Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 118
       
       
       
       
       
       
                                Ì921458>Î921458                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/24/2017           .                                
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       The Committee on Judiciary (Steube) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. (1)Any person or entity engaged in the business
    6  of publishing or otherwise disseminating arrest booking
    7  photographs of persons who have previously been arrested through
    8  a publicly accessible print or electronic medium may not solicit
    9  or accept a fee or other form of payment to remove, correct, or
   10  modify such photographs.
   11         (2)Upon receipt of a written request from a person whose
   12  booking photograph is published or otherwise disseminated, or
   13  his or her legal representative, the person or entity who
   14  published or otherwise disseminated the photograph shall remove
   15  the photograph without charge within 10 calendar days after
   16  receiving the request for removal.
   17         (3)The person whose arrest booking photograph was
   18  published or otherwise disseminated in the publication or
   19  electronic medium may bring a civil action to enjoin the
   20  continued publication or dissemination of the photograph if the
   21  photograph is not removed within 10 calendar days after receipt
   22  of the written request for removal. In addition to the remedies
   23  set forth in this subsection, the court may impose a civil
   24  penalty of $1,000 per day for noncompliance with an injunction
   25  and shall award reasonable attorney fees and court costs related
   26  to the issuance of the injunction.
   27         (4)Refusal to remove an arrest booking photograph after
   28  written request has been made constitutes an unfair or deceptive
   29  trade practice in accordance with part II of chapter 501.
   30         (5)This section does not apply to any person or entity
   31  that publishes or disseminates information relating to arrests
   32  unless the person or entity solicits or accepts payment to
   33  remove the information.
   34         Section 2. Section 943.0585, Florida Statutes, is amended
   35  to read:
   36         943.0585 Court-ordered expunction of criminal history
   37  records.—The courts of this state have jurisdiction over their
   38  own procedures, including the maintenance, expunction, and
   39  correction of judicial records containing criminal history
   40  information to the extent such procedures are not inconsistent
   41  with the conditions, responsibilities, and duties established by
   42  this section. Any court of competent jurisdiction may order a
   43  criminal justice agency to expunge the criminal history record
   44  of a minor or an adult who complies with the requirements of
   45  this section. The court shall not order a criminal justice
   46  agency to expunge a criminal history record until the person
   47  seeking to expunge a criminal history record has applied for and
   48  received a certificate of eligibility for expunction pursuant to
   49  subsection (2) or subsection (5). A criminal history record that
   50  relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
   51  chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034,
   52  s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
   53  s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in
   54  s. 907.041, or any violation specified as a predicate offense
   55  for registration as a sexual predator pursuant to s. 775.21,
   56  without regard to whether that offense alone is sufficient to
   57  require such registration, or for registration as a sexual
   58  offender pursuant to s. 943.0435, may not be expunged, without
   59  regard to whether adjudication was withheld, if the defendant
   60  was found guilty of or pled guilty or nolo contendere to the
   61  offense, or if the defendant, as a minor, was found to have
   62  committed, or pled guilty or nolo contendere to committing, the
   63  offense as a delinquent act. The court may only order expunction
   64  of a criminal history record pertaining to one arrest or one
   65  incident of alleged criminal activity, except as provided in
   66  this section. The court may, at its sole discretion, order the
   67  expunction of a criminal history record pertaining to more than
   68  one arrest if the additional arrests directly relate to the
   69  original arrest. If the court intends to order the expunction of
   70  records pertaining to such additional arrests, such intent must
   71  be specified in the order. A criminal justice agency may not
   72  expunge any record pertaining to such additional arrests if the
   73  order to expunge does not articulate the intention of the court
   74  to expunge a record pertaining to more than one arrest. This
   75  section does not prevent the court from ordering the expunction
   76  of only a portion of a criminal history record pertaining to one
   77  arrest or one incident of alleged criminal activity.
   78  Notwithstanding any law to the contrary, a criminal justice
   79  agency may comply with laws, court orders, and official requests
   80  of other jurisdictions relating to expunction, correction, or
   81  confidential handling of criminal history records or information
   82  derived therefrom. This section does not confer any right to the
   83  expunction of any criminal history record, and any request for
   84  expunction of a criminal history record may be denied at the
   85  sole discretion of the court.
   86         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
   87  petition to a court to expunge a criminal history record is
   88  complete only when accompanied by:
   89         (a) A valid certificate of eligibility for expunction
   90  issued by the department pursuant to subsection (2).
   91         (b) The petitioner’s sworn statement attesting that the
   92  petitioner:
   93         1. Has never, prior to the date on which the petition is
   94  filed, been adjudicated guilty of a criminal offense or
   95  comparable ordinance violation, or been adjudicated delinquent
   96  for committing any felony or a misdemeanor specified in s.
   97  943.051(3)(b).
   98         2. Has not been adjudicated guilty of, or adjudicated
   99  delinquent for committing, any of the acts stemming from the
  100  arrest or alleged criminal activity to which the petition
  101  pertains.
  102         3.a. Has never secured a prior sealing or expunction of a
  103  criminal history record under this section, s. 943.059, former
  104  s. 893.14, former s. 901.33, or former s. 943.058, unless
  105  expunction is sought of a criminal history record previously
  106  sealed for 10 years pursuant to paragraph (2)(h) and the record
  107  is otherwise eligible for expunction; or
  108         b. Is seeking to expunge a criminal history record
  109  associated with a judgment of acquittal or a not guilty verdict.
  110         4. Is eligible for such an expunction to the best of his or
  111  her knowledge or belief and does not have any other petition to
  112  expunge or any petition to seal pending before any court.
  113  
  114  Any person who knowingly provides false information on such
  115  sworn statement to the court commits a felony of the third
  116  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  117  775.084.
  118         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  119  petitioning the court to expunge a criminal history record, a
  120  person seeking to expunge a criminal history record shall apply
  121  to the department for a certificate of eligibility for
  122  expunction. The department shall, by rule adopted pursuant to
  123  chapter 120, establish procedures pertaining to the application
  124  for and issuance of certificates of eligibility for expunction.
  125  A certificate of eligibility for expunction is valid for 12
  126  months after the date stamped on the certificate when issued by
  127  the department. After that time, the petitioner must reapply to
  128  the department for a new certificate of eligibility. Eligibility
  129  for a renewed certification of eligibility must be based on the
  130  status of the applicant and the law in effect at the time of the
  131  renewal application. The department shall issue a certificate of
  132  eligibility for expunction to a person who is the subject of a
  133  criminal history record if that person:
  134         (a) Has obtained, and submitted to the department, a
  135  written, certified statement from the appropriate state attorney
  136  or statewide prosecutor which indicates:
  137         1. That an indictment, information, or other charging
  138  document was not filed or issued in the case.
  139         2. That an indictment, information, or other charging
  140  document, if filed or issued in the case, was dismissed or nolle
  141  prosequi by the state attorney or statewide prosecutor, or was
  142  dismissed by a court of competent jurisdiction, that a judgment
  143  of acquittal was rendered by a judge, or that a verdict of not
  144  guilty was rendered by a judge or jury and that none of the
  145  charges related to the arrest or alleged criminal activity to
  146  which the petition to expunge pertains resulted in a trial,
  147  without regard to whether the outcome of the trial was other
  148  than an adjudication of guilt.
  149         3. That the criminal history record does not relate to a
  150  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  151  former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025,
  152  s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145,
  153  s. 893.135, s. 916.1075, a violation enumerated in s. 907.041,
  154  or any violation specified as a predicate offense for
  155  registration as a sexual predator pursuant to s. 775.21, without
  156  regard to whether that offense alone is sufficient to require
  157  such registration, or for registration as a sexual offender
  158  pursuant to s. 943.0435, where the defendant was found guilty
  159  of, or pled guilty or nolo contendere to any such offense, or
  160  that the defendant, as a minor, was found to have committed, or
  161  pled guilty or nolo contendere to committing, such an offense as
  162  a delinquent act, without regard to whether adjudication was
  163  withheld.
  164         (b) Remits a $75 processing fee to the department for
  165  placement in the Department of Law Enforcement Operating Trust
  166  Fund, unless such fee is waived by the executive director.
  167         (c) Has submitted to the department a certified copy of the
  168  disposition of the charge to which the petition to expunge
  169  pertains.
  170         (d) Has never, prior to the date on which the application
  171  for a certificate of eligibility is filed, been adjudicated
  172  guilty of a criminal offense or comparable ordinance violation,
  173  or been adjudicated delinquent for committing any felony or a
  174  misdemeanor specified in s. 943.051(3)(b).
  175         (e) Has not been adjudicated guilty of, or adjudicated
  176  delinquent for committing, any of the acts stemming from the
  177  arrest or alleged criminal activity to which the petition to
  178  expunge pertains.
  179         (f)1. Has never secured a prior sealing or expunction of a
  180  criminal history record under this section, s. 943.059, former
  181  s. 893.14, former s. 901.33, or former s. 943.058, unless
  182  expunction is sought of a criminal history record previously
  183  sealed for 10 years pursuant to paragraph (h) and the record is
  184  otherwise eligible for expunction; or
  185         2. Is seeking to expunge a criminal history record
  186  associated with a judgment of acquittal or a not guilty verdict.
  187         (g) Is no longer under court supervision applicable to the
  188  disposition of the arrest or alleged criminal activity to which
  189  the petition to expunge pertains.
  190         (h) Has previously obtained a court order sealing the
  191  record under this section, former s. 893.14, former s. 901.33,
  192  or former s. 943.058 for a minimum of 10 years because
  193  adjudication was withheld or because all charges related to the
  194  arrest or alleged criminal activity to which the petition to
  195  expunge pertains were not dismissed prior to trial, without
  196  regard to whether the outcome of the trial was other than an
  197  adjudication of guilt. The requirement for the record to have
  198  previously been sealed for a minimum of 10 years does not apply
  199  when a plea was not entered or all charges related to the arrest
  200  or alleged criminal activity to which the petition to expunge
  201  pertains were dismissed prior to trial.
  202         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
  203         (a) In judicial proceedings under this section, a copy of
  204  the completed petition to expunge shall be served upon the
  205  appropriate state attorney or the statewide prosecutor and upon
  206  the arresting agency; however, it is not necessary to make any
  207  agency other than the state a party. The appropriate state
  208  attorney or the statewide prosecutor and the arresting agency
  209  may respond to the court regarding the completed petition to
  210  expunge.
  211         (b) If relief is granted by the court, the clerk of the
  212  court shall certify copies of the order to the appropriate state
  213  attorney or the statewide prosecutor and the arresting agency.
  214  The arresting agency is responsible for forwarding the order to
  215  any other agency to which the arresting agency disseminated the
  216  criminal history record information to which the order pertains.
  217  The department shall forward the order to expunge to the Federal
  218  Bureau of Investigation. The clerk of the court shall certify a
  219  copy of the order to any other agency which the records of the
  220  court reflect has received the criminal history record from the
  221  court.
  222         (c) For an order to expunge entered by a court prior to
  223  July 1, 1992, the department shall notify the appropriate state
  224  attorney or statewide prosecutor of an order to expunge which is
  225  contrary to law because the person who is the subject of the
  226  record has previously been convicted of a crime or comparable
  227  ordinance violation or has had a prior criminal history record
  228  sealed or expunged. Upon receipt of such notice, the appropriate
  229  state attorney or statewide prosecutor shall take action, within
  230  60 days, to correct the record and petition the court to void
  231  the order to expunge. The department shall seal the record until
  232  such time as the order is voided by the court.
  233         (d) On or after July 1, 1992, the department or any other
  234  criminal justice agency is not required to act on an order to
  235  expunge entered by a court when such order does not comply with
  236  the requirements of this section. Upon receipt of such an order,
  237  the department must notify the issuing court, the appropriate
  238  state attorney or statewide prosecutor, the petitioner or the
  239  petitioner’s attorney, and the arresting agency of the reason
  240  for noncompliance. The appropriate state attorney or statewide
  241  prosecutor shall take action within 60 days to correct the
  242  record and petition the court to void the order. No cause of
  243  action, including contempt of court, shall arise against any
  244  criminal justice agency for failure to comply with an order to
  245  expunge when the petitioner for such order failed to obtain the
  246  certificate of eligibility as required by this section or such
  247  order does not otherwise comply with the requirements of this
  248  section.
  249         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  250  criminal history record of a minor or an adult which is ordered
  251  expunged by a court of competent jurisdiction pursuant to this
  252  section must be physically destroyed or obliterated by any
  253  criminal justice agency having custody of such record; except
  254  that any criminal history record in the custody of the
  255  department must be retained in all cases. A criminal history
  256  record ordered expunged that is retained by the department is
  257  confidential and exempt from the provisions of s. 119.07(1) and
  258  s. 24(a), Art. I of the State Constitution and not available to
  259  any person or entity except upon order of a court of competent
  260  jurisdiction. A criminal justice agency may retain a notation
  261  indicating compliance with an order to expunge.
  262         (a) The person who is the subject of a criminal history
  263  record that is expunged under this section or under other
  264  provisions of law, including former s. 893.14, former s. 901.33,
  265  and former s. 943.058, may lawfully deny or fail to acknowledge
  266  the arrests covered by the expunged record, except when the
  267  subject of the record:
  268         1. Is a candidate for employment with a criminal justice
  269  agency;
  270         2. Is a defendant in a criminal prosecution;
  271         3. Concurrently or subsequently petitions for relief under
  272  this section, s. 943.0583, or s. 943.059;
  273         4. Is a candidate for admission to The Florida Bar;
  274         5. Is seeking to be employed or licensed by or to contract
  275  with the Department of Children and Families, the Division of
  276  Vocational Rehabilitation within the Department of Education,
  277  the Agency for Health Care Administration, the Agency for
  278  Persons with Disabilities, the Department of Health, the
  279  Department of Elderly Affairs, or the Department of Juvenile
  280  Justice or to be employed or used by such contractor or licensee
  281  in a sensitive position having direct contact with children, the
  282  disabled, or the elderly;
  283         6. Is seeking to be employed or licensed by the Department
  284  of Education, any district school board, any university
  285  laboratory school, any charter school, any private or parochial
  286  school, or any local governmental entity that licenses child
  287  care facilities;
  288         7. Is seeking to be licensed by the Division of Insurance
  289  Agent and Agency Services within the Department of Financial
  290  Services; or
  291         8. Is seeking to be appointed as a guardian pursuant to s.
  292  744.3125.
  293         (b) Subject to the exceptions in paragraph (a), a person
  294  who has been granted an expunction under this section, former s.
  295  893.14, former s. 901.33, or former s. 943.058 may not be held
  296  under any provision of law of this state to commit perjury or to
  297  be otherwise liable for giving a false statement by reason of
  298  such person’s failure to recite or acknowledge an expunged
  299  criminal history record.
  300         (c) Information relating to the existence of an expunged
  301  criminal history record which is provided in accordance with
  302  paragraph (a) is confidential and exempt from the provisions of
  303  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  304  except that the department shall disclose the existence of a
  305  criminal history record ordered expunged to the entities set
  306  forth in subparagraphs (a)1., 4., 5., 6., 7., and 8. for their
  307  respective licensing, access authorization, and employment
  308  purposes, and to criminal justice agencies for their respective
  309  criminal justice purposes. It is unlawful for any employee of an
  310  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  311  subparagraph (a)5., subparagraph (a)6., subparagraph (a)7., or
  312  subparagraph (a)8. to disclose information relating to the
  313  existence of an expunged criminal history record of a person
  314  seeking employment, access authorization, or licensure with such
  315  entity or contractor, except to the person to whom the criminal
  316  history record relates or to persons having direct
  317  responsibility for employment, access authorization, or
  318  licensure decisions. Any person who violates this paragraph
  319  commits a misdemeanor of the first degree, punishable as
  320  provided in s. 775.082 or s. 775.083.
  321         (5) EXCEPTION FOR LAWFUL SELF-DEFENSE.—Notwithstanding the
  322  eligibility requirements prescribed in paragraph (1)(b) and
  323  subsection (2), the department shall issue a certificate of
  324  eligibility for expunction under this subsection to a person who
  325  is the subject of a criminal history record if that person:
  326         (a) Has obtained, and submitted to the department, on a
  327  form provided by the department, a written, certified statement
  328  from the appropriate state attorney or statewide prosecutor
  329  which states whether an information, indictment, or other
  330  charging document was not filed or was dismissed by the state
  331  attorney, or dismissed by the court, because it was found that
  332  the person acted in lawful self-defense pursuant to the
  333  provisions related to justifiable use of force in chapter 776.
  334         (b) Each petition to a court to expunge a criminal history
  335  record pursuant to this subsection is complete only when
  336  accompanied by:
  337         1. A valid certificate of eligibility for expunction issued
  338  by the department pursuant to this subsection.
  339         2. The petitioner’s sworn statement attesting that the
  340  petitioner is eligible for such an expunction to the best of his
  341  or her knowledge or belief.
  342  
  343  Any person who knowingly provides false information on such
  344  sworn statement to the court commits a felony of the third
  345  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  346  775.084.
  347         (c) This subsection does not confer any right to the
  348  expunction of a criminal history record, and any request for
  349  expunction of a criminal history record may be denied at the
  350  discretion of the court.
  351         (d) Subsections (3) and (4) shall apply to expunction
  352  ordered under this subsection.
  353         (e) The department shall, by rule adopted pursuant to
  354  chapter 120, establish procedures pertaining to the application
  355  for and issuance of certificates of eligibility for expunction
  356  under this subsection.
  357         (6) STATUTORY REFERENCES.—Any reference to any other
  358  chapter, section, or subdivision of the Florida Statutes in this
  359  section constitutes a general reference under the doctrine of
  360  incorporation by reference.
  361         Section 3. This act shall take effect July 1, 2017.
  362  
  363  ================= T I T L E  A M E N D M E N T ================
  364  And the title is amended as follows:
  365         Delete everything before the enacting clause
  366  and insert:
  367                        A bill to be entitled                      
  368         An act relating to criminal history records;
  369         prohibiting a person or entity engaged in publishing
  370         or disseminating arrest booking photographs from
  371         soliciting or accepting a fee or other payment to
  372         remove, correct, or modify such photograph; requiring
  373         a person or entity, within a specified timeframe, to
  374         remove an arrest booking photograph after receipt of a
  375         written request; authorizing a person to bring a civil
  376         action to enjoin such publishing of a photograph;
  377         authorizing a court to impose a civil penalty and
  378         award attorney fees and court costs; providing
  379         applicability; amending s. 943.0585, F.S.; revising
  380         the eligibility requirements for expunction of
  381         criminal history records to include instances in which
  382         a judgment of acquittal or a verdict of not guilty is
  383         rendered; providing an effective date.