Florida Senate - 2009                                     SB 910
       
       
       
       By Senator Wilson
       
       
       
       
       33-00076B-09                                           2009910__
    1                        A bill to be entitled                      
    2         An act relating to criminal justice; providing
    3         legislative intent; requiring state agencies and
    4         regulatory boards to prepare reports that identify and
    5         evaluate restrictions on licensing and employment;
    6         amending s. 112.011, F.S.; prohibiting state agencies
    7         from denying an application for a license, permit,
    8         certificate, or employment based on a person's lack of
    9         civil rights; providing an exception; amending s.
   10         943.0585, F.S.; clarifying under what circumstances a
   11         person may legally deny the existence of an expunged
   12         criminal history record; authorizing the disclosure of
   13         the contents of an expunged record upon receipt of a
   14         written, notarized request from the record subject;
   15         requiring clerks of the court to post information
   16         relating to procedures to seal or expunge criminal
   17         history records on the clerk's website; amending s.
   18         943.059, F.S.; clarifying under what circumstances a
   19         person may legally deny the existence of a sealed
   20         criminal history record; authorizing a court to seal a
   21         criminal history record of a person who had a prior
   22         criminal history record sealed or expunged; requiring
   23         the Office of Program Policy Analysis and Government
   24         Accountability to prepare a report of its findings
   25         relating to the use of criminal history records in
   26         licensing and employment decisions; providing an
   27         effective date.
   28         
   29  Be It Enacted by the Legislature of the State of Florida:
   30         
   31         Section 1. Restrictions on the employment of ex-offenders;
   32  legislative intent; state agency reporting requirements.
   33         (1)The Legislature declares that it is the goal of this
   34  state to provide to prospective employees a clear statement of
   35  which crimes would disqualify ex-offenders from which
   36  occupations. It is the intent of the Legislature to make
   37  opportunities for employment available to ex-offenders so that
   38  they will be less likely to revert to criminal behavior, insofar
   39  as the employment of such persons does not detract from the
   40  safety of the public. The Legislature further declares that
   41  state agencies should identify all restrictions imposed by the
   42  agencies or by boards that regulate professions and occupations
   43  on employment and should make an effort to define each
   44  restriction as narrowly as possible while continuing to maintain
   45  public safety.
   46         (2)Each state agency, including, but not limited to,
   47  professional and occupational regulatory boards, shall, by
   48  December 31, 2010, and every 8 years thereafter, submit to the
   49  Governor, the President of the Senate, and the Speaker of the
   50  House of Representatives a report that includes:
   51         (a)A list of all agency or board policies that disqualify
   52  from employment or licensure persons who have been convicted of
   53  a crime and have completed any incarceration and restitution to
   54  which they have been sentenced for such a crime.
   55         (b)A determination of whether the disqualifying policies
   56  are readily available to prospective employers and licensees.
   57         (c)The identification and evaluation of alternatives to
   58  the disqualifying policies to promote the employment of ex
   59  offenders and protect the public.
   60         (d)An evaluation of whether the disqualifying polices are
   61  too broad and whether crimes or acts of moral turpitude that
   62  disqualify a person from licensure should be more specifically
   63  or narrowly identified.
   64         Section 2. Section 112.011, Florida Statutes, is amended to
   65  read:
   66         112.011 Disqualification from licensing and public
   67  employment based on criminal conviction Felons; removal of
   68  disqualifications for employment, exceptions.—
   69         (1)(a) Except as provided in s. 775.16, a person may shall
   70  not be disqualified from employment by the state, any of its
   71  agencies or political subdivisions, or any municipality solely
   72  because of a prior conviction for a crime. However, a person may
   73  be denied employment by the state, any of its agencies or
   74  political subdivisions, or any municipality by reason of the
   75  prior conviction for a crime if the crime was a felony or first
   76  degree misdemeanor and directly related to the position of
   77  employment sought.
   78         (b) Except as provided in s. 775.16, a person whose civil
   79  rights have been restored shall not be disqualified to practice,
   80  pursue, or engage in any occupation, trade, vocation,
   81  profession, or business for which a license, permit, or
   82  certificate is required to be issued by the state, any of its
   83  agencies or political subdivisions, or any municipality solely
   84  because of a prior conviction for a crime. However, a person
   85  whose civil rights have been restored may be denied a license,
   86  permit, or certification to pursue, practice, or engage in an
   87  occupation, trade, vocation, profession, or business by reason
   88  of the prior conviction for a crime if the crime was a felony or
   89  first degree misdemeanor relevant to the standards normally
   90  associated with, or determined by the regulatory authority to be
   91  necessary for the protection of the public or other parties for
   92  and directly related to the specific occupation, trade,
   93  vocation, profession, or business for which the license, permit,
   94  or certificate is sought.
   95         (c)Notwithstanding any law to the contrary, a state agency
   96  may not deny an application for a license, permit, certificate,
   97  or employment based on the applicant's lack of civil rights.
   98  However, this paragraph does not apply to applications for a
   99  license to carry a concealed weapon or firearm under chapter
  100  790.
  101         (2)(a) This section does shall not apply be applicable to
  102  any law enforcement or correctional agency.
  103         (b) This section shall not be applicable to the employment
  104  practices of any fire department relating to the hiring of
  105  firefighters. An applicant for employment with any fire
  106  department who has with a prior felony conviction shall be
  107  excluded from employment for a period of 4 years after
  108  expiration of sentence or final release by the Parole Commission
  109  unless the applicant, prior to the expiration of the 4-year
  110  period, has received a full pardon or has had his or her civil
  111  rights restored.
  112         (c) This section does shall not apply be applicable to the
  113  employment practices of any county or municipality relating to
  114  the hiring of personnel for positions deemed to be critical to
  115  security or public safety pursuant to ss. 125.5801 and 166.0442.
  116         (3) Any complaint concerning the violation of this section
  117  shall be adjudicated in accordance with the procedures set forth
  118  in chapter 120 for administrative and judicial review.
  119         Section 3. Section 943.0585, Florida Statutes, is amended
  120  to read:
  121         943.0585 Court-ordered expunction of criminal history
  122  records.—The courts of this state have jurisdiction over their
  123  own procedures, including the maintenance, expunction, and
  124  correction of judicial records containing criminal history
  125  information to the extent such procedures are not inconsistent
  126  with the conditions, responsibilities, and duties established by
  127  this section. Any court of competent jurisdiction may order a
  128  criminal justice agency to expunge the criminal history record
  129  of a minor or an adult who complies with the requirements of
  130  this section. The court shall not order a criminal justice
  131  agency to expunge a criminal history record until the person
  132  seeking to expunge a criminal history record has applied for and
  133  received a certificate of eligibility for expunction pursuant to
  134  subsection (2). A criminal history record that relates to a
  135  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  136  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  137  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  138  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  139  any violation specified as a predicate offense for registration
  140  as a sexual predator pursuant to s. 775.21, without regard to
  141  whether that offense alone is sufficient to require such
  142  registration, or for registration as a sexual offender pursuant
  143  to s. 943.0435, may not be expunged, without regard to whether
  144  adjudication was withheld, if the defendant was found guilty of
  145  or pled guilty or nolo contendere to the offense, or if the
  146  defendant, as a minor, was found to have committed, or pled
  147  guilty or nolo contendere to committing, the offense as a
  148  delinquent act. The court may only order expunction of a
  149  criminal history record pertaining to one arrest or one incident
  150  of alleged criminal activity, except as provided in this
  151  section. The court may, at its sole discretion, order the
  152  expunction of a criminal history record pertaining to more than
  153  one arrest if the additional arrests directly relate to the
  154  original arrest. If the court intends to order the expunction of
  155  records pertaining to such additional arrests, such intent must
  156  be specified in the order. A criminal justice agency may not
  157  expunge any record pertaining to such additional arrests if the
  158  order to expunge does not articulate the intention of the court
  159  to expunge a record pertaining to more than one arrest. This
  160  section does not prevent the court from ordering the expunction
  161  of only a portion of a criminal history record pertaining to one
  162  arrest or one incident of alleged criminal activity.
  163  Notwithstanding any law to the contrary, a criminal justice
  164  agency may comply with laws, court orders, and official requests
  165  of other jurisdictions relating to expunction, correction, or
  166  confidential handling of criminal history records or information
  167  derived therefrom. This section does not confer any right to the
  168  expunction of any criminal history record, and any request for
  169  expunction of a criminal history record may be denied at the
  170  sole discretion of the court.
  171         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
  172  petition to a court to expunge a criminal history record is
  173  complete only when accompanied by:
  174         (a) A valid certificate of eligibility for expunction
  175  issued by the department pursuant to subsection (2).
  176         (b) The petitioner's sworn statement attesting that the
  177  petitioner:
  178         1. Has never, prior to the date on which the petition is
  179  filed, been adjudicated guilty of a criminal offense or
  180  comparable ordinance violation, or been adjudicated delinquent
  181  for committing any felony or a misdemeanor specified in s.
  182  943.051(3)(b).
  183         2. Has not been adjudicated guilty of, or adjudicated
  184  delinquent for committing, any of the acts stemming from the
  185  arrest or alleged criminal activity to which the petition
  186  pertains.
  187         3. Has never secured a prior sealing or expunction of a
  188  criminal history record under this section, former s. 893.14,
  189  former s. 901.33, or former s. 943.058, or from any jurisdiction
  190  outside the state, unless expunction is sought of a criminal
  191  history record previously sealed for 10 years pursuant to
  192  paragraph (2)(h) and the record is otherwise eligible for
  193  expunction.
  194         4. Is eligible for such an expunction to the best of his or
  195  her knowledge or belief and does not have any other petition to
  196  expunge or any petition to seal pending before any court.
  197  Any person who knowingly provides false information on such
  198  sworn statement to the court commits a felony of the third
  199  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  200  775.084.
  201         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  202  petitioning the court to expunge a criminal history record, a
  203  person seeking to expunge a criminal history record shall apply
  204  to the department for a certificate of eligibility for
  205  expunction. The department shall, by rule adopted pursuant to
  206  chapter 120, establish procedures pertaining to the application
  207  for and issuance of certificates of eligibility for expunction.
  208  A certificate of eligibility for expunction is valid for 12
  209  months after the date stamped on the certificate when issued by
  210  the department. After that time, the petitioner must reapply to
  211  the department for a new certificate of eligibility. Eligibility
  212  for a renewed certification of eligibility must be based on the
  213  status of the applicant and the law in effect at the time of the
  214  renewal application. The department shall issue a certificate of
  215  eligibility for expunction to a person who is the subject of a
  216  criminal history record if that person:
  217         (a) Has obtained, and submitted to the department, a
  218  written, certified statement from the appropriate state attorney
  219  or statewide prosecutor which indicates:
  220         1. That an indictment, information, or other charging
  221  document was not filed or issued in the case.
  222         2. That an indictment, information, or other charging
  223  document, if filed or issued in the case, was dismissed or nolle
  224  prosequi by the state attorney or statewide prosecutor, or was
  225  dismissed by a court of competent jurisdiction, and that none of
  226  the charges related to the arrest or alleged criminal activity
  227  to which the petition to expunge pertains resulted in a trial,
  228  without regard to whether the outcome of the trial was other
  229  than an adjudication of guilt.
  230         3. That the criminal history record does not relate to a
  231  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  232  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  233  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  234  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  235  any violation specified as a predicate offense for registration
  236  as a sexual predator pursuant to s. 775.21, without regard to
  237  whether that offense alone is sufficient to require such
  238  registration, or for registration as a sexual offender pursuant
  239  to s. 943.0435, where the defendant was found guilty of, or pled
  240  guilty or nolo contendere to any such offense, or that the
  241  defendant, as a minor, was found to have committed, or pled
  242  guilty or nolo contendere to committing, such an offense as a
  243  delinquent act, without regard to whether adjudication was
  244  withheld.
  245         (b) Remits a $75 processing fee to the department for
  246  placement in the Department of Law Enforcement Operating Trust
  247  Fund, unless such fee is waived by the executive director.
  248         (c) Has submitted to the department a certified copy of the
  249  disposition of the charge to which the petition to expunge
  250  pertains.
  251         (d) Has never, prior to the date on which the application
  252  for a certificate of eligibility is filed, been adjudicated
  253  guilty of a criminal offense or comparable ordinance violation,
  254  or been adjudicated delinquent for committing any felony or a
  255  misdemeanor specified in s. 943.051(3)(b).
  256         (e) Has not been adjudicated guilty of, or adjudicated
  257  delinquent for committing, any of the acts stemming from the
  258  arrest or alleged criminal activity to which the petition to
  259  expunge pertains.
  260         (f) Has never secured a prior sealing or expunction of a
  261  criminal history record under this section, former s. 893.14,
  262  former s. 901.33, or former s. 943.058, unless expunction is
  263  sought of a criminal history record previously sealed for 10
  264  years pursuant to paragraph (h) and the record is otherwise
  265  eligible for expunction.
  266         (g) Is no longer under court supervision applicable to the
  267  disposition of the arrest or alleged criminal activity to which
  268  the petition to expunge pertains.
  269         (h) Has previously obtained a court order sealing the
  270  record under this section, former s. 893.14, former s. 901.33,
  271  or former s. 943.058 for a minimum of 10 years because
  272  adjudication was withheld or because all charges related to the
  273  arrest or alleged criminal activity to which the petition to
  274  expunge pertains were not dismissed prior to trial, without
  275  regard to whether the outcome of the trial was other than an
  276  adjudication of guilt. The requirement for the record to have
  277  previously been sealed for a minimum of 10 years does not apply
  278  when a plea was not entered or all charges related to the arrest
  279  or alleged criminal activity to which the petition to expunge
  280  pertains were dismissed prior to trial.
  281         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
  282         (a) In judicial proceedings under this section, a copy of
  283  the completed petition to expunge shall be served upon the
  284  appropriate state attorney or the statewide prosecutor and upon
  285  the arresting agency; however, it is not necessary to make any
  286  agency other than the state a party. The appropriate state
  287  attorney or the statewide prosecutor and the arresting agency
  288  may respond to the court regarding the completed petition to
  289  expunge.
  290         (b) If relief is granted by the court, the clerk of the
  291  court shall certify copies of the order to the appropriate state
  292  attorney or the statewide prosecutor and the arresting agency.
  293  The arresting agency is responsible for forwarding the order to
  294  any other agency to which the arresting agency disseminated the
  295  criminal history record information to which the order pertains.
  296  The department shall forward the order to expunge to the Federal
  297  Bureau of Investigation. The clerk of the court shall certify a
  298  copy of the order to any other agency which the records of the
  299  court reflect has received the criminal history record from the
  300  court.
  301         (c) For an order to expunge entered by a court prior to
  302  July 1, 1992, the department shall notify the appropriate state
  303  attorney or statewide prosecutor of an order to expunge which is
  304  contrary to law because the person who is the subject of the
  305  record has previously been convicted of a crime or comparable
  306  ordinance violation or has had a prior criminal history record
  307  sealed or expunged. Upon receipt of such notice, the appropriate
  308  state attorney or statewide prosecutor shall take action, within
  309  60 days, to correct the record and petition the court to void
  310  the order to expunge. The department shall seal the record until
  311  such time as the order is voided by the court.
  312         (d) On or after July 1, 1992, the department or any other
  313  criminal justice agency is not required to act on an order to
  314  expunge entered by a court when such order does not comply with
  315  the requirements of this section. Upon receipt of such an order,
  316  the department must notify the issuing court, the appropriate
  317  state attorney or statewide prosecutor, the petitioner or the
  318  petitioner's attorney, and the arresting agency of the reason
  319  for noncompliance. The appropriate state attorney or statewide
  320  prosecutor shall take action within 60 days to correct the
  321  record and petition the court to void the order. No cause of
  322  action, including contempt of court, shall arise against any
  323  criminal justice agency for failure to comply with an order to
  324  expunge when the petitioner for such order failed to obtain the
  325  certificate of eligibility as required by this section or such
  326  order does not otherwise comply with the requirements of this
  327  section.
  328         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  329  criminal history record of a minor or an adult which is ordered
  330  expunged by a court of competent jurisdiction pursuant to this
  331  section must be physically destroyed or obliterated by any
  332  criminal justice agency having custody of such record; except
  333  that any criminal history record in the custody of the
  334  department must be retained in all cases. A criminal history
  335  record ordered expunged that is retained by the department 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 not available to
  338  any person or entity except upon order of a court of competent
  339  jurisdiction. A criminal justice agency may retain a notation
  340  indicating compliance with an order to expunge.
  341         (a) The person who is the subject of a criminal history
  342  record that is expunged under this section or under other
  343  provisions of law, including former s. 893.14, former s. 901.33,
  344  and former s. 943.058, may lawfully deny or fail to acknowledge
  345  the arrests and subsequent dispositions covered by the expunged
  346  record, except when the subject of the record:
  347         1. Is a candidate for employment with a criminal justice
  348  agency;
  349         2. Is a defendant in a criminal prosecution;
  350         3. Concurrently or subsequently petitions for relief under
  351  this section or s. 943.059;
  352         4. Is a candidate for admission to The Florida Bar;
  353         5. Is seeking to be employed or licensed by or to contract
  354  with the Department of Children and Family Services, the Agency
  355  for Health Care Administration, the Agency for Persons with
  356  Disabilities, or the Department of Juvenile Justice or to be
  357  employed or used by such contractor or licensee in a sensitive
  358  position having direct contact with children, the
  359  developmentally disabled, the aged, or the elderly as provided
  360  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  361  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
  362  chapter 916, s. 985.644, chapter 400, or chapter 429;
  363         6. Is seeking to be employed or licensed by the Department
  364  of Education, any district school board, any university
  365  laboratory school, any charter school, any private or parochial
  366  school, or any local governmental entity that licenses child
  367  care facilities; or
  368         7. Is seeking authorization from a Florida seaport
  369  identified in s. 311.09 for employment within or access to one
  370  or more of such seaports pursuant to s. 311.12 or s. 311.125.
  371         (b) Subject to the exceptions in paragraph (a), a person
  372  who has been granted an expunction under this section, former s.
  373  893.14, former s. 901.33, or former s. 943.058 may not be held
  374  under any provision of law of this state to commit perjury or to
  375  be otherwise liable for giving a false statement by reason of
  376  such person's failure to recite or acknowledge an expunged
  377  criminal history record, including a failure to recite or
  378  acknowledge on an employment application.
  379         (c) Information relating to the existence of an expunged
  380  criminal history record which is provided in accordance with
  381  paragraph (a) is confidential and exempt from the provisions of
  382  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  383  except that the department shall disclose the existence of a
  384  criminal history record ordered expunged to the entities set
  385  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  386  respective licensing, access authorization, and employment
  387  purposes, and to criminal justice agencies for their respective
  388  criminal justice purposes. It is unlawful for any employee of an
  389  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  390  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  391  disclose information relating to the existence of an expunged
  392  criminal history record of a person seeking employment, access
  393  authorization, or licensure with such entity or contractor,
  394  except to the person to whom the criminal history record relates
  395  or to persons having direct responsibility for employment,
  396  access authorization, or licensure decisions. Any person who
  397  violates this paragraph commits a misdemeanor of the first
  398  degree, punishable as provided in s. 775.082 or s. 775.083.
  399         (d)The department may disclose the contents of an expunged
  400  record to the subject of the record upon the receipt of a
  401  written, notarized request from the subject of the record.
  402         (5)Each website for the office of a clerk of court must
  403  include information relating to procedures to seal or expunge
  404  criminal history records. This information must include the link
  405  to related information on the website of the department.
  406         (6)(5) STATUTORY REFERENCES.—Any reference to any other
  407  chapter, section, or subdivision of the Florida Statutes in this
  408  section constitutes a general reference under the doctrine of
  409  incorporation by reference.
  410         Section 4. Section 943.059, Florida Statutes, is amended to
  411  read:
  412         943.059 Court-ordered sealing of criminal history records.
  413  The courts of this state shall continue to have jurisdiction
  414  over their own procedures, including the maintenance, sealing,
  415  and correction of judicial records containing criminal history
  416  information to the extent such procedures are not inconsistent
  417  with the conditions, responsibilities, and duties established by
  418  this section. Any court of competent jurisdiction may order a
  419  criminal justice agency to seal the criminal history record of a
  420  minor or an adult who complies with the requirements of this
  421  section. The court shall not order a criminal justice agency to
  422  seal a criminal history record until the person seeking to seal
  423  a criminal history record has applied for and received a
  424  certificate of eligibility for sealing pursuant to subsection
  425  (2). A criminal history record that relates to a violation of s.
  426  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  427  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  428  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  429  916.1075, a violation enumerated in s. 907.041, or any violation
  430  specified as a predicate offense for registration as a sexual
  431  predator pursuant to s. 775.21, without regard to whether that
  432  offense alone is sufficient to require such registration, or for
  433  registration as a sexual offender pursuant to s. 943.0435, may
  434  not be sealed, without regard to whether adjudication was
  435  withheld, if the defendant was found guilty of or pled guilty or
  436  nolo contendere to the offense, or if the defendant, as a minor,
  437  was found to have committed or pled guilty or nolo contendere to
  438  committing the offense as a delinquent act. The court may only
  439  order sealing of a criminal history record pertaining to one
  440  arrest or one incident of alleged criminal activity, except as
  441  provided in this section. The court may, at its sole discretion,
  442  order the sealing of a criminal history record pertaining to
  443  more than one arrest if the additional arrests directly relate
  444  to the original arrest. If the court intends to order the
  445  sealing of records pertaining to such additional arrests, such
  446  intent must be specified in the order. A criminal justice agency
  447  may not seal any record pertaining to such additional arrests if
  448  the order to seal does not articulate the intention of the court
  449  to seal records pertaining to more than one arrest. This section
  450  does not prevent the court from ordering the sealing of only a
  451  portion of a criminal history record pertaining to one arrest or
  452  one incident of alleged criminal activity. Notwithstanding any
  453  law to the contrary, a criminal justice agency may comply with
  454  laws, court orders, and official requests of other jurisdictions
  455  relating to sealing, correction, or confidential handling of
  456  criminal history records or information derived therefrom. This
  457  section does not confer any right to the sealing of any criminal
  458  history record, and any request for sealing a criminal history
  459  record may be denied at the sole discretion of the court.
  460         (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
  461  petition to a court to seal a criminal history record is
  462  complete only when accompanied by:
  463         (a) A valid certificate of eligibility for sealing issued
  464  by the department pursuant to subsection (2).
  465         (b) The petitioner's sworn statement attesting that the
  466  petitioner:
  467         1. Has never, prior to the date on which the petition is
  468  filed, been adjudicated guilty of a criminal offense or
  469  comparable ordinance violation, or been adjudicated delinquent
  470  for committing any felony or a misdemeanor specified in s.
  471  943.051(3)(b).
  472         2. Has not been adjudicated guilty of or adjudicated
  473  delinquent for committing any of the acts stemming from the
  474  arrest or alleged criminal activity to which the petition to
  475  seal pertains.
  476         3. Has never secured a prior sealing, except as provided in
  477  subsection (6), or expunction of a criminal history record under
  478  this section, former s. 893.14, former s. 901.33, former s.
  479  943.058, or from any jurisdiction outside the state.
  480         4. Is eligible for such a sealing to the best of his or her
  481  knowledge or belief and does not have any other petition to seal
  482  or any petition to expunge pending before any court.
  483  Any person who knowingly provides false information on such
  484  sworn statement to the court commits a felony of the third
  485  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  486  775.084.
  487         (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
  488  petitioning the court to seal a criminal history record, a
  489  person seeking to seal a criminal history record shall apply to
  490  the department for a certificate of eligibility for sealing. The
  491  department shall, by rule adopted pursuant to chapter 120,
  492  establish procedures pertaining to the application for and
  493  issuance of certificates of eligibility for sealing. A
  494  certificate of eligibility for sealing is valid for 12 months
  495  after the date stamped on the certificate when issued by the
  496  department. After that time, the petitioner must reapply to the
  497  department for a new certificate of eligibility. Eligibility for
  498  a renewed certification of eligibility must be based on the
  499  status of the applicant and the law in effect at the time of the
  500  renewal application. The department shall issue a certificate of
  501  eligibility for sealing to a person who is the subject of a
  502  criminal history record provided that such person:
  503         (a) Has submitted to the department a certified copy of the
  504  disposition of the charge to which the petition to seal
  505  pertains.
  506         (b) Remits a $75 processing fee to the department for
  507  placement in the Department of Law Enforcement Operating Trust
  508  Fund, unless such fee is waived by the executive director.
  509         (c) Has never, prior to the date on which the application
  510  for a certificate of eligibility is filed, been adjudicated
  511  guilty of a criminal offense or comparable ordinance violation,
  512  or been adjudicated delinquent for committing any felony or a
  513  misdemeanor specified in s. 943.051(3)(b).
  514         (d) Has not been adjudicated guilty of or adjudicated
  515  delinquent for committing any of the acts stemming from the
  516  arrest or alleged criminal activity to which the petition to
  517  seal pertains.
  518         (e) Has never secured a prior sealing, except as provided
  519  in subsection (6), or expunction of a criminal history record
  520  under this section, former s. 893.14, former s. 901.33, or
  521  former s. 943.058.
  522         (f) Is no longer under court supervision applicable to the
  523  disposition of the arrest or alleged criminal activity to which
  524  the petition to seal pertains.
  525         (3) PROCESSING OF A PETITION OR ORDER TO SEAL.—
  526         (a) In judicial proceedings under this section, a copy of
  527  the completed petition to seal shall be served upon the
  528  appropriate state attorney or the statewide prosecutor and upon
  529  the arresting agency; however, it is not necessary to make any
  530  agency other than the state a party. The appropriate state
  531  attorney or the statewide prosecutor and the arresting agency
  532  may respond to the court regarding the completed petition to
  533  seal.
  534         (b) If relief is granted by the court, the clerk of the
  535  court shall certify copies of the order to the appropriate state
  536  attorney or the statewide prosecutor and to the arresting
  537  agency. The arresting agency is responsible for forwarding the
  538  order to any other agency to which the arresting agency
  539  disseminated the criminal history record information to which
  540  the order pertains. The department shall forward the order to
  541  seal to the Federal Bureau of Investigation. The clerk of the
  542  court shall certify a copy of the order to any other agency
  543  which the records of the court reflect has received the criminal
  544  history record from the court.
  545         (c) For an order to seal entered by a court prior to July
  546  1, 1992, the department shall notify the appropriate state
  547  attorney or statewide prosecutor of any order to seal which is
  548  contrary to law because the person who is the subject of the
  549  record has previously been convicted of a crime or comparable
  550  ordinance violation or has had a prior criminal history record
  551  sealed, except as provided in subsection (6), or expunged. Upon
  552  receipt of such notice, the appropriate state attorney or
  553  statewide prosecutor shall take action, within 60 days, to
  554  correct the record and petition the court to void the order to
  555  seal. The department shall seal the record until such time as
  556  the order is voided by the court.
  557         (d) On or after July 1, 1992, the department or any other
  558  criminal justice agency is not required to act on an order to
  559  seal entered by a court when such order does not comply with the
  560  requirements of this section. Upon receipt of such an order, the
  561  department must notify the issuing court, the appropriate state
  562  attorney or statewide prosecutor, the petitioner or the
  563  petitioner's attorney, and the arresting agency of the reason
  564  for noncompliance. The appropriate state attorney or statewide
  565  prosecutor shall take action within 60 days to correct the
  566  record and petition the court to void the order. No cause of
  567  action, including contempt of court, shall arise against any
  568  criminal justice agency for failure to comply with an order to
  569  seal when the petitioner for such order failed to obtain the
  570  certificate of eligibility as required by this section or when
  571  such order does not comply with the requirements of this
  572  section.
  573         (e) An order sealing a criminal history record pursuant to
  574  this section does not require that such record be surrendered to
  575  the court, and such record shall continue to be maintained by
  576  the department and other criminal justice agencies.
  577         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  578  history record of a minor or an adult which is ordered sealed by
  579  a court of competent jurisdiction pursuant to this section is
  580  confidential and exempt from the provisions of s. 119.07(1) and
  581  s. 24(a), Art. I of the State Constitution and is available only
  582  to the person who is the subject of the record, to the subject's
  583  attorney, to criminal justice agencies for their respective
  584  criminal justice purposes, which include conducting a criminal
  585  history background check for approval of firearms purchases or
  586  transfers as authorized by state or federal law, to judges in
  587  the state courts system for the purpose of assisting them in
  588  their case-related decisionmaking responsibilities, as set forth
  589  in s. 943.053(5), or to those entities set forth in
  590  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  591  licensing, access authorization, and employment purposes.
  592         (a) The subject of a criminal history record sealed under
  593  this section or under other provisions of law, including former
  594  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  595  deny or fail to acknowledge the arrests and subsequent
  596  dispositions covered by the sealed record, except when the
  597  subject of the record:
  598         1. Is a candidate for employment with a criminal justice
  599  agency;
  600         2. Is a defendant in a criminal prosecution;
  601         3. Concurrently or subsequently petitions for relief under
  602  this section or s. 943.0585;
  603         4. Is a candidate for admission to The Florida Bar;
  604         5. Is seeking to be employed or licensed by or to contract
  605  with the Department of Children and Family Services, the Agency
  606  for Health Care Administration, the Agency for Persons with
  607  Disabilities, or the Department of Juvenile Justice or to be
  608  employed or used by such contractor or licensee in a sensitive
  609  position having direct contact with children, the
  610  developmentally disabled, the aged, or the elderly as provided
  611  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  612  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
  613  415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
  614         6. Is seeking to be employed or licensed by the Department
  615  of Education, any district school board, any university
  616  laboratory school, any charter school, any private or parochial
  617  school, or any local governmental entity that licenses child
  618  care facilities;
  619         7. Is attempting to purchase a firearm from a licensed
  620  importer, licensed manufacturer, or licensed dealer and is
  621  subject to a criminal history background check under state or
  622  federal law; or
  623         8. Is seeking authorization from a Florida seaport
  624  identified in s. 311.09 for employment within or access to one
  625  or more of such seaports pursuant to s. 311.12 or s. 311.125.
  626         (b) Subject to the exceptions in paragraph (a), a person
  627  who has been granted a sealing under this section, former s.
  628  893.14, former s. 901.33, or former s. 943.058 may not be held
  629  under any provision of law of this state to commit perjury or to
  630  be otherwise liable for giving a false statement by reason of
  631  such person's failure to recite or acknowledge a sealed criminal
  632  history record, including failure to recite or acknowledge on an
  633  employment application.
  634         (c) Information relating to the existence of a sealed
  635  criminal record provided in accordance with the provisions of
  636  paragraph (a) is confidential and exempt from the provisions of
  637  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  638  except that the department shall disclose the sealed criminal
  639  history record to the entities set forth in subparagraphs (a)1.,
  640  4., 5., 6., and 8. for their respective licensing, access
  641  authorization, and employment purposes. It is unlawful for any
  642  employee of an entity set forth in subparagraph (a)1.,
  643  subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
  644  subparagraph (a)8. to disclose information relating to the
  645  existence of a sealed criminal history record of a person
  646  seeking employment, access authorization, or licensure with such
  647  entity or contractor, except to the person to whom the criminal
  648  history record relates or to persons having direct
  649  responsibility for employment, access authorization, or
  650  licensure decisions. Any person who violates the provisions of
  651  this paragraph commits a misdemeanor of the first degree,
  652  punishable as provided in s. 775.082 or s. 775.083.
  653         (5) STATUTORY REFERENCES.—Any reference to any other
  654  chapter, section, or subdivision of the Florida Statutes in this
  655  section constitutes a general reference under the doctrine of
  656  incorporation by reference.
  657         (6)SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
  658  OR EXPUNCTION.A court may seal a person's criminal history
  659  record after a prior criminal history record has been sealed or
  660  expunged only if the person obtains a certificate from the
  661  department to seal the criminal history record. The department
  662  shall issue the certificate only if the person has not been
  663  arrested during the 5-year period following the date of the
  664  court order for the initial expunction or sealing of his or her
  665  criminal history record. All other provisions and requirements
  666  of this section apply to an application to seal a criminal
  667  history record after a prior criminal history record has been
  668  sealed or expunged.
  669         Section 5. (1)The Office of Program Policy Analysis and
  670  Government Accountability, in cooperation with the Department of
  671  Law Enforcement, shall:
  672         (a)Assess current safeguards for the accuracy of the
  673  criminal history data contained in the Department of Law
  674  Enforcement's Computerized Criminal History (CCH) database.
  675         (b)Assess the current process available to potential
  676  private employers or licensing agencies to whether an applicant
  677  has a criminal history.
  678         (c)Assess whether an adequate process exists to allow a
  679  potential private employer or licensing agency to determine
  680  whether an applicant's response to an “arrest, conviction, or
  681  adjudication withheld” criminal history question on an
  682  application is truthful and complete.
  683         (d)Assess the feasibility of establishing privacy
  684  safeguards to protect job or license applicants, such as
  685  requiring informed consent and providing an opportunity to
  686  review a criminal history record before a job or licensing
  687  application is made, before the criminal history record is
  688  provided to the potential employer or licensing entity, or
  689  before adverse action is taken by the potential employer or
  690  licensing entity.
  691         (e)Identify actions that to improve the completeness of
  692  the criminal history record and the consumer readability of the
  693  criminal history record.
  694         (2)The Office of Program Policy Analysis and Government
  695  Accountability shall report its findings to the President of the
  696  Senate and the Speaker of the House of Representatives by
  697  February 1, 2010.
  698         Section 6. This act shall take effect July 1, 2009.