HB 1141

1
A bill to be entitled
2An act relating to adult protective services; amending s.
3415.101, F.S.; providing for protective services to apply
4to vulnerable adults; amending s. 415.102, F.S.; defining
5the term "activities of daily living"; revising the
6definition of the term "vulnerable adult"; conforming a
7cross-reference; amending s. 415.103, F.S.; providing for
8certain suspected abuse cases to be transferred to the
9local county sheriff's office; amending s. 415.1051, F.S.;
10providing for the Department of Children and Family
11Services to file a petition to determine incapacity and
12guardianship under certain circumstances; amending s.
13322.142, F.S.; authorizing the department to be provided
14copies of drivers' license files maintained by the
15Department of Highway Safety and Motor Vehicles for the
16purpose of conducting protective investigations; amending
17ss. 943.0585 and 943.059, F.S.; conforming cross-
18references; providing an effective date.
19
20Be It Enacted by the Legislature of the State of Florida:
21
22     Section 1.  Subsection (2) of section 415.101, Florida
23Statutes, is amended to read:
24     415.101  Adult Protective Services Act; legislative
25intent.--
26     (2)  The Legislature recognizes that there are many persons
27in this state who, because of age or disability, are in need of
28protective services. Such services should allow such an
29individual the same rights as other citizens and, at the same
30time, protect the individual from abuse, neglect, and
31exploitation. It is the intent of the Legislature to provide for
32the detection and correction of abuse, neglect, and exploitation
33through social services and criminal investigations and to
34establish a program of protective services for all vulnerable
35disabled adults or elderly persons in need of them. It is
36intended that the mandatory reporting of such cases will cause
37the protective services of the state to be brought to bear in an
38effort to prevent further abuse, neglect, and exploitation of
39vulnerable disabled adults or elderly persons. In taking this
40action, the Legislature intends to place the fewest possible
41restrictions on personal liberty and the exercise of
42constitutional rights, consistent with due process and
43protection from abuse, neglect, and exploitation. Further, the
44Legislature intends to encourage the constructive involvement of
45families in the care and protection of vulnerable disabled
46adults or elderly persons.
47     Section 2.  Subsections (2) through (27) of section
48415.102, Florida Statutes, are renumbered as subsections (3)
49through (28), respectively, current subsections (4) and (26) are
50amended, and a new subsection (2) is added to that section, to
51read:
52     415.102  Definitions of terms used in ss. 415.101-
53415.113.--As used in ss. 415.101-415.113, the term:
54     (2)  "Activities of daily living" means functions and tasks
55for self-care, including eating, bathing, grooming, dressing,
56ambulating, and other similar tasks.
57     (5)(4)  "Caregiver" means a person who has been entrusted
58with or has assumed the responsibility for frequent and regular
59care of or services to a vulnerable adult on a temporary or
60permanent basis and who has a commitment, agreement, or
61understanding with that person or that person's guardian that a
62caregiver role exists. "Caregiver" includes, but is not limited
63to, relatives, household members, guardians, neighbors, and
64employees and volunteers of facilities as defined in subsection
65(9) (8). For the purpose of departmental investigative
66jurisdiction, the term "caregiver" does not include law
67enforcement officers or employees of municipal or county
68detention facilities or the Department of Corrections while
69acting in an official capacity.
70     (27)(26)  "Vulnerable adult" means a person 18 years of age
71or older whose ability to perform the normal activities of daily
72living or to provide for his or her own care or protection is
73impaired due to a mental, emotional, sensory long-term physical,
74or developmental disability or dysfunction dysfunctioning, or
75brain damage, or the infirmities of aging.
76     Section 3.  Subsection (2) of section 415.103, Florida
77Statutes, is amended to read:
78     415.103  Central abuse hotline.--
79     (2)  Upon receiving an oral or written report of known or
80suspected abuse, neglect, or exploitation of a vulnerable adult,
81the central abuse hotline must determine if the report requires
82an immediate onsite protective investigation. For reports
83requiring an immediate onsite protective investigation, the
84central abuse hotline must immediately notify the department's
85designated protective investigative district staff responsible
86for protective investigations to ensure prompt initiation of an
87onsite investigation. For reports not requiring an immediate
88onsite protective investigation, the central abuse hotline must
89notify the department's designated protective investigative
90district staff responsible for protective investigations in
91sufficient time to allow for an investigation to be commenced
92within 24 hours. At the time of notification of district staff
93with respect to the report, the central abuse hotline must also
94provide any known information on any previous report concerning
95a subject of the present report or any pertinent information
96relative to the present report or any noted earlier reports. If
97the report is of known or suspected abuse of a vulnerable adult
98by someone other than a relative, caregiver, or household
99member, the report shall be immediately transferred to the
100appropriate 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
103amended to read:
104     415.1051  Protective services interventions when capacity
105to consent is lacking; nonemergencies; emergencies; orders;
106limitations.--
107     (1)  NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.--If
108the department has reasonable cause to believe that a vulnerable
109adult or a vulnerable adult in need of services is being abused,
110neglected, or exploited and is in need of protective services
111but lacks the capacity to consent to protective services, the
112department shall petition the court for an order authorizing the
113provision of protective services.
114     (e)  Continued protective services.--
115     1.  No more than 60 days after the date of the order
116authorizing the provision of protective services, the department
117shall petition the court to determine whether:
118     a.  Protective services will be continued with the consent
119of the vulnerable adult pursuant to this subsection;
120     b.  Protective services will be continued for the
121vulnerable adult who lacks capacity;
122     c.  Protective services will be discontinued; or
123     d.  A petition for guardianship should be filed pursuant to
124chapter 744.
125     2.  If the court determines that a petition for
126guardianship should be filed pursuant to chapter 744, the court,
127for good cause shown, may order continued protective services
128until it makes a determination regarding capacity.
129     3.  If the department has a good faith belief that the
130vulnerable adult lacks the capacity to consent to protective
131services, the petition to determine incapacity under s. 744.3201
132may be filed by the department. Once the petition is filed, the
133department may not be appointed guardian and may not provide
134legal counsel for the guardian.
135     (2)  EMERGENCY PROTECTIVE SERVICES INTERVENTION.--If the
136department has reasonable cause to believe that a vulnerable
137adult is suffering from abuse or neglect that presents a risk of
138death or serious physical injury to the vulnerable adult and
139that the vulnerable adult lacks the capacity to consent to
140emergency protective services, the department may take action
141under this subsection. If the vulnerable adult has the capacity
142to consent and refuses consent to emergency protective services,
143emergency 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
146authorizing the provision of emergency protective services, the
147department shall petition the court to determine whether:
148     a.  Emergency protective services will be continued with
149the consent of the vulnerable adult;
150     b.  Emergency protective services will be continued for the
151vulnerable 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,
155for good cause shown, the court may order continued emergency
156protective services until a determination is made by the court.
157     3.  If the department has a good faith belief that the
158vulnerable adult lacks the capacity to consent to protective
159services, the petition to determine incapacity under s. 744.3201
160may be filed by the department. Once the petition is filed, the
161department may not be appointed guardian and may not provide
162legal counsel for the guardian.
163     Section 5.  Subsection (4) of section 322.142, Florida
164Statutes, is amended to read:
165     322.142  Color photographic or digital imaged licenses.--
166     (4)  The department may maintain a film negative or print
167file. The department shall maintain a record of the digital
168image and signature of the licensees, together with other data
169required by the department for identification and retrieval.
170Reproductions from the file or digital record are exempt from
171the provisions of s. 119.07(1) and shall be made and issued only
172for departmental administrative purposes; for the issuance of
173duplicate licenses; in response to law enforcement agency
174requests; to the Department of State pursuant to an interagency
175agreement to facilitate determinations of eligibility of voter
176registration applicants and registered voters in accordance with
177ss. 98.045 and 98.075; to the Department of Revenue pursuant to
178an interagency agreement for use in establishing paternity and
179establishing, modifying, or enforcing support obligations in
180Title IV-D cases; to the Department of Children and Family
181Services pursuant to an interagency agreement to conduct
182protective investigations under part III of chapter 39 and
183chapter 415; or to the Department of Financial Services pursuant
184to an interagency agreement to facilitate the location of owners
185of unclaimed property, the validation of unclaimed property
186claims, and the identification of fraudulent or false claims.
187     Section 6.  Paragraph (a) of subsection (4) of section
188943.0585, Florida Statutes, is amended to read:
189     943.0585  Court-ordered expunction of criminal history
190records.--The courts of this state have jurisdiction over their
191own procedures, including the maintenance, expunction, and
192correction of judicial records containing criminal history
193information to the extent such procedures are not inconsistent
194with the conditions, responsibilities, and duties established by
195this section. Any court of competent jurisdiction may order a
196criminal justice agency to expunge the criminal history record
197of a minor or an adult who complies with the requirements of
198this section. The court shall not order a criminal justice
199agency to expunge a criminal history record until the person
200seeking to expunge a criminal history record has applied for and
201received a certificate of eligibility for expunction pursuant to
202subsection (2). A criminal history record that relates to a
203violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
204s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
205827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
206893.135, s. 916.1075, a violation enumerated in s. 907.041, or
207any violation specified as a predicate offense for registration
208as a sexual predator pursuant to s. 775.21, without regard to
209whether that offense alone is sufficient to require such
210registration, or for registration as a sexual offender pursuant
211to s. 943.0435, may not be expunged, without regard to whether
212adjudication was withheld, if the defendant was found guilty of
213or pled guilty or nolo contendere to the offense, or if the
214defendant, as a minor, was found to have committed, or pled
215guilty or nolo contendere to committing, the offense as a
216delinquent act. The court may only order expunction of a
217criminal history record pertaining to one arrest or one incident
218of alleged criminal activity, except as provided in this
219section. The court may, at its sole discretion, order the
220expunction of a criminal history record pertaining to more than
221one arrest if the additional arrests directly relate to the
222original arrest. If the court intends to order the expunction of
223records pertaining to such additional arrests, such intent must
224be specified in the order. A criminal justice agency may not
225expunge any record pertaining to such additional arrests if the
226order to expunge does not articulate the intention of the court
227to expunge a record pertaining to more than one arrest. This
228section does not prevent the court from ordering the expunction
229of only a portion of a criminal history record pertaining to one
230arrest or one incident of alleged criminal activity.
231Notwithstanding any law to the contrary, a criminal justice
232agency may comply with laws, court orders, and official requests
233of other jurisdictions relating to expunction, correction, or
234confidential handling of criminal history records or information
235derived therefrom. This section does not confer any right to the
236expunction of any criminal history record, and any request for
237expunction of a criminal history record may be denied at the
238sole discretion of the court.
239     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
240criminal history record of a minor or an adult which is ordered
241expunged by a court of competent jurisdiction pursuant to this
242section must be physically destroyed or obliterated by any
243criminal justice agency having custody of such record; except
244that any criminal history record in the custody of the
245department must be retained in all cases. A criminal history
246record ordered expunged that is retained by the department is
247confidential and exempt from the provisions of s. 119.07(1) and
248s. 24(a), Art. I of the State Constitution and not available to
249any person or entity except upon order of a court of competent
250jurisdiction. A criminal justice agency may retain a notation
251indicating compliance with an order to expunge.
252     (a)  The person who is the subject of a criminal history
253record that is expunged under this section or under other
254provisions of law, including former s. 893.14, former s. 901.33,
255and former s. 943.058, may lawfully deny or fail to acknowledge
256the arrests covered by the expunged record, except when the
257subject of the record:
258     1.  Is a candidate for employment with a criminal justice
259agency;
260     2.  Is a defendant in a criminal prosecution;
261     3.  Concurrently or subsequently petitions for relief under
262this 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
265with the Department of Children and Family Services, the Agency
266for Health Care Administration, the Agency for Persons with
267Disabilities, or the Department of Juvenile Justice or to be
268employed or used by such contractor or licensee in a sensitive
269position having direct contact with children, the
270developmentally disabled, the aged, or the elderly as provided
271in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
272402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
273chapter 916, s. 985.644, chapter 400, or chapter 429;
274     6.  Is seeking to be employed or licensed by the Department
275of Education, any district school board, any university
276laboratory school, any charter school, any private or parochial
277school, or any local governmental entity that licenses child
278care facilities; or
279     7.  Is seeking authorization from a Florida seaport
280identified in s. 311.09 for employment within or access to one
281or more of such seaports pursuant to s. 311.12 or s. 311.125.
282     Section 7.  Paragraph (a) of subsection (4) of section
283943.059, Florida Statutes, is amended to read:
284     943.059  Court-ordered sealing of criminal history
285records.--The courts of this state shall continue to have
286jurisdiction over their own procedures, including the
287maintenance, sealing, and correction of judicial records
288containing criminal history information to the extent such
289procedures are not inconsistent with the conditions,
290responsibilities, and duties established by this section. Any
291court of competent jurisdiction may order a criminal justice
292agency to seal the criminal history record of a minor or an
293adult who complies with the requirements of this section. The
294court shall not order a criminal justice agency to seal a
295criminal history record until the person seeking to seal a
296criminal history record has applied for and received a
297certificate of eligibility for sealing pursuant to subsection
298(2). A criminal history record that relates to a violation of s.
299393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
300800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
301839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
302916.1075, a violation enumerated in s. 907.041, or any violation
303specified as a predicate offense for registration as a sexual
304predator pursuant to s. 775.21, without regard to whether that
305offense alone is sufficient to require such registration, or for
306registration as a sexual offender pursuant to s. 943.0435, may
307not be sealed, without regard to whether adjudication was
308withheld, if the defendant was found guilty of or pled guilty or
309nolo contendere to the offense, or if the defendant, as a minor,
310was found to have committed or pled guilty or nolo contendere to
311committing the offense as a delinquent act. The court may only
312order sealing of a criminal history record pertaining to one
313arrest or one incident of alleged criminal activity, except as
314provided in this section. The court may, at its sole discretion,
315order the sealing of a criminal history record pertaining to
316more than one arrest if the additional arrests directly relate
317to the original arrest. If the court intends to order the
318sealing of records pertaining to such additional arrests, such
319intent must be specified in the order. A criminal justice agency
320may not seal any record pertaining to such additional arrests if
321the order to seal does not articulate the intention of the court
322to seal records pertaining to more than one arrest. This section
323does not prevent the court from ordering the sealing of only a
324portion of a criminal history record pertaining to one arrest or
325one incident of alleged criminal activity. Notwithstanding any
326law to the contrary, a criminal justice agency may comply with
327laws, court orders, and official requests of other jurisdictions
328relating to sealing, correction, or confidential handling of
329criminal history records or information derived therefrom. This
330section does not confer any right to the sealing of any criminal
331history record, and any request for sealing a criminal history
332record may be denied at the sole discretion of the court.
333     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
334history record of a minor or an adult which is ordered sealed by
335a court of competent jurisdiction pursuant to this section is
336confidential and exempt from the provisions of s. 119.07(1) and
337s. 24(a), Art. I of the State Constitution and is available only
338to the person who is the subject of the record, to the subject's
339attorney, to criminal justice agencies for their respective
340criminal justice purposes, which include conducting a criminal
341history background check for approval of firearms purchases or
342transfers as authorized by state or federal law, to judges in
343the state courts system for the purpose of assisting them in
344their case-related decisionmaking responsibilities, as set forth
345in s. 943.053(5), or to those entities set forth in
346subparagraphs (a)1., 4., 5., 6., and 8. for their respective
347licensing, access authorization, and employment purposes.
348     (a)  The subject of a criminal history record sealed under
349this section or under other provisions of law, including former
350s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
351deny or fail to acknowledge the arrests covered by the sealed
352record, except when the subject of the record:
353     1.  Is a candidate for employment with a criminal justice
354agency;
355     2.  Is a defendant in a criminal prosecution;
356     3.  Concurrently or subsequently petitions for relief under
357this 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
360with the Department of Children and Family Services, the Agency
361for Health Care Administration, the Agency for Persons with
362Disabilities, or the Department of Juvenile Justice or to be
363employed or used by such contractor or licensee in a sensitive
364position having direct contact with children, the
365developmentally disabled, the aged, or the elderly as provided
366in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
367402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
368s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter
369429;
370     6.  Is seeking to be employed or licensed by the Department
371of Education, any district school board, any university
372laboratory school, any charter school, any private or parochial
373school, or any local governmental entity that licenses child
374care facilities;
375     7.  Is attempting to purchase a firearm from a licensed
376importer, licensed manufacturer, or licensed dealer and is
377subject to a criminal history background check under state or
378federal law; or
379     8.  Is seeking authorization from a Florida seaport
380identified in s. 311.09 for employment within or access to one
381or more of such seaports pursuant to s. 311.12 or s. 311.125.
382     Section 8.  This act shall take effect July 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.