CS for SB 910 First Engrossed
2009910e1
1 A bill to be entitled
2 An act relating to criminal justice; providing a short
3 title; providing legislative intent; requiring state
4 agencies and regulatory boards to prepare reports that
5 identify and evaluate restrictions on licensing and
6 employment; amending s. 112.011, F.S.; prohibiting
7 state agencies from denying an application for a
8 license, permit, certificate, or employment based on a
9 person’s lack of civil rights; providing an exception;
10 amending s. 768.096, F.S.; requiring an employer to
11 review the results of a criminal background
12 investigation; requiring an employer not to place an
13 employee who has a criminal record in a position where
14 conduct similar to the employee’s past criminal
15 conduct would be facilitated; requiring an employer to
16 determine that the criminal background investigation
17 does not demonstrate that the employee is unsuitable
18 for the particular work to be performed or the context
19 of the employment in general; amending s. 943.0585,
20 F.S.; 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. This act may be cited as the “Keep Florida
38 Working Act.”
39 Section 2. Restrictions on the employment of ex-offenders;
40 legislative intent; state agency reporting requirements.—
41 (1) The Legislature declares that it is the goal of this
42 state to provide to prospective employees a clear statement of
43 which crimes would disqualify ex-offenders from which
44 occupations. It is the intent of the Legislature to make
45 opportunities for employment available to ex-offenders so that
46 they will be less likely to revert to criminal behavior, insofar
47 as the employment of such persons does not detract from the
48 safety of the public. The Legislature further declares that
49 state agencies should identify all restrictions imposed by the
50 agencies or by boards that regulate professions and occupations
51 on employment and should make an effort to define each
52 restriction as narrowly as possible while continuing to maintain
53 public safety.
54 (2) Each state agency, including, but not limited to,
55 professional and occupational regulatory boards, shall, by
56 December 31, 2010, and every 8 years thereafter, submit to the
57 Governor, the President of the Senate, and the Speaker of the
58 House of Representatives a report that includes:
59 (a) A list of all agency or board policies that disqualify
60 from employment or licensure persons who have been convicted of
61 a crime and have completed any incarceration and restitution to
62 which they have been sentenced for such a crime.
63 (b) A determination of whether the disqualifying policies
64 are readily available to prospective employers and licensees.
65 (c) The identification and evaluation of alternatives to
66 the disqualifying policies to promote the employment of ex
67 offenders and protect the public.
68 (d) An evaluation of whether the disqualifying polices are
69 too broad and whether crimes or acts of moral turpitude that
70 disqualify a person from licensure should be more specifically
71 or narrowly identified.
72 Section 3. Section 112.011, Florida Statutes, is amended to
73 read:
74 112.011 Disqualification from licensing and public
75 employment based on criminal conviction Felons; removal of
76 disqualifications for employment, exceptions.—
77 (1)(a) Except as provided in s. 775.16, a person may shall
78 not be disqualified from employment by the state, any of its
79 agencies or political subdivisions, or any municipality solely
80 because of a prior conviction for a crime. However, a person may
81 be denied employment by the state, any of its agencies or
82 political subdivisions, or any municipality by reason of the
83 prior conviction for a crime if the crime was a felony or first
84 degree misdemeanor and directly related to the position of
85 employment sought.
86 (b) Except as provided in s. 775.16, a person whose civil
87 rights have been restored shall not be disqualified to practice,
88 pursue, or engage in any occupation, trade, vocation,
89 profession, or business for which a license, permit, or
90 certificate is required to be issued by the state, any of its
91 agencies or political subdivisions, or any municipality solely
92 because of a prior conviction for a crime. However, a person
93 whose civil rights have been restored may be denied a license,
94 permit, or certification to pursue, practice, or engage in an
95 occupation, trade, vocation, profession, or business by reason
96 of the prior conviction for a crime if the crime was a felony or
97 first degree misdemeanor relevant to the standards normally
98 associated with, or determined by the regulatory authority to be
99 necessary for the protection of the public or other parties for
100 and directly related to the specific occupation, trade,
101 vocation, profession, or business for which the license, permit,
102 or certificate is sought.
103 (c) Notwithstanding any law to the contrary, a state agency
104 may not deny an application for a license, permit, certificate,
105 or employment based on the applicant’s lack of civil rights.
106 However, this paragraph does not apply to applications for a
107 license to carry a concealed weapon or firearm under chapter
108 790.
109 (2)(a) This section does shall not apply be applicable to
110 any law enforcement or correctional agency.
111 (b) This section shall not be applicable to the employment
112 practices of any fire department relating to the hiring of
113 firefighters. An applicant for employment with any fire
114 department who has with a prior felony conviction shall be
115 excluded from employment for a period of 4 years after
116 expiration of sentence or final release by the Parole Commission
117 unless the applicant, prior to the expiration of the 4-year
118 period, has received a full pardon or has had his or her civil
119 rights restored.
120 (c) This section does shall not apply be applicable to the
121 employment practices of any county or municipality relating to
122 the hiring of personnel for positions deemed to be critical to
123 security or public safety pursuant to ss. 125.5801 and 166.0442.
124 (3) Any complaint concerning the violation of this section
125 shall be adjudicated in accordance with the procedures set forth
126 in chapter 120 for administrative and judicial review.
127 Section 4. Section 768.096, Florida Statutes, is amended to
128 read:
129 768.096 Employer presumption against negligent hiring.—
130 (1) In a civil action for the death of, or injury or damage
131 to, a third person caused by the intentional tort of an
132 employee, such employee’s employer is presumed not to have been
133 negligent in hiring such employee if, before hiring the
134 employee, the employer conducted a background investigation of
135 the prospective employee and the investigation did not reveal
136 any information that reasonably demonstrated the unsuitability
137 of the prospective employee for the particular work to be
138 performed or for the context of the employment in general. A
139 background investigation under this section must include:
140 (a) Obtaining a criminal background investigation on the
141 prospective employee under subsection (2);
142 (b) Making a reasonable effort to contact references and
143 former employers of the prospective employee concerning the
144 suitability of the prospective employee for employment;
145 (c) Requiring the prospective employee to complete a job
146 application form that includes questions concerning whether he
147 or she has ever been convicted of a crime, including details
148 concerning the type of crime, the date of conviction and the
149 penalty imposed, and whether the prospective employee has ever
150 been a defendant in a civil action for intentional tort,
151 including the nature of the intentional tort and the disposition
152 of the action;
153 (d) Obtaining, with written authorization from the
154 prospective employee, a check of the driver’s license record of
155 the prospective employee if such a check is relevant to the work
156 the employee will be performing and if the record can reasonably
157 be obtained; and or
158 (e) Interviewing the prospective employee.
159 (2) To satisfy the criminal-background-investigation
160 requirement of this section, an employer must request and obtain
161 from the Department of Law Enforcement a check of the
162 information as reported and reflected in the Florida Crime
163 Information Center system as of the date of the request. The
164 employer must review and consider the results of the criminal
165 background investigation and, if the prospective employee has
166 engaged in past criminal conduct, ensure that the employee will
167 not be assigned to particular work that would place the employee
168 in a position where conduct that is similar to the employee’s
169 past criminal conduct is facilitated and determine that,
170 notwithstanding the past criminal conduct of the employee, any
171 information revealed by the investigation did not otherwise
172 demonstrate the unsuitability of the employee for the particular
173 work to be performed or context of the employment in general.
174 (3) The election by an employer not to conduct the
175 investigation specified in subsection (1) does not raise any
176 presumption that the employer failed to use reasonable care in
177 hiring an employee.
178 Section 5. Section 943.0585, Florida Statutes, is amended
179 to read:
180 943.0585 Court-ordered expunction of criminal history
181 records.—The courts of this state have jurisdiction over their
182 own procedures, including the maintenance, expunction, and
183 correction of judicial records containing criminal history
184 information to the extent such procedures are not inconsistent
185 with the conditions, responsibilities, and duties established by
186 this section. Any court of competent jurisdiction may order a
187 criminal justice agency to expunge the criminal history record
188 of a minor or an adult who complies with the requirements of
189 this section. The court shall not order a criminal justice
190 agency to expunge a criminal history record until the person
191 seeking to expunge a criminal history record has applied for and
192 received a certificate of eligibility for expunction pursuant to
193 subsection (2). A criminal history record that relates to a
194 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
195 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
196 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
197 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
198 any violation specified as a predicate offense for registration
199 as a sexual predator pursuant to s. 775.21, without regard to
200 whether that offense alone is sufficient to require such
201 registration, or for registration as a sexual offender pursuant
202 to s. 943.0435, may not be expunged, without regard to whether
203 adjudication was withheld, if the defendant was found guilty of
204 or pled guilty or nolo contendere to the offense, or if the
205 defendant, as a minor, was found to have committed, or pled
206 guilty or nolo contendere to committing, the offense as a
207 delinquent act. The court may only order expunction of a
208 criminal history record pertaining to one arrest or one incident
209 of alleged criminal activity, except as provided in this
210 section. The court may, at its sole discretion, order the
211 expunction of a criminal history record pertaining to more than
212 one arrest if the additional arrests directly relate to the
213 original arrest. If the court intends to order the expunction of
214 records pertaining to such additional arrests, such intent must
215 be specified in the order. A criminal justice agency may not
216 expunge any record pertaining to such additional arrests if the
217 order to expunge does not articulate the intention of the court
218 to expunge a record pertaining to more than one arrest. This
219 section does not prevent the court from ordering the expunction
220 of only a portion of a criminal history record pertaining to one
221 arrest or one incident of alleged criminal activity.
222 Notwithstanding any law to the contrary, a criminal justice
223 agency may comply with laws, court orders, and official requests
224 of other jurisdictions relating to expunction, correction, or
225 confidential handling of criminal history records or information
226 derived therefrom. This section does not confer any right to the
227 expunction of any criminal history record, and any request for
228 expunction of a criminal history record may be denied at the
229 sole discretion of the court.
230 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
231 petition to a court to expunge a criminal history record is
232 complete only when accompanied by:
233 (a) A valid certificate of eligibility for expunction
234 issued by the department pursuant to subsection (2).
235 (b) The petitioner’s sworn statement attesting that the
236 petitioner:
237 1. Has never, prior to the date on which the petition is
238 filed, been adjudicated guilty of a criminal offense or
239 comparable ordinance violation, or been adjudicated delinquent
240 for committing any felony or a misdemeanor specified in s.
241 943.051(3)(b).
242 2. Has not been adjudicated guilty of, or adjudicated
243 delinquent for committing, any of the acts stemming from the
244 arrest or alleged criminal activity to which the petition
245 pertains.
246 3. Has never secured a prior sealing or expunction of a
247 criminal history record under this section, former s. 893.14,
248 former s. 901.33, or former s. 943.058, or from any jurisdiction
249 outside the state, unless expunction is sought of a criminal
250 history record previously sealed for 10 years pursuant to
251 paragraph (2)(h) and the record is otherwise eligible for
252 expunction.
253 4. Is eligible for such an expunction to the best of his or
254 her knowledge or belief and does not have any other petition to
255 expunge or any petition to seal pending before any court.
256
257 Any person who knowingly provides false information on such
258 sworn statement to the court commits a felony of the third
259 degree, punishable as provided in s. 775.082, s. 775.083, or s.
260 775.084.
261 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
262 petitioning the court to expunge a criminal history record, a
263 person seeking to expunge a criminal history record shall apply
264 to the department for a certificate of eligibility for
265 expunction. The department shall, by rule adopted pursuant to
266 chapter 120, establish procedures pertaining to the application
267 for and issuance of certificates of eligibility for expunction.
268 A certificate of eligibility for expunction is valid for 12
269 months after the date stamped on the certificate when issued by
270 the department. After that time, the petitioner must reapply to
271 the department for a new certificate of eligibility. Eligibility
272 for a renewed certification of eligibility must be based on the
273 status of the applicant and the law in effect at the time of the
274 renewal application. The department shall issue a certificate of
275 eligibility for expunction to a person who is the subject of a
276 criminal history record if that person:
277 (a) Has obtained, and submitted to the department, a
278 written, certified statement from the appropriate state attorney
279 or statewide prosecutor which indicates:
280 1. That an indictment, information, or other charging
281 document was not filed or issued in the case.
282 2. That an indictment, information, or other charging
283 document, if filed or issued in the case, was dismissed or nolle
284 prosequi by the state attorney or statewide prosecutor, or was
285 dismissed by a court of competent jurisdiction, and that none of
286 the charges related to the arrest or alleged criminal activity
287 to which the petition to expunge pertains resulted in a trial,
288 without regard to whether the outcome of the trial was other
289 than an adjudication of guilt.
290 3. That the criminal history record does not relate to a
291 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
292 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
293 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
294 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
295 any violation specified as a predicate offense for registration
296 as a sexual predator pursuant to s. 775.21, without regard to
297 whether that offense alone is sufficient to require such
298 registration, or for registration as a sexual offender pursuant
299 to s. 943.0435, where the defendant was found guilty of, or pled
300 guilty or nolo contendere to any such offense, or that the
301 defendant, as a minor, was found to have committed, or pled
302 guilty or nolo contendere to committing, such an offense as a
303 delinquent act, without regard to whether adjudication was
304 withheld.
305 (b) Remits a $75 processing fee to the department for
306 placement in the Department of Law Enforcement Operating Trust
307 Fund, unless such fee is waived by the executive director.
308 (c) Has submitted to the department a certified copy of the
309 disposition of the charge to which the petition to expunge
310 pertains.
311 (d) Has never, prior to the date on which the application
312 for a certificate of eligibility is filed, been adjudicated
313 guilty of a criminal offense or comparable ordinance violation,
314 or been adjudicated delinquent for committing any felony or a
315 misdemeanor specified in s. 943.051(3)(b).
316 (e) Has not been adjudicated guilty of, or adjudicated
317 delinquent for committing, any of the acts stemming from the
318 arrest or alleged criminal activity to which the petition to
319 expunge pertains.
320 (f) Has never secured a prior sealing or expunction of a
321 criminal history record under this section, former s. 893.14,
322 former s. 901.33, or former s. 943.058, unless expunction is
323 sought of a criminal history record previously sealed for 10
324 years pursuant to paragraph (h) and the record is otherwise
325 eligible for expunction.
326 (g) Is no longer under court supervision applicable to the
327 disposition of the arrest or alleged criminal activity to which
328 the petition to expunge pertains.
329 (h) Has previously obtained a court order sealing the
330 record under this section, former s. 893.14, former s. 901.33,
331 or former s. 943.058 for a minimum of 10 years because
332 adjudication was withheld or because all charges related to the
333 arrest or alleged criminal activity to which the petition to
334 expunge pertains were not dismissed prior to trial, without
335 regard to whether the outcome of the trial was other than an
336 adjudication of guilt. The requirement for the record to have
337 previously been sealed for a minimum of 10 years does not apply
338 when a plea was not entered or all charges related to the arrest
339 or alleged criminal activity to which the petition to expunge
340 pertains were dismissed prior to trial.
341 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
342 (a) In judicial proceedings under this section, a copy of
343 the completed petition to expunge shall be served upon the
344 appropriate state attorney or the statewide prosecutor and upon
345 the arresting agency; however, it is not necessary to make any
346 agency other than the state a party. The appropriate state
347 attorney or the statewide prosecutor and the arresting agency
348 may respond to the court regarding the completed petition to
349 expunge.
350 (b) If relief is granted by the court, the clerk of the
351 court shall certify copies of the order to the appropriate state
352 attorney or the statewide prosecutor and the arresting agency.
353 The arresting agency is responsible for forwarding the order to
354 any other agency to which the arresting agency disseminated the
355 criminal history record information to which the order pertains.
356 The department shall forward the order to expunge to the Federal
357 Bureau of Investigation. The clerk of the court shall certify a
358 copy of the order to any other agency which the records of the
359 court reflect has received the criminal history record from the
360 court.
361 (c) For an order to expunge entered by a court prior to
362 July 1, 1992, the department shall notify the appropriate state
363 attorney or statewide prosecutor of an order to expunge which is
364 contrary to law because the person who is the subject of the
365 record has previously been convicted of a crime or comparable
366 ordinance violation or has had a prior criminal history record
367 sealed or expunged. Upon receipt of such notice, the appropriate
368 state attorney or statewide prosecutor shall take action, within
369 60 days, to correct the record and petition the court to void
370 the order to expunge. The department shall seal the record until
371 such time as the order is voided by the court.
372 (d) On or after July 1, 1992, the department or any other
373 criminal justice agency is not required to act on an order to
374 expunge entered by a court when such order does not comply with
375 the requirements of this section. Upon receipt of such an order,
376 the department must notify the issuing court, the appropriate
377 state attorney or statewide prosecutor, the petitioner or the
378 petitioner’s attorney, and the arresting agency of the reason
379 for noncompliance. The appropriate state attorney or statewide
380 prosecutor shall take action within 60 days to correct the
381 record and petition the court to void the order. No cause of
382 action, including contempt of court, shall arise against any
383 criminal justice agency for failure to comply with an order to
384 expunge when the petitioner for such order failed to obtain the
385 certificate of eligibility as required by this section or such
386 order does not otherwise comply with the requirements of this
387 section.
388 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
389 criminal history record of a minor or an adult which is ordered
390 expunged by a court of competent jurisdiction pursuant to this
391 section must be physically destroyed or obliterated by any
392 criminal justice agency having custody of such record; except
393 that any criminal history record in the custody of the
394 department must be retained in all cases. A criminal history
395 record ordered expunged that is retained by the department is
396 confidential and exempt from the provisions of s. 119.07(1) and
397 s. 24(a), Art. I of the State Constitution and not available to
398 any person or entity except upon order of a court of competent
399 jurisdiction. A criminal justice agency may retain a notation
400 indicating compliance with an order to expunge.
401 (a) The person who is the subject of a criminal history
402 record that is expunged under this section or under other
403 provisions of law, including former s. 893.14, former s. 901.33,
404 and former s. 943.058, may lawfully deny or fail to acknowledge
405 the arrests and subsequent dispositions covered by the expunged
406 record, except when the subject of the record:
407 1. Is a candidate for employment with a criminal justice
408 agency;
409 2. Is a defendant in a criminal prosecution;
410 3. Concurrently or subsequently petitions for relief under
411 this section or s. 943.059;
412 4. Is a candidate for admission to The Florida Bar;
413 5. Is seeking to be employed or licensed by or to contract
414 with the Department of Children and Family Services, the Agency
415 for Health Care Administration, the Agency for Persons with
416 Disabilities, or the Department of Juvenile Justice or to be
417 employed or used by such contractor or licensee in a sensitive
418 position having direct contact with children, the
419 developmentally disabled, the aged, or the elderly as provided
420 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
421 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
422 chapter 916, s. 985.644, chapter 400, or chapter 429;
423 6. Is seeking to be employed or licensed by the Department
424 of Education, any district school board, any university
425 laboratory school, any charter school, any private or parochial
426 school, or any local governmental entity that licenses child
427 care facilities; or
428 7. Is seeking authorization from a Florida seaport
429 identified in s. 311.09 for employment within or access to one
430 or more of such seaports pursuant to s. 311.12 or s. 311.125.
431 (b) Subject to the exceptions in paragraph (a), a person
432 who has been granted an expunction under this section, former s.
433 893.14, former s. 901.33, or former s. 943.058 may not be held
434 under any provision of law of this state to commit perjury or to
435 be otherwise liable for giving a false statement by reason of
436 such person’s failure to recite or acknowledge an expunged
437 criminal history record, including a failure to recite or
438 acknowledge on an employment application.
439 (c) Information relating to the existence of an expunged
440 criminal history record which is provided in accordance with
441 paragraph (a) is confidential and exempt from the provisions of
442 s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
443 except that the department shall disclose the existence of a
444 criminal history record ordered expunged to the entities set
445 forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
446 respective licensing, access authorization, and employment
447 purposes, and to criminal justice agencies for their respective
448 criminal justice purposes. It is unlawful for any employee of an
449 entity set forth in subparagraph (a)1., subparagraph (a)4.,
450 subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
451 disclose information relating to the existence of an expunged
452 criminal history record of a person seeking employment, access
453 authorization, or licensure with such entity or contractor,
454 except to the person to whom the criminal history record relates
455 or to persons having direct responsibility for employment,
456 access authorization, or licensure decisions. Any person who
457 violates this paragraph commits a misdemeanor of the first
458 degree, punishable as provided in s. 775.082 or s. 775.083.
459 (d) The department may disclose the contents of an expunged
460 record to the subject of the record upon the receipt of a
461 written, notarized request from the subject of the record.
462 (5) INFORMATION.—Each website for the office of a clerk of
463 court must include information relating to procedures to seal or
464 expunge criminal history records. This information must include
465 the link to related information on the website of the
466 department.
467 (6)(5) STATUTORY REFERENCES.—Any reference to any other
468 chapter, section, or subdivision of the Florida Statutes in this
469 section constitutes a general reference under the doctrine of
470 incorporation by reference.
471 Section 6. Section 943.059, Florida Statutes, is amended to
472 read:
473 943.059 Court-ordered sealing of criminal history records.
474 The courts of this state shall continue to have jurisdiction
475 over their own procedures, including the maintenance, sealing,
476 and correction of judicial records containing criminal history
477 information to the extent such procedures are not inconsistent
478 with the conditions, responsibilities, and duties established by
479 this section. Any court of competent jurisdiction may order a
480 criminal justice agency to seal the criminal history record of a
481 minor or an adult who complies with the requirements of this
482 section. The court shall not order a criminal justice agency to
483 seal a criminal history record until the person seeking to seal
484 a criminal history record has applied for and received a
485 certificate of eligibility for sealing pursuant to subsection
486 (2). A criminal history record that relates to a violation of s.
487 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
488 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
489 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
490 916.1075, a violation enumerated in s. 907.041, or any violation
491 specified as a predicate offense for registration as a sexual
492 predator pursuant to s. 775.21, without regard to whether that
493 offense alone is sufficient to require such registration, or for
494 registration as a sexual offender pursuant to s. 943.0435, may
495 not be sealed, without regard to whether adjudication was
496 withheld, if the defendant was found guilty of or pled guilty or
497 nolo contendere to the offense, or if the defendant, as a minor,
498 was found to have committed or pled guilty or nolo contendere to
499 committing the offense as a delinquent act. The court may only
500 order sealing of a criminal history record pertaining to one
501 arrest or one incident of alleged criminal activity, except as
502 provided in this section. The court may, at its sole discretion,
503 order the sealing of a criminal history record pertaining to
504 more than one arrest if the additional arrests directly relate
505 to the original arrest. If the court intends to order the
506 sealing of records pertaining to such additional arrests, such
507 intent must be specified in the order. A criminal justice agency
508 may not seal any record pertaining to such additional arrests if
509 the order to seal does not articulate the intention of the court
510 to seal records pertaining to more than one arrest. This section
511 does not prevent the court from ordering the sealing of only a
512 portion of a criminal history record pertaining to one arrest or
513 one incident of alleged criminal activity. Notwithstanding any
514 law to the contrary, a criminal justice agency may comply with
515 laws, court orders, and official requests of other jurisdictions
516 relating to sealing, correction, or confidential handling of
517 criminal history records or information derived therefrom. This
518 section does not confer any right to the sealing of any criminal
519 history record, and any request for sealing a criminal history
520 record may be denied at the sole discretion of the court.
521 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
522 petition to a court to seal a criminal history record is
523 complete only when accompanied by:
524 (a) A valid certificate of eligibility for sealing issued
525 by the department pursuant to subsection (2).
526 (b) The petitioner’s sworn statement attesting that the
527 petitioner:
528 1. Has never, prior to the date on which the petition is
529 filed, been adjudicated guilty of a criminal offense or
530 comparable ordinance violation, or been adjudicated delinquent
531 for committing any felony or a misdemeanor specified in s.
532 943.051(3)(b).
533 2. Has not been adjudicated guilty of or adjudicated
534 delinquent for committing any of the acts stemming from the
535 arrest or alleged criminal activity to which the petition to
536 seal pertains.
537 3. Has never secured a prior sealing, except as provided in
538 subsection (6), or expunction of a criminal history record under
539 this section, former s. 893.14, former s. 901.33, former s.
540 943.058, or from any jurisdiction outside the state.
541 4. Is eligible for such a sealing to the best of his or her
542 knowledge or belief and does not have any other petition to seal
543 or any petition to expunge pending before any court.
544
545 Any person who knowingly provides false information on such
546 sworn statement to the court commits a felony of the third
547 degree, punishable as provided in s. 775.082, s. 775.083, or s.
548 775.084.
549 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
550 petitioning the court to seal a criminal history record, a
551 person seeking to seal a criminal history record shall apply to
552 the department for a certificate of eligibility for sealing. The
553 department shall, by rule adopted pursuant to chapter 120,
554 establish procedures pertaining to the application for and
555 issuance of certificates of eligibility for sealing. A
556 certificate of eligibility for sealing is valid for 12 months
557 after the date stamped on the certificate when issued by the
558 department. After that time, the petitioner must reapply to the
559 department for a new certificate of eligibility. Eligibility for
560 a renewed certification of eligibility must be based on the
561 status of the applicant and the law in effect at the time of the
562 renewal application. The department shall issue a certificate of
563 eligibility for sealing to a person who is the subject of a
564 criminal history record provided that such person:
565 (a) Has submitted to the department a certified copy of the
566 disposition of the charge to which the petition to seal
567 pertains.
568 (b) Remits a $75 processing fee to the department for
569 placement in the Department of Law Enforcement Operating Trust
570 Fund, unless such fee is waived by the executive director.
571 (c) Has never, prior to the date on which the application
572 for a certificate of eligibility is filed, been adjudicated
573 guilty of a criminal offense or comparable ordinance violation,
574 or been adjudicated delinquent for committing any felony or a
575 misdemeanor specified in s. 943.051(3)(b).
576 (d) Has not been adjudicated guilty of or adjudicated
577 delinquent for committing any of the acts stemming from the
578 arrest or alleged criminal activity to which the petition to
579 seal pertains.
580 (e) Has never secured a prior sealing, except as provided
581 in subsection (6), or expunction of a criminal history record
582 under this section, former s. 893.14, former s. 901.33, or
583 former s. 943.058.
584 (f) Is no longer under court supervision applicable to the
585 disposition of the arrest or alleged criminal activity to which
586 the petition to seal pertains.
587 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.—
588 (a) In judicial proceedings under this section, a copy of
589 the completed petition to seal shall be served upon the
590 appropriate state attorney or the statewide prosecutor and upon
591 the arresting agency; however, it is not necessary to make any
592 agency other than the state a party. The appropriate state
593 attorney or the statewide prosecutor and the arresting agency
594 may respond to the court regarding the completed petition to
595 seal.
596 (b) If relief is granted by the court, the clerk of the
597 court shall certify copies of the order to the appropriate state
598 attorney or the statewide prosecutor and to the arresting
599 agency. The arresting agency is responsible for forwarding the
600 order to any other agency to which the arresting agency
601 disseminated the criminal history record information to which
602 the order pertains. The department shall forward the order to
603 seal to the Federal Bureau of Investigation. The clerk of the
604 court shall certify a copy of the order to any other agency
605 which the records of the court reflect has received the criminal
606 history record from the court.
607 (c) For an order to seal entered by a court prior to July
608 1, 1992, the department shall notify the appropriate state
609 attorney or statewide prosecutor of any order to seal which is
610 contrary to law because the person who is the subject of the
611 record has previously been convicted of a crime or comparable
612 ordinance violation or has had a prior criminal history record
613 sealed, except as provided in subsection (6), or expunged. Upon
614 receipt of such notice, the appropriate state attorney or
615 statewide prosecutor shall take action, within 60 days, to
616 correct the record and petition the court to void the order to
617 seal. The department shall seal the record until such time as
618 the order is voided by the court.
619 (d) On or after July 1, 1992, the department or any other
620 criminal justice agency is not required to act on an order to
621 seal entered by a court when such order does not comply with the
622 requirements of this section. Upon receipt of such an order, the
623 department must notify the issuing court, the appropriate state
624 attorney or statewide prosecutor, the petitioner or the
625 petitioner’s attorney, and the arresting agency of the reason
626 for noncompliance. The appropriate state attorney or statewide
627 prosecutor shall take action within 60 days to correct the
628 record and petition the court to void the order. No cause of
629 action, including contempt of court, shall arise against any
630 criminal justice agency for failure to comply with an order to
631 seal when the petitioner for such order failed to obtain the
632 certificate of eligibility as required by this section or when
633 such order does not comply with the requirements of this
634 section.
635 (e) An order sealing a criminal history record pursuant to
636 this section does not require that such record be surrendered to
637 the court, and such record shall continue to be maintained by
638 the department and other criminal justice agencies.
639 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
640 history record of a minor or an adult which is ordered sealed by
641 a court of competent jurisdiction pursuant to this section is
642 confidential and exempt from the provisions of s. 119.07(1) and
643 s. 24(a), Art. I of the State Constitution and is available only
644 to the person who is the subject of the record, to the subject’s
645 attorney, to criminal justice agencies for their respective
646 criminal justice purposes, which include conducting a criminal
647 history background check for approval of firearms purchases or
648 transfers as authorized by state or federal law, to judges in
649 the state courts system for the purpose of assisting them in
650 their case-related decisionmaking responsibilities, as set forth
651 in s. 943.053(5), or to those entities set forth in
652 subparagraphs (a)1., 4., 5., 6., and 8. for their respective
653 licensing, access authorization, and employment purposes.
654 (a) The subject of a criminal history record sealed under
655 this section or under other provisions of law, including former
656 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
657 deny or fail to acknowledge the arrests and subsequent
658 dispositions covered by the sealed record, except when the
659 subject of the record:
660 1. Is a candidate for employment with a criminal justice
661 agency;
662 2. Is a defendant in a criminal prosecution;
663 3. Concurrently or subsequently petitions for relief under
664 this section or s. 943.0585;
665 4. Is a candidate for admission to The Florida Bar;
666 5. Is seeking to be employed or licensed by or to contract
667 with the Department of Children and Family Services, the Agency
668 for Health Care Administration, the Agency for Persons with
669 Disabilities, or the Department of Juvenile Justice or to be
670 employed or used by such contractor or licensee in a sensitive
671 position having direct contact with children, the
672 developmentally disabled, the aged, or the elderly as provided
673 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
674 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
675 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
676 6. Is seeking to be employed or licensed by the Department
677 of Education, any district school board, any university
678 laboratory school, any charter school, any private or parochial
679 school, or any local governmental entity that licenses child
680 care facilities;
681 7. Is attempting to purchase a firearm from a licensed
682 importer, licensed manufacturer, or licensed dealer and is
683 subject to a criminal history background check under state or
684 federal law; or
685 8. Is seeking authorization from a Florida seaport
686 identified in s. 311.09 for employment within or access to one
687 or more of such seaports pursuant to s. 311.12 or s. 311.125.
688 (b) Subject to the exceptions in paragraph (a), a person
689 who has been granted a sealing under this section, former s.
690 893.14, former s. 901.33, or former s. 943.058 may not be held
691 under any provision of law of this state to commit perjury or to
692 be otherwise liable for giving a false statement by reason of
693 such person’s failure to recite or acknowledge a sealed criminal
694 history record, including failure to recite or acknowledge on an
695 employment application.
696 (c) Information relating to the existence of a sealed
697 criminal record provided in accordance with the provisions of
698 paragraph (a) is confidential and exempt from the provisions of
699 s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
700 except that the department shall disclose the sealed criminal
701 history record to the entities set forth in subparagraphs (a)1.,
702 4., 5., 6., and 8. for their respective licensing, access
703 authorization, and employment purposes. It is unlawful for any
704 employee of an entity set forth in subparagraph (a)1.,
705 subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
706 subparagraph (a)8. to disclose information relating to the
707 existence of a sealed criminal history record of a person
708 seeking employment, access authorization, or licensure with such
709 entity or contractor, except to the person to whom the criminal
710 history record relates or to persons having direct
711 responsibility for employment, access authorization, or
712 licensure decisions. Any person who violates the provisions of
713 this paragraph commits a misdemeanor of the first degree,
714 punishable as provided in s. 775.082 or s. 775.083.
715 (5) STATUTORY REFERENCES.—Any reference to any other
716 chapter, section, or subdivision of the Florida Statutes in this
717 section constitutes a general reference under the doctrine of
718 incorporation by reference.
719 (6) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
720 OR EXPUNCTION.—A court may seal a person’s criminal history
721 record after a prior criminal history record has been sealed or
722 expunged only if the person obtains a certificate from the
723 department to seal the criminal history record. The department
724 shall issue the certificate only if the person has not been
725 arrested during the 5-year period following the date of the
726 court order for the initial expunction or sealing of his or her
727 criminal history record. All other provisions and requirements
728 of this section apply to an application to seal a criminal
729 history record after a prior criminal history record has been
730 sealed or expunged.
731 Section 7. This act shall take effect July 1, 2009.