dysfunctioning, or |
| 75 | brain damage, or the infirmities of aging. |
| 76 | Section 3. Subsection (2) of section 415.103, Florida |
| 77 | Statutes, is amended to read: |
| 78 | 415.103 Central abuse hotline.-- |
| 79 | (2) Upon receiving an oral or written report of known or |
| 80 | suspected abuse, neglect, or exploitation of a vulnerable adult, |
| 81 | the central abuse hotline must determine if the report requires |
| 82 | an immediate onsite protective investigation. For reports |
| 83 | requiring an immediate onsite protective investigation, the |
| 84 | central abuse hotline must immediately notify the department's |
| 85 | designated protective investigative district staff responsible |
| 86 | for protective investigations to ensure prompt initiation of an |
| 87 | onsite investigation. For reports not requiring an immediate |
| 88 | onsite protective investigation, the central abuse hotline must |
| 89 | notify the department's designated protective investigative |
| 90 | district staff responsible for protective investigations in |
| 91 | sufficient time to allow for an investigation to be commenced |
| 92 | within 24 hours. At the time of notification of district staff |
| 93 | with respect to the report, the central abuse hotline must also |
| 94 | provide any known information on any previous report concerning |
| 95 | a subject of the present report or any pertinent information |
| 96 | relative to the present report or any noted earlier reports. If |
| 97 | the report is of known or suspected abuse of a vulnerable adult |
| 98 | by someone other than a relative, caregiver, or household |
| 99 | member, the report shall be immediately transferred to the |
| 100 | appropriate county sheriff's office. |
| 101 | Section 4. Paragraph (e) of subsection (1) and paragraph |
| 102 | (g) of subsection (2) of section 415.1051, Florida Statutes, are |
| 103 | amended to read: |
| 104 | 415.1051 Protective services interventions when capacity |
| 105 | to consent is lacking; nonemergencies; emergencies; orders; |
| 106 | limitations.-- |
| 107 | (1) NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.--If |
| 108 | the department has reasonable cause to believe that a vulnerable |
| 109 | adult or a vulnerable adult in need of services is being abused, |
| 110 | neglected, or exploited and is in need of protective services |
| 111 | but lacks the capacity to consent to protective services, the |
| 112 | department shall petition the court for an order authorizing the |
| 113 | provision of protective services. |
| 114 | (e) Continued protective services.-- |
| 115 | 1. No more than 60 days after the date of the order |
| 116 | authorizing the provision of protective services, the department |
| 117 | shall petition the court to determine whether: |
| 118 | a. Protective services will be continued with the consent |
| 119 | of the vulnerable adult pursuant to this subsection; |
| 120 | b. Protective services will be continued for the |
| 121 | vulnerable adult who lacks capacity; |
| 122 | c. Protective services will be discontinued; or |
| 123 | d. A petition for guardianship should be filed pursuant to |
| 124 | chapter 744. |
| 125 | 2. If the court determines that a petition for |
| 126 | guardianship should be filed pursuant to chapter 744, the court, |
| 127 | for good cause shown, may order continued protective services |
| 128 | until it makes a determination regarding capacity. |
| 129 | 3. If the department has a good faith belief that the |
| 130 | vulnerable adult lacks the capacity to consent to protective |
| 131 | services, the petition to determine incapacity under s. 744.3201 |
| 132 | may be filed by the department. Once the petition is filed, the |
| 133 | department may not be appointed guardian and may not provide |
| 134 | legal counsel for the guardian. |
| 135 | (2) EMERGENCY PROTECTIVE SERVICES INTERVENTION.--If the |
| 136 | department has reasonable cause to believe that a vulnerable |
| 137 | adult is suffering from abuse or neglect that presents a risk of |
| 138 | death or serious physical injury to the vulnerable adult and |
| 139 | that the vulnerable adult lacks the capacity to consent to |
| 140 | emergency protective services, the department may take action |
| 141 | under this subsection. If the vulnerable adult has the capacity |
| 142 | to consent and refuses consent to emergency protective services, |
| 143 | emergency protective services may not be provided. |
| 144 | (g) Continued emergency protective services.-- |
| 145 | 1. Not more than 60 days after the date of the order |
| 146 | authorizing the provision of emergency protective services, the |
| 147 | department shall petition the court to determine whether: |
| 148 | a. Emergency protective services will be continued with |
| 149 | the consent of the vulnerable adult; |
| 150 | b. Emergency protective services will be continued for the |
| 151 | vulnerable adult who lacks capacity; |
| 152 | c. Emergency protective services will be discontinued; or |
| 153 | d. A petition should be filed under chapter 744. |
| 154 | 2. If it is decided to file a petition under chapter 744, |
| 155 | for good cause shown, the court may order continued emergency |
| 156 | protective services until a determination is made by the court. |
| 157 | 3. If the department has a good faith belief that the |
| 158 | vulnerable adult lacks the capacity to consent to protective |
| 159 | services, the petition to determine incapacity under s. 744.3201 |
| 160 | may be filed by the department. Once the petition is filed, the |
| 161 | department may not be appointed guardian and may not provide |
| 162 | legal counsel for the guardian. |
| 163 | Section 5. Subsection (4) of section 322.142, Florida |
| 164 | Statutes, is amended to read: |
| 165 | 322.142 Color photographic or digital imaged licenses.-- |
| 166 | (4) The department may maintain a film negative or print |
| 167 | file. The department shall maintain a record of the digital |
| 168 | image and signature of the licensees, together with other data |
| 169 | required by the department for identification and retrieval. |
| 170 | Reproductions from the file or digital record are exempt from |
| 171 | the provisions of s. 119.07(1) and shall be made and issued only |
| 172 | for departmental administrative purposes; for the issuance of |
| 173 | duplicate licenses; in response to law enforcement agency |
| 174 | requests; to the Department of State pursuant to an interagency |
| 175 | agreement to facilitate determinations of eligibility of voter |
| 176 | registration applicants and registered voters in accordance with |
| 177 | ss. 98.045 and 98.075; to the Department of Revenue pursuant to |
| 178 | an interagency agreement for use in establishing paternity and |
| 179 | establishing, modifying, or enforcing support obligations in |
| 180 | Title IV-D cases; to the Department of Children and Family |
| 181 | Services pursuant to an interagency agreement to conduct |
| 182 | protective investigations under part III of chapter 39 and |
| 183 | chapter 415; or to the Department of Financial Services pursuant |
| 184 | to an interagency agreement to facilitate the location of owners |
| 185 | of unclaimed property, the validation of unclaimed property |
| 186 | claims, and the identification of fraudulent or false claims. |
| 187 | Section 6. Paragraph (a) of subsection (4) of section |
| 188 | 943.0585, Florida Statutes, is amended to read: |
| 189 | 943.0585 Court-ordered expunction of criminal history |
| 190 | records.--The courts of this state have jurisdiction over their |
| 191 | own procedures, including the maintenance, expunction, and |
| 192 | correction of judicial records containing criminal history |
| 193 | information to the extent such procedures are not inconsistent |
| 194 | with the conditions, responsibilities, and duties established by |
| 195 | this section. Any court of competent jurisdiction may order a |
| 196 | criminal justice agency to expunge the criminal history record |
| 197 | of a minor or an adult who complies with the requirements of |
| 198 | this section. The court shall not order a criminal justice |
| 199 | agency to expunge a criminal history record until the person |
| 200 | seeking to expunge a criminal history record has applied for and |
| 201 | received a certificate of eligibility for expunction pursuant to |
| 202 | subsection (2). A criminal history record that relates to a |
| 203 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
| 204 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
| 205 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
| 206 | 893.135, s. 916.1075, a violation enumerated in s. 907.041, or |
| 207 | any violation specified as a predicate offense for registration |
| 208 | as a sexual predator pursuant to s. 775.21, without regard to |
| 209 | whether that offense alone is sufficient to require such |
| 210 | registration, or for registration as a sexual offender pursuant |
| 211 | to s. 943.0435, may not be expunged, without regard to whether |
| 212 | adjudication was withheld, if the defendant was found guilty of |
| 213 | or pled guilty or nolo contendere to the offense, or if the |
| 214 | defendant, as a minor, was found to have committed, or pled |
| 215 | guilty or nolo contendere to committing, the offense as a |
| 216 | delinquent act. The court may only order expunction of a |
| 217 | criminal history record pertaining to one arrest or one incident |
| 218 | of alleged criminal activity, except as provided in this |
| 219 | section. The court may, at its sole discretion, order the |
| 220 | expunction of a criminal history record pertaining to more than |
| 221 | one arrest if the additional arrests directly relate to the |
| 222 | original arrest. If the court intends to order the expunction of |
| 223 | records pertaining to such additional arrests, such intent must |
| 224 | be specified in the order. A criminal justice agency may not |
| 225 | expunge any record pertaining to such additional arrests if the |
| 226 | order to expunge does not articulate the intention of the court |
| 227 | to expunge a record pertaining to more than one arrest. This |
| 228 | section does not prevent the court from ordering the expunction |
| 229 | of only a portion of a criminal history record pertaining to one |
| 230 | arrest or one incident of alleged criminal activity. |
| 231 | Notwithstanding any law to the contrary, a criminal justice |
| 232 | agency may comply with laws, court orders, and official requests |
| 233 | of other jurisdictions relating to expunction, correction, or |
| 234 | confidential handling of criminal history records or information |
| 235 | derived therefrom. This section does not confer any right to the |
| 236 | expunction of any criminal history record, and any request for |
| 237 | expunction of a criminal history record may be denied at the |
| 238 | sole discretion of the court. |
| 239 | (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any |
| 240 | criminal history record of a minor or an adult which is ordered |
| 241 | expunged by a court of competent jurisdiction pursuant to this |
| 242 | section must be physically destroyed or obliterated by any |
| 243 | criminal justice agency having custody of such record; except |
| 244 | that any criminal history record in the custody of the |
| 245 | department must be retained in all cases. A criminal history |
| 246 | record ordered expunged that is retained by the department is |
| 247 | confidential and exempt from the provisions of s. 119.07(1) and |
| 248 | s. 24(a), Art. I of the State Constitution and not available to |
| 249 | any person or entity except upon order of a court of competent |
| 250 | jurisdiction. A criminal justice agency may retain a notation |
| 251 | indicating compliance with an order to expunge. |
| 252 | (a) The person who is the subject of a criminal history |
| 253 | record that is expunged under this section or under other |
| 254 | provisions of law, including former s. 893.14, former s. 901.33, |
| 255 | and former s. 943.058, may lawfully deny or fail to acknowledge |
| 256 | the arrests covered by the expunged record, except when the |
| 257 | subject of the record: |
| 258 | 1. Is a candidate for employment with a criminal justice |
| 259 | agency; |
| 260 | 2. Is a defendant in a criminal prosecution; |
| 261 | 3. Concurrently or subsequently petitions for relief under |
| 262 | this section or s. 943.059; |
| 263 | 4. Is a candidate for admission to The Florida Bar; |
| 264 | 5. Is seeking to be employed or licensed by or to contract |
| 265 | with the Department of Children and Family Services, the Agency |
| 266 | for Health Care Administration, the Agency for Persons with |
| 267 | Disabilities, or the Department of Juvenile Justice or to be |
| 268 | employed or used by such contractor or licensee in a sensitive |
| 269 | position having direct contact with children, the |
| 270 | developmentally disabled, the aged, or the elderly as provided |
| 271 | in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. |
| 272 | 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4), |
| 273 | chapter 916, s. 985.644, chapter 400, or chapter 429; |
| 274 | 6. Is seeking to be employed or licensed by the Department |
| 275 | of Education, any district school board, any university |
| 276 | laboratory school, any charter school, any private or parochial |
| 277 | school, or any local governmental entity that licenses child |
| 278 | care facilities; or |
| 279 | 7. Is seeking authorization from a Florida seaport |
| 280 | identified in s. 311.09 for employment within or access to one |
| 281 | or more of such seaports pursuant to s. 311.12 or s. 311.125. |
| 282 | Section 7. Paragraph (a) of subsection (4) of section |
| 283 | 943.059, Florida Statutes, is amended to read: |
| 284 | 943.059 Court-ordered sealing of criminal history |
| 285 | records.--The courts of this state shall continue to have |
| 286 | jurisdiction over their own procedures, including the |
| 287 | maintenance, sealing, and correction of judicial records |
| 288 | containing criminal history information to the extent such |
| 289 | procedures are not inconsistent with the conditions, |
| 290 | responsibilities, and duties established by this section. Any |
| 291 | court of competent jurisdiction may order a criminal justice |
| 292 | agency to seal the criminal history record of a minor or an |
| 293 | adult who complies with the requirements of this section. The |
| 294 | court shall not order a criminal justice agency to seal a |
| 295 | criminal history record until the person seeking to seal a |
| 296 | criminal history record has applied for and received a |
| 297 | certificate of eligibility for sealing pursuant to subsection |
| 298 | (2). A criminal history record that relates to a violation of s. |
| 299 | 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. |
| 300 | 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter |
| 301 | 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. |
| 302 | 916.1075, a violation enumerated in s. 907.041, or any violation |
| 303 | specified as a predicate offense for registration as a sexual |
| 304 | predator pursuant to s. 775.21, without regard to whether that |
| 305 | offense alone is sufficient to require such registration, or for |
| 306 | registration as a sexual offender pursuant to s. 943.0435, may |
| 307 | not be sealed, without regard to whether adjudication was |
| 308 | withheld, if the defendant was found guilty of or pled guilty or |
| 309 | nolo contendere to the offense, or if the defendant, as a minor, |
| 310 | was found to have committed or pled guilty or nolo contendere to |
| 311 | committing the offense as a delinquent act. The court may only |
| 312 | order sealing of a criminal history record pertaining to one |
| 313 | arrest or one incident of alleged criminal activity, except as |
| 314 | provided in this section. The court may, at its sole discretion, |
| 315 | order the sealing of a criminal history record pertaining to |
| 316 | more than one arrest if the additional arrests directly relate |
| 317 | to the original arrest. If the court intends to order the |
| 318 | sealing of records pertaining to such additional arrests, such |
| 319 | intent must be specified in the order. A criminal justice agency |
| 320 | may not seal any record pertaining to such additional arrests if |
| 321 | the order to seal does not articulate the intention of the court |
| 322 | to seal records pertaining to more than one arrest. This section |
| 323 | does not prevent the court from ordering the sealing of only a |
| 324 | portion of a criminal history record pertaining to one arrest or |
| 325 | one incident of alleged criminal activity. Notwithstanding any |
| 326 | law to the contrary, a criminal justice agency may comply with |
| 327 | laws, court orders, and official requests of other jurisdictions |
| 328 | relating to sealing, correction, or confidential handling of |
| 329 | criminal history records or information derived therefrom. This |
| 330 | section does not confer any right to the sealing of any criminal |
| 331 | history record, and any request for sealing a criminal history |
| 332 | record may be denied at the sole discretion of the court. |
| 333 | (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal |
| 334 | history record of a minor or an adult which is ordered sealed by |
| 335 | a court of competent jurisdiction pursuant to this section is |
| 336 | confidential and exempt from the provisions of s. 119.07(1) and |
| 337 | s. 24(a), Art. I of the State Constitution and is available only |
| 338 | to the person who is the subject of the record, to the subject's |
| 339 | attorney, to criminal justice agencies for their respective |
| 340 | criminal justice purposes, which include conducting a criminal |
| 341 | history background check for approval of firearms purchases or |
| 342 | transfers as authorized by state or federal law, to judges in |
| 343 | the state courts system for the purpose of assisting them in |
| 344 | their case-related decisionmaking responsibilities, as set forth |
| 345 | in s. 943.053(5), or to those entities set forth in |
| 346 | subparagraphs (a)1., 4., 5., 6., and 8. for their respective |
| 347 | licensing, access authorization, and employment purposes. |
| 348 | (a) The subject of a criminal history record sealed under |
| 349 | this section or under other provisions of law, including former |
| 350 | s. 893.14, former s. 901.33, and former s. 943.058, may lawfully |
| 351 | deny or fail to acknowledge the arrests covered by the sealed |
| 352 | record, except when the subject of the record: |
| 353 | 1. Is a candidate for employment with a criminal justice |
| 354 | agency; |
| 355 | 2. Is a defendant in a criminal prosecution; |
| 356 | 3. Concurrently or subsequently petitions for relief under |
| 357 | this section or s. 943.0585; |
| 358 | 4. Is a candidate for admission to The Florida Bar; |
| 359 | 5. Is seeking to be employed or licensed by or to contract |
| 360 | with the Department of Children and Family Services, the Agency |
| 361 | for Health Care Administration, the Agency for Persons with |
| 362 | Disabilities, or the Department of Juvenile Justice or to be |
| 363 | employed or used by such contractor or licensee in a sensitive |
| 364 | position having direct contact with children, the |
| 365 | developmentally disabled, the aged, or the elderly as provided |
| 366 | in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. |
| 367 | 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4), |
| 368 | s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter |
| 369 | 429; |
| 370 | 6. Is seeking to be employed or licensed by the Department |
| 371 | of Education, any district school board, any university |
| 372 | laboratory school, any charter school, any private or parochial |
| 373 | school, or any local governmental entity that licenses child |
| 374 | care facilities; |
| 375 | 7. Is attempting to purchase a firearm from a licensed |
| 376 | importer, licensed manufacturer, or licensed dealer and is |
| 377 | subject to a criminal history background check under state or |
| 378 | federal law; or |
| 379 | 8. Is seeking authorization from a Florida seaport |
| 380 | identified in s. 311.09 for employment within or access to one |
| 381 | or more of such seaports pursuant to s. 311.12 or s. 311.125. |
| 382 | Section 8. This act shall take effect July 1, 2009. |