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.