Florida Senate - 2011 CS for SB 146
By the Committee on Criminal Justice; and Senators Smith, Lynn,
and Dockery
591-02279-11 2011146c1
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 for ex-offenders; amending s. 112.011,
7 F.S.; prohibiting state agencies from denying an
8 application for a license, permit, certificate, or
9 employment based on a person’s lack of civil rights;
10 providing an exception; amending s. 943.0585, F.S.;
11 clarifying under what circumstances a person may
12 legally deny the existence of an expunged criminal
13 history record; authorizing the disclosure of the
14 contents of an expunged record upon receipt of a
15 written, notarized request from the record subject;
16 requiring clerks of the court to post information
17 relating to procedures to seal or expunge criminal
18 history records on the clerk’s website; amending s.
19 943.059, F.S.; clarifying under what circumstances a
20 person may legally deny the existence of a sealed
21 criminal history record; authorizing a court to seal a
22 criminal history record of a person who had a prior
23 criminal history record sealed or expunged; providing
24 an effective date.
25
26 Be It Enacted by the Legislature of the State of Florida:
27
28 Section 1. This act may be cited as the “Jim King Keep
29 Florida Working Act.”
30 Section 2. Restrictions on the employment of ex-offenders;
31 legislative intent; state agency reporting requirements.—
32 (1) The Legislature declares that a goal of this state is
33 to clearly identify the occupations from which ex-offenders are
34 disqualified based on their specific offenses. The Legislature
35 intends to make employment opportunities available to ex
36 offenders in a manner that encourages them to become productive
37 members of society and preserves the safety of the public. To
38 this end, all state agencies shall identify all restrictions on
39 employment imposed by the agencies or by boards that regulate
40 professions and occupations and attempt to define each
41 restriction as narrowly as possible while continuing to maintain
42 public safety.
43 (2) Each state agency, including, but not limited to,
44 professional and occupational regulatory boards, shall, by
45 December 31, 2011, and every 8 years thereafter, submit to the
46 Governor, the President of the Senate, and the Speaker of the
47 House of Representatives a report that includes:
48 (a) A list of all agency or board policies that disqualify
49 from employment or licensure persons who have been convicted of
50 a crime and have completed any incarceration and restitution to
51 which they have been sentenced for such a crime.
52 (b) A determination of whether the disqualifying policies
53 are readily available to prospective employers and licensees.
54 (c) The identification and evaluation of alternatives to
55 the disqualifying policies which promote the employment of ex
56 offenders and protect the public.
57 (d) An evaluation of whether the disqualifying polices are
58 too broad and whether crimes or acts of moral turpitude that
59 disqualify a person from licensure should be more specifically
60 or narrowly identified.
61 Section 3. Section 112.011, Florida Statutes, is amended to
62 read:
63 112.011 Disqualification from licensing and public
64 employment based on criminal conviction Felons; removal of
65 disqualifications for employment, exceptions.—
66 (1)(a) Except as provided in s. 775.16, a person may shall
67 not be disqualified from employment by the state, any of its
68 agencies or political subdivisions, or any municipality solely
69 because of a prior conviction for a crime. However, a person may
70 be denied employment by the state, any of its agencies or
71 political subdivisions, or any municipality by reason of the
72 prior conviction for a crime if the crime was a felony or first
73 degree misdemeanor and directly related to the position of
74 employment sought.
75 (b) Except as provided in s. 775.16, a person whose civil
76 rights have been restored shall not be disqualified to practice,
77 pursue, or engage in any occupation, trade, vocation,
78 profession, or business for which a license, permit, or
79 certificate is required to be issued by the state, any of its
80 agencies or political subdivisions, or any municipality solely
81 because of a prior conviction for a crime. However, a person
82 whose civil rights have been restored may be denied a license,
83 permit, or certification to pursue, practice, or engage in an
84 occupation, trade, vocation, profession, or business by reason
85 of the prior conviction for a crime if the crime was a felony or
86 first-degree first degree misdemeanor that is relevant to the
87 standards normally associated with, or determined by the
88 regulatory authority to be necessary for the protection of the
89 public or other parties for, and directly related to the
90 specific occupation, trade, vocation, profession, or business
91 for which the license, permit, or certificate is sought.
92 (c) Notwithstanding any law to the contrary, a state agency
93 may not deny an application for a license, permit, certificate,
94 or employment based on the applicant’s lack of civil rights.
95 However, this paragraph does not apply to applications for a
96 license to carry a concealed weapon or firearm under chapter
97 790.
98 (2)(a) This section does shall not apply be applicable to
99 any law enforcement or correctional agency.
100 (b) This section does shall not apply be applicable to the
101 employment practices of any fire department relating to the
102 hiring of firefighters. An applicant for employment with any
103 fire department who has with a prior felony conviction shall be
104 excluded from employment for a period of 4 years after
105 expiration of sentence or final release by the Parole Commission
106 unless the applicant, before prior to the expiration of the 4
107 year period, has received a full pardon or has had his or her
108 civil rights restored.
109 (c) This section does shall not apply be applicable to the
110 employment practices of any county or municipality relating to
111 the hiring of personnel for positions deemed to be critical to
112 security or public safety pursuant to ss. 125.5801 and 166.0442.
113 (3) Any complaint concerning the violation of this section
114 shall be adjudicated in accordance with the procedures set forth
115 in chapter 120 for administrative and judicial review.
116 Section 4. Section 943.0585, Florida Statutes, is amended
117 to read:
118 943.0585 Court-ordered expunction of criminal history
119 records.—The courts of this state have jurisdiction over their
120 own procedures, including the maintenance, expunction, and
121 correction of judicial records containing criminal history
122 information to the extent such procedures are not inconsistent
123 with the conditions, responsibilities, and duties established by
124 this section. Any court of competent jurisdiction may order a
125 criminal justice agency to expunge the criminal history record
126 of a minor or an adult who complies with the requirements of
127 this section. The court may shall not order a criminal justice
128 agency to expunge a criminal history record until the person
129 seeking to expunge a criminal history record has applied for and
130 received a certificate of eligibility for expunction pursuant to
131 subsection (2). A criminal history record that relates to a
132 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
133 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
134 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
135 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
136 any violation specified as a predicate offense for registration
137 as a sexual predator pursuant to s. 775.21, without regard to
138 whether that offense alone is sufficient to require such
139 registration, or for registration as a sexual offender pursuant
140 to s. 943.0435, may not be expunged, without regard to whether
141 adjudication was withheld, if the defendant was found guilty of
142 or pled guilty or nolo contendere to the offense, or if the
143 defendant, as a minor, was found to have committed, or pled
144 guilty or nolo contendere to committing, the offense as a
145 delinquent act. The court may only order expunction of a
146 criminal history record pertaining to one arrest or one incident
147 of alleged criminal activity, except as provided in this
148 section. The court may, at its sole discretion, order the
149 expunction of a criminal history record pertaining to more than
150 one arrest if the additional arrests directly relate to the
151 original arrest. If the court intends to order the expunction of
152 records pertaining to such additional arrests, such intent must
153 be specified in the order. A criminal justice agency may not
154 expunge any record pertaining to such additional arrests if the
155 order to expunge does not articulate the intention of the court
156 to expunge a record pertaining to more than one arrest. This
157 section does not prevent the court from ordering the expunction
158 of only a portion of a criminal history record pertaining to one
159 arrest or one incident of alleged criminal activity.
160 Notwithstanding any law to the contrary, a criminal justice
161 agency may comply with laws, court orders, and official requests
162 of other jurisdictions relating to expunction, correction, or
163 confidential handling of criminal history records or information
164 derived therefrom. This section does not confer any right to the
165 expunction of any criminal history record, and any request for
166 expunction of a criminal history record may be denied at the
167 sole discretion of the court.
168 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
169 petition to a court to expunge a criminal history record is
170 complete only when accompanied by:
171 (a) A valid certificate of eligibility for expunction
172 issued by the department pursuant to subsection (2).
173 (b) The petitioner’s sworn statement attesting that the
174 petitioner:
175 1. Has never, before prior to the date on which the
176 petition is filed, been adjudicated guilty of a criminal offense
177 or comparable ordinance violation, or been adjudicated
178 delinquent for committing any felony or a misdemeanor specified
179 in s. 943.051(3)(b).
180 2. Has not been adjudicated guilty of, or adjudicated
181 delinquent for committing, any of the acts stemming from the
182 arrest or alleged criminal activity to which the petition
183 pertains.
184 3. Has never secured a prior sealing or expunction of a
185 criminal history record under this section, former s. 893.14,
186 former s. 901.33, or former s. 943.058, or from any jurisdiction
187 outside the state, unless expunction is sought of a criminal
188 history record previously sealed for 10 years pursuant to
189 paragraph (2)(h) and the record is otherwise eligible for
190 expunction.
191 4. Is eligible for such an expunction to the best of his or
192 her knowledge or belief and does not have any other petition to
193 expunge or any petition to seal pending before any court.
194
195 Any person who knowingly provides false information on such
196 sworn statement to the court commits a felony of the third
197 degree, punishable as provided in s. 775.082, s. 775.083, or s.
198 775.084.
199 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Before Prior
200 to petitioning the court to expunge a criminal history record, a
201 person seeking to expunge a criminal history record must shall
202 apply to the department for a certificate of eligibility for
203 expunction. The department shall, by rule adopted pursuant to
204 chapter 120, establish procedures pertaining to the application
205 for and issuance of certificates of eligibility for expunction.
206 A certificate of eligibility for expunction is valid for 12
207 months after the date stamped on the certificate when issued by
208 the department. After that time, the petitioner must reapply to
209 the department for a new certificate of eligibility. Eligibility
210 for a renewed certification of eligibility must be based on the
211 status of the applicant and the law in effect at the time of the
212 renewal application. The department shall issue a certificate of
213 eligibility for expunction to a person who is the subject of a
214 criminal history record if that person:
215 (a) Has obtained, and submitted to the department, a
216 written, certified statement from the appropriate state attorney
217 or statewide prosecutor which indicates:
218 1. That an indictment, information, or other charging
219 document was not filed or issued in the case.
220 2. That an indictment, information, or other charging
221 document, if filed or issued in the case, was dismissed or nolle
222 prosequi by the state attorney or statewide prosecutor, or was
223 dismissed by a court of competent jurisdiction, and that none of
224 the charges related to the arrest or alleged criminal activity
225 to which the petition to expunge pertains resulted in a trial,
226 without regard to whether the outcome of the trial was other
227 than an adjudication of guilt.
228 3. That the criminal history record does not relate to a
229 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
230 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
231 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
232 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
233 any violation specified as a predicate offense for registration
234 as a sexual predator pursuant to s. 775.21, without regard to
235 whether that offense alone is sufficient to require such
236 registration, or for registration as a sexual offender pursuant
237 to s. 943.0435, where the defendant was found guilty of, or pled
238 guilty or nolo contendere to any such offense, or that the
239 defendant, as a minor, was found to have committed, or pled
240 guilty or nolo contendere to committing, such an offense as a
241 delinquent act, without regard to whether adjudication was
242 withheld.
243 (b) Remits a $75 processing fee to the department for
244 placement in the Department of Law Enforcement Operating Trust
245 Fund, unless such fee is waived by the executive director.
246 (c) Has submitted to the department a certified copy of the
247 disposition of the charge to which the petition to expunge
248 pertains.
249 (d) Has never, before prior to the date on which the
250 application for a certificate of eligibility is filed, been
251 adjudicated guilty of a criminal offense or comparable ordinance
252 violation, or been adjudicated delinquent for committing any
253 felony or a misdemeanor specified in s. 943.051(3)(b).
254 (e) Has not been adjudicated guilty of, or adjudicated
255 delinquent for committing, any of the acts stemming from the
256 arrest or alleged criminal activity to which the petition to
257 expunge pertains.
258 (f) Has never secured a prior sealing or expunction of a
259 criminal history record under this section, former s. 893.14,
260 former s. 901.33, or former s. 943.058, unless expunction is
261 sought of a criminal history record previously sealed for 10
262 years pursuant to paragraph (h) and the record is otherwise
263 eligible for expunction.
264 (g) Is no longer under court supervision applicable to the
265 disposition of the arrest or alleged criminal activity to which
266 the petition to expunge pertains.
267 (h) Has previously obtained a court order sealing the
268 record under this section, former s. 893.14, former s. 901.33,
269 or former s. 943.058 for a minimum of 10 years because
270 adjudication was withheld or because all charges related to the
271 arrest or alleged criminal activity to which the petition to
272 expunge pertains were not dismissed before prior to trial,
273 without regard to whether the outcome of the trial was other
274 than an adjudication of guilt. The requirement for the record to
275 have previously been sealed for a minimum of 10 years does not
276 apply when a plea was not entered or all charges related to the
277 arrest or alleged criminal activity to which the petition to
278 expunge pertains were dismissed before prior to trial.
279 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
280 (a) In judicial proceedings under this section, a copy of
281 the completed petition to expunge must shall be served upon the
282 appropriate state attorney or the statewide prosecutor and upon
283 the arresting agency; however, it is not necessary to make any
284 agency other than the state a party. The appropriate state
285 attorney or the statewide prosecutor and the arresting agency
286 may respond to the court regarding the completed petition to
287 expunge.
288 (b) If relief is granted by the court, the clerk of the
289 court shall certify copies of the order to the appropriate state
290 attorney or the statewide prosecutor and the arresting agency.
291 The arresting agency is responsible for forwarding the order to
292 any other agency to which the arresting agency disseminated the
293 criminal history record information to which the order pertains.
294 The department shall forward the order to expunge to the Federal
295 Bureau of Investigation. The clerk of the court shall certify a
296 copy of the order to any other agency which the records of the
297 court reflect has received the criminal history record from the
298 court.
299 (c) For an order to expunge entered by a court before prior
300 to July 1, 1992, the department shall notify the appropriate
301 state attorney or statewide prosecutor of an order to expunge
302 which is contrary to law because the person who is the subject
303 of the record has previously been convicted of a crime or
304 comparable ordinance violation or has had a prior criminal
305 history record sealed or expunged. Upon receipt of such notice,
306 the appropriate state attorney or statewide prosecutor shall
307 take action, within 60 days, to correct the record and petition
308 the court to void the order to expunge. The department shall
309 seal the record until such time as the order is voided by the
310 court.
311 (d) On or after July 1, 1992, the department or any other
312 criminal justice agency is not required to act on an order to
313 expunge entered by a court when such order does not comply with
314 the requirements of this section. Upon receipt of such an order,
315 the department must notify the issuing court, the appropriate
316 state attorney or statewide prosecutor, the petitioner or the
317 petitioner’s attorney, and the arresting agency of the reason
318 for noncompliance. The appropriate state attorney or statewide
319 prosecutor shall take action within 60 days to correct the
320 record and petition the court to void the order. A No cause of
321 action, including contempt of court, does not shall arise
322 against any criminal justice agency for failure to comply with
323 an order to expunge if when the petitioner for such order failed
324 to obtain the certificate of eligibility as required by this
325 section or such order does not otherwise comply with the
326 requirements of this section.
327 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
328 criminal history record of a minor or an adult which is ordered
329 expunged by a court of competent jurisdiction pursuant to this
330 section must be physically destroyed or obliterated by any
331 criminal justice agency having custody of such record; except
332 that any criminal history record in the custody of the
333 department must be retained in all cases. A criminal history
334 record ordered expunged that is retained by the department is
335 confidential and exempt from the provisions of s. 119.07(1) and
336 s. 24(a), Art. I of the State Constitution and not available to
337 any person or entity except upon order of a court of competent
338 jurisdiction. A criminal justice agency may retain a notation
339 indicating compliance with an order to expunge.
340 (a) The person who is the subject of a criminal history
341 record that is expunged under this section or under other
342 provisions of law, including former s. 893.14, former s. 901.33,
343 and former s. 943.058, may lawfully deny or fail to acknowledge
344 the arrests and subsequent dispositions covered by the expunged
345 record, except when the subject of the record:
346 1. Is a candidate for employment with a criminal justice
347 agency;
348 2. Is a defendant in a criminal prosecution;
349 3. Concurrently or subsequently petitions for relief under
350 this section or s. 943.059;
351 4. Is a candidate for admission to The Florida Bar;
352 5. Is seeking to be employed or licensed by or to contract
353 with the Department of Children and Family Services, the Agency
354 for Health Care Administration, the Agency for Persons with
355 Disabilities, or the Department of Juvenile Justice or to be
356 employed or used by such contractor or licensee in a sensitive
357 position having direct contact with children, the
358 developmentally disabled, the aged, or the elderly as provided
359 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
360 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5),
361 chapter 916, s. 985.644, chapter 400, or chapter 429;
362 6. Is seeking to be employed or licensed by the Department
363 of Education, any district school board, any university
364 laboratory school, any charter school, any private or parochial
365 school, or any local governmental entity that licenses child
366 care facilities; or
367 7. Is seeking authorization from a seaport listed in s.
368 311.09 for employment within or access to one or more of such
369 seaports pursuant to s. 311.12.
370 (b) Subject to the exceptions in paragraph (a), a person
371 who has been granted an expunction under this section, former s.
372 893.14, former s. 901.33, or former s. 943.058 may not be held
373 under any provision of law of this state to commit perjury or to
374 be otherwise liable for giving a false statement by reason of
375 such person’s failure to recite or acknowledge an expunged
376 criminal history record, including a failure to recite or
377 acknowledge on an employment application.
378 (c) Information relating to the existence of an expunged
379 criminal history record which is provided in accordance with
380 paragraph (a) is confidential and exempt from the provisions of
381 s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
382 except that the department shall disclose the existence of a
383 criminal history record ordered expunged to the entities set
384 forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
385 respective licensing, access authorization, and employment
386 purposes, and to criminal justice agencies for their respective
387 criminal justice purposes. It is unlawful for any employee of an
388 entity set forth in subparagraph (a)1., subparagraph (a)4.,
389 subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
390 disclose information relating to the existence of an expunged
391 criminal history record of a person seeking employment, access
392 authorization, or licensure with such entity or contractor,
393 except to the person to whom the criminal history record relates
394 or to persons having direct responsibility for employment,
395 access authorization, or licensure decisions. Any person who
396 violates this paragraph commits a misdemeanor of the first
397 degree, punishable as provided in s. 775.082 or s. 775.083.
398 (d) The department may disclose the contents of an expunged
399 record to the subject of the record upon the receipt of a
400 written, notarized request from the subject of the record.
401 (5) INFORMATION.—Each website for the office of a clerk of
402 court must include information relating to procedures to seal or
403 expunge criminal history records. This information must include
404 the link to related information on the website of the
405 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 5. 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 may shall not order a criminal justice agency
422 to seal a criminal history record until the person seeking to
423 seal 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, before prior to the date on which the
468 petition is filed, been adjudicated guilty of a criminal offense
469 or comparable ordinance violation, or been adjudicated
470 delinquent for committing any felony or a misdemeanor specified
471 in s. 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
484 Any person who knowingly provides false information on such
485 sworn statement to the court commits a felony of the third
486 degree, punishable as provided in s. 775.082, s. 775.083, or s.
487 775.084.
488 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Before Prior to
489 petitioning the court to seal a criminal history record, a
490 person seeking to seal a criminal history record shall apply to
491 the department for a certificate of eligibility for sealing. The
492 department shall, by rule adopted pursuant to chapter 120,
493 establish procedures pertaining to the application for and
494 issuance of certificates of eligibility for sealing. A
495 certificate of eligibility for sealing is valid for 12 months
496 after the date stamped on the certificate when issued by the
497 department. After that time, the petitioner must reapply to the
498 department for a new certificate of eligibility. Eligibility for
499 a renewed certification of eligibility must be based on the
500 status of the applicant and the law in effect at the time of the
501 renewal application. The department shall issue a certificate of
502 eligibility for sealing to a person who is the subject of a
503 criminal history record provided that such person:
504 (a) Has submitted to the department a certified copy of the
505 disposition of the charge to which the petition to seal
506 pertains.
507 (b) Remits a $75 processing fee to the department for
508 placement in the Department of Law Enforcement Operating Trust
509 Fund, unless such fee is waived by the executive director.
510 (c) Has never, before prior to the date on which the
511 application for a certificate of eligibility is filed, been
512 adjudicated guilty of a criminal offense or comparable ordinance
513 violation, or been adjudicated delinquent for committing any
514 felony or a misdemeanor specified in s. 943.051(3)(b).
515 (d) Has not been adjudicated guilty of or adjudicated
516 delinquent for committing any of the acts stemming from the
517 arrest or alleged criminal activity to which the petition to
518 seal pertains.
519 (e) Has never secured a prior sealing, except as provided
520 in subsection (6), or expunction of a criminal history record
521 under this section, former s. 893.14, former s. 901.33, or
522 former s. 943.058.
523 (f) Is no longer under court supervision applicable to the
524 disposition of the arrest or alleged criminal activity to which
525 the petition to seal pertains.
526 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.—
527 (a) In judicial proceedings under this section, a copy of
528 the completed petition to seal shall be served upon the
529 appropriate state attorney or the statewide prosecutor and upon
530 the arresting agency; however, it is not necessary to make any
531 agency other than the state a party. The appropriate state
532 attorney or the statewide prosecutor and the arresting agency
533 may respond to the court regarding the completed petition to
534 seal.
535 (b) If relief is granted by the court, the clerk of the
536 court shall certify copies of the order to the appropriate state
537 attorney or the statewide prosecutor and to the arresting
538 agency. The arresting agency is responsible for forwarding the
539 order to any other agency to which the arresting agency
540 disseminated the criminal history record information to which
541 the order pertains. The department shall forward the order to
542 seal to the Federal Bureau of Investigation. The clerk of the
543 court shall certify a copy of the order to any other agency
544 which the records of the court reflect has received the criminal
545 history record from the court.
546 (c) For an order to seal entered by a court before prior to
547 July 1, 1992, the department shall notify the appropriate state
548 attorney or statewide prosecutor of any order to seal which is
549 contrary to law because the person who is the subject of the
550 record has previously been convicted of a crime or comparable
551 ordinance violation or has had a prior criminal history record
552 sealed, except as provided in subsection (6), or expunged. Upon
553 receipt of such notice, the appropriate state attorney or
554 statewide prosecutor shall take action, within 60 days, to
555 correct the record and petition the court to void the order to
556 seal. The department shall seal the record until such time as
557 the order is voided by the court.
558 (d) On or after July 1, 1992, the department or any other
559 criminal justice agency is not required to act on an order to
560 seal entered by a court if when such order does not comply with
561 the requirements of this section. Upon receipt of such an order,
562 the department must notify the issuing court, the appropriate
563 state attorney or statewide prosecutor, the petitioner or the
564 petitioner’s attorney, and the arresting agency of the reason
565 for noncompliance. The appropriate state attorney or statewide
566 prosecutor shall take action within 60 days to correct the
567 record and petition the court to void the order. A No cause of
568 action, including contempt of court, does not shall arise
569 against any criminal justice agency for failure to comply with
570 an order to seal if when the petitioner for such order failed to
571 obtain the certificate of eligibility as required by this
572 section or if when such order does not comply with the
573 requirements of this section.
574 (e) An order sealing a criminal history record pursuant to
575 this section does not require that such record be surrendered to
576 the court, and such record shall continue to be maintained by
577 the department and other criminal justice agencies.
578 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
579 history record of a minor or an adult which is ordered sealed by
580 a court of competent jurisdiction pursuant to this section is
581 confidential and exempt from the provisions of s. 119.07(1) and
582 s. 24(a), Art. I of the State Constitution and is available only
583 to the person who is the subject of the record, to the subject’s
584 attorney, to criminal justice agencies for their respective
585 criminal justice purposes, which include conducting a criminal
586 history background check for approval of firearms purchases or
587 transfers as authorized by state or federal law, to judges in
588 the state courts system for the purpose of assisting them in
589 their case-related decisionmaking responsibilities, as set forth
590 in s. 943.053(5), or to those entities set forth in
591 subparagraphs (a)1., 4., 5., 6., and 8. for their respective
592 licensing, access authorization, and employment purposes.
593 (a) The subject of a criminal history record sealed under
594 this section or under other provisions of law, including former
595 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
596 deny or fail to acknowledge the arrests and subsequent
597 dispositions covered by the sealed record, except when the
598 subject of the record:
599 1. Is a candidate for employment with a criminal justice
600 agency;
601 2. Is a defendant in a criminal prosecution;
602 3. Concurrently or subsequently petitions for relief under
603 this section or s. 943.0585;
604 4. Is a candidate for admission to The Florida Bar;
605 5. Is seeking to be employed or licensed by or to contract
606 with the Department of Children and Family Services, the Agency
607 for Health Care Administration, the Agency for Persons with
608 Disabilities, or the Department of Juvenile Justice or to be
609 employed or used by such contractor or licensee in a sensitive
610 position having direct contact with children, the
611 developmentally disabled, the aged, or the elderly as provided
612 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
613 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), s.
614 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
615 6. Is seeking to be employed or licensed by the Department
616 of Education, any district school board, any university
617 laboratory school, any charter school, any private or parochial
618 school, or any local governmental entity that licenses child
619 care facilities;
620 7. Is attempting to purchase a firearm from a licensed
621 importer, licensed manufacturer, or licensed dealer and is
622 subject to a criminal history check under state or federal law;
623 or
624 8. Is seeking authorization from a Florida seaport
625 identified in s. 311.09 for employment within or access to one
626 or more of such seaports pursuant to s. 311.12.
627 (b) Subject to the exceptions in paragraph (a), a person
628 who has been granted a sealing under this section, former s.
629 893.14, former s. 901.33, or former s. 943.058 may not be held
630 under any provision of law of this state to commit perjury or to
631 be otherwise liable for giving a false statement by reason of
632 such person’s failure to recite or acknowledge a sealed criminal
633 history record, including failure to recite or acknowledge on an
634 employment application.
635 (c) Information relating to the existence of a sealed
636 criminal record provided in accordance with the provisions of
637 paragraph (a) is confidential and exempt from the provisions of
638 s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
639 except that the department shall disclose the sealed criminal
640 history record to the entities set forth in subparagraphs (a)1.,
641 4., 5., 6., and 8. for their respective licensing, access
642 authorization, and employment purposes. It is unlawful for any
643 employee of an entity set forth in subparagraph (a)1.,
644 subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
645 subparagraph (a)8. to disclose information relating to the
646 existence of a sealed criminal history record of a person
647 seeking employment, access authorization, or licensure with such
648 entity or contractor, except to the person to whom the criminal
649 history record relates or to persons having direct
650 responsibility for employment, access authorization, or
651 licensure decisions. Any person who violates the provisions of
652 this paragraph commits a misdemeanor of the first degree,
653 punishable as provided in s. 775.082 or s. 775.083.
654 (5) STATUTORY REFERENCES.—Any reference to any other
655 chapter, section, or subdivision of the Florida Statutes in this
656 section constitutes a general reference under the doctrine of
657 incorporation by reference.
658 (6) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
659 OR EXPUNCTION.—A court may seal a person’s criminal history
660 record after a prior criminal history record has been sealed or
661 expunged only if the person obtains a certificate from the
662 department to seal the criminal history record. The department
663 shall issue the certificate only if the person has not been
664 arrested during the 5-year period following the date of the
665 court order for the initial expunction or sealing of his or her
666 criminal history record. All other provisions and requirements
667 of this section apply to an application to seal a criminal
668 history record after a prior criminal history record has been
669 sealed or expunged.
670 Section 6. This act shall take effect July 1, 2011.