Florida Senate - 2014                       CS for CS for SB 634
       
       
        
       By the Committees on Judiciary; and Children, Families, and
       Elder Affairs; and Senator Brandes
       
       
       
       
       590-02120A-14                                          2014634c2
    1                        A bill to be entitled                      
    2         An act relating to guardianship; amending s. 744.102,
    3         F.S.; redefining the term “audit”; amending s.
    4         744.3135, F.S.; revising the requirements and
    5         authorizations of the court to require specified
    6         guardians to submit to a credit history investigation
    7         and background screening; authorizing a
    8         nonprofessional guardian to petition the court for
    9         reimbursement for the credit history investigation and
   10         background screening; amending s. 744.368, F.S.;
   11         authorizing a clerk of the court to obtain and review
   12         records and documents relating to guardianship assets
   13         and to issue subpoenas to nonparties upon application
   14         to the court; providing requirements for affidavits,
   15         notice, and subpoenas; providing for objection to a
   16         subpoena; amending s. 744.3685, F.S.; authorizing the
   17         court to require the production of records and
   18         documents by a guardian who fails to submit them
   19         during an audit; amending s. 744.474, F.S.; providing
   20         for the removal of a guardian for a bad faith failure
   21         to submit records during an audit; amending ss.
   22         943.0585 and 943.059, F.S.; providing that a person
   23         seeking an appointment as guardian may not lawfully
   24         deny or fail to acknowledge the arrests covered by an
   25         expunged or sealed record; reenacting s.
   26         943.0585(4)(c), F.S., relating to court-ordered
   27         expunction of criminal history records, to incorporate
   28         the amendments made to s. 943.0585, F.S., in a
   29         reference thereto; reenacting s. 943.059(4)(c), F.S.,
   30         relating to court-ordered sealing of criminal history
   31         records, to incorporate the amendments made to s.
   32         943.059, F.S., in a reference thereto; providing an
   33         effective date.
   34          
   35  Be It Enacted by the Legislature of the State of Florida:
   36  
   37         Section 1. Subsection (2) of section 744.102, Florida
   38  Statutes, is amended to read:
   39         744.102 Definitions.—As used in this chapter, the term:
   40  (2) “Audit” means a systematic review of financial and all other
   41  documents to ensure compliance with s. 744.368, rules of court,
   42  and local procedures using generally accepted accounting
   43  principles. The term includes various practices that meet
   44  professional audit standards, such as verifications, reviews of
   45  substantiating papers and accounts, interviews, inspections, and
   46  investigations.
   47         Section 2. Subsection (1) of section 744.3135, Florida
   48  Statutes, is amended to read:
   49         744.3135 Credit and criminal investigation.—
   50         (1) The court shall require all persons who are seeking
   51  appointment by the court, other than a corporate guardian as
   52  described in s. 744.309(4) may require a nonprofessional
   53  guardian and shall require a professional or public guardian,
   54  and all employees of a professional guardian, other than a
   55  corporate guardian as described in s. 744.309(4), who have a
   56  fiduciary responsibility to a ward, to submit, at their own
   57  expense, to a an investigation of the guardian’s credit history
   58  investigation and to undergo level 2 background screening as
   59  required under s. 435.04. If appointed, a nonprofessional
   60  guardian may petition the court for reimbursement of the
   61  reasonable expenses of the credit history investigation and
   62  background screening. If a credit or criminal history record
   63  check is required, The court must consider the results of any
   64  investigation before appointing a guardian. At any time, the
   65  court may require a guardian or the guardian’s employees to
   66  submit to an investigation of the person’s credit history and
   67  complete a level 1 background screening pursuant to as set forth
   68  in s. 435.03. The court shall consider the results of any
   69  investigation in determining whether to reappoint when
   70  reappointing a guardian. The clerk of the court shall maintain a
   71  file on each guardian appointed by the court and retain in the
   72  file documentation of the result of any investigation conducted
   73  under this section. A professional guardian shall must pay the
   74  clerk of the court a fee of up to $7.50 for handling and
   75  processing professional guardian files.
   76         Section 3. Subsections (5) through (7) are added to section
   77  744.368, Florida Statutes, to read:
   78         744.368 Responsibilities of the clerk of the circuit
   79  court.—
   80         (5) If the clerk has reason to believe further review is
   81  appropriate, the clerk may request and review records and
   82  documents that reasonably relate to the guardianship assets,
   83  including, but not limited to, the beginning inventory balance
   84  and any fees charged to the guardianship.
   85         (6) If a guardian fails to produce records or documents to
   86  the clerk upon request, the clerk may request the court to enter
   87  an order pursuant to s. 744.3685(2) by filing an affidavit that
   88  identifies the records or documents requested and shows good
   89  cause as to why the records or documents requested should be
   90  produced.
   91         (7) Upon application to the court supported by an affidavit
   92  pursuant to subsection (6), the clerk may issue subpoenas to
   93  nonparties to compel production of records or documents. Before
   94  issuance of a subpoena by affidavit, the clerk must serve notice
   95  on the guardian and the ward, unless the ward is a minor or
   96  totally incapacitated, of the intent to serve subpoenas to
   97  nonparties.
   98         (a) The clerk must attach the affidavit and the proposed
   99  subpoena to the notice to the guardian and, if appropriate, to
  100  the ward. The notice must:
  101         1. State the time, place, and method for production of the
  102  records or documents, and the name and address of the person who
  103  is to produce the documents or items, if known, or if not known,
  104  a general description sufficient to identify the person or the
  105  particular class or group to which the person belongs;
  106         2. Include a designation of the records or documents to be
  107  produced; and
  108         3. State that the person who will be asked to produce the
  109  records or documents has the right to object to the production
  110  under this section and that the person is not required to
  111  surrender the records or documents.
  112         (b) A copy of the notice and proposed subpoena may not be
  113  furnished to the person upon whom the subpoena is to be served.
  114         (c) If the guardian or ward serves an objection to
  115  production under this subsection within 10 days after service of
  116  the notice, the records or documents may not be required to be
  117  produced until resolution of the objection. If an objection is
  118  not made within 10 days after service of the notice, the clerk
  119  may issue the subpoena to the nonparty. The court may shorten
  120  the period within which a guardian or ward must file an
  121  objection if the clerk’s affidavit shows that the ward’s
  122  property is in danger of being wasted, misappropriated, or lost
  123  unless immediate action is taken.
  124         Section 4. Section 744.3685, Florida Statutes, is amended
  125  to read:
  126         744.3685 Order requiring guardianship report; contempt.—
  127         (1)If When a guardian fails to file the guardianship
  128  report, the court shall order the guardian to file the report
  129  within 15 days after the service of the order upon her or him or
  130  show cause why she or he may should not be compelled to do so.
  131         (2) If a guardian fails to comply with the submission of
  132  records or documents requested by the clerk during the audit,
  133  upon a showing of good cause by affidavit of the clerk which
  134  shows the reasons the records must be produced, the court may
  135  order the guardian to produce the records or documents within a
  136  period specified by the court unless the guardian shows good
  137  cause as to why the guardian may not be compelled to do so
  138  before the deadline specified by the court. The affidavit of the
  139  clerk shall be served with the order.
  140         (3) A copy of an the order entered pursuant to subsection
  141  (1) or subsection (2) shall be served on the guardian or on the
  142  guardian’s resident agent. If the guardian fails to comply with
  143  the order file her or his report within the time specified by
  144  the order without good cause, the court may cite the guardian
  145  for contempt of court and may fine her or him. The fine may not
  146  be paid out of the ward’s property.
  147         Section 5. Subsection (21) is added to section 744.474,
  148  Florida Statutes, to read:
  149         744.474 Reasons for removal of guardian.—A guardian may be
  150  removed for any of the following reasons, and the removal shall
  151  be in addition to any other penalties prescribed by law:
  152         (21) The failure in bad faith to submit a guardianship
  153  record during the audit pursuant to s. 744.368.
  154         Section 6. Paragraph (a) of subsection (4) of section
  155  943.0585, Florida Statutes, is amended, and paragraph (c) of
  156  that subsection is reenacted, to read:
  157         943.0585 Court-ordered expunction of criminal history
  158  records.—The courts of this state have jurisdiction over their
  159  own procedures, including the maintenance, expunction, and
  160  correction of judicial records containing criminal history
  161  information to the extent such procedures are not inconsistent
  162  with the conditions, responsibilities, and duties established by
  163  this section. Any court of competent jurisdiction may order a
  164  criminal justice agency to expunge the criminal history record
  165  of a minor or an adult who complies with the requirements of
  166  this section. The court shall not order a criminal justice
  167  agency to expunge a criminal history record until the person
  168  seeking to expunge a criminal history record has applied for and
  169  received a certificate of eligibility for expunction pursuant to
  170  subsection (2). A criminal history record that relates to a
  171  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  172  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  173  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  174  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  175  any violation specified as a predicate offense for registration
  176  as a sexual predator pursuant to s. 775.21, without regard to
  177  whether that offense alone is sufficient to require such
  178  registration, or for registration as a sexual offender pursuant
  179  to s. 943.0435, may not be expunged, without regard to whether
  180  adjudication was withheld, if the defendant was found guilty of
  181  or pled guilty or nolo contendere to the offense, or if the
  182  defendant, as a minor, was found to have committed, or pled
  183  guilty or nolo contendere to committing, the offense as a
  184  delinquent act. The court may only order expunction of a
  185  criminal history record pertaining to one arrest or one incident
  186  of alleged criminal activity, except as provided in this
  187  section. The court may, at its sole discretion, order the
  188  expunction of a criminal history record pertaining to more than
  189  one arrest if the additional arrests directly relate to the
  190  original arrest. If the court intends to order the expunction of
  191  records pertaining to such additional arrests, such intent must
  192  be specified in the order. A criminal justice agency may not
  193  expunge any record pertaining to such additional arrests if the
  194  order to expunge does not articulate the intention of the court
  195  to expunge a record pertaining to more than one arrest. This
  196  section does not prevent the court from ordering the expunction
  197  of only a portion of a criminal history record pertaining to one
  198  arrest or one incident of alleged criminal activity.
  199  Notwithstanding any law to the contrary, a criminal justice
  200  agency may comply with laws, court orders, and official requests
  201  of other jurisdictions relating to expunction, correction, or
  202  confidential handling of criminal history records or information
  203  derived therefrom. This section does not confer any right to the
  204  expunction of any criminal history record, and any request for
  205  expunction of a criminal history record may be denied at the
  206  sole discretion of the court.
  207         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  208  criminal history record of a minor or an adult which is ordered
  209  expunged by a court of competent jurisdiction pursuant to this
  210  section must be physically destroyed or obliterated by any
  211  criminal justice agency having custody of such record; except
  212  that any criminal history record in the custody of the
  213  department must be retained in all cases. A criminal history
  214  record ordered expunged that is retained by the department is
  215  confidential and exempt from the provisions of s. 119.07(1) and
  216  s. 24(a), Art. I of the State Constitution and not available to
  217  any person or entity except upon order of a court of competent
  218  jurisdiction. A criminal justice agency may retain a notation
  219  indicating compliance with an order to expunge.
  220         (a) The person who is the subject of a criminal history
  221  record that is expunged under this section or under other
  222  provisions of law, including former s. 893.14, former s. 901.33,
  223  and former s. 943.058, may lawfully deny or fail to acknowledge
  224  the arrests covered by the expunged record, except when the
  225  subject of the record:
  226         1. Is a candidate for employment with a criminal justice
  227  agency;
  228         2. Is a defendant in a criminal prosecution;
  229         3. Concurrently or subsequently petitions for relief under
  230  this section, s. 943.0583, or s. 943.059;
  231         4. Is a candidate for admission to The Florida Bar;
  232         5. Is seeking to be employed or licensed by or to contract
  233  with the Department of Children and Families, the Division of
  234  Vocational Rehabilitation within the Department of Education,
  235  the Agency for Health Care Administration, the Agency for
  236  Persons with Disabilities, the Department of Health, the
  237  Department of Elderly Affairs, or the Department of Juvenile
  238  Justice or to be employed or used by such contractor or licensee
  239  in a sensitive position having direct contact with children, the
  240  disabled, or the elderly; or
  241         6. Is seeking to be employed or licensed by the Department
  242  of Education, any district school board, any university
  243  laboratory school, any charter school, any private or parochial
  244  school, or any local governmental entity that licenses child
  245  care facilities; or.
  246         7. Is seeking to be appointed as a guardian pursuant to s.
  247  744.3125.
  248         (c) Information relating to the existence of an expunged
  249  criminal history record which is provided in accordance with
  250  paragraph (a) is confidential and exempt from the provisions of
  251  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  252  except that the department shall disclose the existence of a
  253  criminal history record ordered expunged to the entities set
  254  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  255  respective licensing, access authorization, and employment
  256  purposes, and to criminal justice agencies for their respective
  257  criminal justice purposes. It is unlawful for any employee of an
  258  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  259  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  260  disclose information relating to the existence of an expunged
  261  criminal history record of a person seeking employment, access
  262  authorization, or licensure with such entity or contractor,
  263  except to the person to whom the criminal history record relates
  264  or to persons having direct responsibility for employment,
  265  access authorization, or licensure decisions. Any person who
  266  violates this paragraph commits a misdemeanor of the first
  267  degree, punishable as provided in s. 775.082 or s. 775.083.
  268         Section 7. Paragraph (a) of subsection (4) of section
  269  943.059, Florida Statutes, is amended, and paragraph (c) of that
  270  subsection is reenacted, to read:
  271         943.059 Court-ordered sealing of criminal history records.
  272  The courts of this state shall continue to have jurisdiction
  273  over their own procedures, including the maintenance, sealing,
  274  and correction of judicial records containing criminal history
  275  information to the extent such procedures are not inconsistent
  276  with the conditions, responsibilities, and duties established by
  277  this section. Any court of competent jurisdiction may order a
  278  criminal justice agency to seal the criminal history record of a
  279  minor or an adult who complies with the requirements of this
  280  section. The court shall not order a criminal justice agency to
  281  seal a criminal history record until the person seeking to seal
  282  a criminal history record has applied for and received a
  283  certificate of eligibility for sealing pursuant to subsection
  284  (2). A criminal history record that relates to a violation of s.
  285  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  286  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  287  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  288  916.1075, a violation enumerated in s. 907.041, or any violation
  289  specified as a predicate offense for registration as a sexual
  290  predator pursuant to s. 775.21, without regard to whether that
  291  offense alone is sufficient to require such registration, or for
  292  registration as a sexual offender pursuant to s. 943.0435, may
  293  not be sealed, without regard to whether adjudication was
  294  withheld, if the defendant was found guilty of or pled guilty or
  295  nolo contendere to the offense, or if the defendant, as a minor,
  296  was found to have committed or pled guilty or nolo contendere to
  297  committing the offense as a delinquent act. The court may only
  298  order sealing of a criminal history record pertaining to one
  299  arrest or one incident of alleged criminal activity, except as
  300  provided in this section. The court may, at its sole discretion,
  301  order the sealing of a criminal history record pertaining to
  302  more than one arrest if the additional arrests directly relate
  303  to the original arrest. If the court intends to order the
  304  sealing of records pertaining to such additional arrests, such
  305  intent must be specified in the order. A criminal justice agency
  306  may not seal any record pertaining to such additional arrests if
  307  the order to seal does not articulate the intention of the court
  308  to seal records pertaining to more than one arrest. This section
  309  does not prevent the court from ordering the sealing of only a
  310  portion of a criminal history record pertaining to one arrest or
  311  one incident of alleged criminal activity. Notwithstanding any
  312  law to the contrary, a criminal justice agency may comply with
  313  laws, court orders, and official requests of other jurisdictions
  314  relating to sealing, correction, or confidential handling of
  315  criminal history records or information derived therefrom. This
  316  section does not confer any right to the sealing of any criminal
  317  history record, and any request for sealing a criminal history
  318  record may be denied at the sole discretion of the court.
  319         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  320  history record of a minor or an adult which is ordered sealed by
  321  a court of competent jurisdiction pursuant to this section is
  322  confidential and exempt from the provisions of s. 119.07(1) and
  323  s. 24(a), Art. I of the State Constitution and is available only
  324  to the person who is the subject of the record, to the subject’s
  325  attorney, to criminal justice agencies for their respective
  326  criminal justice purposes, which include conducting a criminal
  327  history background check for approval of firearms purchases or
  328  transfers as authorized by state or federal law, to judges in
  329  the state courts system for the purpose of assisting them in
  330  their case-related decisionmaking responsibilities, as set forth
  331  in s. 943.053(5), or to those entities set forth in
  332  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  333  licensing, access authorization, and employment purposes.
  334         (a) The subject of a criminal history record sealed under
  335  this section or under other provisions of law, including former
  336  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  337  deny or fail to acknowledge the arrests covered by the sealed
  338  record, except when the subject of the record:
  339         1. Is a candidate for employment with a criminal justice
  340  agency;
  341         2. Is a defendant in a criminal prosecution;
  342         3. Concurrently or subsequently petitions for relief under
  343  this section, s. 943.0583, or s. 943.0585;
  344         4. Is a candidate for admission to The Florida Bar;
  345         5. Is seeking to be employed or licensed by or to contract
  346  with the Department of Children and Families, the Division of
  347  Vocational Rehabilitation within the Department of Education,
  348  the Agency for Health Care Administration, the Agency for
  349  Persons with Disabilities, the Department of Health, the
  350  Department of Elderly Affairs, or the Department of Juvenile
  351  Justice or to be employed or used by such contractor or licensee
  352  in a sensitive position having direct contact with children, the
  353  disabled, or the elderly;
  354         6. Is seeking to be employed or licensed by the Department
  355  of Education, any district school board, any university
  356  laboratory school, any charter school, any private or parochial
  357  school, or any local governmental entity that licenses child
  358  care facilities; or
  359         7. Is attempting to purchase a firearm from a licensed
  360  importer, licensed manufacturer, or licensed dealer and is
  361  subject to a criminal history check under state or federal law;
  362  or.
  363         8. Is seeking to be appointed as a guardian pursuant to s.
  364  744.3125.
  365         (c) Information relating to the existence of a sealed
  366  criminal record provided in accordance with the provisions of
  367  paragraph (a) is confidential and exempt from the provisions of
  368  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  369  except that the department shall disclose the sealed criminal
  370  history record to the entities set forth in subparagraphs (a)1.,
  371  4., 5., 6., and 8. for their respective licensing, access
  372  authorization, and employment purposes. It is unlawful for any
  373  employee of an entity set forth in subparagraph (a)1.,
  374  subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
  375  subparagraph (a)8. to disclose information relating to the
  376  existence of a sealed criminal history record of a person
  377  seeking employment, access authorization, or licensure with such
  378  entity or contractor, except to the person to whom the criminal
  379  history record relates or to persons having direct
  380  responsibility for employment, access authorization, or
  381  licensure decisions. Any person who violates the provisions of
  382  this paragraph commits a misdemeanor of the first degree,
  383  punishable as provided in s. 775.082 or s. 775.083.
  384         Section 8. This act shall take effect July 1, 2014.