Florida Senate - 2009 CS for SB 910
By the Committee on Governmental Oversight and Accountability;
and Senator Wilson
585-03955-09 2009910c1
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.
10 768.096, F.S.; requiring an employer to review the
11 results of a criminal background investigation;
12 requiring an employer not to place an employee who has
13 a criminal record in a position where conduct similar
14 to the employee’s past criminal conduct would be
15 facilitated; requiring an employer to determine that
16 the criminal background investigation does not
17 demonstrate that the employee is unsuitable for the
18 particular work to be performed or the context of the
19 employment in general; amending s. 943.0585, F.S.;
20 clarifying under what circumstances a person may
21 legally deny the existence of an expunged criminal
22 history record; authorizing the disclosure of the
23 contents of an expunged record upon receipt of a
24 written, notarized request from the record subject;
25 requiring clerks of the court to post information
26 relating to procedures to seal or expunge criminal
27 history records on the clerk’s website; amending s.
28 943.059, F.S.; clarifying under what circumstances a
29 person may legally deny the existence of a sealed
30 criminal history record; authorizing a court to seal a
31 criminal history record of a person who had a prior
32 criminal history record sealed or expunged; providing
33 an effective date.
34
35 Be It Enacted by the Legislature of the State of Florida:
36
37 Section 1. Restrictions on the employment of ex-offenders;
38 legislative intent; state agency reporting requirements.—
39 (1) The Legislature declares that it is the goal of this
40 state to provide to prospective employees a clear statement of
41 which crimes would disqualify ex-offenders from which
42 occupations. It is the intent of the Legislature to make
43 opportunities for employment available to ex-offenders so that
44 they will be less likely to revert to criminal behavior, insofar
45 as the employment of such persons does not detract from the
46 safety of the public. The Legislature further declares that
47 state agencies should identify all restrictions imposed by the
48 agencies or by boards that regulate professions and occupations
49 on employment and should make an effort to define each
50 restriction as narrowly as possible while continuing to maintain
51 public safety.
52 (2) Each state agency, including, but not limited to,
53 professional and occupational regulatory boards, shall, by
54 December 31, 2010, and every 8 years thereafter, submit to the
55 Governor, the President of the Senate, and the Speaker of the
56 House of Representatives a report that includes:
57 (a) A list of all agency or board policies that disqualify
58 from employment or licensure persons who have been convicted of
59 a crime and have completed any incarceration and restitution to
60 which they have been sentenced for such a crime.
61 (b) A determination of whether the disqualifying policies
62 are readily available to prospective employers and licensees.
63 (c) The identification and evaluation of alternatives to
64 the disqualifying policies to promote the employment of ex
65 offenders and protect the public.
66 (d) An evaluation of whether the disqualifying polices are
67 too broad and whether crimes or acts of moral turpitude that
68 disqualify a person from licensure should be more specifically
69 or narrowly identified.
70 Section 2. Section 112.011, Florida Statutes, is amended to
71 read:
72 112.011 Disqualification from licensing and public
73 employment based on criminal conviction Felons; removal of
74 disqualifications for employment, exceptions.—
75 (1)(a) Except as provided in s. 775.16, a person may shall
76 not be disqualified from employment by the state, any of its
77 agencies or political subdivisions, or any municipality solely
78 because of a prior conviction for a crime. However, a person may
79 be denied employment by the state, any of its agencies or
80 political subdivisions, or any municipality by reason of the
81 prior conviction for a crime if the crime was a felony or first
82 degree misdemeanor and directly related to the position of
83 employment sought.
84 (b) Except as provided in s. 775.16, a person whose civil
85 rights have been restored shall not be disqualified to practice,
86 pursue, or engage in any occupation, trade, vocation,
87 profession, or business for which a license, permit, or
88 certificate is required to be issued by the state, any of its
89 agencies or political subdivisions, or any municipality solely
90 because of a prior conviction for a crime. However, a person
91 whose civil rights have been restored may be denied a license,
92 permit, or certification to pursue, practice, or engage in an
93 occupation, trade, vocation, profession, or business by reason
94 of the prior conviction for a crime if the crime was a felony or
95 first degree misdemeanor relevant to the standards normally
96 associated with, or determined by the regulatory authority to be
97 necessary for the protection of the public or other parties for
98 and directly related to the specific occupation, trade,
99 vocation, profession, or business for which the license, permit,
100 or certificate is sought.
101 (c) Notwithstanding any law to the contrary, a state agency
102 may not deny an application for a license, permit, certificate,
103 or employment based on the applicant’s lack of civil rights.
104 However, this paragraph does not apply to applications for a
105 license to carry a concealed weapon or firearm under chapter
106 790.
107 (2)(a) This section does shall not apply be applicable to
108 any law enforcement or correctional agency.
109 (b) This section shall not be applicable to the employment
110 practices of any fire department relating to the hiring of
111 firefighters. An applicant for employment with any fire
112 department who has with a prior felony conviction shall be
113 excluded from employment for a period of 4 years after
114 expiration of sentence or final release by the Parole Commission
115 unless the applicant, prior to the expiration of the 4-year
116 period, has received a full pardon or has had his or her civil
117 rights restored.
118 (c) This section does shall not apply be applicable to the
119 employment practices of any county or municipality relating to
120 the hiring of personnel for positions deemed to be critical to
121 security or public safety pursuant to ss. 125.5801 and 166.0442.
122 (3) Any complaint concerning the violation of this section
123 shall be adjudicated in accordance with the procedures set forth
124 in chapter 120 for administrative and judicial review.
125 Section 3. Section 768.096, Florida Statutes, is amended to
126 read:
127 768.096 Employer presumption against negligent hiring.—
128 (1) In a civil action for the death of, or injury or damage
129 to, a third person caused by the intentional tort of an
130 employee, such employee’s employer is presumed not to have been
131 negligent in hiring such employee if, before hiring the
132 employee, the employer conducted a background investigation of
133 the prospective employee and the investigation did not reveal
134 any information that reasonably demonstrated the unsuitability
135 of the prospective employee for the particular work to be
136 performed or for the context of the employment in general. A
137 background investigation under this section must include:
138 (a) Obtaining a criminal background investigation on the
139 prospective employee under subsection (2);
140 (b) Making a reasonable effort to contact references and
141 former employers of the prospective employee concerning the
142 suitability of the prospective employee for employment;
143 (c) Requiring the prospective employee to complete a job
144 application form that includes questions concerning whether he
145 or she has ever been convicted of a crime, including details
146 concerning the type of crime, the date of conviction and the
147 penalty imposed, and whether the prospective employee has ever
148 been a defendant in a civil action for intentional tort,
149 including the nature of the intentional tort and the disposition
150 of the action;
151 (d) Obtaining, with written authorization from the
152 prospective employee, a check of the driver’s license record of
153 the prospective employee if such a check is relevant to the work
154 the employee will be performing and if the record can reasonably
155 be obtained; and or
156 (e) Interviewing the prospective employee.
157 (2) To satisfy the criminal-background-investigation
158 requirement of this section, an employer must request and obtain
159 from the Department of Law Enforcement a check of the
160 information as reported and reflected in the Florida Crime
161 Information Center system as of the date of the request. The
162 employer must review and consider the results of the criminal
163 background investigation and, if the prospective employee has
164 engaged in past criminal conduct, ensure that the employee will
165 not be assigned to particular work that would place the employee
166 in a position where conduct that is similar to the employee’s
167 past criminal conduct is facilitated and determine that,
168 notwithstanding the past criminal conduct of the employee, any
169 information revealed by the investigation did not otherwise
170 demonstrate the unsuitability of the employee for the particular
171 work to be performed or context of the employment in general.
172 (3) The election by an employer not to conduct the
173 investigation specified in subsection (1) does not raise any
174 presumption that the employer failed to use reasonable care in
175 hiring an employee.
176 Section 4. Section 943.0585, Florida Statutes, is amended
177 to read:
178 943.0585 Court-ordered expunction of criminal history
179 records.—The courts of this state have jurisdiction over their
180 own procedures, including the maintenance, expunction, and
181 correction of judicial records containing criminal history
182 information to the extent such procedures are not inconsistent
183 with the conditions, responsibilities, and duties established by
184 this section. Any court of competent jurisdiction may order a
185 criminal justice agency to expunge the criminal history record
186 of a minor or an adult who complies with the requirements of
187 this section. The court shall not order a criminal justice
188 agency to expunge a criminal history record until the person
189 seeking to expunge a criminal history record has applied for and
190 received a certificate of eligibility for expunction pursuant to
191 subsection (2). A criminal history record that relates to a
192 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
193 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
194 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
195 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
196 any violation specified as a predicate offense for registration
197 as a sexual predator pursuant to s. 775.21, without regard to
198 whether that offense alone is sufficient to require such
199 registration, or for registration as a sexual offender pursuant
200 to s. 943.0435, may not be expunged, without regard to whether
201 adjudication was withheld, if the defendant was found guilty of
202 or pled guilty or nolo contendere to the offense, or if the
203 defendant, as a minor, was found to have committed, or pled
204 guilty or nolo contendere to committing, the offense as a
205 delinquent act. The court may only order expunction of a
206 criminal history record pertaining to one arrest or one incident
207 of alleged criminal activity, except as provided in this
208 section. The court may, at its sole discretion, order the
209 expunction of a criminal history record pertaining to more than
210 one arrest if the additional arrests directly relate to the
211 original arrest. If the court intends to order the expunction of
212 records pertaining to such additional arrests, such intent must
213 be specified in the order. A criminal justice agency may not
214 expunge any record pertaining to such additional arrests if the
215 order to expunge does not articulate the intention of the court
216 to expunge a record pertaining to more than one arrest. This
217 section does not prevent the court from ordering the expunction
218 of only a portion of a criminal history record pertaining to one
219 arrest or one incident of alleged criminal activity.
220 Notwithstanding any law to the contrary, a criminal justice
221 agency may comply with laws, court orders, and official requests
222 of other jurisdictions relating to expunction, correction, or
223 confidential handling of criminal history records or information
224 derived therefrom. This section does not confer any right to the
225 expunction of any criminal history record, and any request for
226 expunction of a criminal history record may be denied at the
227 sole discretion of the court.
228 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
229 petition to a court to expunge a criminal history record is
230 complete only when accompanied by:
231 (a) A valid certificate of eligibility for expunction
232 issued by the department pursuant to subsection (2).
233 (b) The petitioner’s sworn statement attesting that the
234 petitioner:
235 1. Has never, prior to the date on which the petition is
236 filed, been adjudicated guilty of a criminal offense or
237 comparable ordinance violation, or been adjudicated delinquent
238 for committing any felony or a misdemeanor specified in s.
239 943.051(3)(b).
240 2. Has not been adjudicated guilty of, or adjudicated
241 delinquent for committing, any of the acts stemming from the
242 arrest or alleged criminal activity to which the petition
243 pertains.
244 3. Has never secured a prior sealing or expunction of a
245 criminal history record under this section, former s. 893.14,
246 former s. 901.33, or former s. 943.058, or from any jurisdiction
247 outside the state, unless expunction is sought of a criminal
248 history record previously sealed for 10 years pursuant to
249 paragraph (2)(h) and the record is otherwise eligible for
250 expunction.
251 4. Is eligible for such an expunction to the best of his or
252 her knowledge or belief and does not have any other petition to
253 expunge or any petition to seal pending before any court.
254
255 Any person who knowingly provides false information on such
256 sworn statement to the court commits a felony of the third
257 degree, punishable as provided in s. 775.082, s. 775.083, or s.
258 775.084.
259 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
260 petitioning the court to expunge a criminal history record, a
261 person seeking to expunge a criminal history record shall apply
262 to the department for a certificate of eligibility for
263 expunction. The department shall, by rule adopted pursuant to
264 chapter 120, establish procedures pertaining to the application
265 for and issuance of certificates of eligibility for expunction.
266 A certificate of eligibility for expunction is valid for 12
267 months after the date stamped on the certificate when issued by
268 the department. After that time, the petitioner must reapply to
269 the department for a new certificate of eligibility. Eligibility
270 for a renewed certification of eligibility must be based on the
271 status of the applicant and the law in effect at the time of the
272 renewal application. The department shall issue a certificate of
273 eligibility for expunction to a person who is the subject of a
274 criminal history record if that person:
275 (a) Has obtained, and submitted to the department, a
276 written, certified statement from the appropriate state attorney
277 or statewide prosecutor which indicates:
278 1. That an indictment, information, or other charging
279 document was not filed or issued in the case.
280 2. That an indictment, information, or other charging
281 document, if filed or issued in the case, was dismissed or nolle
282 prosequi by the state attorney or statewide prosecutor, or was
283 dismissed by a court of competent jurisdiction, and that none of
284 the charges related to the arrest or alleged criminal activity
285 to which the petition to expunge pertains resulted in a trial,
286 without regard to whether the outcome of the trial was other
287 than an adjudication of guilt.
288 3. That the criminal history record does not relate to a
289 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
290 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
291 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
292 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
293 any violation specified as a predicate offense for registration
294 as a sexual predator pursuant to s. 775.21, without regard to
295 whether that offense alone is sufficient to require such
296 registration, or for registration as a sexual offender pursuant
297 to s. 943.0435, where the defendant was found guilty of, or pled
298 guilty or nolo contendere to any such offense, or that the
299 defendant, as a minor, was found to have committed, or pled
300 guilty or nolo contendere to committing, such an offense as a
301 delinquent act, without regard to whether adjudication was
302 withheld.
303 (b) Remits a $75 processing fee to the department for
304 placement in the Department of Law Enforcement Operating Trust
305 Fund, unless such fee is waived by the executive director.
306 (c) Has submitted to the department a certified copy of the
307 disposition of the charge to which the petition to expunge
308 pertains.
309 (d) Has never, prior to the date on which the application
310 for a certificate of eligibility is filed, been adjudicated
311 guilty of a criminal offense or comparable ordinance violation,
312 or been adjudicated delinquent for committing any felony or a
313 misdemeanor specified in s. 943.051(3)(b).
314 (e) Has not been adjudicated guilty of, or adjudicated
315 delinquent for committing, any of the acts stemming from the
316 arrest or alleged criminal activity to which the petition to
317 expunge pertains.
318 (f) Has never secured a prior sealing or expunction of a
319 criminal history record under this section, former s. 893.14,
320 former s. 901.33, or former s. 943.058, unless expunction is
321 sought of a criminal history record previously sealed for 10
322 years pursuant to paragraph (h) and the record is otherwise
323 eligible for expunction.
324 (g) Is no longer under court supervision applicable to the
325 disposition of the arrest or alleged criminal activity to which
326 the petition to expunge pertains.
327 (h) Has previously obtained a court order sealing the
328 record under this section, former s. 893.14, former s. 901.33,
329 or former s. 943.058 for a minimum of 10 years because
330 adjudication was withheld or because all charges related to the
331 arrest or alleged criminal activity to which the petition to
332 expunge pertains were not dismissed prior to trial, without
333 regard to whether the outcome of the trial was other than an
334 adjudication of guilt. The requirement for the record to have
335 previously been sealed for a minimum of 10 years does not apply
336 when a plea was not entered or all charges related to the arrest
337 or alleged criminal activity to which the petition to expunge
338 pertains were dismissed prior to trial.
339 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
340 (a) In judicial proceedings under this section, a copy of
341 the completed petition to expunge shall be served upon the
342 appropriate state attorney or the statewide prosecutor and upon
343 the arresting agency; however, it is not necessary to make any
344 agency other than the state a party. The appropriate state
345 attorney or the statewide prosecutor and the arresting agency
346 may respond to the court regarding the completed petition to
347 expunge.
348 (b) If relief is granted by the court, the clerk of the
349 court shall certify copies of the order to the appropriate state
350 attorney or the statewide prosecutor and the arresting agency.
351 The arresting agency is responsible for forwarding the order to
352 any other agency to which the arresting agency disseminated the
353 criminal history record information to which the order pertains.
354 The department shall forward the order to expunge to the Federal
355 Bureau of Investigation. The clerk of the court shall certify a
356 copy of the order to any other agency which the records of the
357 court reflect has received the criminal history record from the
358 court.
359 (c) For an order to expunge entered by a court prior to
360 July 1, 1992, the department shall notify the appropriate state
361 attorney or statewide prosecutor of an order to expunge which is
362 contrary to law because the person who is the subject of the
363 record has previously been convicted of a crime or comparable
364 ordinance violation or has had a prior criminal history record
365 sealed or expunged. Upon receipt of such notice, the appropriate
366 state attorney or statewide prosecutor shall take action, within
367 60 days, to correct the record and petition the court to void
368 the order to expunge. The department shall seal the record until
369 such time as the order is voided by the court.
370 (d) On or after July 1, 1992, the department or any other
371 criminal justice agency is not required to act on an order to
372 expunge entered by a court when such order does not comply with
373 the requirements of this section. Upon receipt of such an order,
374 the department must notify the issuing court, the appropriate
375 state attorney or statewide prosecutor, the petitioner or the
376 petitioner’s attorney, and the arresting agency of the reason
377 for noncompliance. The appropriate state attorney or statewide
378 prosecutor shall take action within 60 days to correct the
379 record and petition the court to void the order. No cause of
380 action, including contempt of court, shall arise against any
381 criminal justice agency for failure to comply with an order to
382 expunge when the petitioner for such order failed to obtain the
383 certificate of eligibility as required by this section or such
384 order does not otherwise comply with the requirements of this
385 section.
386 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
387 criminal history record of a minor or an adult which is ordered
388 expunged by a court of competent jurisdiction pursuant to this
389 section must be physically destroyed or obliterated by any
390 criminal justice agency having custody of such record; except
391 that any criminal history record in the custody of the
392 department must be retained in all cases. A criminal history
393 record ordered expunged that is retained by the department is
394 confidential and exempt from the provisions of s. 119.07(1) and
395 s. 24(a), Art. I of the State Constitution and not available to
396 any person or entity except upon order of a court of competent
397 jurisdiction. A criminal justice agency may retain a notation
398 indicating compliance with an order to expunge.
399 (a) The person who is the subject of a criminal history
400 record that is expunged under this section or under other
401 provisions of law, including former s. 893.14, former s. 901.33,
402 and former s. 943.058, may lawfully deny or fail to acknowledge
403 the arrests and subsequent dispositions covered by the expunged
404 record, except when the subject of the record:
405 1. Is a candidate for employment with a criminal justice
406 agency;
407 2. Is a defendant in a criminal prosecution;
408 3. Concurrently or subsequently petitions for relief under
409 this section or s. 943.059;
410 4. Is a candidate for admission to The Florida Bar;
411 5. Is seeking to be employed or licensed by or to contract
412 with the Department of Children and Family Services, the Agency
413 for Health Care Administration, the Agency for Persons with
414 Disabilities, or the Department of Juvenile Justice or to be
415 employed or used by such contractor or licensee in a sensitive
416 position having direct contact with children, the
417 developmentally disabled, the aged, or the elderly as provided
418 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
419 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
420 chapter 916, s. 985.644, chapter 400, or chapter 429;
421 6. Is seeking to be employed or licensed by the Department
422 of Education, any district school board, any university
423 laboratory school, any charter school, any private or parochial
424 school, or any local governmental entity that licenses child
425 care facilities; or
426 7. Is seeking authorization from a Florida seaport
427 identified in s. 311.09 for employment within or access to one
428 or more of such seaports pursuant to s. 311.12 or s. 311.125.
429 (b) Subject to the exceptions in paragraph (a), a person
430 who has been granted an expunction under this section, former s.
431 893.14, former s. 901.33, or former s. 943.058 may not be held
432 under any provision of law of this state to commit perjury or to
433 be otherwise liable for giving a false statement by reason of
434 such person’s failure to recite or acknowledge an expunged
435 criminal history record, including a failure to recite or
436 acknowledge on an employment application.
437 (c) Information relating to the existence of an expunged
438 criminal history record which is provided in accordance with
439 paragraph (a) is confidential and exempt from the provisions of
440 s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
441 except that the department shall disclose the existence of a
442 criminal history record ordered expunged to the entities set
443 forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
444 respective licensing, access authorization, and employment
445 purposes, and to criminal justice agencies for their respective
446 criminal justice purposes. It is unlawful for any employee of an
447 entity set forth in subparagraph (a)1., subparagraph (a)4.,
448 subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
449 disclose information relating to the existence of an expunged
450 criminal history record of a person seeking employment, access
451 authorization, or licensure with such entity or contractor,
452 except to the person to whom the criminal history record relates
453 or to persons having direct responsibility for employment,
454 access authorization, or licensure decisions. Any person who
455 violates this paragraph commits a misdemeanor of the first
456 degree, punishable as provided in s. 775.082 or s. 775.083.
457 (d) The department may disclose the contents of an expunged
458 record to the subject of the record upon the receipt of a
459 written, notarized request from the subject of the record.
460 (5) INFORMATION.—Each website for the office of a clerk of
461 court must include information relating to procedures to seal or
462 expunge criminal history records. This information must include
463 the link to related information on the website of the
464 department.
465 (6)(5) STATUTORY REFERENCES.—Any reference to any other
466 chapter, section, or subdivision of the Florida Statutes in this
467 section constitutes a general reference under the doctrine of
468 incorporation by reference.
469 Section 5. Section 943.059, Florida Statutes, is amended to
470 read:
471 943.059 Court-ordered sealing of criminal history records.
472 The courts of this state shall continue to have jurisdiction
473 over their own procedures, including the maintenance, sealing,
474 and correction of judicial records containing criminal history
475 information to the extent such procedures are not inconsistent
476 with the conditions, responsibilities, and duties established by
477 this section. Any court of competent jurisdiction may order a
478 criminal justice agency to seal the criminal history record of a
479 minor or an adult who complies with the requirements of this
480 section. The court shall not order a criminal justice agency to
481 seal a criminal history record until the person seeking to seal
482 a criminal history record has applied for and received a
483 certificate of eligibility for sealing pursuant to subsection
484 (2). A criminal history record that relates to a violation of s.
485 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
486 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
487 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
488 916.1075, a violation enumerated in s. 907.041, or any violation
489 specified as a predicate offense for registration as a sexual
490 predator pursuant to s. 775.21, without regard to whether that
491 offense alone is sufficient to require such registration, or for
492 registration as a sexual offender pursuant to s. 943.0435, may
493 not be sealed, without regard to whether adjudication was
494 withheld, if the defendant was found guilty of or pled guilty or
495 nolo contendere to the offense, or if the defendant, as a minor,
496 was found to have committed or pled guilty or nolo contendere to
497 committing the offense as a delinquent act. The court may only
498 order sealing of a criminal history record pertaining to one
499 arrest or one incident of alleged criminal activity, except as
500 provided in this section. The court may, at its sole discretion,
501 order the sealing of a criminal history record pertaining to
502 more than one arrest if the additional arrests directly relate
503 to the original arrest. If the court intends to order the
504 sealing of records pertaining to such additional arrests, such
505 intent must be specified in the order. A criminal justice agency
506 may not seal any record pertaining to such additional arrests if
507 the order to seal does not articulate the intention of the court
508 to seal records pertaining to more than one arrest. This section
509 does not prevent the court from ordering the sealing of only a
510 portion of a criminal history record pertaining to one arrest or
511 one incident of alleged criminal activity. Notwithstanding any
512 law to the contrary, a criminal justice agency may comply with
513 laws, court orders, and official requests of other jurisdictions
514 relating to sealing, correction, or confidential handling of
515 criminal history records or information derived therefrom. This
516 section does not confer any right to the sealing of any criminal
517 history record, and any request for sealing a criminal history
518 record may be denied at the sole discretion of the court.
519 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
520 petition to a court to seal a criminal history record is
521 complete only when accompanied by:
522 (a) A valid certificate of eligibility for sealing issued
523 by the department pursuant to subsection (2).
524 (b) The petitioner’s sworn statement attesting that the
525 petitioner:
526 1. Has never, prior to the date on which the petition is
527 filed, been adjudicated guilty of a criminal offense or
528 comparable ordinance violation, or been adjudicated delinquent
529 for committing any felony or a misdemeanor specified in s.
530 943.051(3)(b).
531 2. Has not been adjudicated guilty of or adjudicated
532 delinquent for committing any of the acts stemming from the
533 arrest or alleged criminal activity to which the petition to
534 seal pertains.
535 3. Has never secured a prior sealing, except as provided in
536 subsection (6), or expunction of a criminal history record under
537 this section, former s. 893.14, former s. 901.33, former s.
538 943.058, or from any jurisdiction outside the state.
539 4. Is eligible for such a sealing to the best of his or her
540 knowledge or belief and does not have any other petition to seal
541 or any petition to expunge pending before any court.
542
543 Any person who knowingly provides false information on such
544 sworn statement to the court commits a felony of the third
545 degree, punishable as provided in s. 775.082, s. 775.083, or s.
546 775.084.
547 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
548 petitioning the court to seal a criminal history record, a
549 person seeking to seal a criminal history record shall apply to
550 the department for a certificate of eligibility for sealing. The
551 department shall, by rule adopted pursuant to chapter 120,
552 establish procedures pertaining to the application for and
553 issuance of certificates of eligibility for sealing. A
554 certificate of eligibility for sealing is valid for 12 months
555 after the date stamped on the certificate when issued by the
556 department. After that time, the petitioner must reapply to the
557 department for a new certificate of eligibility. Eligibility for
558 a renewed certification of eligibility must be based on the
559 status of the applicant and the law in effect at the time of the
560 renewal application. The department shall issue a certificate of
561 eligibility for sealing to a person who is the subject of a
562 criminal history record provided that such person:
563 (a) Has submitted to the department a certified copy of the
564 disposition of the charge to which the petition to seal
565 pertains.
566 (b) Remits a $75 processing fee to the department for
567 placement in the Department of Law Enforcement Operating Trust
568 Fund, unless such fee is waived by the executive director.
569 (c) Has never, prior to the date on which the application
570 for a certificate of eligibility is filed, been adjudicated
571 guilty of a criminal offense or comparable ordinance violation,
572 or been adjudicated delinquent for committing any felony or a
573 misdemeanor specified in s. 943.051(3)(b).
574 (d) Has not been adjudicated guilty of or adjudicated
575 delinquent for committing any of the acts stemming from the
576 arrest or alleged criminal activity to which the petition to
577 seal pertains.
578 (e) Has never secured a prior sealing, except as provided
579 in subsection (6), or expunction of a criminal history record
580 under this section, former s. 893.14, former s. 901.33, or
581 former s. 943.058.
582 (f) Is no longer under court supervision applicable to the
583 disposition of the arrest or alleged criminal activity to which
584 the petition to seal pertains.
585 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.—
586 (a) In judicial proceedings under this section, a copy of
587 the completed petition to seal shall be served upon the
588 appropriate state attorney or the statewide prosecutor and upon
589 the arresting agency; however, it is not necessary to make any
590 agency other than the state a party. The appropriate state
591 attorney or the statewide prosecutor and the arresting agency
592 may respond to the court regarding the completed petition to
593 seal.
594 (b) If relief is granted by the court, the clerk of the
595 court shall certify copies of the order to the appropriate state
596 attorney or the statewide prosecutor and to the arresting
597 agency. The arresting agency is responsible for forwarding the
598 order to any other agency to which the arresting agency
599 disseminated the criminal history record information to which
600 the order pertains. The department shall forward the order to
601 seal to the Federal Bureau of Investigation. The clerk of the
602 court shall certify a copy of the order to any other agency
603 which the records of the court reflect has received the criminal
604 history record from the court.
605 (c) For an order to seal entered by a court prior to July
606 1, 1992, the department shall notify the appropriate state
607 attorney or statewide prosecutor of any order to seal which is
608 contrary to law because the person who is the subject of the
609 record has previously been convicted of a crime or comparable
610 ordinance violation or has had a prior criminal history record
611 sealed, except as provided in subsection (6), or expunged. Upon
612 receipt of such notice, the appropriate state attorney or
613 statewide prosecutor shall take action, within 60 days, to
614 correct the record and petition the court to void the order to
615 seal. The department shall seal the record until such time as
616 the order is voided by the court.
617 (d) On or after July 1, 1992, the department or any other
618 criminal justice agency is not required to act on an order to
619 seal entered by a court when such order does not comply with the
620 requirements of this section. Upon receipt of such an order, the
621 department must notify the issuing court, the appropriate state
622 attorney or statewide prosecutor, the petitioner or the
623 petitioner’s attorney, and the arresting agency of the reason
624 for noncompliance. The appropriate state attorney or statewide
625 prosecutor shall take action within 60 days to correct the
626 record and petition the court to void the order. No cause of
627 action, including contempt of court, shall arise against any
628 criminal justice agency for failure to comply with an order to
629 seal when the petitioner for such order failed to obtain the
630 certificate of eligibility as required by this section or when
631 such order does not comply with the requirements of this
632 section.
633 (e) An order sealing a criminal history record pursuant to
634 this section does not require that such record be surrendered to
635 the court, and such record shall continue to be maintained by
636 the department and other criminal justice agencies.
637 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
638 history record of a minor or an adult which is ordered sealed by
639 a court of competent jurisdiction pursuant to this section is
640 confidential and exempt from the provisions of s. 119.07(1) and
641 s. 24(a), Art. I of the State Constitution and is available only
642 to the person who is the subject of the record, to the subject’s
643 attorney, to criminal justice agencies for their respective
644 criminal justice purposes, which include conducting a criminal
645 history background check for approval of firearms purchases or
646 transfers as authorized by state or federal law, to judges in
647 the state courts system for the purpose of assisting them in
648 their case-related decisionmaking responsibilities, as set forth
649 in s. 943.053(5), or to those entities set forth in
650 subparagraphs (a)1., 4., 5., 6., and 8. for their respective
651 licensing, access authorization, and employment purposes.
652 (a) The subject of a criminal history record sealed under
653 this section or under other provisions of law, including former
654 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
655 deny or fail to acknowledge the arrests and subsequent
656 dispositions covered by the sealed record, except when the
657 subject of the record:
658 1. Is a candidate for employment with a criminal justice
659 agency;
660 2. Is a defendant in a criminal prosecution;
661 3. Concurrently or subsequently petitions for relief under
662 this section or s. 943.0585;
663 4. Is a candidate for admission to The Florida Bar;
664 5. Is seeking to be employed or licensed by or to contract
665 with the Department of Children and Family Services, the Agency
666 for Health Care Administration, the Agency for Persons with
667 Disabilities, or the Department of Juvenile Justice or to be
668 employed or used by such contractor or licensee in a sensitive
669 position having direct contact with children, the
670 developmentally disabled, the aged, or the elderly as provided
671 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
672 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
673 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
674 6. Is seeking to be employed or licensed by the Department
675 of Education, any district school board, any university
676 laboratory school, any charter school, any private or parochial
677 school, or any local governmental entity that licenses child
678 care facilities;
679 7. Is attempting to purchase a firearm from a licensed
680 importer, licensed manufacturer, or licensed dealer and is
681 subject to a criminal history background check under state or
682 federal law; or
683 8. Is seeking authorization from a Florida seaport
684 identified in s. 311.09 for employment within or access to one
685 or more of such seaports pursuant to s. 311.12 or s. 311.125.
686 (b) Subject to the exceptions in paragraph (a), a person
687 who has been granted a sealing under this section, former s.
688 893.14, former s. 901.33, or former s. 943.058 may not be held
689 under any provision of law of this state to commit perjury or to
690 be otherwise liable for giving a false statement by reason of
691 such person’s failure to recite or acknowledge a sealed criminal
692 history record, including failure to recite or acknowledge on an
693 employment application.
694 (c) Information relating to the existence of a sealed
695 criminal record provided in accordance with the provisions of
696 paragraph (a) is confidential and exempt from the provisions of
697 s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
698 except that the department shall disclose the sealed criminal
699 history record to the entities set forth in subparagraphs (a)1.,
700 4., 5., 6., and 8. for their respective licensing, access
701 authorization, and employment purposes. It is unlawful for any
702 employee of an entity set forth in subparagraph (a)1.,
703 subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
704 subparagraph (a)8. to disclose information relating to the
705 existence of a sealed criminal history record of a person
706 seeking employment, access authorization, or licensure with such
707 entity or contractor, except to the person to whom the criminal
708 history record relates or to persons having direct
709 responsibility for employment, access authorization, or
710 licensure decisions. Any person who violates the provisions of
711 this paragraph commits a misdemeanor of the first degree,
712 punishable as provided in s. 775.082 or s. 775.083.
713 (5) STATUTORY REFERENCES.—Any reference to any other
714 chapter, section, or subdivision of the Florida Statutes in this
715 section constitutes a general reference under the doctrine of
716 incorporation by reference.
717 (6) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
718 OR EXPUNCTION.—A court may seal a person’s criminal history
719 record after a prior criminal history record has been sealed or
720 expunged only if the person obtains a certificate from the
721 department to seal the criminal history record. The department
722 shall issue the certificate only if the person has not been
723 arrested during the 5-year period following the date of the
724 court order for the initial expunction or sealing of his or her
725 criminal history record. All other provisions and requirements
726 of this section apply to an application to seal a criminal
727 history record after a prior criminal history record has been
728 sealed or expunged.
729 Section 6. This act shall take effect July 1, 2009.
730