Florida Senate - 2023                                    SB 1124
       
       
        
       By Senator Calatayud
       
       
       
       
       
       38-01565-23                                           20231124__
    1                        A bill to be entitled                      
    2         An act relating to employment of ex-offenders;
    3         amending s. 112.011, F.S.; revising the criteria a
    4         state agency must consider before denying a license,
    5         permit, or certification to a person previously
    6         convicted of a crime; requiring a state agency to
    7         consider specified factors when determining whether an
    8         ex-offender applying for a license, permit, or
    9         certificate has not been rehabilitated; requiring a
   10         state agency to use a specified process in its
   11         decision to deny a license, permit, or certificate to
   12         a person previously convicted of a crime; authorizing
   13         certain persons to petition a state agency to
   14         determine whether their criminal record will
   15         disqualify them from obtaining a license, permit, or
   16         certificate; providing the requirements for the
   17         petition; requiring the state agency to use certain
   18         standards, factors, and procedures when making a
   19         decision on the petition; providing that such decision
   20         is binding on the state agency regarding any
   21         subsequent license, permit, or certification
   22         application received from that person; providing an
   23         exception; prohibiting a person from submitting a new
   24         petition during a specified timeframe; prohibiting a
   25         state agency from using specified terminology in a
   26         decision related to the denial of a license, permit,
   27         or certification; amending s. 112.0111, F.S.; revising
   28         legislative intent; requiring specified agencies to
   29         submit an annual report to the Governor and the
   30         Legislature; requiring such report to be made
   31         available on the agency’s website; providing report
   32         requirements; amending s. 455.213, F.S.; requiring
   33         applicable boards to use a specified process to review
   34         an applicant’s criminal record; conforming provisions
   35         to changes made by the act; providing an effective
   36         date.
   37          
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Section 112.011, Florida Statutes, is amended to
   41  read:
   42         112.011 Disqualification from licensing and public
   43  employment based on criminal conviction.—
   44         (1)(a) Except as provided in s. 775.16, a person may not be
   45  disqualified from employment by the state, any of its agencies
   46  or political subdivisions, or any municipality solely because of
   47  a prior conviction for a crime. However, a person may be denied
   48  employment by the state, any of its agencies or political
   49  subdivisions, or any municipality by reason of the prior
   50  conviction for a crime if the crime was a felony or first-degree
   51  misdemeanor and directly related to the position of employment
   52  sought.
   53         (2)(a)(b)Notwithstanding any law to the contrary Except as
   54  provided in s. 775.16, a person may be denied a license, permit,
   55  or certification to pursue, practice, or engage in an
   56  occupation, trade, vocation, profession, or business by reason
   57  of the prior conviction for a crime only if all of the following
   58  apply:
   59         1.The crime was a forcible felony as defined by s. 776.08;
   60  the crime was a felony or first-degree misdemeanor for which the
   61  person was convicted less than 3 years before the agency’s
   62  consideration, if the person was not incarcerated for the
   63  offense; or the crime was a felony or first-degree misdemeanor
   64  for which the person’s incarceration ended less than 3 years
   65  before the agency’s consideration, if the person was
   66  incarcerated for the offense.
   67         2.The conviction specifically relates to the duties and
   68  responsibilities of the occupation.
   69         3.Granting the license, permit, or certification would
   70  pose a direct and substantial risk to public safety because
   71  there is clear and convincing evidence the person has not been
   72  rehabilitated, per the criteria in paragraph (c), to safely
   73  perform the duties and responsibilities of the specific
   74  occupation, trade, vocation, profession, or business for which
   75  the license, permit, or certificate is sought that is directly
   76  related to the standards determined by the regulatory authority
   77  to be necessary and reasonably related to the protection of the
   78  public health, safety, and welfare for the specific occupation,
   79  trade, vocation, profession, or business for which the license,
   80  permit, or certificate is sought.
   81         (b)(c) Notwithstanding any law to the contrary, a state
   82  agency may not deny an application for a license, permit,
   83  certificate, or employment based solely on the applicant’s lack
   84  of civil rights. However, this paragraph does not apply to
   85  applications for a license to carry a concealed weapon or
   86  firearm under chapter 790.
   87         (c)To determine whether a person has not been
   88  rehabilitated for purposes of deciding whether to grant a
   89  license, permit, or certificate under paragraph (a), the agency
   90  shall consider the person’s current circumstances and mitigating
   91  factors, including all of the following:
   92         1.The age of the person when he or she committed the
   93  offense.
   94         2.The time elapsed since the offense.
   95         3.The circumstances and nature of the offense.
   96         4.The completion of the criminal sentence.
   97         5.A certificate of rehabilitation or good conduct.
   98         6.Completion of or active participation in rehabilitative
   99  drug or alcohol treatment.
  100         7.Testimonials and recommendations, which may include a
  101  progress report from the person’s probation or parole officer.
  102         8.Education and training.
  103         9.Employment history and aspirations.
  104         10.The person’s family responsibilities.
  105         11.Whether the person will be bonded in the occupation.
  106         12.Other evidence of rehabilitation or information the
  107  person submitted to the state agency or board.
  108         (d)A state agency may deny a license, permit, or
  109  certificate to pursue, practice, or engage in an occupation,
  110  trade, vocation, profession, or business pursuant to paragraph
  111  (a) by using only the following process:
  112         1.If the agency intends to deny the application because of
  113  the person’s criminal record, the agency must notify the person
  114  of its intention and request an informal meeting with the person
  115  regarding the application. The notice must be consistent with s.
  116  120.60(3) and must notify the person that he or she may bring
  117  character witnesses to the informal meeting to offer verbal or
  118  written support. The agency must hold the informal meeting
  119  within 60 days after receiving the person’s completed
  120  application and must provide the person the option to attend the
  121  informal meeting in person, by teleconference, or by video
  122  conference. The agency may not make an adverse inference from a
  123  person’s decision not to attend an informal meeting or to not
  124  include witnesses at the meeting.
  125         2.Within 60 days after the informal meeting, if
  126  applicable, or a complete application is submitted to the agency
  127  for its consideration, whichever is later, the agency must
  128  notify the applicant of its written decision, consistent with s.
  129  120.60(3). If the agency denies or intends to deny the license,
  130  permit, or certificate, its notice must explain in detail what
  131  clear and convincing evidence exists that the applicant has not
  132  been rehabilitated to safely perform the duties and
  133  responsibilities of the specific occupation, trade, vocation,
  134  profession, or business for which the license, permit, or
  135  certification is sought. The agency’s decision must be
  136  administratively reviewable pursuant to ss. 120.569 and 120.57.
  137  The agency’s notice must indicate the procedure that the
  138  applicant must follow in requesting an administrative review and
  139  the applicable time limits for such administrative review.
  140         (e)1.Notwithstanding any law to the contrary, a person
  141  with a criminal record may petition a state agency at any time,
  142  including while in confinement, under supervision, or before
  143  obtaining any required personal qualifications for a license,
  144  permit, or certificate, for an agency decision as to whether the
  145  person’s criminal record would disqualify him or her from
  146  obtaining the license, permit, or certification pursuant to
  147  paragraph (a). The person must include in the petition his or
  148  her criminal record or authorize the state agency to obtain the
  149  person’s criminal record. The state agency must use the standard
  150  provided in subparagraph (a)3. and the factors in paragraph (c),
  151  and must follow the procedure in paragraph (d), in making its
  152  decision on the petition.
  153         2.An agency’s decision under subparagraph 1. that a person
  154  is not disqualified is binding on the agency in any later
  155  decision on the license, permit, or certificate application of
  156  that person unless there is a material and adverse change that
  157  directly and specifically relates to the person’s criminal
  158  record. If the agency decides that a license, permit, or
  159  certification should not be granted, the agency must advise the
  160  person of any actions he or she may take to remedy the
  161  disqualification. The person may submit a revised petition
  162  reflecting completion of the remedial actions before a deadline
  163  the agency sets in its decision notification to the person.
  164         3.The person may not submit a new petition to the agency,
  165  under subparagraph 1. for 1 year following a final decision on
  166  the initial petition or upon obtaining the required personal
  167  qualifications for the license, permit, or certificate,
  168  whichever is earlier.
  169         (f)Notwithstanding any law to the contrary, a state agency
  170  may not use a vague term such as “good moral character,” “moral
  171  turpitude,” or “character and fitness” in its decision to
  172  disqualify a person from a license, permit, or certification
  173  based on the person’s criminal record.
  174         (3)(a)(2)(a) This section does not apply to any law
  175  enforcement or correctional agency.
  176         (b) This section does not apply to the employment practices
  177  of any fire department relating to the hiring of firefighters.
  178         (c) This section does not apply to the employment practices
  179  of any county or municipality relating to the hiring of
  180  personnel for positions deemed to be critical to security or
  181  public safety pursuant to ss. 125.5801 and 166.0442.
  182         (4)(3) Any complaint concerning the violation of this
  183  section shall be adjudicated in accordance with the procedures
  184  set forth in chapter 120 for administrative and judicial review.
  185         Section 2. Section 112.0111, Florida Statutes, is amended
  186  to read:
  187         112.0111 Restrictions on the employment of ex-offenders;
  188  legislative intent; state agency reporting requirements.—
  189         (1) The Legislature declares that a goal of this state is
  190  to clearly identify the occupations from which ex-offenders are
  191  disqualified based on the nature of their offenses. The
  192  Legislature seeks to make employment opportunities available to
  193  ex-offenders in a manner that preserves and protects serves to
  194  preserve and protect the health, safety, and welfare of the
  195  general public, yet encourages ex-offenders them to become
  196  productive members of society. To this end, state agencies that
  197  exercise regulatory authority are in the best position to
  198  identify all restrictions on employment imposed by the agencies
  199  or by boards that regulate professions and occupations and are
  200  obligated to protect the health, safety, and welfare of the
  201  general public by clearly setting forth those restrictions in
  202  keeping with standards in state law and protections determined
  203  by the agencies to be in the least restrictive manner.
  204         (2) Each state agency, including, but not limited to, those
  205  state agencies responsible for issuing licenses, permits, or
  206  certifications to pursue, practice, or engage in an occupation,
  207  trade, vocation, profession, or business professional and
  208  occupational regulatory boards, shall annually ensure the
  209  appropriate restrictions necessary to protect the overall
  210  health, safety, and welfare of the general public are in place,
  211  and by December 31, 2011, and every 4 years thereafter, submit
  212  to the Governor, the President of the Senate, and the Speaker of
  213  the House of Representatives and make publicly available on its
  214  website a report that includes all of the following:
  215         (a) The number of applicants with a criminal record who:
  216         1.Applied for each license, permit, or certificate in the
  217  prior year, and of that number, the number of times the state
  218  agency granted the application and the number of times it
  219  denied, withheld, or refused to grant a license, permit or
  220  certification because of an applicant’s criminal history and the
  221  offense or offenses on which each decision to deny, withhold, or
  222  refuse to grant the license, permit, or certification was based.
  223         2.Applied for renewal of a license, permit, or certificate
  224  in the prior year, and of that number, the number of times the
  225  state agency granted an application for renewal and the number
  226  of times it denied, withheld, or refused to renew a license,
  227  permit, or certification because of an applicant’s criminal
  228  history and the offense or offenses on which each decision to
  229  deny, withhold, or refuse to renew the license, permit, or
  230  certification was based on A list of all agency or board
  231  statutes or rules that disqualify from employment or licensure
  232  persons who have been convicted of a crime and have completed
  233  any incarceration and restitution to which they have been
  234  sentenced for such crime.
  235         (b) The number of applicants petitioning each agency under
  236  s. 112.011(2)(e) in the prior year, the number of each agency’s
  237  approvals and denials under s. 112.011(2)(e), and the offense or
  238  offenses for which each board approved or denied petitions under
  239  s. 112.011(2)(e) A determination of whether the disqualifying
  240  statutes or rules are readily available to prospective employers
  241  and licensees.
  242         (c) Any other data the agency deems relevant in fulfilling
  243  the purpose identified in subsection (1) The identification and
  244  evaluation of alternatives to the disqualifying statutes or
  245  rules which protect the health, safety, and welfare of the
  246  general public without impeding the gainful employment of ex
  247  offenders.
  248         Section 3. Subsections (3) and (11) of section 455.213,
  249  Florida Statutes, are amended to read:
  250         455.213 General licensing provisions.—
  251         (3)(a) Notwithstanding any other law, the applicable board
  252  shall use the process in s. 112.011(2) this subsection for
  253  review of an applicant’s criminal record to determine his or her
  254  eligibility for licensure, a permit, or certification as:
  255         1. A barber under chapter 476;
  256         2. A cosmetologist or cosmetology specialist under chapter
  257  477;
  258         3. Any of the following construction professions under
  259  chapter 489:
  260         a. Air-conditioning contractor;
  261         b. Electrical contractor;
  262         c. Mechanical contractor;
  263         d. Plumbing contractor;
  264         e. Pollutant storage systems contractor;
  265         f. Roofing contractor;
  266         g. Sheet metal contractor;
  267         h. Solar contractor;
  268         i. Swimming pool and spa contractor;
  269         j. Underground utility and excavation contractor; or
  270         k. Other specialty contractors; or
  271         4. Any other profession for which the department issues a
  272  license, provided the profession is offered to inmates in any
  273  correctional institution or correctional facility as vocational
  274  training or through an industry certification program.
  275         (b)1. A conviction, or any other adjudication, for a crime
  276  more than 5 years before the date the application is received by
  277  the applicable board may not be grounds for denial of a license
  278  specified in paragraph (a). For purposes of this paragraph, the
  279  term “conviction” means a determination of guilt that is the
  280  result of a plea or trial, regardless of whether adjudication is
  281  withheld. This paragraph does not limit the applicable board
  282  from considering an applicant’s criminal history that includes a
  283  crime listed in s. 775.21(4)(a)1. or s. 776.08 at any time, but
  284  only if such criminal history has been found to relate to the
  285  practice of the applicable profession.
  286         2. The applicable board may consider the criminal history
  287  of an applicant for licensure under subparagraph (a)3. if such
  288  criminal history has been found to relate to good moral
  289  character.
  290         (c)1. A person may apply for a license before his or her
  291  lawful release from confinement or supervision. The department
  292  may not charge an applicant an additional fee for being confined
  293  or under supervision. The applicable board may not deny an
  294  application for a license solely on the basis of the applicant’s
  295  current confinement or supervision.
  296         2. After a license application is approved, the applicable
  297  board may stay the issuance of a license until the applicant is
  298  lawfully released from confinement or supervision and the
  299  applicant notifies the applicable board of such release. The
  300  applicable board must verify the applicant’s release with the
  301  Department of Corrections before it issues a license.
  302         3. If an applicant is unable to appear in person due to his
  303  or her confinement or supervision, the applicable board must
  304  permit the applicant to appear by teleconference or video
  305  conference, as appropriate, at any meeting of the applicable
  306  board or other hearing by the agency concerning his or her
  307  application.
  308         4. If an applicant is confined or under supervision, the
  309  Department of Corrections and the applicable board shall
  310  cooperate and coordinate to facilitate the appearance of the
  311  applicant at a board meeting or agency hearing in person, by
  312  teleconference, or by video conference, as appropriate.
  313         (c)(d) Each applicable board shall compile a list of crimes
  314  that, if committed and regardless of adjudication, do not relate
  315  to the practice of the profession or the ability to practice the
  316  profession and do not constitute grounds for denial of a
  317  license. This list must be made available on the department’s
  318  website and updated annually. Beginning October 1, 2019, each
  319  applicable board shall compile a list of crimes that although
  320  reported by an applicant for licensure, were not used as a basis
  321  for denial. The list must identify for each such license
  322  application the crime reported and the date of conviction and
  323  whether there was a finding of guilt, a plea, or an adjudication
  324  entered or the date of sentencing.
  325         (d)(e) Each applicable board shall compile a list of crimes
  326  that have been used as a basis for denial of a license in the
  327  past 2 years and shall make the list available on the
  328  department’s website. Starting October 1, 2019, and updated
  329  quarterly thereafter, the applicable board shall compile a list
  330  indicating each crime used as a basis for denial. For each crime
  331  listed, the applicable board must identify the date of
  332  conviction, finding of guilt, plea, or adjudication entered, or
  333  date of sentencing. Such denials must be made available to the
  334  public upon request.
  335         (11) For any profession requiring fingerprints as part of
  336  the registration, certification, or licensure process or for any
  337  profession requiring a criminal history record check to
  338  determine good moral character, the fingerprints of the
  339  applicant must accompany all applications for registration,
  340  certification, or licensure. The fingerprints shall be forwarded
  341  to the Division of Criminal Justice Information Systems within
  342  the Department of Law Enforcement for processing to determine
  343  whether the applicant has a criminal history record. The
  344  fingerprints shall also be forwarded to the Federal Bureau of
  345  Investigation to determine whether the applicant has a criminal
  346  history record. The information obtained by the processing of
  347  the fingerprints by the Department of Law Enforcement and the
  348  Federal Bureau of Investigation shall be sent to the department
  349  to determine whether the applicant is statutorily qualified for
  350  registration, certification, or licensure.
  351         Section 4. This act shall take effect July 1, 2023.