Florida Senate - 2014                        COMMITTEE AMENDMENT
       Bill No. SB 634
       
       
       
       
       
       
                                Ì612984GÎ612984                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/11/2014           .                                
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       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (2) of section 744.102, Florida
    6  Statutes, is amended to read:
    7         744.102 Definitions.—As used in this chapter, the term:
    8         (2) “Audit” means a systematic review of financial and all
    9  other documents to ensure compliance with s. 744.368, rules of
   10  court, and local procedures using generally accepted accounting
   11  principles. The term includes various practices that meet
   12  professional standards, such as verifications, reviews of
   13  substantiating papers and accounts, interviews, inspections, and
   14  investigations.
   15         Section 2. Subsection (1) of section 744.3135, Florida
   16  Statutes, is amended to read:
   17         744.3135 Credit and criminal investigation.—
   18         (1) The court shall require all guardians who are seeking
   19  appointment by the court, other than a corporate guardian as
   20  described in s. 744.309(4) may require a nonprofessional
   21  guardian and shall require a professional or public guardian,
   22  and all employees of a professional guardian, other than a
   23  corporate guardian as described in s. 744.309(4), who have a
   24  fiduciary responsibility to a ward, to submit, at their own
   25  expense, to a an investigation of the guardian’s credit history
   26  investigation and to undergo level 2 background screening as
   27  required under s. 435.04. If appointed, a nonprofessional
   28  guardian may petition the court for reimbursement of the
   29  reasonable expenses of the credit history investigation and
   30  background screening. If a credit or criminal history record
   31  check is required, The court must consider the results of any
   32  investigation before appointing a guardian. At any time, the
   33  court may require a guardian or the guardian’s employees to
   34  submit to an investigation of the person’s credit history and
   35  complete a level 1 background screening pursuant to as set forth
   36  in s. 435.03. The court shall consider the results of any
   37  investigation in determining whether to reappoint when
   38  reappointing a guardian. The clerk of the court shall maintain a
   39  file on each guardian appointed by the court and retain in the
   40  file documentation of the result of any investigation conducted
   41  under this section. A professional guardian shall must pay the
   42  clerk of the court a fee of up to $7.50 for handling and
   43  processing professional guardian files.
   44         Section 3. Subsections (5) through (7) are added to section
   45  744.368, Florida Statutes, to read:
   46         744.368 Responsibilities of the clerk of the circuit
   47  court.—
   48         (5) If the clerk has reason to believe further review is
   49  appropriate, the clerk may request and review records and
   50  documents that reasonably impact guardianship assets, including,
   51  but not limited to, the beginning inventory balance and any fees
   52  charged to the guardianship.
   53         (6) If a guardian fails to produce records and documents to
   54  the clerk upon request, the clerk may request the court to enter
   55  an order pursuant to s. 744.3685(2) by filing an affidavit that
   56  identifies the records and documents requested and shows good
   57  cause as to why the documents and records requested are needed
   58  to complete the audit.
   59         (7) Upon application to the court supported by an affidavit
   60  pursuant to subsection (6), the clerk may issue subpoenas to
   61  nonparties to compel production of books, papers, and other
   62  documentary evidence. Before issuance of a subpoena by
   63  affidavit, the clerk must serve notice on the guardian and the
   64  ward, unless the ward is a minor or totally incapacitated, of
   65  the intent to serve subpoenas to nonparties.
   66         (a) The clerk must attach the affidavit and the proposed
   67  subpoena to the notice to the guardian and, if appropriate, to
   68  the ward, and must:
   69         1. State the time, place, and method for production of the
   70  documents or items, and the name and address of the person who
   71  is to produce the documents or items, if known, or if not known,
   72  a general description sufficient to identify the person or the
   73  particular class or group to which the person belongs;
   74         2. Include a designation of the items to be produced; and
   75         3. State that the person who will be asked to produce the
   76  documents or items has the right to object to the production
   77  under this section and that the person is not required to
   78  surrender the documents or items.
   79         (b) A copy of the notice and proposed subpoena may not be
   80  furnished to the person upon whom the subpoena is to be served.
   81         (c) If the guardian or ward serves an objection to
   82  production under this subsection within 10 days after service of
   83  the notice, the documents or items may not be required to be
   84  produced until resolution of the objection. If an objection is
   85  not made within 10 days after service of the notice, the clerk
   86  may issue the subpoena to the nonparty. The court may shorten
   87  the period within which a guardian or ward is required to file
   88  an objection upon a showing by the clerk by affidavit that the
   89  ward’s property is in imminent danger of being wasted,
   90  misappropriated, or lost unless immediate action is taken.
   91         Section 4. Section 744.3685, Florida Statutes, is amended
   92  to read:
   93         744.3685 Order requiring guardianship report; contempt.—
   94         (1)If When a guardian fails to file the guardianship
   95  report, the court shall order the guardian to file the report
   96  within 15 days after the service of the order upon her or him or
   97  show cause why she or he may should not be compelled to do so.
   98         (2) If a guardian fails to comply with the submission of
   99  records and documents requested by the clerk during the audit,
  100  upon a showing of good cause by affidavit of the clerk which
  101  shows the reasons the records must be produced, the court may
  102  order the guardian to produce the records and documents within a
  103  period specified by the court unless the guardian shows good
  104  cause as to why the guardian may not be compelled to do so
  105  before the deadline specified by the court. The affidavit of the
  106  clerk shall be served with the order.
  107         (3) A copy of an the order entered pursuant to subsection
  108  (1) or subsection (2) shall be served on the guardian or on the
  109  guardian’s resident agent. If the guardian fails to comply with
  110  the order file her or his report within the time specified by
  111  the order without good cause, the court may cite the guardian
  112  for contempt of court and may fine her or him. The fine may not
  113  be paid out of the ward’s property.
  114         Section 5. Subsection (21) is added to section 744.474,
  115  Florida Statutes, to read:
  116         744.474 Reasons for removal of guardian.—A guardian may be
  117  removed for any of the following reasons, and the removal shall
  118  be in addition to any other penalties prescribed by law:
  119         (21) A bad faith failure to submit guardianship records
  120  during the audit pursuant to s. 744.368.
  121         Section 6. Paragraph (a) of subsection (4) of section
  122  943.0585, Florida Statutes, is amended, and paragraph (c) of
  123  that subsection is reenacted, to read:
  124         943.0585 Court-ordered expunction of criminal history
  125  records.—The courts of this state have jurisdiction over their
  126  own procedures, including the maintenance, expunction, and
  127  correction of judicial records containing criminal history
  128  information to the extent such procedures are not inconsistent
  129  with the conditions, responsibilities, and duties established by
  130  this section. Any court of competent jurisdiction may order a
  131  criminal justice agency to expunge the criminal history record
  132  of a minor or an adult who complies with the requirements of
  133  this section. The court shall not order a criminal justice
  134  agency to expunge a criminal history record until the person
  135  seeking to expunge a criminal history record has applied for and
  136  received a certificate of eligibility for expunction pursuant to
  137  subsection (2). A criminal history record that relates to a
  138  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  139  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  140  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  141  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  142  any violation specified as a predicate offense for registration
  143  as a sexual predator pursuant to s. 775.21, without regard to
  144  whether that offense alone is sufficient to require such
  145  registration, or for registration as a sexual offender pursuant
  146  to s. 943.0435, may not be expunged, without regard to whether
  147  adjudication was withheld, if the defendant was found guilty of
  148  or pled guilty or nolo contendere to the offense, or if the
  149  defendant, as a minor, was found to have committed, or pled
  150  guilty or nolo contendere to committing, the offense as a
  151  delinquent act. The court may only order expunction of a
  152  criminal history record pertaining to one arrest or one incident
  153  of alleged criminal activity, except as provided in this
  154  section. The court may, at its sole discretion, order the
  155  expunction of a criminal history record pertaining to more than
  156  one arrest if the additional arrests directly relate to the
  157  original arrest. If the court intends to order the expunction of
  158  records pertaining to such additional arrests, such intent must
  159  be specified in the order. A criminal justice agency may not
  160  expunge any record pertaining to such additional arrests if the
  161  order to expunge does not articulate the intention of the court
  162  to expunge a record pertaining to more than one arrest. This
  163  section does not prevent the court from ordering the expunction
  164  of only a portion of a criminal history record pertaining to one
  165  arrest or one incident of alleged criminal activity.
  166  Notwithstanding any law to the contrary, a criminal justice
  167  agency may comply with laws, court orders, and official requests
  168  of other jurisdictions relating to expunction, correction, or
  169  confidential handling of criminal history records or information
  170  derived therefrom. This section does not confer any right to the
  171  expunction of any criminal history record, and any request for
  172  expunction of a criminal history record may be denied at the
  173  sole discretion of the court.
  174         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  175  criminal history record of a minor or an adult which is ordered
  176  expunged by a court of competent jurisdiction pursuant to this
  177  section must be physically destroyed or obliterated by any
  178  criminal justice agency having custody of such record; except
  179  that any criminal history record in the custody of the
  180  department must be retained in all cases. A criminal history
  181  record ordered expunged that is retained by the department is
  182  confidential and exempt from the provisions of s. 119.07(1) and
  183  s. 24(a), Art. I of the State Constitution and not available to
  184  any person or entity except upon order of a court of competent
  185  jurisdiction. A criminal justice agency may retain a notation
  186  indicating compliance with an order to expunge.
  187         (a) The person who is the subject of a criminal history
  188  record that is expunged under this section or under other
  189  provisions of law, including former s. 893.14, former s. 901.33,
  190  and former s. 943.058, may lawfully deny or fail to acknowledge
  191  the arrests covered by the expunged record, except when the
  192  subject of the record:
  193         1. Is a candidate for employment with a criminal justice
  194  agency;
  195         2. Is a defendant in a criminal prosecution;
  196         3. Concurrently or subsequently petitions for relief under
  197  this section, s. 943.0583, or s. 943.059;
  198         4. Is a candidate for admission to The Florida Bar;
  199         5. Is seeking to be employed or licensed by or to contract
  200  with the Department of Children and Families, the Division of
  201  Vocational Rehabilitation within the Department of Education,
  202  the Agency for Health Care Administration, the Agency for
  203  Persons with Disabilities, the Department of Health, the
  204  Department of Elderly Affairs, or the Department of Juvenile
  205  Justice or to be employed or used by such contractor or licensee
  206  in a sensitive position having direct contact with children, the
  207  disabled, or the elderly; or
  208         6. Is seeking to be employed or licensed by the Department
  209  of Education, any district school board, any university
  210  laboratory school, any charter school, any private or parochial
  211  school, or any local governmental entity that licenses child
  212  care facilities; or.
  213         7. Is seeking to be appointed as a guardian pursuant to s.
  214  744.3125.
  215         (c) Information relating to the existence of an expunged
  216  criminal history record which is provided in accordance with
  217  paragraph (a) is confidential and exempt from the provisions of
  218  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  219  except that the department shall disclose the existence of a
  220  criminal history record ordered expunged to the entities set
  221  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  222  respective licensing, access authorization, and employment
  223  purposes, and to criminal justice agencies for their respective
  224  criminal justice purposes. It is unlawful for any employee of an
  225  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  226  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  227  disclose information relating to the existence of an expunged
  228  criminal history record of a person seeking employment, access
  229  authorization, or licensure with such entity or contractor,
  230  except to the person to whom the criminal history record relates
  231  or to persons having direct responsibility for employment,
  232  access authorization, or licensure decisions. Any person who
  233  violates this paragraph commits a misdemeanor of the first
  234  degree, punishable as provided in s. 775.082 or s. 775.083.
  235         Section 7. Paragraph (a) of subsection (4) of section
  236  943.059, Florida Statutes, is amended, and paragraph (c) of that
  237  subsection is reenacted, to read:
  238         943.059 Court-ordered sealing of criminal history records.
  239  The courts of this state shall continue to have jurisdiction
  240  over their own procedures, including the maintenance, sealing,
  241  and correction of judicial records containing criminal history
  242  information to the extent such procedures are not inconsistent
  243  with the conditions, responsibilities, and duties established by
  244  this section. Any court of competent jurisdiction may order a
  245  criminal justice agency to seal the criminal history record of a
  246  minor or an adult who complies with the requirements of this
  247  section. The court shall not order a criminal justice agency to
  248  seal a criminal history record until the person seeking to seal
  249  a criminal history record has applied for and received a
  250  certificate of eligibility for sealing pursuant to subsection
  251  (2). A criminal history record that relates to a violation of s.
  252  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  253  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  254  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  255  916.1075, a violation enumerated in s. 907.041, or any violation
  256  specified as a predicate offense for registration as a sexual
  257  predator pursuant to s. 775.21, without regard to whether that
  258  offense alone is sufficient to require such registration, or for
  259  registration as a sexual offender pursuant to s. 943.0435, may
  260  not be sealed, without regard to whether adjudication was
  261  withheld, if the defendant was found guilty of or pled guilty or
  262  nolo contendere to the offense, or if the defendant, as a minor,
  263  was found to have committed or pled guilty or nolo contendere to
  264  committing the offense as a delinquent act. The court may only
  265  order sealing of a criminal history record pertaining to one
  266  arrest or one incident of alleged criminal activity, except as
  267  provided in this section. The court may, at its sole discretion,
  268  order the sealing of a criminal history record pertaining to
  269  more than one arrest if the additional arrests directly relate
  270  to the original arrest. If the court intends to order the
  271  sealing of records pertaining to such additional arrests, such
  272  intent must be specified in the order. A criminal justice agency
  273  may not seal any record pertaining to such additional arrests if
  274  the order to seal does not articulate the intention of the court
  275  to seal records pertaining to more than one arrest. This section
  276  does not prevent the court from ordering the sealing of only a
  277  portion of a criminal history record pertaining to one arrest or
  278  one incident of alleged criminal activity. Notwithstanding any
  279  law to the contrary, a criminal justice agency may comply with
  280  laws, court orders, and official requests of other jurisdictions
  281  relating to sealing, correction, or confidential handling of
  282  criminal history records or information derived therefrom. This
  283  section does not confer any right to the sealing of any criminal
  284  history record, and any request for sealing a criminal history
  285  record may be denied at the sole discretion of the court.
  286         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  287  history record of a minor or an adult which is ordered sealed by
  288  a court of competent jurisdiction pursuant to this section is
  289  confidential and exempt from the provisions of s. 119.07(1) and
  290  s. 24(a), Art. I of the State Constitution and is available only
  291  to the person who is the subject of the record, to the subject’s
  292  attorney, to criminal justice agencies for their respective
  293  criminal justice purposes, which include conducting a criminal
  294  history background check for approval of firearms purchases or
  295  transfers as authorized by state or federal law, to judges in
  296  the state courts system for the purpose of assisting them in
  297  their case-related decisionmaking responsibilities, as set forth
  298  in s. 943.053(5), or to those entities set forth in
  299  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  300  licensing, access authorization, and employment purposes.
  301         (a) The subject of a criminal history record sealed under
  302  this section or under other provisions of law, including former
  303  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  304  deny or fail to acknowledge the arrests covered by the sealed
  305  record, except when the subject of the record:
  306         1. Is a candidate for employment with a criminal justice
  307  agency;
  308         2. Is a defendant in a criminal prosecution;
  309         3. Concurrently or subsequently petitions for relief under
  310  this section, s. 943.0583, or s. 943.0585;
  311         4. Is a candidate for admission to The Florida Bar;
  312         5. Is seeking to be employed or licensed by or to contract
  313  with the Department of Children and Families, the Division of
  314  Vocational Rehabilitation within the Department of Education,
  315  the Agency for Health Care Administration, the Agency for
  316  Persons with Disabilities, the Department of Health, the
  317  Department of Elderly Affairs, or the Department of Juvenile
  318  Justice or to be employed or used by such contractor or licensee
  319  in a sensitive position having direct contact with children, the
  320  disabled, or the elderly;
  321         6. Is seeking to be employed or licensed by the Department
  322  of Education, any district school board, any university
  323  laboratory school, any charter school, any private or parochial
  324  school, or any local governmental entity that licenses child
  325  care facilities; or
  326         7. Is attempting to purchase a firearm from a licensed
  327  importer, licensed manufacturer, or licensed dealer and is
  328  subject to a criminal history check under state or federal law;
  329  or.
  330         8. Is seeking to be appointed as a guardian pursuant to s.
  331  744.3125.
  332         (c) Information relating to the existence of a sealed
  333  criminal record provided in accordance with the provisions of
  334  paragraph (a) is confidential and exempt from the provisions of
  335  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  336  except that the department shall disclose the sealed criminal
  337  history record to the entities set forth in subparagraphs (a)1.,
  338  4., 5., 6., and 8. for their respective licensing, access
  339  authorization, and employment purposes. It is unlawful for any
  340  employee of an entity set forth in subparagraph (a)1.,
  341  subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
  342  subparagraph (a)8. to disclose information relating to the
  343  existence of a sealed criminal history record of a person
  344  seeking employment, access authorization, or licensure with such
  345  entity or contractor, except to the person to whom the criminal
  346  history record relates or to persons having direct
  347  responsibility for employment, access authorization, or
  348  licensure decisions. Any person who violates the provisions of
  349  this paragraph commits a misdemeanor of the first degree,
  350  punishable as provided in s. 775.082 or s. 775.083.
  351         Section 8. This act shall take effect July 1, 2014.
  352  
  353  ================= T I T L E  A M E N D M E N T ================
  354  And the title is amended as follows:
  355         Delete everything before the enacting clause
  356  and insert:
  357                        A bill to be entitled                      
  358         An act relating to guardianship; amending s. 744.102,
  359         F.S.; redefining the term “audit”; amending s.
  360         744.3135, F.S.; revising the requirements and
  361         authorizations of the court to require specified
  362         guardians to submit to a credit history investigation
  363         and background screening; authorizing a
  364         nonprofessional guardian to petition the court for
  365         reimbursement for the credit history investigation and
  366         background screening; amending s. 744.368, F.S.;
  367         authorizing a clerk of the court to obtain and review
  368         records impacting guardianship assets and to issue
  369         subpoenas to nonparties upon application to the court;
  370         providing requirements for affidavits, notice, and
  371         subpoenas; providing for objection to a subpoena;
  372         amending s. 744.3685, F.S.; authorizing the court to
  373         require the production of records and documents by a
  374         guardian who fails to submit them during an audit;
  375         amending s. 744.474, F.S.; providing for the removal
  376         of a guardian for a bad faith failure to submit
  377         records during an audit; amending ss. 943.0585 and
  378         943.059, F.S.; providing that a person seeking an
  379         appointment as guardian may not lawfully deny or fail
  380         to acknowledge the arrests covered by an expunged or
  381         sealed record; reenacting s. 943.0585(4)(c), F.S.,
  382         relating to court-ordered expunction of criminal
  383         history records, to incorporate the amendments made to
  384         s. 943.0585, F.S., in a reference thereto; reenacting
  385         s. 943.059(4)(c), relating to court-ordered sealing of
  386         criminal history records, to incorporate the
  387         amendments made to s. 943.059, F.S., in a reference
  388         thereto; providing an effective date.