Bill Text: FL S0340 | 2010 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Sealing Criminal History Records [GPSC]

Spectrum: Moderate Partisan Bill (Democrat 5-1)

Status: (Failed) 2010-04-30 - Died in Messages [S0340 Detail]

Download: Florida-2010-S0340-Introduced.html

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Florida Senate - 2010                                     SB 340 
 
By Senator Wilson 
33-00099A-10                                           2010340__ 
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. 768.096, F.S.; 
11         requiring an employer to review the results of a 
12         criminal background investigation; requiring an 
13         employer not to place an employee who has a criminal 
14         record in a position where conduct similar to the 
15         employee’s past criminal conduct would be facilitated; 
16         requiring an employer to determine that the criminal 
17         background investigation does not demonstrate that the 
18         employee is unsuitable for the particular work to be 
19         performed or the context of the employment in general; 
20         amending s. 943.0585, F.S.; clarifying under what 
21         circumstances a person may legally deny the existence 
22         of an expunged criminal history record; authorizing 
23         the disclosure of the contents of an expunged record 
24         upon receipt of a written, notarized request from the 
25         record subject; requiring clerks of the court to post 
26         information relating to procedures to seal or expunge 
27         criminal history records on the clerk’s website; 
28         amending s. 943.059, F.S.; clarifying under what 
29         circumstances a person may legally deny the existence 
30         of a sealed criminal history record; authorizing a 
31         court to seal a criminal history record of a person 
32         who had a prior criminal history record sealed or 
33         expunged; providing 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 a goal of this state is 
42  to clearly identify the occupations from which ex-offenders are 
43  disqualified based on their specific offenses. The Legislature 
44  intends to make employment opportunities available to ex 
45  offenders in a manner that encourages them to become productive 
46  members of society and preserves the safety of the public. To 
47  this end, all state agencies shall identify all restrictions 
48  imposed by the agencies or by boards that regulate professions 
49  and occupations on employment and must attempt to define each 
50  restriction as narrowly as possible while continuing to maintain 
51  public safety. 
52         (2) Each state agency, including, but not limited to, 
53  professional and occupational regulatory boards, shall, by 
54  December 31, 2010, and every 8 years thereafter, submit to the 
55  Governor, the President of the Senate, and the Speaker of the 
56  House of Representatives a report that includes: 
57         (a) A list of all agency or board policies that disqualify 
58  from employment or licensure persons who have been convicted of 
59  a crime and have completed any incarceration and restitution to 
60  which they have been sentenced for such a crime. 
61         (b) A determination of whether the disqualifying policies 
62  are readily available to prospective employers and licensees. 
63         (c) The identification and evaluation of alternatives to 
64  the disqualifying policies to promote the employment of ex 
65  offenders and protect the public. 
66         (d) An evaluation of whether the disqualifying polices are 
67  too broad and whether crimes or acts of moral turpitude that 
68  disqualify a person from licensure should be more specifically 
69  or narrowly identified. 
70         Section 3. Section 112.011, Florida Statutes, is amended to 
71  read: 
72         112.011 Disqualification from licensing and public 
73  employment based on criminal conviction Felons; removal of 
74  disqualifications for employment, exceptions.— 
75         (1)(a) Except as provided in s. 775.16, a person may shall 
76  not be disqualified from employment by the state, any of its 
77  agencies or political subdivisions, or any municipality solely 
78  because of a prior conviction for a crime. However, a person may 
79  be denied employment by the state, any of its agencies or 
80  political subdivisions, or any municipality by reason of the 
81  prior conviction for a crime if the crime was a felony or first 
82  degree misdemeanor and directly related to the position of 
83  employment sought. 
84         (b) Except as provided in s. 775.16, a person whose civil 
85  rights have been restored shall not be disqualified to practice, 
86  pursue, or engage in any occupation, trade, vocation, 
87  profession, or business for which a license, permit, or 
88  certificate is required to be issued by the state, any of its 
89  agencies or political subdivisions, or any municipality solely 
90  because of a prior conviction for a crime. However, a person 
91  whose civil rights have been restored may be denied a license, 
92  permit, or certification to pursue, practice, or engage in an 
93  occupation, trade, vocation, profession, or business by reason 
94  of the prior conviction for a crime if the crime was a felony or 
95  first degree misdemeanor relevant to the standards normally 
96  associated with, or determined by the regulatory authority to be 
97  necessary for the protection of the public or other parties for, 
98  and directly related to the specific occupation, trade, 
99  vocation, profession, or business for which the license, permit, 
100  or certificate is sought. 
101         (c) Notwithstanding any law to the contrary, a state agency 
102  may not deny an application for a license, permit, certificate, 
103  or employment based on the applicant’s lack of civil rights. 
104  However, this paragraph does not apply to applications for a 
105  license to carry a concealed weapon or firearm under chapter 
106  790. 
107         (2)(a) This section does shall not apply be applicable to 
108  any law enforcement or correctional agency. 
109         (b) This section does shall not apply be applicable to the 
110  employment practices of any fire department relating to the 
111  hiring of firefighters. An applicant for employment with any 
112  fire department who has with a prior felony conviction shall be 
113  excluded from employment for a period of 4 years after 
114  expiration of sentence or final release by the Parole Commission 
115  unless the applicant, before prior to the expiration of the 4 
116  year period, has received a full pardon or has had his or her 
117  civil rights restored. 
118         (c) This section does shall not apply be applicable to the 
119  employment practices of any county or municipality relating to 
120  the hiring of personnel for positions deemed to be critical to 
121  security or public safety pursuant to ss. 125.5801 and 166.0442. 
122         (3) Any complaint concerning the violation of this section 
123  shall be adjudicated in accordance with the procedures set forth 
124  in chapter 120 for administrative and judicial review. 
125         Section 4. Section 768.096, Florida Statutes, is amended to 
126  read: 
127         768.096 Employer presumption against negligent hiring.— 
128         (1) In a civil action for the death of, or injury or damage 
129  to, a third person caused by the intentional tort of an 
130  employee, such employee’s employer is presumed not to have been 
131  negligent in hiring such employee if, before hiring the 
132  employee, the employer conducted a background investigation of 
133  the prospective employee and the investigation did not reveal 
134  any information that reasonably demonstrated the unsuitability 
135  of the prospective employee for the particular work to be 
136  performed or for the context of the employment in general. A 
137  background investigation under this section must include: 
138         (a) Obtaining a criminal background investigation on the 
139  prospective employee under subsection (2); 
140         (b) Making a reasonable effort to contact references and 
141  former employers of the prospective employee concerning the 
142  suitability of the prospective employee for employment; 
143         (c) Requiring the prospective employee to complete a job 
144  application form that includes questions concerning whether he 
145  or she has ever been convicted of a crime, including details 
146  concerning the type of crime, the date of conviction and the 
147  penalty imposed, and whether the prospective employee has ever 
148  been a defendant in a civil action for intentional tort, 
149  including the nature of the intentional tort and the disposition 
150  of the action; 
151         (d) Obtaining, with written authorization from the 
152  prospective employee, a check of the driver’s license record of 
153  the prospective employee if such a check is relevant to the work 
154  the employee will be performing and if the record can reasonably 
155  be obtained; and or 
156         (e) Interviewing the prospective employee. 
157         (2) To satisfy the criminal-background-investigation 
158  requirement of this section, an employer must request and obtain 
159  from the Department of Law Enforcement a check of the 
160  information as reported and reflected in the Florida Crime 
161  Information Center system as of the date of the request. The 
162  employer must review and consider the results of the criminal 
163  background investigation. If the prospective employee has 
164  engaged in past criminal conduct, the employer must ensure that 
165  the employee will not be assigned to particular work that will 
166  place the employee in a position in which conduct that is 
167  similar to the employee’s past criminal conduct is facilitated. 
168  The employer must also determine that, notwithstanding the past 
169  criminal conduct of the employee, any information revealed by 
170  the investigation did not otherwise demonstrate the 
171  unsuitability of the employee for the particular work to be 
172  performed or the context of the employment in general. 
173         (3) The election by an employer not to conduct the 
174  investigation specified in subsection (1) does not raise any 
175  presumption that the employer failed to use reasonable care in 
176  hiring an employee. 
177         Section 5. Section 943.0585, Florida Statutes, is amended 
178  to read: 
179         943.0585 Court-ordered expunction of criminal history 
180  records.—The courts of this state have jurisdiction over their 
181  own procedures, including the maintenance, expunction, and 
182  correction of judicial records containing criminal history 
183  information to the extent such procedures are not inconsistent 
184  with the conditions, responsibilities, and duties established by 
185  this section. Any court of competent jurisdiction may order a 
186  criminal justice agency to expunge the criminal history record 
187  of a minor or an adult who complies with the requirements of 
188  this section. The court may shall not order a criminal justice 
189  agency to expunge a criminal history record until the person 
190  seeking to expunge a criminal history record has applied for and 
191  received a certificate of eligibility for expunction pursuant to 
192  subsection (2). A criminal history record that relates to a 
193  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, 
194  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 
195  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 
196  893.135, s. 916.1075, a violation enumerated in s. 907.041, or 
197  any violation specified as a predicate offense for registration 
198  as a sexual predator pursuant to s. 775.21, without regard to 
199  whether that offense alone is sufficient to require such 
200  registration, or for registration as a sexual offender pursuant 
201  to s. 943.0435, may not be expunged, without regard to whether 
202  adjudication was withheld, if the defendant was found guilty of 
203  or pled guilty or nolo contendere to the offense, or if the 
204  defendant, as a minor, was found to have committed, or pled 
205  guilty or nolo contendere to committing, the offense as a 
206  delinquent act. The court may only order expunction of a 
207  criminal history record pertaining to one arrest or one incident 
208  of alleged criminal activity, except as provided in this 
209  section. The court may, at its sole discretion, order the 
210  expunction of a criminal history record pertaining to more than 
211  one arrest if the additional arrests directly relate to the 
212  original arrest. If the court intends to order the expunction of 
213  records pertaining to such additional arrests, such intent must 
214  be specified in the order. A criminal justice agency may not 
215  expunge any record pertaining to such additional arrests if the 
216  order to expunge does not articulate the intention of the court 
217  to expunge a record pertaining to more than one arrest. This 
218  section does not prevent the court from ordering the expunction 
219  of only a portion of a criminal history record pertaining to one 
220  arrest or one incident of alleged criminal activity. 
221  Notwithstanding any law to the contrary, a criminal justice 
222  agency may comply with laws, court orders, and official requests 
223  of other jurisdictions relating to expunction, correction, or 
224  confidential handling of criminal history records or information 
225  derived therefrom. This section does not confer any right to the 
226  expunction of any criminal history record, and any request for 
227  expunction of a criminal history record may be denied at the 
228  sole discretion of the court. 
229         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each 
230  petition to a court to expunge a criminal history record is 
231  complete only when accompanied by: 
232         (a) A valid certificate of eligibility for expunction 
233  issued by the department pursuant to subsection (2). 
234         (b) The petitioner’s sworn statement attesting that the 
235  petitioner: 
236         1. Has never, before prior to the date on which the 
237  petition is filed, been adjudicated guilty of a criminal offense 
238  or comparable ordinance violation, or been adjudicated 
239  delinquent for committing any felony or a misdemeanor specified 
240  in s. 943.051(3)(b). 
241         2. Has not been adjudicated guilty of, or adjudicated 
242  delinquent for committing, any of the acts stemming from the 
243  arrest or alleged criminal activity to which the petition 
244  pertains. 
245         3. Has never secured a prior sealing or expunction of a 
246  criminal history record under this section, former s. 893.14, 
247  former s. 901.33, or former s. 943.058, or from any jurisdiction 
248  outside the state, unless expunction is sought of a criminal 
249  history record previously sealed for 10 years pursuant to 
250  paragraph (2)(h) and the record is otherwise eligible for 
251  expunction. 
252         4. Is eligible for such an expunction to the best of his or 
253  her knowledge or belief and does not have any other petition to 
254  expunge or any petition to seal pending before any court. 
255 
256  Any person who knowingly provides false information on such 
257  sworn statement to the court commits a felony of the third 
258  degree, punishable as provided in s. 775.082, s. 775.083, or s. 
259  775.084. 
260         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Before Prior 
261  to petitioning the court to expunge a criminal history record, a 
262  person seeking to expunge a criminal history record must shall 
263  apply to the department for a certificate of eligibility for 
264  expunction. The department shall, by rule adopted pursuant to 
265  chapter 120, establish procedures pertaining to the application 
266  for and issuance of certificates of eligibility for expunction. 
267  A certificate of eligibility for expunction is valid for 12 
268  months after the date stamped on the certificate when issued by 
269  the department. After that time, the petitioner must reapply to 
270  the department for a new certificate of eligibility. Eligibility 
271  for a renewed certification of eligibility must be based on the 
272  status of the applicant and the law in effect at the time of the 
273  renewal application. The department shall issue a certificate of 
274  eligibility for expunction to a person who is the subject of a 
275  criminal history record if that person: 
276         (a) Has obtained, and submitted to the department, a 
277  written, certified statement from the appropriate state attorney 
278  or statewide prosecutor which indicates: 
279         1. That an indictment, information, or other charging 
280  document was not filed or issued in the case. 
281         2. That an indictment, information, or other charging 
282  document, if filed or issued in the case, was dismissed or nolle 
283  prosequi by the state attorney or statewide prosecutor, or was 
284  dismissed by a court of competent jurisdiction, and that none of 
285  the charges related to the arrest or alleged criminal activity 
286  to which the petition to expunge pertains resulted in a trial, 
287  without regard to whether the outcome of the trial was other 
288  than an adjudication of guilt. 
289         3. That the criminal history record does not relate to a 
290  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, 
291  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 
292  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 
293  893.135, s. 916.1075, a violation enumerated in s. 907.041, or 
294  any violation specified as a predicate offense for registration 
295  as a sexual predator pursuant to s. 775.21, without regard to 
296  whether that offense alone is sufficient to require such 
297  registration, or for registration as a sexual offender pursuant 
298  to s. 943.0435, where the defendant was found guilty of, or pled 
299  guilty or nolo contendere to any such offense, or that the 
300  defendant, as a minor, was found to have committed, or pled 
301  guilty or nolo contendere to committing, such an offense as a 
302  delinquent act, without regard to whether adjudication was 
303  withheld. 
304         (b) Remits a $75 processing fee to the department for 
305  placement in the Department of Law Enforcement Operating Trust 
306  Fund, unless such fee is waived by the executive director. 
307         (c) Has submitted to the department a certified copy of the 
308  disposition of the charge to which the petition to expunge 
309  pertains. 
310         (d) Has never, before prior to the date on which the 
311  application for a certificate of eligibility is filed, been 
312  adjudicated guilty of a criminal offense or comparable ordinance 
313  violation, or been adjudicated delinquent for committing any 
314  felony or a misdemeanor specified in s. 943.051(3)(b). 
315         (e) Has not been adjudicated guilty of, or adjudicated 
316  delinquent for committing, any of the acts stemming from the 
317  arrest or alleged criminal activity to which the petition to 
318  expunge pertains. 
319         (f) Has never secured a prior sealing or expunction of a 
320  criminal history record under this section, former s. 893.14, 
321  former s. 901.33, or former s. 943.058, unless expunction is 
322  sought of a criminal history record previously sealed for 10 
323  years pursuant to paragraph (h) and the record is otherwise 
324  eligible for expunction. 
325         (g) Is no longer under court supervision applicable to the 
326  disposition of the arrest or alleged criminal activity to which 
327  the petition to expunge pertains. 
328         (h) Has previously obtained a court order sealing the 
329  record under this section, former s. 893.14, former s. 901.33, 
330  or former s. 943.058 for a minimum of 10 years because 
331  adjudication was withheld or because all charges related to the 
332  arrest or alleged criminal activity to which the petition to 
333  expunge pertains were not dismissed before prior to trial, 
334  without regard to whether the outcome of the trial was other 
335  than an adjudication of guilt. The requirement for the record to 
336  have previously been sealed for a minimum of 10 years does not 
337  apply when a plea was not entered or all charges related to the 
338  arrest or alleged criminal activity to which the petition to 
339  expunge pertains were dismissed before prior to trial. 
340         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.— 
341         (a) In judicial proceedings under this section, a copy of 
342  the completed petition to expunge must shall be served upon the 
343  appropriate state attorney or the statewide prosecutor and upon 
344  the arresting agency; however, it is not necessary to make any 
345  agency other than the state a party. The appropriate state 
346  attorney or the statewide prosecutor and the arresting agency 
347  may respond to the court regarding the completed petition to 
348  expunge. 
349         (b) If relief is granted by the court, the clerk of the 
350  court shall certify copies of the order to the appropriate state 
351  attorney or the statewide prosecutor and the arresting agency. 
352  The arresting agency is responsible for forwarding the order to 
353  any other agency to which the arresting agency disseminated the 
354  criminal history record information to which the order pertains. 
355  The department shall forward the order to expunge to the Federal 
356  Bureau of Investigation. The clerk of the court shall certify a 
357  copy of the order to any other agency which the records of the 
358  court reflect has received the criminal history record from the 
359  court. 
360         (c) For an order to expunge entered by a court before prior 
361  to July 1, 1992, the department shall notify the appropriate 
362  state attorney or statewide prosecutor of an order to expunge 
363  which is contrary to law because the person who is the subject 
364  of the record has previously been convicted of a crime or 
365  comparable ordinance violation or has had a prior criminal 
366  history record sealed or expunged. Upon receipt of such notice, 
367  the appropriate state attorney or statewide prosecutor shall 
368  take action, within 60 days, to correct the record and petition 
369  the court to void the order to expunge. The department shall 
370  seal the record until such time as the order is voided by the 
371  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. A No cause of 
382  action, including contempt of court, does not shall arise 
383  against any criminal justice agency for failure to comply with 
384  an order to expunge if when the petitioner for such order failed 
385  to obtain the certificate of eligibility as required by this 
386  section or such order does not otherwise comply with the 
387  requirements of this 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 seaport listed in s. 
429  311.09 for employment within or access to one or more of such 
430  seaports pursuant to s. 311.12. 
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 may shall not order a criminal justice agency 
483  to seal a criminal history record until the person seeking to 
484  seal 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, before prior to the date on which the 
529  petition is filed, been adjudicated guilty of a criminal offense 
530  or comparable ordinance violation, or been adjudicated 
531  delinquent for committing any felony or a misdemeanor specified 
532  in s. 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.—Before 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, before prior to the date on which the 
572  application for a certificate of eligibility is filed, been 
573  adjudicated guilty of a criminal offense or comparable ordinance 
574  violation, or been adjudicated delinquent for committing any 
575  felony or a 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 before prior to 
608  July 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 if when such order does not comply with 
622  the requirements of this section. Upon receipt of such an order, 
623  the department must notify the issuing court, the appropriate 
624  state 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. A No cause of 
629  action, including contempt of court, does not shall arise 
630  against any criminal justice agency for failure to comply with 
631  an order to seal if when the petitioner for such order failed to 
632  obtain the certificate of eligibility as required by this 
633  section or if when such order does not comply with the 
634  requirements of this 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 check under state or federal law; 
684  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. 
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, 2010.