Florida Senate - 2009 CS for CS for CS for SB 2404
By the Committees on Health and Human Services Appropriations;
Governmental Oversight and Accountability; and Children,
Families, and Elder Affairs; and Senator Storms
603-05646-09 20092404c3
1 A bill to be entitled
2 An act relating to adult protective services; amending
3 s. 415.101, F.S.; revising terminology; amending s.
4 415.102, F.S.; defining the term “activities of daily
5 living” and revising the term “vulnerable adult”;
6 conforming a cross-reference; amending s. 415.103,
7 F.S.; requiring that the central abuse hotline, which
8 is maintained by the Department of Children and Family
9 Services, immediately transfer reports relating to
10 vulnerable adults to the appropriate county sheriff’s
11 office; amending s. 415.1051, F.S.; authorizing the
12 department to file a petition to determine incapacity;
13 prohibiting the department from acting as guardian or
14 providing legal counsel to the guardian; amending s.
15 322.142, F.S.; providing a cross-reference to
16 authorize the release of certain records for purposes
17 of protective investigations; amending ss. 943.0585
18 and 943.059, F.S.; conforming cross-references;
19 providing an effective date.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Subsection (2) of section 415.101, Florida
24 Statutes, is amended to read:
25 415.101 Adult Protective Services Act; legislative intent.—
26 (2) The Legislature recognizes that there are many persons
27 in this state who, because of age or disability, are in need of
28 protective services. Such services should allow such an
29 individual the same rights as other citizens and, at the same
30 time, protect the individual from abuse, neglect, and
31 exploitation. It is the intent of the Legislature to provide for
32 the detection and correction of abuse, neglect, and exploitation
33 through social services and criminal investigations and to
34 establish a program of protective services for vulnerable adults
35 all disabled adults or elderly persons in need of them. It is
36 intended that the mandatory reporting of such cases will cause
37 the protective services of the state to be brought to bear in an
38 effort to prevent further abuse, neglect, and exploitation of
39 vulnerable adults disabled adults or elderly persons. In taking
40 this action, the Legislature intends to place the fewest
41 possible restrictions on personal liberty and the exercise of
42 constitutional rights, consistent with due process and
43 protection from abuse, neglect, and exploitation. Further, the
44 Legislature intends to encourage the constructive involvement of
45 families in the care and protection of vulnerable adults
46 disabled adults or elderly persons.
47 Section 2. Present subsections (2) through (27) of section
48 415.102, Florida Statutes, are redesignated as subsections (3)
49 through (28), respectively, present subsections (4) and (26) of
50 that section are amended, and a new subsection (2) is added to
51 that section, to read:
52 415.102 Definitions of terms used in ss. 415.101-415.113.
53 As used in ss. 415.101-415.113, the term:
54 (2) “Activities of daily living” means functions and tasks
55 for self-care, including ambulation, bathing, dressing, eating,
56 grooming, toileting, and other similar tasks.
57 (5)(4) “Caregiver” means a person who has been entrusted
58 with or has assumed the responsibility for frequent and regular
59 care of or services to a vulnerable adult on a temporary or
60 permanent basis and who has a commitment, agreement, or
61 understanding with that person or that person’s guardian that a
62 caregiver role exists. The term “Caregiver” includes, but is not
63 limited to, relatives, household members, guardians, neighbors,
64 and employees and volunteers at a facility of facilities as
65 defined in subsection (8). For the purpose of departmental
66 investigative jurisdiction, the term “caregiver” does not
67 include law enforcement officers or employees of municipal or
68 county detention facilities or the Department of Corrections
69 while acting in an official capacity.
70 (27)(26) “Vulnerable adult” means a person 18 years of age
71 or older whose ability to perform the normal activities of daily
72 living or to provide for his or her own care or protection is
73 impaired due to a mental, emotional, long-term physical,
74 sensory, or developmental disability or dysfunction
75 dysfunctioning, or brain damage, or the infirmities of aging.
76 Section 3. Present paragraphs (c), (d), (e), (f), and (g)
77 of subsection (1) of section 415.103, Florida Statutes, are
78 redesignated as paragraphs (d), (e), (f), (g), and (h),
79 respectively, and a new paragraph (c) is added to that
80 subsection, to read:
81 415.103 Central abuse hotline.—
82 (1) The department shall establish and maintain a central
83 abuse hotline that receives all reports made pursuant to s.
84 415.1034 in writing or through a single statewide toll-free
85 telephone number. Any person may use the statewide toll-free
86 telephone number to report known or suspected abuse, neglect, or
87 exploitation of a vulnerable adult at any hour of the day or
88 night, any day of the week. The central abuse hotline must be
89 operated in such a manner as to enable the department to:
90 (c) Immediately transfer the report to the appropriate
91 county sheriff’s office if the report is of known or suspected
92 abuse of a vulnerable adult by someone other than the vulnerable
93 adult’s relative, caregiver, or household member.
94 Section 4. Paragraph (e) of subsection (1) and paragraph
95 (g) of subsection (2) of section 415.1051, Florida Statutes, are
96 amended to read:
97 415.1051 Protective services interventions when capacity to
98 consent is lacking; nonemergencies; emergencies; orders;
99 limitations.—
100 (1) NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.—If the
101 department has reasonable cause to believe that a vulnerable
102 adult or a vulnerable adult in need of services is being abused,
103 neglected, or exploited and is in need of protective services
104 but lacks the capacity to consent to protective services, the
105 department shall petition the court for an order authorizing the
106 provision of protective services.
107 (e) Continued protective services.—
108 1. Within No more than 60 days after the date of the order
109 authorizing the provision of protective services, the department
110 shall petition the court to determine whether:
111 a. Protective services will be continued with the consent
112 of the vulnerable adult pursuant to this subsection;
113 b. Protective services will be continued for the vulnerable
114 adult who lacks capacity;
115 c. Protective services will be discontinued; or
116 d. A petition for guardianship should be filed pursuant to
117 chapter 744.
118 2. If the court determines that a petition for guardianship
119 should be filed pursuant to chapter 744, the court, for good
120 cause shown, may order continued protective services until it
121 makes a determination regarding capacity.
122 3. The petition to determine incapacity under s. 744.3201
123 may be filed by the department if the department has a good
124 faith belief that the vulnerable adult lacks capacity. However,
125 once the petition is filed, the department may not be appointed
126 guardian and may not provide legal counsel for the guardian.
127 (2) EMERGENCY PROTECTIVE SERVICES INTERVENTION.—If the
128 department has reasonable cause to believe that a vulnerable
129 adult is suffering from abuse or neglect that presents a risk of
130 death or serious physical injury to the vulnerable adult and
131 that the vulnerable adult lacks the capacity to consent to
132 emergency protective services, the department may take action
133 under this subsection. If the vulnerable adult has the capacity
134 to consent and refuses consent to emergency protective services,
135 emergency protective services may not be provided.
136 (g) Continued emergency protective services.—
137 1. Within Not more than 60 days after the date of the order
138 authorizing the provision of emergency protective services, the
139 department shall petition the court to determine whether:
140 a. Emergency protective services will be continued with the
141 consent of the vulnerable adult;
142 b. Emergency protective services will be continued for the
143 vulnerable adult who lacks capacity;
144 c. Emergency protective services will be discontinued; or
145 d. A petition should be filed under chapter 744.
146 2. If it is decided to file a petition under chapter 744,
147 for good cause shown, the court may order continued emergency
148 protective services until a determination is made by the court.
149 3. The petition to determine incapacity under s. 744.3201
150 may be filed by the department if the department has a good
151 faith belief that the vulnerable adult lacks capacity. However,
152 once the petition is filed, the department may not be appointed
153 guardian and may not provide legal counsel for the guardian.
154 Section 5. Subsection (4) of section 322.142, Florida
155 Statutes, is amended to read:
156 322.142 Color photographic or digital imaged licenses.—
157 (4) The department may maintain a film negative or print
158 file. The department shall maintain a record of the digital
159 image and signature of the licensees, together with other data
160 required by the department for identification and retrieval.
161 Reproductions from the file or digital record are exempt from
162 the provisions of s. 119.07(1) and may shall be made and issued
163 only for departmental administrative purposes; for the issuance
164 of duplicate licenses; in response to law enforcement agency
165 requests; to the Department of State pursuant to an interagency
166 agreement to facilitate determinations of eligibility of voter
167 registration applicants and registered voters in accordance with
168 ss. 98.045 and 98.075; to the Department of Revenue pursuant to
169 an interagency agreement for use in establishing paternity and
170 establishing, modifying, or enforcing support obligations in
171 Title IV-D cases; to the Department of Children and Family
172 Services pursuant to an interagency agreement to conduct
173 protective investigations under part III of chapter 39 or
174 chapter 415; or to the Department of Financial Services pursuant
175 to an interagency agreement to facilitate the location of owners
176 of unclaimed property, the validation of unclaimed property
177 claims, and the identification of fraudulent or false claims.
178 Section 6. Paragraph (a) of subsection (4) of section
179 943.0585, Florida Statutes, is amended to read:
180 943.0585 Court-ordered expunction of criminal history
181 records.—The courts of this state have jurisdiction over their
182 own procedures, including the maintenance, expunction, and
183 correction of judicial records containing criminal history
184 information to the extent such procedures are not inconsistent
185 with the conditions, responsibilities, and duties established by
186 this section. Any court of competent jurisdiction may order a
187 criminal justice agency to expunge the criminal history record
188 of a minor or an adult who complies with the requirements of
189 this section. The court shall not order a criminal justice
190 agency to expunge a criminal history record until the person
191 seeking to expunge a criminal history record has applied for and
192 received a certificate of eligibility for expunction pursuant to
193 subsection (2). A criminal history record that relates to a
194 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
195 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
196 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
197 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
198 any violation specified as a predicate offense for registration
199 as a sexual predator pursuant to s. 775.21, without regard to
200 whether that offense alone is sufficient to require such
201 registration, or for registration as a sexual offender pursuant
202 to s. 943.0435, may not be expunged, without regard to whether
203 adjudication was withheld, if the defendant was found guilty of
204 or pled guilty or nolo contendere to the offense, or if the
205 defendant, as a minor, was found to have committed, or pled
206 guilty or nolo contendere to committing, the offense as a
207 delinquent act. The court may only order expunction of a
208 criminal history record pertaining to one arrest or one incident
209 of alleged criminal activity, except as provided in this
210 section. The court may, at its sole discretion, order the
211 expunction of a criminal history record pertaining to more than
212 one arrest if the additional arrests directly relate to the
213 original arrest. If the court intends to order the expunction of
214 records pertaining to such additional arrests, such intent must
215 be specified in the order. A criminal justice agency may not
216 expunge any record pertaining to such additional arrests if the
217 order to expunge does not articulate the intention of the court
218 to expunge a record pertaining to more than one arrest. This
219 section does not prevent the court from ordering the expunction
220 of only a portion of a criminal history record pertaining to one
221 arrest or one incident of alleged criminal activity.
222 Notwithstanding any law to the contrary, a criminal justice
223 agency may comply with laws, court orders, and official requests
224 of other jurisdictions relating to expunction, correction, or
225 confidential handling of criminal history records or information
226 derived therefrom. This section does not confer any right to the
227 expunction of any criminal history record, and any request for
228 expunction of a criminal history record may be denied at the
229 sole discretion of the court.
230 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
231 criminal history record of a minor or an adult which is ordered
232 expunged by a court of competent jurisdiction pursuant to this
233 section must be physically destroyed or obliterated by any
234 criminal justice agency having custody of such record; except
235 that any criminal history record in the custody of the
236 department must be retained in all cases. A criminal history
237 record ordered expunged that is retained by the department is
238 confidential and exempt from the provisions of s. 119.07(1) and
239 s. 24(a), Art. I of the State Constitution and not available to
240 any person or entity except upon order of a court of competent
241 jurisdiction. A criminal justice agency may retain a notation
242 indicating compliance with an order to expunge.
243 (a) The person who is the subject of a criminal history
244 record that is expunged under this section or under other
245 provisions of law, including former s. 893.14, former s. 901.33,
246 and former s. 943.058, may lawfully deny or fail to acknowledge
247 the arrests covered by the expunged record, except when the
248 subject of the record:
249 1. Is a candidate for employment with a criminal justice
250 agency;
251 2. Is a defendant in a criminal prosecution;
252 3. Concurrently or subsequently petitions for relief under
253 this section or s. 943.059;
254 4. Is a candidate for admission to The Florida Bar;
255 5. Is seeking to be employed or licensed by or to contract
256 with the Department of Children and Family Services, the Agency
257 for health Care Administration, the Agency for persons with
258 Disabilities, or the Department of Juvenile Justice or to be
259 employed or used by such contractor or licensee in a sensitive
260 position having direct contact with children, the
261 developmentally disabled, the aged, or the elderly as provided
262 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
263 402.302(3), s. 402.313(3), s. 409.175(2)(I), s. 415.102(5)(4),
264 chapter 916, s. 985.644, chapter 400, or chapter 429;
265 6. Is seeking to be employed or licensed by the Department
266 of Education, any district school board, any university
267 laboratory school, any charter school, any private or parochial
268 school, or any local governmental entity that licenses child
269 care facilities; or
270 7. Is seeking authorization from a Florida seaport
271 identified in s. 311.09 for employment within or access to one
272 or more of such seaports pursuant to s. 311.12 or s. 311.125.
273 Section 7. Paragraph (a) of subsection (4) of section
274 943.059, Florida Statutes, is amended to read:
275 943.059 Court-ordered sealing of criminal history records.
276 The courts of this state shall continue to have jurisdiction
277 over their own procedures, including the maintenance, sealing,
278 and correction of judicial records containing criminal history
279 information to the extent such procedures are not inconsistent
280 with the conditions, responsibilities, and duties established by
281 this section. Any court of competent jurisdiction may order a
282 criminal justice agency to seal the criminal history record of a
283 minor or an adult who complies with the requirements of this
284 section. The court shall not order a criminal justice agency to
285 seal a criminal history record until the person seeking to seal
286 a criminal history record has applied for and received a
287 certificate of eligibility for sealing pursuant to subsection
288 (2). A criminal history record that relates to a violation of s.
289 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
290 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
291 839, s. 847.0133, s. 847.0135,s. 847.0145, s. 893.135, s.
292 916.1075, a violation enumerated in s. 907.041, or any violation
293 specified as a predicate offense for registration as a sexual
294 predator pursuant to s. 775.21, without regard to whether that
295 offense alone is sufficient to require such registration, or for
296 registration as a sexual offender pursuant to s. 943.0435, may
297 not be sealed, without regard to whether adjudication was
298 withheld, if the defendant was found guilty of or pled guilty or
299 nolo contendere to the offense, or if the defendant, as a minor,
300 was found to have committed or pled guilty or nolo contendere to
301 committing the offense as a delinquent act. The court may only
302 order sealing of a criminal history record pertaining to one
303 arrest or one incident of alleged criminal activity, except as
304 provided in this section. The court may, at its sole discretion,
305 order the sealing of a criminal history record pertaining to
306 more than one arrest if the additional arrests directly relate
307 to the original arrest. If the court intends to order the
308 sealing of records pertaining to such additional arrests, such
309 intent must be specified in the order. A criminal justice agency
310 may not seal any record pertaining to such additional arrests if
311 the order to seal does not articulate the intention of the court
312 to seal records pertaining to more than one arrest. This section
313 does not prevent the court from ordering the sealing of only a
314 portion of a criminal history record pertaining to one arrest or
315 one incident of alleged criminal activity. Notwithstanding any
316 law to the contrary, a criminal justice agency may comply with
317 laws, court orders, and official requests of other jurisdictions
318 relating to sealing, correction, or confidential handling of
319 criminal history records or information derived therefrom. This
320 section does not confer any right to the sealing of any criminal
321 history record, and any request for sealing a criminal history
322 record may be denied at the sole discretion of the court.
323 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
324 history record of a minor or an adult which is ordered sealed by
325 a court of competent jurisdiction pursuant to this section is
326 confidential and exempt from the provisions of s. 119.07(1) and
327 s. 24(a), Art. I of the State Constitution and is available only
328 to the person who is the subject of the record, to the subject’s
329 attorney, to criminal justice agencies for their respective
330 criminal justice purposes, which include conducting a criminal
331 history background check for approval of firearms purchases or
332 transfers as authorized by state or federal law, to judges in
333 the state courts system for the purpose of assisting them in
334 their case-related decisionmaking responsibilities, as set forth
335 in s. 943.053(5), or to those entities set forth in
336 subparagraphs (a)1., 4., 5., 6., and 8. for their respective
337 licensing, access authorization, and employment purposes.
338 (a) The subject of a criminal history record sealed under
339 this section or under other provisions of law, including former
340 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
341 deny or fail to acknowledge the arrests covered by the sealed
342 record, except when the subject of the record:
343 1. Is a candidate for employment with a criminal justice
344 agency;
345 2. Is a defendant in a criminal prosecution;
346 3. Concurrently or subsequently petitions for relief under
347 this section or s. 943.0585;
348 4. Is a candidate for admission to The Florida Bar;
349 5. Is seeking to be employed or licensed by or to contract
350 with the Department of Children and Family Services, the Agency
351 for Health Care Administration, the Agency for Persons with
352 Disabilities, or the Department of Juvenile Justice or to be
353 employed or used by such contractor or licensee in a sensitive
354 position having direct contact with children, the
355 developmentally disabled, the aged, or the elderly as provided
356 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
357 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
358 s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter
359 429;
360 6. Is seeking to be employed or licensed by the Department
361 of Education, any district school board, any university
362 laboratory school, any charter school, any private or parochial
363 school, or any local governmental entity that licenses child
364 care facilities;
365 7. Is attempting to purchase a firearm from a licensed
366 importer, licensed manufacturer, or licensed dealer and is
367 subject to a criminal history background check under state or
368 federal law; or
369 8. Is seeking authorization from a Florida seaport
370 identified in s. 311.09 for employment within or access to one
371 or more of such seaports pursuant to s. 311.12 or s. 311.125.
372 Section 8. This act shall take effect July 1, 2009.