Florida Senate - 2011 SB 436
By Senator Hill
1-00230-11 2011436__
1 A bill to be entitled
2 An act relating to seaport security; amending s.
3 311.12, F.S.; deleting provisions requiring the
4 Department of Law Enforcement to establish a statewide
5 seaport access eligibility reporting system;
6 specifying that a federal Transportation Worker
7 Identification Credential is the only authorization
8 required for obtaining access to secure and restricted
9 areas of a seaport; deleting the requirements for
10 performing criminal history screening on certain
11 persons authorized to regularly enter secure and
12 restricted areas; providing an effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Subsections (8) through (11) of section 311.12,
17 Florida Statutes, are redesignated as subsections (6) through
18 (9), respectively, and paragraph (a) of subsection (4),
19 subsections (5) through (7), paragraph (d) of subsection (8),
20 and paragraph (a) of subsection (11) of that section, are
21 amended to read:
22 311.12 Seaport security.—
23 (4) SECURE AND RESTRICTED AREAS.—Each seaport listed in s.
24 311.09 must clearly designate in seaport security plans, and
25 clearly identify with appropriate signs and markers on the
26 premises of a seaport, all secure and restricted areas as
27 defined by the United States Department of Homeland Security
28 United States Coast Guard Navigation and Vessel Inspection
29 Circular No. 03-07 and 49 C.F.R. part 1572. The plans must also
30 address access eligibility requirements and corresponding
31 security enforcement authorizations.
32 (a) The seaport’s security plan must set forth the
33 conditions and restrictions to be imposed on persons employed
34 at, doing business at, or visiting the seaport who have access
35 to secure and restricted areas which are sufficient to provide
36 substantial compliance with the minimum security standards
37 established in subsection (1) and federal regulations.
38 1. All seaport employees and other persons working at the
39 seaport who have regular access to secure or restricted areas
40 must comply with federal access control regulations and state
41 criminal history checks as prescribed in this section.
42 2. All persons and objects in secure and restricted areas
43 are subject to search by a sworn state-certified law enforcement
44 officer, a Class D seaport security officer certified under
45 Maritime Transportation Security Act of 2002 guidelines and s.
46 311.121, or an employee of the seaport security force certified
47 under the Maritime Transportation Security Act of 2002
48 guidelines and s. 311.121.
49 3. Persons found in these areas without the proper
50 permission are subject to the trespass provisions of ss. 810.08
51 and 810.09.
52 (5) ACCESS ELIGIBILITY REPORTING SYSTEM.—Subject to
53 legislative appropriations, the Department of Law Enforcement
54 shall administer a statewide seaport access eligibility
55 reporting system.
56 (a) The system must include, at a minimum, the following:
57 1. A centralized, secure method of collecting and
58 maintaining fingerprints, other biometric data, or other means
59 of confirming the identity of persons authorized to enter a
60 secure or restricted area of a seaport.
61 2. A methodology for receiving from and transmitting
62 information to each seaport regarding a person’s authority to
63 enter a secure or restricted area of the seaport.
64 3. A means for receiving prompt notification from a seaport
65 when a person’s authorization to enter a secure or restricted
66 area of a seaport has been suspended or revoked.
67 4. A means to communicate to seaports when a person’s
68 authorization to enter a secure or restricted area of a seaport
69 has been suspended or revoked.
70 (b) Each seaport listed in s. 311.09 is responsible for
71 granting, modifying, restricting, or denying access to secure
72 and restricted areas to seaport employees, other persons working
73 at the seaport, visitors who have business with the seaport, or
74 other persons regularly appearing at the seaport. Based upon the
75 person’s criminal history check, each seaport may determine the
76 specific access eligibility to be granted to that person. Each
77 seaport is responsible for access eligibility verification at
78 its location.
79 (c) Upon determining that a person is eligible to enter a
80 secure or restricted area of a port pursuant to subsections (6)
81 and (7), the seaport shall, within 3 business days, report the
82 determination to the department for inclusion in the system.
83 (d) All information submitted to the department regarding a
84 person’s access eligibility screening may be retained by the
85 department for subsequent use in promoting seaport security,
86 including, but not limited to, the review of the person’s
87 criminal history status to ensure that the person has not become
88 disqualified for such access.
89 (e) The following fees may not be charged by more than one
90 seaport and shall be paid by the seaport, another employing
91 entity, or the person being entered into the system to the
92 department or to the seaport if the seaport is acting as an
93 agent of the department for the purpose of collecting the fees:
94 1. The cost of the state criminal history check under
95 subsection (7).
96 2. A $50 fee to cover the initial cost of entering the
97 person into the system and an additional $50 fee every 5 years
98 thereafter to coincide with the issuance of the federal
99 Transportation Worker Identification Credential described in
100 subsection (6). The fee covers all costs for entering or
101 maintaining the person in the system including the retention and
102 use of the person’s fingerprint, other biometric data, or other
103 identifying information.
104 3. The seaport entering the person into the system may
105 charge an administrative fee to cover, but not exceed, the
106 seaport’s actual administrative costs for processing the results
107 of the state criminal history check and entering the person into
108 the system.
109 (f) All fees identified in paragraph (e) must be paid
110 before the person may be granted access to a secure or
111 restricted area. Failure to comply with the criminal history
112 check and failure to pay the fees are grounds for immediate
113 denial of access.
114 (g) Persons, corporations, or other business entities that
115 employ persons to work or do business at seaports shall notify
116 the seaport of the termination, resignation, work-related
117 incapacitation, or death of an employee who has access
118 permission.
119 1. If the seaport determines that the person has been
120 employed by another appropriate entity or is self-employed for
121 purposes of performing work at the seaport, the seaport may
122 reinstate the person’s access eligibility.
123 2. A business entity’s failure to report a change in an
124 employee’s work status within 7 days after the change may result
125 in revocation of the business entity’s access to the seaport.
126 (h) In addition to access permissions granted or denied by
127 seaports, Access eligibility may be restricted or revoked by the
128 department if there is a reasonable suspicion that the person is
129 involved in terrorism or criminal violations that could affect
130 the security of a port or otherwise render the person ineligible
131 for seaport access.
132 (i) Any suspension or revocation of port access must be
133 reported by the seaport to the department within 24 hours after
134 such suspension or revocation.
135 (j) The submission of information known to be false or
136 misleading to the department for entry into the system is a
137 felony of the third degree, punishable as provided in s.
138 775.082, s. 775.083, or s. 775.084.
139 (5)(6) ACCESS TO SECURE AND RESTRICTED AREAS.—
140 (a) Any person seeking authorization for unescorted access
141 to secure and restricted areas of a seaport must possess, unless
142 waived under paragraph (7)(e), a valid federal Transportation
143 Worker Identification Credential (TWIC) and execute an affidavit
144 under oath which provides TWIC identification information and
145 indicates the following:
146 1. The TWIC is currently valid and in full force and
147 effect.
148 2. The TWIC was not received through the waiver process for
149 disqualifying criminal history allowed by federal law.
150 3. He or she has not, in any jurisdiction, civilian or
151 military, been convicted of, entered a plea of guilty or nolo
152 contendere to, regardless of adjudication, or been found not
153 guilty by reason of insanity, of any disqualifying felony under
154 subsection (7) or any crime that includes the use or possession
155 of a firearm.
156 (b) Upon submission of a completed affidavit as provided in
157 paragraph (a), the completion of the state criminal history
158 check as provided in subsection (7), and payment of all required
159 fees under subsection (5), a seaport shall may grant the person
160 access to secure or restricted areas of the port.
161 (c) Any port granting a person access to secure or
162 restricted areas shall report the grant of access to the
163 Department of Law Enforcement for inclusion in the access
164 eligibility reporting system under subsection (5) within 3
165 business days.
166 (c)(d) The submission of false information on the affidavit
167 required by this section is a felony of the third degree,
168 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
169 Upon conviction for a violation of this provision, the person
170 convicted forfeits all privilege of access to secure or
171 restricted areas of a seaport and is disqualified from future
172 approval for access to such areas.
173 (d)(e) Any affidavit form created for use under this
174 subsection must contain the following statement in conspicuous
175 type: “SUBMISSION OF FALSE INFORMATION ON THIS AFFIDAVIT IS A
176 FELONY UNDER FLORIDA LAW AND WILL, UPON CONVICTION, RESULT IN
177 DISQUALIFICATION FOR ACCESS TO A SECURE OR RESTRICTED AREA OF A
178 SEAPORT.”
179 (e)(f) Upon each 5-year renewal of a person’s TWIC, the
180 person must submit another affidavit as required by this
181 subsection.
182 (f) No other form of authorization is required in order to
183 obtain unescorted access to secure or restricted areas of a
184 seaport.
185 (7) CRIMINAL HISTORY SCREENING.—A fingerprint-based
186 criminal history check must be performed on employee applicants,
187 current employees, and other persons authorized to regularly
188 enter a secure or restricted area, or the entire seaport if the
189 seaport security plan does not designate one or more secure or
190 restricted areas.
191 (a) A person is disqualified from employment or unescorted
192 access if the person:
193 1. Was convicted of, or entered a plea of guilty or nolo
194 contendere to, regardless of adjudication, any of the offenses
195 listed in paragraph (b) in any jurisdiction, civilian or
196 military, including courts-martial conducted by the Armed Forces
197 of the United States, during the 7 years before the date of the
198 person’s application for access; or
199 2. Was released from incarceration, or any supervision
200 imposed as a result of sentencing, for committing any of the
201 disqualifying crimes listed in paragraph (b) in any
202 jurisdiction, civilian or military, during the 5 years before
203 the date of the person’s application for access.
204 (b) Disqualifying offenses include:
205 1. An act of terrorism as defined in s. 775.30.
206 2. A violation involving a weapon of mass destruction or a
207 hoax weapon of mass destruction as provided in s. 790.166.
208 3. Planting of a hoax bomb as provided in s. 790.165.
209 4. A violation of s. 876.02 or s. 876.36.
210 5. A violation of s. 860.065.
211 6. Trafficking as provided in s. 893.135.
212 7. Racketeering activity as provided in s. 895.03.
213 8. Dealing in stolen property as provided in s. 812.019.
214 9. Money laundering as provided in s. 896.101.
215 10. Criminal use of personal identification as provided in
216 s. 817.568.
217 11. Bribery as provided in s. 838.015.
218 12. A violation of s. 316.302, relating to the transport of
219 hazardous materials.
220 13. A forcible felony as defined in s. 776.08.
221 14. A violation of s. 790.07.
222 15. Any crime that includes the use or possession of a
223 firearm.
224 16. A felony violation for theft as provided in s. 812.014.
225 17. Robbery as provided in s. 812.13.
226 18. Burglary as provided in s. 810.02.
227 19. Any violation involving the sale, manufacture,
228 delivery, or possession with intent to sell, manufacture, or
229 deliver a controlled substance.
230 20. Any offense under the laws of another jurisdiction that
231 is similar to an offense listed in this paragraph.
232 21. Conspiracy or attempt to commit any of the offenses
233 listed in this paragraph.
234 (c) Each individual who is subject to a criminal history
235 check shall file a complete set of fingerprints taken in a
236 manner acceptable to the Department of Law Enforcement for state
237 processing. The results of the criminal history check must be
238 reported to the requesting seaport and may be shared among
239 seaports.
240 (d) All fingerprints submitted to the Department of Law
241 Enforcement shall be retained by the department and entered into
242 the statewide automated fingerprint identification system
243 established in s. 943.05(2)(b) and available for use in
244 accordance with s. 943.05(2)(g) and (h). An arrest record that
245 is identified with the retained fingerprints of a person subject
246 to the screening shall be reported to the seaport where the
247 person has been granted access to a secure or restricted area.
248 If the fingerprints of a person who has been granted access were
249 not retained, or are otherwise not suitable for use by the
250 department, the person must be refingerprinted in a manner that
251 allows the department to perform its functions as provided in
252 this section.
253 (e) The Department of Law Enforcement shall establish a
254 waiver process for a person who does not have a TWIC, obtained a
255 TWIC though a federal waiver process, or is found to be
256 unqualified under paragraph (a) and denied employment by a
257 seaport or unescorted access to secure or restricted areas. If
258 the person does not have a TWIC and a federal criminal history
259 record check is required, the Department of Law Enforcement may
260 forward the person’s fingerprints to the Federal Bureau of
261 Investigation for a national criminal history record check. The
262 cost of the national check must be paid by the seaport, which
263 may collect it as reimbursement from the person.
264 1. Consideration for a waiver shall be based on the
265 circumstances of any disqualifying act or offense, restitution
266 made by the individual, and other factors from which it may be
267 determined that the individual does not pose a risk of engaging
268 in any act within the public seaports regulated under this
269 chapter that would pose a risk to or threaten the security of
270 the seaport and the public’s health, safety, or welfare.
271 2. The waiver process begins when an individual who has
272 been denied initial employment within or denied unescorted
273 access to secure or restricted areas of a public seaport submits
274 an application for a waiver and a notarized letter or affidavit
275 from the individual’s employer or union representative which
276 states the mitigating reasons for initiating the waiver process.
277 3. Within 90 days after receipt of the application, the
278 administrative staff of the Parole Commission shall conduct a
279 factual review of the waiver application. Findings of fact shall
280 be transmitted to the department for review. The department
281 shall make a copy of those findings available to the applicant
282 before final disposition of the waiver request.
283 4. The department shall make a final disposition of the
284 waiver request based on the factual findings of the
285 investigation by the Parole Commission. The department shall
286 notify the waiver applicant of the final disposition of the
287 waiver.
288 5. The review process under this paragraph is exempt from
289 chapter 120.
290 6. By October 1 of each year, each seaport shall report to
291 the department each instance of denial of employment within, or
292 access to, secure or restricted areas, and each instance waiving
293 a denial occurring during the last 12 months. The report must
294 include the identity of the individual affected, the factors
295 supporting the denial or waiver, and any other material factors
296 used to make the determination.
297 (f) In addition to the waiver procedure established by the
298 Department of Law Enforcement under paragraph (e), each seaport
299 security plan may establish a procedure to appeal a denial of
300 employment or access based upon procedural inaccuracies or
301 discrepancies regarding criminal history factors established
302 pursuant to this subsection.
303 (g) Each seaport may allow immediate access to secure or
304 restricted areas of a seaport waivers on a temporary basis to
305 meet special or emergency needs of the seaport or its users.
306 Policies, procedures, and criteria for implementation of this
307 paragraph must be included in the seaport security plan. All
308 waivers granted by the seaports pursuant to this paragraph must
309 be reported to the department within 30 days after issuance.
310 (6)(8) WAIVER FROM SECURITY REQUIREMENTS.—The Office of
311 Drug Control and the Department of Law Enforcement may modify or
312 waive any physical facility requirement or other requirement
313 contained in the minimum security standards upon a determination
314 that the purposes of the standards have been reasonably met or
315 exceeded by the seaport requesting the modification or waiver.
316 An alternate means of compliance must not diminish the safety or
317 security of the seaport and must be verified through an
318 extensive risk analysis conducted by the seaport director.
319 (d) Any modifications or waivers granted under this
320 subsection shall be noted in the annual report submitted by the
321 Department of Law Enforcement pursuant to subsection (8) (10).
322 (9)(11) FUNDING.—
323 (a) In making decisions regarding security projects or
324 other funding applicable to each seaport listed in s. 311.09,
325 the Legislature may consider the Department of Law Enforcement’s
326 annual report under subsection (8) (10) as authoritative,
327 especially regarding each seaport’s degree of substantial
328 compliance with the minimum security standards established in
329 subsection (1).
330 Section 2. This act shall take effect July 1, 2011.